Changawa & 5 others v Nzai & 7 others

JUDGMENT 1. The 1st–4th respondents led the application dated 10th September 2025, seeking, inter alia, that the decision of the deputy registrar contained in the ruling delivered on 1st September 2025 be set aside in its entirety and that the party and party bill of costs dated 15th April 2025 be taxed afresh. 2. The appellants opposed the application on the grounds set forth in the opposition dated 8th October 2025. 3. The application was canvassed through written submissions. 4. Based on the materials and submissions provided, the issues I frame for the Court's decision are whether the application dated 10th September 2025 is meritorious and ought to be granted, and who should bear the costs. 5. Rule 11 of The Advocates (Remuneration) Order provides that a party may le an objection to the taxing ocer's decision with the High Court, which is a reference. The rule governing interference with a taxing ocer’s decision in taxation 6. 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.” 7. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18627/eng@2025-12-11 2

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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; (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 high amount. 8. The 1st to 4th respondents aver that, in both the lower court and the appeal, the issue in contention concerned land that stemmed from adjudication and was sold to the 3rd to 6th appellants. The value of the land was neither an issue in the lower court nor in the Environment and Land Court. 9. They further state that the Advocate Remuneration Order 2014 was in force at the time and should be the one considered in calculating the Bill of costs. In matters of party and party costs, they ought to be strictly per scale. The taxing ocer failed to consider and be guided by the applicant’s submissions dated 4th July 2025, and made a nding of value that was not guided by the pleadings, judgment, or settlement. The assessment is defective on its face and is based on an annexed sale agreement between the appellants, which was neither in the pleadings in the lower court nor in the appeal herein. The value of a purchase between the appellants cannot be used to assess the value of a suit between other parties who are not parties to the purchase agreement. See the Court of Appeal decision in Joreth Limited v Kigano Associates 2002KECA153(KLR). 10. The 1st to 4th respondents argue that the appeal never addressed the issue of the land's value, but rather whether a preliminary objection ought to have succeeded in the lower courts. This was simply an appeal from the dismissal of a preliminary objection. As such, the value of the subject matter is not a consideration in appeals. The costs per scale are: “ Appeals (a) 11. To present or oppose an appeal in any case not provided for above; such sum as may be reasonable but not less than Kshs 25,200.” It is contended by the 1st–4th respondents that the award of a substantial amount of Kshs. 1,513,528/ = on appeal of this nature is unjustiable and requires to be set aside and taxed afresh. From an https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18627/eng@2025-12-11 3

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instruction fee of Kshs 25,200 to gures based on an alleged annexed sale agreement between parties who are both sued, the taxing ocer erred in using the attached sale agreement as a basis for assessing costs. 12. The appellants aver that The Advocates (Remuneration) Order, Schedule 6(1)(i), provides the taxing ocer with discretion to take into account other fees and allowances due to the advocate (if any) in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involved, the interests of the parties, the general conduct of the proceedings, direction by the trial judge, and all other relevant circumstances. See Joreth Ltd. v Kigano & Associates [2002] 1 E.A. 92. 13. In taxing instruction fees, the taxing ocer stated as follows: “ The value of the subject matter cannot be determined from the Judgment. However, the Appellants annexed a Sale Agreement dated 25th October, 2021 between the 1st Appellant and the 3rd, 4th, 5th and 6th Appellants which provides that the purchase price of the subject properties was a sum of Kshs. 48,196,855/-. The purchase of the property is also referred to in the Amended Plaint, led in the lower court, which forms part of the Record of Appeal. In this regard, the value of the subject matter can be ascertained; thus, the applicable provision for assessment of instruction fees is paragraph 1 (b) of Schedule 6 of the Advocates (Remuneration) Order 2014. 6. 14. The appeal was not complex since the main issue for determination was whether the lower court had jurisdiction to entertain the suit. The appeal was also determined in the same year it was instituted and also considering the work done counsel, the Court nds that the instruction fees have been drawn to scale” In its judgment dated 17th December 2024, this court upheld a Preliminary Objection led in the Lower Court in the following manner: “ To that extent, the appeal succeeds to the extent that the Lower Court dismissal of the preliminary objection vide Ruling delivered on 19th December 2023 is set aside and substituted with an order allowing the same.” 15. The eect of that judgment meant the entire suit before the Lower Court collapsed. 16. The subject matter at the lower court and on appeal was identied as Kili/Mwanda/ Mbalamweni/3678 and 3679. The appeal records on page 125 indicate that the appellants stated the suit properties had been sold. The sale agreement for the suit properties was not included in the record; consequently, the value of the suit properties could not be ascertained from the pleadings. 17. I align with the appellants’ submissions that the appellants led the bill of costs with the annexed sale agreement, which showed the purchase price of the suit properties. The bill of costs, along with the annexed sale agreement, was served on the 1st-4th respondent’s advocate. Thus, the appellants were within the parameters of Order 21, Rule 9A, when they annexed the sale agreement for consideration by the taxing ocer. 18. The taxing ocer was therefore within the law in exercising her jurisdiction and discretion, taking account of all relevant circumstances in the matter. The taxing ocer gave her reasons in the ruling dated 1st September 2025 for allowing the instructions fees as drawn in the appellant's bill of costs dated 15th April 2025. I do not see any reason to depart from her exercise of discretion. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18627/eng@2025-12-11 4

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19. The 1st-4th respondents' application dated 10th September 2025 lacks merit. The application does not provide justiable grounds for this Court to interfere with the taxing ocer's decision. It is dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 11, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Mwangunya for the 1st-4th Respondent Ms. Kyalo for the Appellant Jill: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18627/eng@2025-12-11 5

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