Monica W Mwema & 6 others v Cosmos N Macharia & 1 other

(Maraga J.) dated 23rd February 2010. The 1st respondent did not oppose the motion and upon hearing the parties on 18th February 2020, the court marked the notice of appeal as withdrawn with costs to the applicants/respondents. 3. The applicants filed a Party and Party Bill of Costs claiming Kshs. 217,390.00 which was opposed by the 1st respondent. The taxing officer taxed the bill of costs at Kshs. 217,300 and found that all the items were drawn to scale and reasonable. 4. It is that decision which is the subject of this reference, on grounds that the taxed sum is excessive, that the Bill of Costs was filed after an inordinate amount of time- being five years and four months after the ruling, that item 1 being instruction fees of Kshs. 200,000 was excessive, that Kshs 90 was taxed off without giving any reason and that the entire ruling lacks sufficient reasons. 5. The 1st respondent reiterated the above grounds in their submissions dated 9th September 2025 largely challenging the amount of instruction fees and court of attendance fees . It was contended that the Court of Appeal Rules 2022, did not provide the scale for instruction fees and consequently under paragraph 9(4) of the third schedule of the Court of Appeal Rules, the scale applicable should be the High Court under schedule 6 Advocates (Remuneration) (Amendment) Order,2014 at Kshs 3,000. Further, the amounts charged for court attendance on the hearing of the withdrawal application should be Kshs. 2,500 and not Kshs 5,000, while the cost of attendance of the hearing of the bill of costs before the deputy registrar was similarly exaggerated and not drawn to scale. 6. Opposing the appeal, the applicants in their replying affidavit dated 4th August 2025 and in their submissions dated 9th September 2025 posited that assessment of an award on quantum is purely the province of the Taxing Officer and that the Court of Appeal can only interfere with the award if it is grossly exaggerated, or there is an error in principle on the award and that the 1st Respondent had failed to demonstrate any matter of law or principle for reference. Lastly, it was emphasized that the instruction fee of Kshs 200,000 as allowed by the taxing officer is not excessive. 7. I have considered the reference, the applicants’ replying affidavit and the submissions by both parties. The jurisdiction of this court is clear, 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. This is because it is generally accepted that questions on quantum of costs are matters which a taxing officer is well versed with and is most competent to address (see Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR). 8. On the issue of jurisdiction, the 1st respondents submit that the bill of costs was filed five years and four months after the award of costs and is therefore time barred. 9. Rule 2(2) of the Third Schedule which deals with Lodging and service of bill of costs provides: (2) 10. A bill of costs shall be lodged as soon as practicable after the making of the order for costs and not later than twenty- one days after a request in writing therefor by the party liable, or such further time as the Registrar may allow. Looking at the record before me, there is no evidence that the 1st respondent wrote a letter requesting the applicants to file the bill of costs which would have triggered the 21-day limitation period under Rule 2(2) of the Third Schedule. Again, the Limitation of Actions Act provides under Section 4(1)(c) that an action based on a judgment must be brought within twelve years from the date the judgment was delivered. The bill of costs having been filed within this statutory limitation period, the taxing officer had jurisdiction to entertain it. This ground is therefore without merit and must fail. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1647/eng@2025-10-09 2

page 2 of 6

11. Moving to the merits of the reference, the first issue for my consideration is whether the instruction fee of Kshs. 200,000/= awarded by the Deputy Registrar was ‘in the circumstances, manifestly excessive’ so as to warrant my interference. In awarding the instruction fees, the Taxing Officer was guided by the provisions of paragraph 9(2) of the Third Schedule of the Court of Appeal Rules which provides: “ The fees to be allowed for instructions to appeal or to oppose an appeal shall be such sum as the taxing officer shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings, the fund or person to bear the costs and all other relevant circumstances.” 12. The 1st respondent submits that paragraph 9(4) of the Third Schedule is applicable in this case because the Court of Appeal Rules have not provided a specific scale for instruction fees and that consequently the scales applicable are those of the High Court being schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014 which provides for instruction fees of Kshs. 3,000.00 on appeals. However, this argument is fundamentally flawed and misconceives the clear provisions of rule 9 of the Third Schedule. 13. A proper reading of Rule 9 provides as follows: 14. 1. The fee to be allowed for instruction to make, support or oppose any application shall be such sum as the taxing officer shall consider reasonable but shall not be less than one thousand shillings. 2. The fees to be allowed for instructions to appeal or to oppose an appeal shall be such sum as the taxing officer shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings, the fund or person to bear the costs and all other relevant circumstances. 3. The sum allowed under sub-paragraph (2) shall include all works necessary and properly done in connection with the appeal and not otherwise chargeable, including attendances, correspondence, perusals, and consulting authorities. 4. Other costs shall, subject to the provisions of paragraphs 10, 11 and 12, be awarded in accordance with the scale set out below or, in respect of any matter for which no provision is made in those scales, in accordance with the scales applicable in the High Court. The interpretation advanced by the 1st respondent ignores the express language and scheme of paragraph 9. Sub-paragraphs (1) and (2) specifically and comprehensively deal with instruction fees, vesting the taxing officer with wide discretion to determine what is reasonable based on clearly enumerated factors. These provisions are not gaps requiring recourse to High Court scales. Rather, they are complete, self-contained provisions deliberately crafted to give the taxing officer flexibility in assessing instruction fees in the unique context of appellate proceedings. The reference to High Court scales in sub- paragraph (4) applies only to "other costs" - a term which, by necessary implication, excludes instruction fees already expressly covered by sub-paragraphs (1) and (2). To hold otherwise would render sub-paragraphs (1) and (2) nugatory and defeat their manifest purpose. Moreover, the 1st respondent's contention that the instruction fees should be limited to Kshs. 3,000.00 under the High Court scale is not only untenable but would lead https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1647/eng@2025-10-09 3

