https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12726

Wicoff Ltd & 2 others v Laichena t/a Laichena Mugambi & Ayieko Advocates LLP (Miscellaneous Application E063 of 2026) [2026] KEHC 12726 (KLR) (6 August 2026) (Ruling) Neutral citation: [2026] KEHC 12726 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Miscellaneous Application E063 of 2026 WM Musyoka, J August 6, 2026 Between Wicoff Limited 1st Applicant David Thuo Ngata 2nd Applicant Angelica Waithera Kimani 3rd Applicant and Francis Mugambi Laichena T/A Laichena Mugambi & Ayieko Advocates Llp Respondent Ruling 1.The file cover of this cause is misleading. It reflects that it is a judicial review miscellaneous cause. It is not. The proceedings are not for, or with respect to, judicial review orders. It is a reference from a decision of a taxing officer, founded on rule or paragraph 11 of the Advocates (Remuneration) Order, arising from a taxation of a bill of costs in Milimani HCJRMISC/E017/2024, and, therefore, it should be a simple miscellaneous application cause. 2.What I am tasked with determining is a summons, dated 27th April 2026, which challenges the taxation of the bill of costs, dated 9th June 2025, vide a ruling, that Hon. I. Kimani, Deputy Registrar, as taxing officer, delivered on 16th April 2026, in Milimani HCJRMISC/E017/2024, at Kshs. 117,090.00. The application seeks re-assessment of fees on certain items in the said bill of costs, and invites the court to make its own findings; and, in the alternative, remission of those items for re-consideration on taxation, by the taxing officer. Detailed grounds, upon which the summons is premised, are set out on the face of the application, and in the supporting affidavit, sworn by Mr. David Thuo Ngata, the 2nd applicant herein. 3.The response to the summons is by way of an affidavit by Mr. Francis Mugambi Laichena, the respondent herein, sworn on 15th June 2026, principally arguing that the decision of the taxing officer was proper. 4.Directions were taken, on 26th May 2026, for canvassing of the application, by way of written submissions. I see submissions on record, filed by the applicants, dated 18th June 2026, and by the respondent, dated 15th July 2026. 5.The applicants have placed the items they contest in several clusters. Cluster 1 is on items 1 and 2, cluster 2 is on items 3 to 17, cluster 3 is on items 18 to 24; cluster 4 is on items 25 to 31, and cluster 5 is on items 32 to 35. 6.The items falling under cluster 1 relate to instruction and getting up fees. It is submitted that instruction fees are for receiving instructions to act in the matter, while getting up fees are for preparation of the matter for hearing. It is argued that the taxing officer erroneously used the schedule 2 of the Advocates (Remuneration) Order, to tax the 2 items, yet that schedule relates to charges for preparation of leases, agreements for leases and tenancy agreements, but not court proceedings, specifically those relating to judicial review. It is submitted that the applicable schedule is number 6 of the Advocates (Remuneration) Order, which relates to applications for constitutional and prerogative orders. It is argued that where the value of the subject-matter cannot be ascertained, the taxing officer ought to exercise discretion, based on the nature and importance of the matter, the conduct of the litigation and other relevant factors. It is argued that the value of the subject-matter herein was not ascertainable, hence it called for the discretion of the taxing officer. Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 and CN Kihara Company Advocate vs. Maendeleo Ya Wanawake Organisation (MYWO) [2021] KEHC 1409 (KLR) are cited in support. 7.It is argued that, as the value of the subject-matter was unascertainable, the taxing officer ought to have exercised discretion, upon considering the nature and importance of the matter, the work undertaken, the complexity of the issues, the time expended and the extent of the research involved. That would have involved considering that the Advocates for the applicants would have addressed the propriety of judicial review as a remedy, analysis of the applicable principles of public law governing the grant of prerogative orders, and defending the legality of the impugned proceedings; as well as the work involved of receiving instructions, perusing pleadings and other documents, conducting extensive legal research, preparing requisite responses and representing the applicants in court. It would also have required considering that the proceedings had commenced in 2024, and the Advocates for the applicants had to give continuous professional attention and sustained engagement over a considerable period. Shah & Parekh Advocates vs. Apollo Insurance Co. Limited [2005] KEHC 2646 (KLR) and Otieno Ragot & Co. Advocates vs. County Government of Kisumu [2022] KEELC 15078 (KLR) are cited. 