Otieno Okeyo & Co Advocates v Kenya Power & Lighting Company Ltd (Environment and Land Miscellaneous Case E259 of 2024) [2026] KEELC 5377 (KLR)

the taxing master delivered on 14 th August, 2025. d. That the ruling of the taxing master on the advocate client bill of costs delivered on 14 th August, 2025 be deemed as the taxing master’s reasons for the award issued in terms of Rule 11(2) of the Advocates Remuneration Order No. 64 of 1962. e. That this honourable court do set aside the Taxing Master’s ruling and or decision delivered on 14th August, 2025 awarding the advocate/respondent taxed costs amounting to Kshs.7,171,291.67/=. f. Any consequent certificate of taxation be vacated and or set aside. g. The advocate/client bill of costs dated 14 th November, 2025 be remitted to a different master for review and reconsideration with appropriate directions on and for taxation. h. 2. The cost of this application be provided for. The application is premised on the grounds on its face. It is further supported by the affidavit of Ann Mulela, the legal officer of the client/applicant sworn on even date. The 2|Page RULING ELCLMISC. NO. E259 OF 2024 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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client/applicant deposed that they are dissatisfied with the decision of the taxing officer delivered on 14 th August, 2025 with respect to the total amount and items 3 and 4 (instruction fees and getting up fees) awarding the sum of Kshs.7,171,291.67/= to the advocate/ respondent as a result of legal presentation in ELC case no. 1453 of 2007. 3. According to the client/applicant, it was not until 29 th December, 2025 when counsel handling the matter was undertaking a scheduled annual bring up and review of files that he discovered that a taxation award was made on 14 th August, 2025. It was deposed that the failure to file a reference within the prescribed time was an inadvertent mistake on her part after holding brief for counsel handling the matter and thus should not be visited on an innocent litigant and that it is in the interest of justice and fairness that the court be pleased to enlarge time within which they may file a reference. 4. The client/applicant deposed that the taxing officer erred in principle and misdirected himself in awarding costs of 3|Page RULING ELCLMISC. NO. E259 OF 2024 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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Kshs.7,171,291.67/= to the advocate/ respondent on mistaken principles and considerations and consequently failed to exercise the discretion judiciously. In particular, the taxing officer wrongly exercised his discretion and arrived at an unreasonably high amount of instruction fees at Kshs.5,000,000 and getting up fees at Kshs.1,666,666.67. 5. The client/applicant is apprehensive that, if the advocate/respondent were to execute, which is highly likely, the client/applicant will suffer irreparable and irredeemable loss and damage. 6. In response thereto, the advocate/respondent filed grounds of opposition dated 3rd March 2026, challenging the application on the following grounds: 1. The application lacks in merit as the applicant has failed to plead and explain how the taxing officer has made an error of principle in the taxation of the entire bill of costs. 2. The client explanation having deliberately, whatsoever failed without to file its valuation on the value of the suit property as 4|Page RULING ELCLMISC. NO. E259 OF 2024 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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ordered by the court, cannot now be heard to complain that the taxation of the bill of costs was conducted through an error of principle. 3. The client’s application fails to meet the standard(s)/criteria for setting aside a taxation ruling by a high court judge. 4. It will be in the interest of justice to disallow the application by the client with costs to the advocates. 7. The application was canvassed through written submissions. None of the parties filed their written submissions. Be that as it may, I have considered the application and the grounds of opposition. The issue for determination is whether the taxing officer erred in taxing the advocate-client bill of costs dated 14th November 2024. 8. The client/applicant contends that the taxing officer awarded exorbitant fees in instruction and getting up fees in the impugned ruling delivered on 14th August, 2025. The advocate/respondent filed the advocate-client bill of costs dated 14th November, 2024 seeking to tax his legal fees at Kshs.20,627,205/-. Instruction fees are usually based on the subject matter in question, as it was held in the case of 5|Page RULING ELCLMISC. NO. E259 OF 2024 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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Joreth Kigano & Associates [2002] eKLR as follows:“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 officer 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.” 9. In the present case, the suit was decided in favour of the client/applicant and the defendants in ELC no. 1453 of 2007 were ordered to remove their structures and vacate the suit property known as LR No. 1134/R Nairobi. Since the claim was over the suit property, then the same was the subject matter which forms the basis of instruction fees. There was no valuation report on record to assess the value of the suit property. The advocate/respondent based their bill of costs dated 14th November, 2024 on the amount of Kshs.50,000,000/- per acre, with the suit property occupying 6|Page RULING ELCLMISC. NO. E259 OF 2024 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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an area of 23.6 acres, which would bring the total value to Kshs.1,150,000,000/-. However, this figure was not established by the court, therefore the value of the subject matter remains unknown. 10. However, the advocate/respondent added to this the prayer for Ksh.100,000,000/- in the plaint but was not granted, which should not be included as judgment on the matter was already delivered. Since the accurate value of the subject matter was unknown, the costs that apply needed to be assessed in an alternative manner, considering such factors as the work done, the complexity of the suit and issues therein. Thus, the taxing officer chose to exercise his discretion on assessing instruction fees. The court of appeal in the case of Moronge & Company Advocates v Kenya Airports Authority [2014] KECA 816 (KLR) established the following principles:“The value of the subject matter of the suit could not also be ascertained from the judgment or settlement as there was none. As the value of the subject matter could not be determined from the pleadings, judgment or settlement, the taxing officer should have used 7|Page RULING ELCLMISC. NO. E259 OF 2024 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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his discretion to determine such instructions 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 (See Joreth Limited -vsKigano & Associates [Court of Appeal, Civil Appeal No. 66 of 1999 Nairobi] (UR).” 11. In the court’s view, the taxing officer in assessing the instruction fees at Kshs.5,000,000/- and getting up fees was reasonable, considering the vast property and the amount of work done. We must keep in mind that taxation is not a mathematical exercise. J.B. Ojwang’, J (as he then was) in the case of Republic v Minister for Agriculture; W'Njuguna & 8 others (Ex parte) (Miscellaneous Civil Application 621 of 2000) [2006] KEHC 3504 quoted with approval the following authority herein below:“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. 8|Page RULING ELCLMISC. NO. E259 OF 2024 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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A court will not, therefore, interfere with the award of a taxing officer, and particularly where he is an officer 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.” 12. I find no error of principle committed by the taxing officer in assessing the costs herein, neither do I find any reason to interfere with the award given. The chamber summons dated 5th January, 2026 lacks merit and it is hereby dismissed with no order as to costs. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER, 2026. HON. MBOGO C.G. JUDGE 03/09/2026. In the presence of:Mr. Benson Agunga – Court assistant No appearance for Advocate/Respondent 9|Page RULING ELCLMISC. NO. E259 OF 2024 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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No appearance for the Client/Applicant 10 | P a g e R U L I N G E L C L M I S C . N O . E 2 5 9 O F 2 0 2 4 VIRTUALLY ON 3RD SEPTEMBER 2026. DELIVERED

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