Tom Ojienda & Associates v County Government of Tana River

judicial precedents on the issues raised in the reference, which I acknowledge with gratitude, as they signicantly contributed to the court's ability to reach its decision. 6. Based on the materials and submissions presented to me, the issues I have identied for the resolution of this court are as follows: What is the applicable legal standard for intervening in the decisions of a taxing master? Did the taxing ocer commit an error in principle when taxing instruction fees, gettingup fees, and perusal fees, thereby resulting in a manifestly insucient amount? The standard applicable to interfering with a taxing ocer’s decision. 7. I align myself with both parties' submissions regarding the standard for this court’s intervention in the discretion of the taxing master in taxation, as discussed in Republic v Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna & 6 Others [2006] eKLR. The court stated the following: “ The basic principle cited by counsel is set out in Premchand Raichand Ltd & Another v. Quarry Services of East Africa Ltd & Another [1972] E.A. 162. In the words of Spry, V-P. (at p.164): “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 ocer, and particularly where he is an ocer 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.” 8. This principle has established itself as the guiding doctrine in matters related to references. See also DK Law Advocates v Zhong Gang Building Material Co Ltd & another [2022] KEHC 2545 (KLR), Spire Bank Limited v Mamicha & Co Advocates & another [2020] KEHC 2106; Ameli Inyangu Partners Advocates v Gichuru & two others [2024] KEHC 12621 (KLR) and First American Bank of Kenya v Shah & Others [2002] EA (KLR). In the latter case, the court further set out the circumstances under which the High Court may interfere with the discretion of a taxing ocer and held as follows: “ (1) The Court will not interfere with the taxing ocer’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 inference that it was based on an error of principle; (2) It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause 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; (3) If the Court considers That the decision of the Taxing Ocer discloses errors of principle, the normal practice is to remit it back to the taxing ocer for reassessment unless the Judge is satised that the error cannot materially have aected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high; (4) It is within the discretion of the Taxing Ocer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18624/eng@2025-12-11 2

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(5) The Taxing Ocer must set out the basic fee before venturing to consider whether to increase or reduce it; (6) The full instruction fees to defend a suit are earned the moment a defence has been led and the subsequent progress of the matter is irrelevant to That item of fees; (7) The mere fact That the defendant does research before ling a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may will be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary.” Whether the taxing ocer erred in assessing fees and thus awarded a manifestly low amount. 9. The applicant's primary concern regarding the taxation pertains to items 1,2, and 3. Under item No. 1, it is contended that the taxing ocer erroneously failed to establish the basic fee, whether for the purposes of increasing or decreasing the instruction fee. She billed these fees at Kshs 300,000 and overlooked that the land in question was a substantial 15-acre parcel within Hola Town. The taxing ocer neglected to establish a basic fee and disregarded the applicant's proposal of KShs 15,000,000 per acre. It is also contended that the taxing ocer should have requested a valuation report to determine the appropriate fee, particularly given the land's proximity to various county headquarters oces and buildings, and its prime status. 10. The applicant contends that the taxing master erred in Item No. 2, which is corollary to Item No. 1, by failing to award getting-up fees. 11. Regarding item No. 3, the applicant contends that the taxing master erred by failing to provide for a perusal fee, contending that it fell under the instruction fees. 12. On the contrary, the respondents contend that, under the standards for interference with the taxing ocer’s discretion by the High Court, highlighted above, the applicant’s grievance reduces to dissatisfaction with the quantum of instruction fees assessed, and that dissatisfaction is not a legal basis for interference. The taxing ocer, in her ruling of 30 June 2025, carefully considered the pleadings, the judgment, and the nature of the post-judgment application led, and expressly noted that: “ The application was not complex as no novel issue was raised.” 13. The respondent maintains that the applicant has not shown that the taxing ocer’s exercise of discretion was tainted by a misdirection of principle or resulted in manifest injustice; and that this Court ought to respect the taxing ocer’s ruling. 14. Respondent avers that the applicant claimed Kshs. 5,000,000, based on an alleged land value of Kshs. 225,000,000. No valuation report or other documentary evidence was presented to substantiate this gure. 15. In her ruling on the taxation of instruction fees, the taxing ocer, after considering the nature of the matter, the pleadings, and the stage of the trial, stated: “ The application was not complex as no novel issue was raised. The main issue that was discussed in the Ruling delivered on 6th May, 2020, is whether there was latent ambiguity in the Judgment.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18624/eng@2025-12-11 3