8.On getting up fees, it is argued that the same are consequential upon and derived from the instruction fees, properly assessed under the applicable schedule, so that once the instruction fees are pegged on the wrong schedule, the getting up fees would be equally wrongly assessed. It is submitted that the getting up fees become payable where the matter has been prepared for hearing, upon joinder of issues, and is calculated, normally, at 1/3 of the instruction fees. It is submitted that the getting up fees herein were wrongly assessed, so long as they were pegged on instruction fees assessed on the basis of schedule 2 rather than schedule 6. Kenya Commercial Bank Limited vs. Stagecoach Management Limited [2017] KEHC 7336 (KLR) and Munge vs. Munge [2022] KEELC 3078 (KLR) are cited. 9.The complaint, with respect to the items in cluster 2, that is items 3 to 17, is around interpretation of a folio as a single page or leaf. Items 3 to 9 relate to fees for drawing documents, and items 10 to 17 for processing documents. Fees, with respect to these items, is charged based on the number of folios in each document. It is argued that a folio comprises of 100 words, not a single page or leaf. It is submitted that, as the taxing officer rated a folio as 1 page, meant that the computation impacted on the contested items. Seth Ambusini Panyako vs. Independent Electoral & Boundaries Commission & 2 others [2020] KEHC 7633 (KLR) and Nairobi Bottlers Limited vs. Ndungu & another [2024] KESC 73 (KLR) are cited. 10.Cluster 3, items 18 to 24, is on fees for making copies of the documents. The claim on these items was disallowed. It is submitted that the amounts on the said items are recoverable, so long as the expenses were reasonably incurred, for purposes of the litigation. The disallowance was on grounds that the items were not substantiated, yet the criteria ought to be that they were reasonably incurred in the conduct of the proceedings. It is further submitted that paragraphs 13A and 74 of the Advocates (Remuneration) Order allow for production of evidence, by way of books, papers and documents, if required by the taxing officer, if in doubt. First American Bank of Kenya Limited vs. Shah & others [2002] 1 EA 64 and Ooko vs. National Irrigation Authority [2024] KEELC 14084 (KLR) are relied upon. 11.Cluster 4, items 25 to 31, is on attendances, and the issue is whether there was an error in taxing them at half-scale. It is submitted that the attendances were properly charged to scale, in the bill of costs. It is argued that schedule 6 of the Advocates (Remuneration) Order provides for distinct renumeration based on duration of attendance, including half-hour or less, one hour, half a day and a full day. It is argued that the applicable fee is determined by the actual duration of the attendance, and not by the subjective preference of the taxing officer. It is submitted that the taxing officer did not consider the actual recorded duration of the attendances, hence applied the wrong duration band, and no reasons were assigned for the attendances recorded and reduced. Kipkorir Titoo & Kiara Advocates vs. Deposit Protection Fund Board [2005] KECA 325 (KLR), Peter Muthoka & another vs. Ochieng & 3 others [2019] eKLR and Vipul Premchand Haria vs. Kilonzo & Co. Advocates [2020] KECA 591 (KLR) are cited. 12.The last cluster, 5, items 32 to 35, is on costs incurred in preparation and filing the bill of costs. The complaint is that the taxing officer reduced the amount in the items, yet they consisted of actual expenses relating to filing fees, extraction fees, printing expenses and copies for service. It is submitted that the expenses claimed were modest, necessary and attributable directly to the taxation proceedings. Peter Muthoka & another vs. Ochieng & 3 others [2019] eKLR is cited. 13.Overall, the applicants submit that the amount awarded, of Kshs. 117,090.00, was inordinately low. 14.The respondent, in his submissions, answers the issues, raised by the applicants, cluster by cluster. 