Onkoba v Jeptoo (Environment and Land Miscellaneous (Reference) Application E004 of 2024) [2026] KEELC 1749 (KLR)

3. Further, the reference is founded upon the grounds, inter alia; a. That the Learned Hon. Taxing Master erred in principle and in law in taxing the bill of costs at kshs. 170,550/=. b. That the learned Hon. Taxing Master failed to take into account the value of the subject Matter and the simplicity of the case while assessing the fee payable under instructions fees. c. That the learned Honourable Taxing Master omitted to consider relevant factors and/or didn’t address himself to the importance of the cause/matter, the amount involved, the interest of the parties, the general conduct of the proceedings and all other relevant circumstances. d. That the amount awarded is too high and without regard to the provisions of the Advocates Remuneration order such that it amounts to an injustice. e. That in view of the above it is only fair and just that the Taxing Master’s decision be set aside and the bill be taxed afresh in the interest of justice and fairness. 4. The respondent opposed the reference by a replying afidavit of sixteen paragraphs sworn on 8th December 2025 by her counsel Faith Aketch who averred and urged the court not to interfere with the Tax Oficer’s decision and dismiss the reference with costs. That the Taxing Oficer correctly and duly utilized the value of the subject matter adjudged by the court at Kshs. 5,000,000/= which is reasonable and not excessive. That no extraneous factors included therein. 5. Further, it is averred that the Taxing Oficer confirmed items on the record and struck ofi a number of them in the bill of costs. That the said oficer scrutinized and weighed the bill against the Advocates Remuneration Order referred to in the ruling in respect of advocates work done. That thus, the Taxing Oficer’s decision be upheld in the interest of justice and fairness. 6. In the submissions dated 5th February 2026, learned counsel for the applicant stated that the Taxing Oficer applied wrong principles in the assessment of the bill of costs and that as such, the ruling be set aside. That the taxed costs are excessive and not commensurate to the services rendered in the case. 7. Counsel urged the court to rely on the case of Joreth Ltd vs Kigano & Associates 2002 1 EA 92. KRA vs Otieno Ragot & Company Advocates (2024) eKLR on the principles of taxation of bill of costs. That also the court be guided by the principles set out in Premchand Raichand Ltd & another vs Quarry Services of East Africa Ltd & others (1972) E.A 162 as summarized by Richard Kuloba in his book entitled Judicial Hints on Civil Procedure, 2nd Edition, page 118 to 119. That therefore, the bill of costs be taxed at Ksh. 53,000/=only. 8. By the respondent’s submissions dated 7th January 2026, twin issues namely whether the Taxing oficer’s ruling is in synchrony with the legal principles and that it be upheld, are delineated therein. Reliance was made on the case of Mua vs Loki & Associates Advocates {2025} KEHC 14357 (KLR) on the grounds upon which a court can interfere with the decision of Taxing Oficer. That the approach to quantum in such a matter, is the court’s discretion as held in Ochieng, Onyango, Kibet and Ohaga Advocates vs Adopt A Light Ltd (2007) eKLR. 9. It was also submitted that the Taxing Oficer considered the monetary value of the subject matter being the principal basis for the assessment of amount of costs in such a matter. That Rule 1 of the 7th Schedule of the Advocates Remuneration Order was adopted in the assessment of the instruction fees. That there are no worthy assertions or proof to interfere with the Taxing Oficer’s ruling. That in the result, the reference be dismissed and the applicant to bear costs which follow event under section 27 of the Civil Procedure Act Chapter 21 Laws of Kenya. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1749/eng@2026-03-17 2

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10. I have carefully considered the entire reference, the response thereto as well as the rival submissions together with the issues identified and the authorities cited therein. So, is the reference meritorious? 11. It is important to note that term ‘assessment of costs’ interchangeably termed as ‘taxation’ is not fatal as Rule 2 of the Advocates Remuneration Order 2014 relied upon at paragraph 7 of the ruling, relates to assessment of costs. The former and the latter terms are used before the Magistrates’ court and Superior Courts respectively. In that regard, this court cannot interfere with the assessment of the bill of costs by the Taxing Oficer unless there is an error of principle or the costs are manifestly excessive as noted in First American Bank of Kenya Ltd-vs-Shah & others 2002 1 EA 64. 12. This reference is not a rehearing but a review process of the matter under section 11 of the Advocates Act Chapter 16 of the Laws of Kenya and paragraph 11 of the Advocates Remuneration Order. It is a reconsideration of the principles applied in the ruling by the Taxing Oficer regarding the bill of costs. The bottom line is to determine whether there is manifest error of principle by the nature of the reference and whether the Oficer exercised his discretion judicially and not whimsically in arriving at the ruling. 13. In the reference, the duty of this court is to consider if the Taxing Oficer took into account factors including the value of the subject matter in arriving at the ruling. In the case of Benson Adega & 2 othersvs-Kibos Distillers Limited & 5 others {2020} KESC 36 (KLR), the Supreme Court of Kenya noted that in such a determination, the Taxing Oficer must exercise discretion judicially and not capriciously. 14. Where the value of the subject matter is not easily ascertainable from the pleadings, judgment or settlement, the court can use discretion to assess a reasonable fee based on the nature, complexity and importance as held in Joreth Ltd-case (supra). 15. Clearly, the value of the subject matter at Kshs 5,000,000/= is disclosed at paragraph 4 of the ruling. Further, paragraphs 1 and 2 of the ruling reveal the nature of the claim and the outcome of the suit which was struck out. 16. In arriving at the figure in the assessment of costs, the Taxing Oficer applied the relevant principles including the value, nature and complexity of the subject matter. I subscribe to the decision in the case of Nairobi Bottlers Limited -vs- Mark Ndumia Ndungu & another (2024) eKLR where the Supreme Court of Kenya referred to the general principles applicable and remarked; ‘………There are no mathematical formulae to be used by the taxing oficer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances.’ 17. Similarly, in Kenya Airports Authority case (supra), the Supreme Court of Kenya was of the considered view that assessment of costs should focus on reasonable compensation for work done or fair reimbursement in a case and noted that; ‘...Of importance, what amounts to reasonable costs can only be determined on a case-bycase basis’ 18. In the instant reference, it is evident that the Taxing Oficer observed that the parties failed to agree on costs, taxed ofi amounts and reached his informed finding thus; ‘After striking ofi a cumulative total of Kshs 11, 900/= the party and party costs are assessed at Kshs. 170, 550/=’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1749/eng@2026-03-17 3

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19. To that end, I am of the considered opinion that the Taxing Oficer did not either include or omit relevant factors, correctly understood the subject matter, noted the general conduct of the proceedings and assessed costs that are reasonable in the ruling. There is no wrong principle applied therein as held in Tanui-vs-Siele (2024) eKLR. Furthermore, the costs as assessed follow event within the discretion of the court judicially exercised for the ends of justice; see Jasbir Singh Rai & others vs Tarlochan Singh Rai & others (2014) eKLR. Therefore, I find no justification to interfere with or set aside the Taxing oficer’s ruling. 20. Accordingly, the instant reference lacks merit and the same is hereby dismissed with costs to the respondent. 21. It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 17TH DAY OF MARCH 2026. HON. G.M.A. ONG’ONDO JUDGE In the presence of; 1. Ms. Kesei learned counsel for the applicant 2. Ms. Aketch learned counsel for the respondent 3. Walter, court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1749/eng@2026-03-17 4

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