https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8211

V Chokaa & Co Advocates v East Africa Institute of Certified Studies & 2 others (Miscellaneous Civil Application E017 of 2025) [2026] KEHC 8211 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 8211 (KLR) Republic of Kenya In the High Court at Nyeri Miscellaneous Civil Application E017 of 2025 DKN Magare, J May 26, 2026 Between V Chokaa & Co Advocates Applicant and 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 Rule 11(2) of the Advocate's Remuneration Order (ARO) 2014. The reality is that there is no such rule. There is no 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:a.Items 4 and 40 (instructions on applications)b.Items 15, 28 to 31, 35 and 36 (attendances before the court and a mediator); andc.Allowance of a sum of Kshs. 150,000/= allegedly already paid as fees. 2.The application was opposed. The respondents filed submissions dated 2.3.2026 where they supported the ruling. The application is related to Nyeri Miscellaneous Civil Application No. E018 of 2025. The respondent uses the same document in both matters as evidence of payment. 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:1.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.2.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.3.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.4.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. 4.The items were in three sets. These were in respect of applications, attendances and a sum of Ksh. 150,000/= for fees paid. The Applications that were impugned were:a.Item 4 - Instructions to file an application for stay of executionb.Item 40 - Instructions to file an application for review 5.Attendances that were impugned were as follows:a.Item 15. attending to a mediatorb.Item 28. attending for rulingc.Item 29. attending for rulingd.Item 30. attending for mentione.Item 31. attending for rulingf.Item 35. attending for rulingg.Item 36. attending for ruling 6.The above attendances were for a matter not reached. There was no actual attendance but rescheduling by the court. Therefore, the items numbers 28, 29, 31, 35 and 36 were rightly disallowed. There was actual attendance. Attendance for mention for item 30 is Ksh.1,000/=. The same is allowed. Attendance before a mediator is not provided for. The same was rightly disallowed. The applicant must understand that he has a duty to prove that there were actual attendances. The court cannot be sent on frolics to look for files which were never requested for. 7.There were two applications that were filed. The first one was an application for stay of execution and the second one was an application for review. The first application was rightly disallowed as it was subsumed in the instructions for the appeal or otherwise item 1 could have been disallowed. In the circumstances, the taxing officer was right in disallowing item number 4. However, item number 40 was different and was for review. It was a stand-alone application. The taxing officer erred in failing to allow for the item. Under appeals, paragraph c(viii), the Advocates(Remuneration)(Amendment) provides as follows:To present or oppose any other application not otherwise provided for- there the application is unopposed 3,000, where the application is opposed, such sum as may be reasonable but not less than 5,000/=. 8.The taxing officer erred in failing to award sums in item 40. A sum of Ksh. 5,000/= is allowed for item 40. 9.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 then 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. 10.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.” 11.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 in Nyeri Miscellaneous Civil Application No. E017 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/=. 12.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. 13.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. 14.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 15.I therefore make the following orders:a.The reference application is allowed partly as follows:i.Allowance of a sum of Kshs. 150,000/= allegedly already paid as fees.ii.The items numbers 28, 29, 31, 35 and 36 were rightly disallowed.iii.A sum of Ksh. 5,000/= is allowed for item 40.iv.Attendance for mention for item 30 is allowed for Ksh.1,000/=.b.The amount paid shall be dealt with before judgment is entered on the certificate of costs.c.The bill dated 7.4.2025 is therefore taxed at Ksh. 173,620/= less any amount paid on account.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 26TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Dr. Chokaa the Applicant presentNo appearance for the RespondentsCourt Assistant – MartinM. D. KIZITO, J.