15.On items 1 and 2 being based on the wrong schedule, the respondent concedes, and argues that it was a mistake. On instruction fees it is argued that the matter was not complex, for it was a miscellaneous application, and the amount awarded was commensurate to the complexity of the issues, the volume of work and the novelty of the litigation. Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 is cited. On getting up fees, schedule 6(2) is cited, to argue that it is only relevant where liability is denied, and not for miscellaneous applications. Nicholas Kiptoo Arap Salat vs. Independent Electoral & Boundaries Commission & 7 others [2016] KEHC 2362 (KLR) is cited. It is submitted that, should the court find the amount inflated, it could consider reducing it. 16.On items 3 to 9, in clusters 2, on the folio, Kenya Power and Lighting Company vs. Mohammed [2007] eKLR, is cited, for the argument that considering the 100-word per folio standard may not reflect the true extent of the work required to draft and peruse a document, given that some documents are unnecessarily lengthily-worded. It is pointed out that for items 8 and 9, the taxing officer found no proof that an application and letter had been filed. On items 10 to 17, also in cluster 2, it is submitted that there was no proof that the documents referred to there were filed. It is submitted that, on items 11 to 17, guided by Kenya Power and Lighting Company vs. Mohammed [2007] eKLR, the total number of folios was actually 113. 17.On items 18 to 24, in cluster 3, on making copies of documents, as the folios in question were 113, it is submitted that the items in this limb should have been taxed at Kshs. 2,825.00 and not Kshs. 2,875.00, as claimed. On items 25 to 31, in cluster 4, on attendances, it is submitted that the same were properly taxed at Kshs. 6,000.00 each, based on the lower scale. On items 32 to 35, in cluster 5, with respect to costs on the preparation and filing of the bill of costs, it is submitted that the proof had been provided of Kshs. 500.00, for filing the bill of costs, and that amount was justly awarded. 18.Overall, it is submitted, by the respondent, that the bill should be re-taxed at Kshs. 119,975.00. 19.For the purpose of determining this reference, I shall consider the same according to the clusters of the items created by the applicants. 20.On cluster 1, on instruction and getting up fees, it is common ground, that the taxing officer cited the wrong schedule in the impugned ruling. Schedule 2 of the Advocates (Remuneration) Order, referred to in that ruling, actually provides for assessment of fees in conveyancing. I am not persuaded that the taxing officer was looking at schedule 2 at all, and it would appear that reference to it was by pure mistake, for the ruling talks about defended suits and instruction fees, which schedule 2 does not talk about. There is, instead, reference, in the ruling, to complexity and novelty, which schedule 6 of the Advocates (Remuneration) Order mentions, but schedule 2 does not. Indeed, schedule 6(1)(j), on constitutional petitions and prerogative orders, uses those exact words. I believe that the taxing officer did not base assessment of instruction fees on schedule 2, but schedule 6, for the ruling uses the language used in schedule 6, and not that used in schedule 2. 21.The ruling also talks about instruction fees being set at Kshs. 100,000.00. Schedule 2 of the Advocates (Remuneration) Order, in its entirety, does not make any reference to Kshs. 100,000.00, at all. However, schedule 6(1)(j)(ii) mentions Kshs. 100,000.00, as the least amount chargeable, where the matter is opposed, and meets the criteria of complexity and volume of work. No doubt, this is what is referred to in the ruling of the taxing officer. The assessment of instruction fees was, therefore, not founded on schedule 2, as alleged by the applicants, but on schedule 6. The reference to schedule 2, in the ruling, can only have been unfortunate. 22.Was the amount of Kshs. 100,000.00 justified? Yes. The taxing officer noted:“Having perused the court file and judgement, I observe that this matter was straightforward, not listed for hearing, and did not involve any highlighting of submissions or complex legal issues. Accordingly, I find the fees claimed under item 1 excessive and unreasonable.” 