Lakhani v Ndirangu (Environment and Land Case 686 of 2011) [2025] KEELC 6343 (KLR)

4. The issue for determination is whether the taxing oficer exercised her discretion Judiciously and whether the applicant has established basis to interfere with the Taxing oficer ’s ruling dated 4th September 2023 5. Courts would not generally interfere with the decision of a Taxing master. In Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR; the Court stated, “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 oficer, particularly where he is an oficer 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…. The court cannot interfere with the taxing oficer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle. Of course, it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge. ……….” 6. The applicant’s contention is that the taxing oficer erred by enhancing the instruction fees from 150,500 to 300,500. This had the efiect of increasing the getting up fees. In her Ruling the Taxing Master exercised discretion to enhance the fees as follows’ “I have carefully considered the factual and legal issues with a view to gauge complexity of issues, importance of the matter the amount involved, perusal of entire paper work, studying and preparing for the matter, responsibility shouldered based on the nature and importance of the subject matter. Although the responsibility entrusted to the Plaintifi’s counsel was quite ordinary and called for nothing but normal diligence such as must attend the work of a professional in any field. I have also considered the time taken to have the matter concluded i.e from 2011 to 2023. Bearing in mind all the aforesaid factors and the reasons herein and in exercise of the discretion vested in me, I am fully convinced that Kshs.300,500/= is reasonable instruction fees taking into account the time taken in this matter, infiation, scope of the work done and the nature of the dispute herein. The balance thereof is taxed ofi.” 7. The applicant takes issue with the fact that while the taxing master stated that the work involved was that required of an ordinary advocate she increased instruction fees after considering the time taken, infiation, scope of the work and the nature of dispute. 8. Given that the case lasted the duration 2011-2023, the taxing master correctly relied-on the Advocates Remuneration Order 2006 and 2014. The applicant challenges the fact that she considered the time taken to enhance fees. The Applicant avers that consideration of time taken was an error of principle more so considering the Respondent also contributed to the delay. It cannot be gain said that the longer a matter is in court the greater the expenses incurred. I find that it is a relevant factor even if allowance is made for the delay which was occasioned by the Plaintifi/ Respondent. 9. The applicant also takes issue with the Taxing Masters consideration of infiation as a factor arguing that if this was a factor the amount awarded should have been Ksh 213000 which is the amount provided in the 2014 Remuneration Order. I would reiterate the view that courts have severally expressed that taxation is not a mathematical exercise. It is guided by principles which must be applied to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6343/eng@2025-06-12 2

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circumstances of each case. A taxing master can exercise discretion to enhance fees, the only rider being that the factors considered should be clearly indicated. 10. While taxing masters have power to exercise discretion, this power must be exercised judicially. A court demonstrates that power has been exercised judicially by giving clear reasons for the exercise of such discretion which must be based on the facts in each individual case. 11. In the instant case, the taxing master gave reasons for the exercise of discretion in awarding the contested figures. The general statement that the work is that involved of an ordinary advocate does not take away the years the matter was in court. Even discounting the years the Respondent occasioned the delay, I find that this was relevant factor. I therefore find no reason to interfere with the decision. Consequently, the reference is dismissed with costs assessed at Kshs.20,000. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 12TH OF JUNE, 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Catherine Mr. Nyangweso for Muthui Mr. Manzi for Kahuthu https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6343/eng@2025-06-12 3

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