Kemboy Law Advocates v Narok County Government (Environment and Land Miscellaneous Application E070 of 2023) [2026] KEELC 418 (KLR)

3. The learned counsel deposed that the taxing oficer misapplied the principles of taxation with respect to the nature of the suit and also failed to apply the formula provided under Schedule 3 of the Court of Appeal Rules, 2022 and Schedule 6B of the Advocates (Remuneration) Order, 2014. He urged the court to issue orders setting aside the taxing oficer’s ruling. 4. The client/respondent did not file any response to the instant application. 5. The reference was disposed of by way of written submissions. The advocate/applicant filed its written submissions dated 28th November 2025. In its submissions, the advocate/applicant submitted that Paragraphs 69 and 70 of the Advocates (Remuneration) Order do not require a party filing a bill of costs to accompany the bill with supporting documents. In the circumstances, the advocate/applicant opined that the taxing oficer was grossly out of order for relying solely on the documents filed without calling for the parent file at the Court of Appeal. 6. I have considered the application and the written submissions filed. The sole issue for determination is whether the advocate/applicant has demonstrated a proper case for setting aside the decision of the learned taxing oficer delivered on 18th December, 2024. 7. With regards to a reference emanating from the decision of a taxing oficer, it is generally accepted, on the strength of various decisions on taxation of costs, that the court will not interfere with the discretion of a taxing oficer unless it is shown that there was an error in principle in assessing the costs. 8. In the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board (2005) eKLR, the Court of Appeal aptly held as follows:“ On a reference to a judge from the taxation by the taxing oficer, the judge will not normally interfere with the exercise of discretion by the taxing oficer unless the taxing oficer, erred in principle in assessing the costs. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of this Court said at page 492 paragraph I: “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.” 9. The advocate/applicant readily conceded that the impugned decision arose from the taxation of the bill of costs dated 31st May, 2023 relating to the conduct of the client/respondent’s instructions in Nairobi Court of Appeal Civil Application No. 29 of 2019. 10. From the foregoing acknowledgment, it is plainly obvious that the proper taxing oficer is the registrar of the Court of Appeal who holds custody of the above record of the Court of Appeal and not the deputy registrar of this court. Rule 111 of the Court of Appeal Rules (2010) (Repealed) which applied to the proceedings above outlines as follows:‘(1) The Registrar shall be a taxing oficer with power to tax the costs arising out any application or appeal to the court as between party and party.’ (2) Such costs shall be taxed in accordance with the rules and scale set out in the Third Schedule. (3) The remuneration of an advocate by his clients in respect of application or appeal shall be governed by the rules and scales to proceedings in the High Court.’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/418/eng@2026-02-03 2

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11. It is the case of Kenya Medical Supplies Agency v Revital Health Care (EPZ) Limited & 2 others [2023] KECA 291 (KLR), the Court of Appeal held as follows:“ Taxation of costs before the Court of Appeal is provided for in rules 116 and 117 of the Court of Appeal Rules, 2022 (formerly rules 111 and 112 of the 2010 Rules). Rule 117(1) provides that a person who is dissatisfied with a decision of the registrar in his or her capacity as taxing oficer may require any matter of law or principle to be referred to a judge for the judge’s decision and the judge shall determine the matter as the justice of the case may require. Specific mention of what constitute matters of law is in rule 117(2) which makes provision for decisions extending time or refusing to extend time for lodging of the bill of costs or the exercise of the Registrar’s powers under paragraph 12 of the third schedule to the rules.” 12. Similarly, in Thika Cofiee Mills Limited v Mikiki Farmers Co-operatives Society Limited & another [2020] KECA 1 (KLR), the Court of Appeal observed as follows:“ Having perused the 2nd respondent’s Bill of Costs dated 4th April 2017, I find that all the items contained in the Bill relate to the application to this Court for stay of execution of the judgment and decree of the superior court pending appeal pursuant to Rule 5(2) (b). Accordingly, I find that the 2nd respondent’s Bill of Costs is properly before this Court.” 13. The above authorities demonstrate that the taxing oficer of this court undoubtedly had no authority to assess the bill of costs. The record of the Court of Appeal is reposed with the registrar of the appellate court. In the case of Peter Muthoka & Another v Ochieng & 3 Others [2019] eKLR:“ It is not a wild and unaccountable discretion, however, because it is at its core and by definition a judicial discretion to be exercised, not capriciously at a whim, but on settled principles. When it is shown that there was a misdirection on some matter resulting in a wrong decision, or it is manifest from the case as a whole that the discretion was improperly exercised, resulting in mis-justice, to borrow the holding in MBOGO -vs- SHAH (Supra), then the decision though discretionary, may properly be interfered with. See also Attorney General Of Kenya -vs- Prof. Anyang’ Nyong’o & 10 Others, EACJ App. No. 1 OF 2009.” 14. In as far as the taxing oficer of this court had no jurisdiction to tax the advocate/applicant’s advocateclient bill of costs by virtue of Rule 116 of the Court of Appeal Rules, 2022 (formerly Rules 111 of the 2010 Rules) as read with the Third Schedule of the Rules, the learned taxing oficer inevitably fell into an error of principle. As a result, the taxed amount was not only unjust but also lacked a legal basis. 15. Accordingly, the orders which commend themselves in the circumstances of the case are as follows:i. The ruling and order of the taxing oficer, Hon Judith Omollo (DR) delivered on 18th December, 2024 taxing the advocate/applicant’s advocate-client bill of costs dated 31st May, 2023 at Kenya Shillings Eighty-Six Thousand Three Hundred and Fifty-Seven and Forty Cents (Kshs.86,357.40/-) is hereby set aside. ii. Each party shall bear its own costs of the reference. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF FEBRUARY, 2026. HON. MBOGO C.G. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/418/eng@2026-02-03 3

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JUDGE 03/02/2026. In the presence of: Ms. Benson Arunga - Court assistant Mr. Angelo Makwei holding brief for Mr. Kere for the Advocate/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/418/eng@2026-02-03 4

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