23.Taxation is at the discretion of the taxing officer. To facilitate proper exercise of that discretion, the taxing officer perused the trial file, to get a picture of what happened there, in terms of the work that the parties, inclusive of the Advocates, handled in the matter, and formed impressions, which are recorded in the ruling. The applicants have not contested the veracity of the said impressions, reflected in the observation recited above. The matter was disposed of by way of written submissions, which were not even highlighted. That would be a pointer to the fact that the matters were simple and straightforward, there was no complexity, or novelty, and the amount of work involved was minimal, hence attracting the lowest amount prescribed, under schedule 6(1)(j)(ii) of the Advocates (Remuneration) Order. I am not persuaded that there was improper exercise of discretion, in the manner the instruction fees were assessed. 24.On getting up, I note that the taxing officer did not dwell on it, save to rule that the amount claimed was disallowed in full. Getting up is provided for under schedule 6(2) of the Advocates (Remuneration) Order, and it is earned in causes which go to trial. Trial denotes conduct of an oral hearing, where witnesses are presented and testify, and are subjected to examination. The language of schedule 6(2) points to a case being prepared for viva voce hearing, even if it does not get there. That then would suggest that proceedings that do not involve viva voce hearings do not attract fees for getting up and preparing for trial, for such cases do not have a trial. Presentation of oral arguments, with respect to applications, going by that suggestion, would not qualify for getting up or preparation for trial, for there would be no trial. In the circumstances, again, going by that suggestion, the disallowance of that item was not wrongful. There was no entitlement for it, for the matter did not involve a trial. See Nguruman Limited vs. Kenya Civil Aviation Authority & 3 others [2014] eKLR[2014] KEHC 8077 (KLR), Otieno Ragot & Company Advocates vs. National Bank of Kenya Limited [2016] eKLR [2016] KEHC 3682 (KLR) and Kenya Commercial Bank Limited vs. Stagecoach Management Limited [2017] eKLR[2017] KEHC 7336 (KLR). 25.I have seen the decision, in Republic vs. Egerton University ex parte Patel Maulik Prasun [2020] eKLR [2020] KEHC 8777 (KLR), where it was held that the entitlement to getting-up or preparation for trial fees is not limited to cases which involve a full trial, and that it would also apply to cases of judicial review and non-trial cases, based on the argument that schedule 6(3) of the Advocates (Remuneration) Order provides for getting up fees for appeals. The court then went on, in that case, to assess getting up fees, with respect to judicial review proceedings. 26.The language of schedule 6(2) of the Advocates (Remuneration) Order appears to limit getting up and preparation for trial fees to cases involving a full trial, where there would be need for intense preparation. The Advocates (Remuneration) Order does not provide for getting up or preparation fees for applications, hence the same would appear not to be available for the same, and it would appear that it could be justified, for the cases involving a full trial could be more involving, and time-consuming, compared with non-trial cases disposed of vide mere arguments, whether oral or written. 27.However, the point made, in Republic vs. Egerton University ex parte Patel Maulik Prasun [2020] eKLR [2020] KEHC 8777 (KLR), is formidable. Schedule 6(3) provides for getting up fees for appeals, yet appeals do not involve a full trial, where evidence is recorded, and appeals are disposed of in much the same way as applications, by mere arguments, whether oral or written, and, sometimes, without taking any arguments at all, as the court can still look at the material on record and make a determination. If the 2 processes, appeals and applications, and others such as constitutional petitions, are handled in the same manner, what justification would there be, for allowing getting fees for one, and not the other. Perhaps schedule 6 of the Advocates (Remuneration) Order should be re-visited, for the purpose of re-drafting, to bring clarity to the subject. 28.The decision, in Republic vs. Egerton University ex parte Patel Maulik Prasun [2020] eKLR [2020] KEHC 8777 (KLR), is by a court of concurrent jurisdiction. It does not bind me, but it makes a profound argument and sets a precedent of persuasive authority, which I cannot ignore, and which no taxing officer should take for granted. 