https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8212

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **MISCELLANEOUS CIVIL APPLICATION NO. E018 OF 2025** **V. CHOKAA & CO. ADVOCATES …………………….…………APPLICANT** **VERSUS** **EAST AFRICA INSTITUTE OF** **CERTIFIED STUDIES …. …………………………..…… 1ST RESPONDENT** **DANIEL WAKABA MACHARIA ..................................... 2ND RESPONDENT** **SERAH WANJIRU MACHARIA ………………...……… 3RD RESPONDENT** **RULING** 1. The Advocate's/Applicant's application is dated 29.09.2025. The applicant indicates that the same was brought under Rule 11(2) of the Advocate's Remuneration Order (ARO) 2014. The reality is that there is no such rule. There is only Rule 11 of the Advocates Remuneration Order. The applicant submitted that the reference from the bill of costs dated 7.4.2025, is under the following headings: 1. Items 4 instructions on an application. 2. Allowance of a sum of Kshs. 150,000/= allegedly already paid as fees. 2. The application was opposed. The respondent filed submissions dated 2.3.2026 where they supported the ruling. 3. The court then has a simple task to proceed as required of it under Rule 11 of the Advocates Remuneration Rules. The same provides as follows: 4. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. 5. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. 6. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. 7. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired. 1. There are only two items in contention. The first one is in respect of the application for stay and the second one relates to a sum of Ksh. 150,000/= for fees paid. 2. There were applications filed, that is for stay of execution pending appeal. The first application was rightly disallowed as it was subsumed in the instructions for the suit. Otherwise item 1 could have been disallowed. The application was the only business the applicant conducted. Therefore, the court rightly exercised its discretion in declining to award the said amount. In the case of the court posited as follows: **7. The general principles governing interference with the exercise of the taxing master’s discretion were authoritatively stated by the South African court** **In Visser vs Gubb**[**1981 (3) SA 753**](http://www.saflii.org/cgi-bin/LawCite?cit=1981%20%283%29%20SA%20753)**(C) 754H – 755C as follows:** **“The court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised his discretion judicially and has exercised it improperly, for example, by disregarding factors which he should properly have considered, or considering matters which it was improper for him to have considered; or he had failed to bring his mind to bear on the question in issue; or he has acted on a wrong principle. The court will also interfere where it is of the opinion that the taxing master was clearly wrong but will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue . . . The court must be of the view that the taxing master was clearly wrong, i.e. its conviction on a review that he was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal.”** **8. Differently put, before the court interferes with the decision of the taxing master it must be satisfied that the taxing master’s ruling was clearly wrong, as opposed to the court being clearly satisfied that the taxing master was wrong. This indicates that the court will not interfere with the decision of the taxing master in every case where its view of the matter in dispute differs from that of the taxing master, but only when it is satisfied that the taxing master’s view of the matter differs so materially from its own that it should be held to vitiate the ruling (SeeOcean Commodities Inc and Others vs Standard Bank of SA Ltd and Others**[**[1984] ZASCA 2**](http://www.saflii.org/za/cases/ZASCA/1984/2.html)**;**[**1984 (3) SA 15**](http://www.saflii.org/cgi-bin/LawCite?cit=1984%20%283%29%20SA%2015)**(A) and Legal and General Insurance Society Ltd vs Lieberum NO and Another**[**1968 (1) SA 473**](http://www.saflii.org/cgi-bin/LawCite?cit=1968%20%281%29%20SA%20473)**(A) at 478G).** 1. The taxing officer was not plainly wrong. It is irrelevant that were this court sitting, it will have awarded the item. In the circumstances, the taxing officer was right in disallowing item number 4. 2. The last aspect is the deduction of the sum of Ksh. 150,000/= as having been paid. This deduction is not part of the remit of the taxing master. The proof of payment is dealt with after the taxation and not during taxation. The duty of the taxing master is to tax fees in respect of a matter. Whether it has been paid or even overpaid will be for the court, when entering judgment for the amount due. In the case of **Alex S. Masika V Epco Builders Limited** [2008] KEHC 2649 (KLR), the court, Lesiit, J, as the she was held as follows: As to the issue whether the disparity between the amount sued for and amount charged was an issue, Mr. Ouma argued that the Taxing Master ought to have resolved that point since the client raised it in its submissions. No authorities were cited in support of that preposition and I am not aware of any dealing with that point. However, the Taxing Master must have considered that point and this is borne out in her observation thus: Even if the Court were to ensure that the Advocate does not undercut by charging less than that prescribed under the other schedules as was stipulated in the case of Muthoga & Gaturu Advocates –vs- Corporate Insurance, Misc. App. No. 433 of 2000 the finding will be as follows … It is clear from the foregoing that the amount charged by the Advocate was material to the Taxing Master. What concerned the Taxing Master was whether it was less than provided under the Schedules, the importance of which was to prevent undercutting by the Advocate. I do think that the duty of the Taxing Master is to tax the Bill as presented before them. In exercise of that power, the Taxing Master may reduce or increase the amount taxed for reasons to be given in the ruling. 1. In the circumstances the court erred in deducting the sum of Ksh. 150,000/=. This is to be dealt with after taxation and not before. Reversing the amount does not in any way mean that the court finds either way that the amount is paid. It is for the parties to carry out accounts before the certificate of costs is entered as a judgment of the court. Rule 7 of the Advocates Remuneration Order provides as follows: **An advocate may charge interest at 14% per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, providing such claim for interest is raised before the amount of the bill has been paid or tendered in full.”** 1. The question of payments of Ksh 150,000/= is a matter to be dealt with afresh once the applicant seeks to have judgment on the decree. This is because the Mpesa statements relate only to a sum of Ksh 150,000/= and Ksh 100,000/= were paid to the applicant. Further I take judicial notice that the same amount is referred to as Nyeri Miscellaneous Civil Application No. E018 of 2025. There appears to be no end to the place of the money paid on 20.02.2024 and 13.03.2024. There is no basis for picking one figure and not the other. The court will therefore set aside the Ksh. 150,000/=. 2. I also find that the taxing master was in error in applying ½ element to the balance of fees and part A. The same is to be applied on the gross amount and not net payment. 3. The net effect is that the reference is allowed, and the ruling dated 19.09.2025 is reviewed to the following extent as aforesaid. Determination 1. I therefore make the following orders: 2. The reference application is allowed partly as follows: * 1. The sum of Kshs. 150,000/= as amount paid is set aside. 2. Reference on item 4 is dismissed and the finding of the taxing master upheld. 3. The amount paid shall be dealt with before judgment is entered on the certificate of costs. 4. The bill dated 7.4.2025 is therefore taxed as follows: * 1. Item 1 - Ksh. 222,300/= 2. Items 2, 3, 5, 6 and 7 as prayed (Ksh. 6,200/=) Subtotal - Ksh. 228,500/= * + 1. Add 50 % thereon Ksh. 114,250/= **Total Ksh. - Kshs. 342,750/=** 1. The above amounts shall be less any amount paid by the client. 2. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **26th** day of **May, 2026**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of:-** Dr. Chokaa the Applicant present No appearance for the Respondents Court Assistant – Martin