page 3 of 6

to absurd results. It would mean that instruction fees in the Court of Appeal would be lower than those in High Court. Such an interpretation would fly in the face of reason and justice. 15. 16. turning to the quantum of the instruction fees awarded, I note that neither party comprehensively addressed before the taxing officer or before me the critical factors enumerated in paragraph 9(2): the amount involved in the appeal, its nature, importance and difficulty, and the interest of the parties. The record before me does not contain any detail on these matters. However, what is clear from the ruling is that the taxing officer properly considered and applied the established principles of taxation of costs articulated in the case of Premchand & Another vs. Quarry Services of East Africa Limited & Others (1972) EA 162, namely: a. That costs be not allowed to rise to such a level as to confine access to the court to the wealthy b. That a successful litigant ought to be fairly reimbursed for the costs incurred c. That the general level of remuneration of advocates must be such as to attract recruits to the profession and; d. That so far as practicable there should be consistency in the awards made; I am cognizant that the taxing officer's ruling, while arriving at the correct conclusion, lacks the detailed reasoning that would have been ideal. In Vipul Premchand Haria vs Kilonzo & Co Advocates [2020] eKLR, this Court emphasized the importance of reasoned decisions in taxation matters, holding that: “ .. taxation, much as it lies in the taxing officer’s discretion, is governed by clear principles. In other words, the discretion is a judicial one to be judicially and judiciously exercised. It is not to be exercised whimsically or capriciously in accordance with personal inclination. And the matters the taxing officer takes into consideration should be apparent from the reasons that she gives for her decision. It is those reasons that give an indication whether or not the discretion reposed in the taxing officer was properly exercised.” 17. However, 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. Crucially, the applicants placed before the taxing officer recent comparable cases including Wilson Kiama Gachunji & Another v. Njoro Munyoro, Civil Appeal No. E54 of 2022, and Joyce Wanjiru & Another v. Joseph Chege Gitau, Civil Appeal No. E044 of 2022, where instruction fees for successful applications to withdraw notices of appeal were assessed at Kshs. 100,000.00. 18. The taxing officer, in allowing Kshs. 200,000.00, evidently took into account not only these precedents but also the specific circumstances of this case. While the instruction fees allowed are double those in the cited cases, this does not automatically render them manifestly excessive. Each case must be assessed on its own merits and circumstances. 19. The test for interference with a taxing officer's award is exacting and deliberately high. As established in Premchand (supra), the Court held: “ The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, and particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low: it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other." https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1647/eng@2025-10-09 4

page 4 of 6

20. Applying this stringent test to the facts before me, I am not persuaded that the instruction fees of Kshs. 200,000.00 are so manifestly excessive as to amount to an injustice warranting this Court's intervention. 21. The second issue raised by the 1st respondent relates to court attendance fees for two distinct items in the bill of costs. On Court Attendance before the Court (Item 11): The 1st respondent submits that under the Third Schedule of the Court of Appeal Rules, 2022, specifically Scale of Cost Item No. 18(a), the fee for attending court on the hearing of any application is Kshs. 500/= for the first 30 minutes and Kshs. 1,000/= for each subsequent 30 minutes. The 1st respondent argues that since the court session took one hour and twenty-five minutes, and the applicants proposed Kshs. 5,000/=, the sum chargeable should be Kshs. 2,500/= (being Kshs. 500 for the first 30 minutes plus Kshs. 1,000 for each of the two subsequent 30- minute periods), and therefore Kshs. 2,500/= should be taxed off. 22. On Court Attendance before the Registrar (Item 12): The 1st respondent further submits that beside the fact that this item is premature, the Third Schedule of the Court of Appeal Rules, 2022, Scale of Costs Item No. 15(a) provides that for attending court before the Registrar, the fee is Kshs. 300 for the first 15 minutes and Kshs. 100/= for each subsequent 15 minutes. The 1st respondent contends that the applicants' proposal of Kshs. 4,000/= is highly exaggerated, but ultimately leaves this item to the discretion of the taxing master. 23. I have carefully considered these submissions and examined the relevant provisions. While the 1st respondent's calculations are mathematically accurate based on a strict interpretation of the relevant scale items, they fail to take into account the full context of the taxation exercise and the discretion vested in the taxing officer. 24. First, it must be noted that Items 18(a) and 15(a) provide minimum scales, not ceilings. These provisions state what fees shall be allowed "for attending court" but do not expressly prohibit the taxing officer from allowing higher amounts where the circumstances justify such allowance. The taxing officer, in the exercise of her expertise and discretion, is entitled to consider factors beyond mere duration of court attendance, including the complexity of the matter, the preparation required, and the nature of the proceedings. 25. Second, the amounts allowed by the taxing officer represent a holistic assessment that takes into account not merely the physical attendance in court but also the ancillary work necessarily involved in preparing for and conducting the court attendance. This includes reviewing the court file, preparing submissions, consultations, and post-hearing follow-up - all of which are integral to effective court attendance but not separately itemized in the bill of costs. In my view, these amounts fall within the permissible range under the applicable scales and reflect the standard practice in this Court. 26. Having carefully considered the reference, the submissions by both parties, and the applicable law, I find that the 1st respondent has failed to demonstrate any error in principle or manifest excess in the taxation that would warrant this Court's intervention. The taxing officer properly exercised her discretion in accordance with established principles and the applicable rules. 27. Consequently, this reference is entirely without merit and is hereby dismissed with no orders as to costs. DATED AND DELIVERED AT NAKURU THIS 9TH DAY OF OCTOBER, 2025 M. WARSAME ................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1647/eng@2025-10-09 5

page 5 of 6

I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1647/eng@2025-10-09 6

page 6 of 6