Mwema & 6 others v Macharia & another (Civil Application 36 of 2017) [2025] KECA 1647 (KLR)
The bottom line
#The Court of Appeal confirmed that advocates can file a costs bill years after judgment, and appellate instruction fees are not capped by High Court scales.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the bill of costs was time-barred, having been filed five years and four months after the award of costs
- 2.Whether the instruction fee of Kshs. 200,000 awarded by the taxing officer was manifestly excessive
- 3.Whether the applicable scale for instruction fees is paragraph 9(4) of the Third Schedule (High Court scales) rather than paragraph 9(2)
- 4.Whether the court attendance fees allowed for attendance before the Court and before the Registrar were drawn to scale or excessive
- 5.Whether the taxing officer's ruling, lacking detailed reasons, should be set aside
Key legal issues
#Limitation for lodging a bill of costs
The bill was not time-barred: no written request under Rule 2(2) of the Third Schedule was made to trigger the 21-day period, and the twelve-year period under Section 4(1)(c) of the Limitation of Actions Act had not elapsed.
Rule 2(2) of the Third Schedule requires a bill to be lodged within 21 days of a written request by the party liable. There was no evidence of such a request. Alternatively, Section 4(1)(c) of the Limitation of Actions Act gives twelve years for actions founded on judgment, and the bill was filed well within that period, so the taxing officer had jurisdiction.
Applicable scale for instruction fees on appeal
Paragraph 9(2) of the Third Schedule governs instruction fees to appeal or oppose an appeal; paragraph 9(4)'s reference to High Court scales applies only to 'other costs'.
Sub-paragraphs (1) and (2) comprehensively deal with instruction fees, vesting wide discretion in the taxing officer based on enumerated factors. Recourse to High Court scales would render those provisions nugatory and produce the absurd result that appellate instruction fees would be lower than High Court fees.
Whether the instruction fee of Kshs. 200,000 was manifestly excessive
It was not; the taxing officer applied the correct principles from Premchand and comparable authorities allowing Kshs. 100,000, and doubling that amount is not automatically manifestly excessive.
The test for interference is exacting and deliberately high. Although the ruling lacked detailed reasoning, absence of elaborate reasons does not ipso facto vitiate an award where the correct principles were applied. Each case must be assessed on its own merits and circumstances.
Court attendance fees before the Court and the Registrar
The scale items are minimum scales, not ceilings, and the amounts allowed reflected a holistic assessment of ancillary work integral to court attendance.
The taxing officer was entitled to consider factors beyond mere duration, including complexity, preparation and the nature of proceedings. Ancillary work such as reviewing the file, preparing submissions, consultations and follow-up is integral to effective attendance though not separately itemised.
Legal principles established
#- A court will not interfere with the discretion of a taxing officer unless an error of principle is shown, and will only interfere where the award is so high or so low as to amount to an injustice
- Paragraphs 9(1) and (2) of the Third Schedule to the Court of Appeal Rules are self-contained provisions governing instruction fees on appeal; the High Court scales in sub-paragraph (4) apply only to 'other costs', so instruction fees in the Court of Appeal are not capped by High Court scales
- The scale items for court attendance under the Third Schedule provide minimum scales, not ceilings, and a taxing officer may allow higher amounts where circumstances justify it
- A bill of costs is not time-barred absent a written request by the party liable triggering the 21-day period; the twelve-year limitation period in Section 4(1)(c) of the Limitation of Actions Act applies to actions on a judgment
Court orders
#- 1.The reference is dismissed with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Taxing Master, Court of Appeal (Deputy Registrar, Hon. Lina Akoth)
- Party and Party Bill of Costs dated 26th May 2025
- Jurisdiction invoked
- Reference under the Court of Appeal Rules, Third Schedule (chamber summons to vary/set aside the ruling of the taxing master)
Relief refused
#Setting aside or variation of the taxing master's ruling of 25th July 2025
The respondent failed to demonstrate any error in principle or manifest excess in the taxation
Reduction of instruction fees from Kshs. 200,000 to the High Court scale of Kshs. 3,000
Paragraph 9(1) and (2) of the Third Schedule are complete, self-contained provisions vesting discretion in the taxing officer; the High Court scales under sub-paragraph (4) apply only to 'other costs'
Taxing off Kshs. 2,500 of court attendance fees before the Court and reduction of attendance fees before the Registrar
Scale items 18(a) and 15(a) provide minimum scales, not ceilings, and the taxing officer's holistic assessment fell within the permissible range
Declaration that the bill of costs was time-barred
No written request to lodge the bill triggered the 21-day period, and Section 4(1)(c) of the Limitation of Actions Act allows twelve years for actions on a judgment
Costs
The reference is dismissed with no orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, this reference is entirely without merit and is hereby dismissed with no orders as to costs.
a judge will not interfere with the discretion of a taxing officer unless it is shown that there was an error in principle in assessing the costs.
The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience.
the absence of elaborate reasons does not, ipso facto, vitiate the award where, as here, the record demonstrates that the taxing officer applied the correct legal principles.
Items 18(a) and 15(a) provide minimum scales, not ceilings.
Issues in the judgment
#The applicants' substantive names are not stated in the judgment; the parties are referred to only as 'the applicants' and 'the 1st respondent', though the notice of appeal context mentions 'the applicants/respondents', suggesting possible role confusion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwema & 6 others v Macharia & another (Civil Application 36 of 2017) [2025] KECA 1647 (KLR)", Case Analysis (2025). Chamber Summons dated 23rd July 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1647/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.