Attorney General & another v Phoenix Global Kenya Limited & 6 others (Civil Appeal (Application) 63 of 2019) [2026] KECA 525 (KLR)
The bottom line
#The Court of Appeal in Mombasa set aside a costs ruling because the taxing officer gave no reasons for slashing fees, and ordered the bill to be retaxed afresh.
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 Taxing Officer committed an error of principle in awarding instruction fees of Kshs. 500,000 without giving reasons or considering the relevant factors under paragraph 9(2) of Schedule 3 of the Court of Appeal Rules, 2022
- 2.Whether the Taxing Officer erred in assuming service of notices was effected by email rather than physically
- 3.Whether the Taxing Officer failed to consider items 5, 16, 32 and 45 of the Bill of Costs
- 4.What remedy is appropriate on a reference where the Taxing Officer has acted on a wrong principle
Key legal issues
#Whether the failure to give reasons and consider relevant factors in fixing instruction fees constitutes an error of principle
Yes. The Taxing Officer awarded Kshs. 500,000 in instruction fees without disclosing why Kshs. 1.5 million was disallowed, and without considering the amount involved, the nature, importance and difficulty of the appeal, the cross-appeal and the number of parties, as required by paragraph 9(2) of Schedule 3.
Instruction fees are central to a bill of costs. Paragraph 9(2) of Schedule 3 makes it a requirement that the taxing officer consider the amount involved in the appeal, its nature, importance and difficulty, the interests of the parties and all other relevant circumstances. The ruling disclosed nothing about these factors or the basis for the award; a bare exercise of discretion without reasons betrays a wrong principle justifying interference on reference.
Whether the assumption that service was effected by email was an error
Yes. The Taxing Officer assumed service was made by email, but the taxation concerned a period before the Covid-19 pandemic and before virtual hearings, when service and hearings were conducted physically. Those circumstances ought to have been considered before disallowing service costs.
The Taxing Officer had taken judicial notice-worthy facts into account incorrectly: the relevant period predated the Covid-19 pandemic and the Court's shift to virtual hearings, so service would have been physical. Disallowing or scaling down service items on a contrary assumption, without considering the timing, was an error the Taxing Officer ought to have avoided.
The standard for interference with a taxing officer's decision on reference
Interference is only warranted where there is an error of principle or where the award is manifestly excessive or manifestly inadequate; questions of quantum alone are for the taxing officer.
Following Arthur v Nyeri Electricity Undertaking and Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board, the Court reiterates that questions solely of quantum are matters for taxing officers and the court interferes only in exceptional cases, namely where an error of principle is disclosed or the award is manifestly excessive or deficient.
Legal principles established
#- A single Judge on a reference under Rule 117 will not interfere with a taxing officer's decision except where the sum allowed is manifestly excessive or manifestly low so as to indicate an error of principle
- A taxing officer is bound to consider the amount involved in the appeal, its nature, importance and difficulty, the interests of the parties and all other relevant circumstances when fixing instruction fees, and to give reasons for the figure allowed
- Where a judge on reference finds an error of principle, the general practice is to remit the question of quantum to the taxing officer
Court orders
#- 1.The impugned Ruling on taxation by Hon. E. Mwamuye, Deputy Registrar dated 20th March 2025 is set aside
- 2.The Bill is remitted back for taxation by a taxing officer other than Hon. E. Mwamuye, Deputy Registrar
- 3.The incoming Taxing Officer should establish the basis upon which the instruction fees are founded given the circumstances of the case
- 4.The incoming Taxing Officer should apply the established principles pertaining to instruction fees to the facts surrounding the case
- 5.The incoming Taxing Officer should specify the applicable principles of law in allowing or discounting any amount claimed in each item of the Bill
- 6.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal, Mombasa - Deputy Registrar (Taxing Officer)
- Party and Party Bill of Costs dated 15th November 2024, arising from Civil Appeal No. 63 of 2019
- Jurisdiction invoked
- Rule 117(1), (3) and (4) of the Court of Appeal Rules, 2022 - reference of a taxed bill of costs to a single Judge
Relief refused
#Substitution of a higher taxed amount by the single Judge
The general practice is to remit the question of quantum to a taxing officer where an error of principle is found
Costs
There will be 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.
the ends of justice would be better served if the matter were to be remitted for re-taxation before another taxing oficer other than Hon. E. Mwamuye, Deputy Registrar
The impugned Ruling on taxation by Hon. E. Mwamuye, Deputy Registrar dated 20th March 2025 B and is hereby set aside
There will be no orders as to costs.
paragraph 9 (2) Schedule 3, makes it a requirement for a taxing oficer to take cognizance of the integral factors forming the crux of the appeal so as to arrive at a just and fair instruction fee
where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing oficers are particularly fitted to deal and the court will interfere only in exceptional cases
Issues in the judgment
#The coram lists only a single Judge of Appeal, which is unusual for a Court of Appeal determination, though this is a single-Judge reference under Rule 117 which permits determination by one judge
The date of delivery (13th March 2026) post-dates the reference letter and ruling of 2025 but the judgment text is internally consistent on chronology; however the date appears unusual in sequence with the rest of the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Phoenix Global Kenya Limited & 6 others (Civil Appeal (Application) 63 of 2019) [2026] KECA 525 (KLR)", Case Analysis (2026). Reference from Ruling on Taxation of Party and Party Bill of Costs dated 15th November 2024 (arising from Civil Appeal No. 63 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/525/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.