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16. She additionally asserted: “ The value of the subject matter cannot be determined from the Judgment or pleadings to be Kshs. 225,000,000… It is without a doubt that the subject land has appreciated with time but the Court is not in a position to know the actual value in the absence of a valuation report.” 17. 7. It will then appear from the proceedings that the applicant came into the proceedings well after judgment to argue an application for the interpretation of a judgment, not to have the matter heard de novo. It is not the applicant who drew the pleadings for the respondent, nor the counsel who prosecuted the matter in a full hearing, who is entitled to full instruction fees. First American Bank of Kenya v Shah & another (supra): “ The advocate who draws plaint is the one entitled to full instructions fees notwithstanding the progress of the matter”. 18. The record indicates that the applicant participated in the proceedings after the issuance of judgment and submitted an application for the interpretation of a judgment that had already been rendered. In Joreth Ltd v Kigano & Associates [2002] 1 EA 92, the Court of Appeal established the framework for evaluating instruction fees and ruled: “ We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a Bill of Costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not so ascertainable the taxing ocer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances.” 19. The Court of Appeal in Peter Muthoka & Another v Ochieng & 3 Others [2019] eKLR (cited by the taxing ocer) further ruled that: “ It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court. Where, however, a suit is settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the rst instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a judgment, it is indubitable that one cannot start with the pleadings where there is a settlement.” 20. The Supreme Court in Kenya Airports Authority v Otieno Ragot & Co. Advocates; Civil Appeal E011 of 2023 [2024] KESC 44 (KLR) rearmed the discretion of taxing ocers. The Court observed: “ As the value of the subject matter could not be determined from the pleadings, judgment or settlement, the Taxing Ocer should have used his discretion to determine such instruction https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18624/eng@2025-12-11 4

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fees as he considered just, taking into account, amongst other matters, the interest of the parties, the general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances.” 21. I concur with the respondent that, as outlined by the decisions in Joreth and Peter Muthoka (supra), the taxing ocer was justied in exercising discretion when the value of the subject matter could not be determined, and that this was an application handled post-judgment. To me, she appropriately awarded Kshs. 300,000, and this decision does not constitute an error of principle in failure to establish a basic fee. 22. This issue closely relates to the question of getting-up fees. Paragraph 2 of Schedule 6 permits such fees only when a matter is scheduled for a hearing and prepared for trial. In this case, the lawsuit was settled in 2016. The applicant then led an application well after the judgment had issued. The taxing ocer rightly rejected the claim, pointing out that there is no provision for getting-up fees in cases involving applications, citing the decision in Vinayak Builders Limited v Lubulellah & Associates (Miscellaneous Case E767 of 2022) [2024] KEHC 4755 (KLR), a position I agree with. 23. Regarding perusal fees, the taxing ocer disallowed Kshs. 6,500 on the basis that initial perusals are subsumed in instruction fees. This is consistent with Schedule 6, paragraph 8, and with the principle that double recovery should be avoided. I do not fault the taxing master on this point either. 24. Accordingly, the applicant’s Chamber Summons dated 10 July 2025 is hereby dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 11, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Kitwani H/B for Ms. Nyabuto for the Respondent Jill: Court Assistant In the absence of: Prof. Tom Ojienda (SC) for the Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18624/eng@2025-12-11 5

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