29.Should the taxing officer herein have provided for getting up fees in this case, in line with Republic vs. Egerton University ex parte Patel Maulik Prasun [2020] eKLR [2020] KEHC 8777 (KLR)? That should depend on whether there was a denial of liability, which should translate, in cases of judicial review, to whether the application was opposed, and the proceedings were contentious, requiring filing of replies and submissions. If it was opposed or was contentious, the getting up fees would be earned, if not then there was no preparation for trial, or getting up for the same, hence the fees for it would not be earned. 30.I have perused the record, in HCJRMISC/E017/2024, relating to the taxation, which gave rise to these proceedings. Although the title of the cause, in HCJRMISC/E017/2024, gives an impression that it was a mere miscellaneous application, the reality is that it was, in fact, a substantive matter, where a judgement was delivered by the Judge, on 28th February 2025. The matter arose from a complaint raised by the applicants against the respondent, before the Advocates Disciplinary Tribunal, who, the applicants, also filed a civil suit at the magistrate’s court, allegedly over the same issues. HCJRMISC/E017/2024 was initiated to quash the proceedings before the magistrate’s court. Leave was sought, in HCJRMISC/E017/2024, and, upon its grant, the substantive motion was filed, in the same cause. Upon service of the motion, the applicants herein, who had been named, in HCJRMISC/E017/2024, as interested parties, filed a response, by way of an affidavit sworn by the 2nd applicant. The respondent filed a supplementary affidavit, in response. The substantive application was disposed of by way of written submissions. Those by the applicants herein, and the interested parties in that cause, were dated 16th September 2024. The written submissions were not highlighted, before the judgement was delivered. The substantive application was dismissed. 31.Clearly, from the record, in HCJRMISC/E017/2024, the matter was contentious. The substantive application was opposed by the applicants herein, for they filed a replying affidavit to it, and argued against it in their written submissions. There was preparation for argument against the substantive motion, by way of that affidavit and the written submissions. The applicants had prepared for the arguments, had the court ordered disposal by way of oral arguments or highlights of the submissions. The applicants were ready. Those arguments, in the context of schedule 6(2) of the Advocates (Remuneration) Order, would have been the trial. The applicants presented arguments in writing, through their written submissions, hence there was a trial, and, based on those arguments, the Judge rendered the decision of 28th February 2025. Consequently, the getting up or preparation for trial fees were earned, and should have been provided for in the taxation of 16th April of 2026. I have, hereabove, upheld the instruction fees awarded, of Kshs. 100,000.00. Getting up should be 1/3 of that amount, which comes to Kshs. 33,333.00. The taxing officer should have awarded that amount to the applicants. 32.Cluster 2, items 3 to 17, is about the folio. It is argued, by the applicants, that the taxing officer equated a folio with 1 page, instead of 100 words, resulting in under-taxation. The respondent cites Kenya Power and Lighting Company vs. Mohammed [2007] eKLR, to argue that that is not necessarily the standard, and the court could depart from that. 33.A folio amounts to 100 words, not 1 page of a document. That is how a folio is defined in paragraph 17 of the Advocates (Remuneration) Order, which reads:“17.Length of folio.(1)A folio shall for all purposes of this Order be deemed to consist of 100 words and any part of folio shall be charged as one folio.(2)A sum or quantity of one denomination stated in figures is to be counted as one word: e.g. “?25,564 16s 8d.” is to be counted as three words, and “254 feet 11 inches” is to be counted as four words.” 34.Paragraph 17 of the Advocates (Remuneration) Order is in mandatory terms, and it does not give room to the court to come up with alternative interpretations, besides the interpretation given in there. There is a wealth of caselaw, where the courts have asserted that treating a folio as a page is an error of principle, for a folio is a measure of word count, not the physical number of pages. See Joash Osiemo Mogaka vs. Attorney General & 5 others [2017] KEHC 2973 (KLR), Seth Ambusini Panyako vs. Independent Electoral & Boundaries Commission & 2 others [2020] KEHC 7633 (KLR), Nairobi Bottlers Limited vs. Ndungu & another [2024] KESC 73 (KLR), Sheth & another t/a Sheth Advocates vs. NIC Bank Limited [2025] KEHC 2770 (KLR) and Everflora vs. Mogaka [2025] KEELRC 3388 (KLR). 35.I have perused the bill of costs, in HCJRMISC/E017/2024, dated 9th June 2025, used by the taxing officer in the taxation, and I agree with the applicants, that the taxing officer treated the folio as a page rather than a group of 100 words, contrary to paragraph 17 of the Advocates (Remuneration) Order, and the position taken in Joash Osiemo Mogaka vs. Attorney General & 5 others [2017] KEHC 2973 (KLR) and Nairobi Bottlers Limited vs. Ndungu & another [2024] KESC 73 (KLR), among others. There was, therefore, an error in principle in the decision of the taxing officer, of 16th April 2026, in that regard. I note that the taxing officer stated that the established practice is that “a folio may be assessed by reference to the number of pages in the document, rather than strictly by the 100-word formula,” but stated no authority to support that assertion. The taxing officer might have followed the position in Kenya Power and Lighting Company vs. Mohammed [2007] eKLR, but that decision represents the old thinking on the subject, which has since been replaced by the position stated in Nairobi Bottlers Limited vs. Ndungu & another [2024] KESC 73 (KLR). 36.Cluster 3, items 18 to 24, is on making of copies. The taxing officer found that there was no proof to support the alleged expenditure. The applicants argue that no such proof is required, so long as the claim is reasonable. The courts, in Kipketer & another vs. Gathogo & another [2014] eKLR and Kenya Revenue Authority vs. Adroit Systems Limited [2016] eKLR, cited by the taxing officer, has settled the issue. The claim, under this head, ought to be supported by verifiable expenditure, by way of receipts or other proof. I am not persuaded that the taxing officer erred, in that respect. 37.Cluster 4, items 25 to 31, is on attendances. The said items were taxed at the lower scale. The principle, on assessing costs for attendances, was aptly captured in Republic vs. Egerton University ex parte Patel Maulik Prasun [2020] eKLR [2020] KEHC 8777 (KLR), where it was said:“The Learned Taxing Master taxed off some amounts by applying the Lower Scale and remarked that the attendances in Court each took less than a half an hour. With respect, that was a misdirection. The Lower Scale is applied in cases where the suit is not opposed. In this case, the Judicial Review Application was opposed and the Higher Scale should apply.” 38.I believe that Republic vs. Egerton University ex parte Patel Maulik Prasun [2020] eKLR [2020] KEHC 8777 (KLR) says it all. There was no basis for the taxing officer to apply the lower scale, for the application, in HCJRMISC/E017/2024, was opposed, and the upper scale should have been applied. 39.Cluster 5, items 32 to 35, is on costs for preparation and filing of the bill of costs. There was a reduction of the claims under those items, on grounds that the expenses ought to have been based on verified evidence. The taxing officer verified the material in the CTS, and used the results to make her decision. The taxing officer considered the actual payments, from the CTS. I have done the same. The only amount received from the applicants, by the court, with respect to the bill of costs, from what I can see in the CTS, was Kshs. 500.00, paid on 3rd July 2025. There was no error on the part of the taxing officer. 40.In light of the foregoing, I uphold the impugned decision of the taxing officer, on items 1, 18 to 24 and 32 to 35. However, on items 2, 3 to 17 and 35 to 31, I hereby remit the bill of costs, dated 9th June 2025, in HCJRMISC/E017/2024, to the taxing officer, for re-taxation, based on what I have discussed above. Each party shall bear its own costs. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 6TH DAY OF AUGUST 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.Ms. L. Wafula, Legal Researcher.AdvocatesMr. Koech, instructed by Otwal & Partners LLP, Advocates for the 1st applicant.Ms. Kyule, instructed by Ayieko Kang’ethe & Company, Advocates for the respondent.