Sakaja v Kisor

c) That reasons for taxing the said items more particularly Item 1 was not given. d) That reasons for taxing the said items more particularly item 1 was not given and further that relying on a decision that gives preconditions on assessment is not enough justification for the assessment of the figures as decreed. e) That reasons for taxing the said items more particularly Item 1 was not given and the decreed amount considering the circumstanvces of the case where the 1st Respondent was not a government official capable of actuating any illegality were unjustified, manifestly excessive and unjust requiring its variance and or its setting aside. f) That once the decision on instruction fees is varied, it therefore follows that the fees charged under Item No. 2 ‘Getting up for Trial’ must be adjusted accordingly. g) That the appropriate figure judging from the circumstances of the case and more particularly in line with Schedule 6 Rule 1 of the Advocates Remuneration Order is Instructions at Kshs. 75,000/- and getting up fees is Kshs. 25,000/-. h) That ideally a sum of Kshs. 833,333/- ought to be deducted from the sum as taxed. i) That the Respondent will not be prejudiced in any way whatsoever if the orders sought herein are granted. j) That it is in the interest of justice that this application be allowed as prayed. 3. The Petitioner herein responded to the Chamber Summons Applications vide a Replying affidavit dated 25.05.2026 where he depones as follows; Petitioner’s Response Page 2|7

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4. The Petitioner depones that the Application dated 11.03.2026 and filed by the Applicant herein is incurable, defective, pathetically incompetent, frivolous and as such this Honourable court is without jurisdiction to entertain the same as a reference. 5. That the prayers sought and the supporting affidavit annexed are mere hotchpotch of desperate allegations without an iota of evidence or even a demonstration of what exactly is complained about. 6. The Petitioner depones that this Honourable Court may note that the taxing officer has no powers to apportion a judgment, the Ruling issued on 18.06.2025 is to borne jointly and or severally. 7. The Petitioner requests this Honourable Court to enhance item No. 1 since the parties have been before various Courts/Tribunals since 1997 dispute of a portion of prime land measuring approximately 45 Acres and requests that this Court maintains the Kshs. 6,000,000/- as prayed for. 8. The petitioner depones that after perusal of the Application, there is no competent reference annexed and the application should be dismissed with costs. Applicant’s/1st Respondent’s submissions 9. The Applicant’s submissions rely on the decision in Premchand Raichand Ltd. v Quarry Services of East Africa Ltd (No. 3) [1972] EA 162 where the court outlined the principles governing the assessment of costs. 10. The Applicant opposes Item 1 on Instruction fee of Kshs. 700,000/- as taxed for presenting the Constitutional Petition and states that this amount is a departure from the provisions of the Advocates Remuneration Act which allows Kshs. 75,000/- for a defended suit. 11. The Applicant submits that the question of the size of the land was similarly not dealt with and the averages submitted by the Petitioner are grossly Page 3|7

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exaggerated and no document has been presented to confirm the size in this matter. 12. The Applicant cited the decision of Mwaniki Gachuba Advocates v Gyto Security Limited E759 OF 2021 where the court rejected a computation based on the quantum of a contract as the matter challenged a process and the only consideration was on effort speed on litigation. 13. The Applicant submits that based on the true assessment of the effort of canvassing the entire suit by written submissions instruction fees should be limited to Kshs. 75,000/- and getting up fees limited to Kshs. 25,000/-. 14. The Applicant submits that the bill be duly allowed to the extent of as prayed for in the interests of justice and any amount above that be struck out completely. 15. The Applicant prays that upon reassessment an order do issue requiring that the amount be subdivided and be paid equally by all the 7 Respondents with a view of putting finality to this matter. 16. The Applicant submits that the amounts charged are unreasonably excessive and unjustifiable and the taxing master in exercising her discretion ought to have been guided by the ARO even as the amount is shared equally amongst the 7 Participants. Petitioner’s Submissions 17. The Petitioner did not file written submissions and opted to rely on their Replying Affidavit dated 25.05.2026. Issues for Determination 18. In order to determine the reference before court the court frames the following as issues for determination. (i) Whether or not the reference before court is competent? (ii) Whether or not the reference before court is merited? Page 4|7

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(iii) What reliefs ought to issue. (iv) Who bears the costs of the reference. Analysis and Determination 19. In order to determine the competence or otherwise of the reference before this court, the court shall be guided by the provisions of Rule 11 of the Advocates Remuneration Order. In particular Rules 1, 2 and 4 thereof. 20. The said Rule provides as follows; 1) “Should any part object to the decision of the taxing master, he may within fourteen days after the decision give notice in writing to the taxing officer of the items to which he objects. 2) The taxing officer shall fortieth record and forward to the objector the reason for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to Judge by chamber summons which shall be served on all the parties concerned, setting out the grounds of his objection. 3) …………………. 4) The High Court shall have power in its discretion to enlarge time fixed by subparagraph 1 or subparagraph(2) for the taking of any step, application for such an order may be made by chamber summons upon giving to every other interested parties not less than three clear days’ notice in writing or as the court may direct, and may be so made notwithstanding that the time sought to be enlarged may have expired…” 21. The impugned Ruling was delivered on 30th of April 2026, while the reference was filed vide the chamber summons dated 11.05.2026 filed on even date. 22. It follows therefrom that the reference was filed timeously and it is thus competent; thus issue number 1 is answered in the affirmative. Page 5|7

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23. On issue number 2, the Applicant has taken issue with items 1 and 2, being the instructions fees and getting up fees respectively to which the Applicant’s issues are that no reasons for the taxation of item 1 were given. 24. The Applicant further contends that the instructions fees in this particular taxation were guided by schedule 6 Rule 1 of the Advocates Remuneration Order, hence Kshs.75,000/= and getting up fees of Kshs 25,000/=. 25. I have considered the impugned Ruling, and for starters the court noted that the Bill of costs was against all the 7 Respondents. This court Washe J. having awarded costs jointly and severally, pursuant to Ruling delivered on 18.06.2025. 26. With respect to instruction fees the learned taxing master gave reasons for the taxation, in which he noted that the value of the subject matter thought not disclosed he had taken into consideration the nature, and importance of the cause, general conduct of the proceedings, pleadings filed and time taken, as is required under the decision in Joreth Limited Vs. Kigano and Associates Advocates (2022) EA92 and the court assessed the instructions fees at Kshs.700,000/=. 27. The learned taxing master used the correct schedule as he applied schedule 6 Rule 1 The Respondent had sought Kshs.6,000,000/= as instructions fees while the taxing master taxed the instructions fees at Kshs.700,000/=. Was the taxed amount so manifestly and inordinately high so as to arrive at the conclusion that the learned taxing master erred? 28. As noted above the learned taxing master gave reasons for his taxation at paragraph 4, 6-8 of the impugned Ruling. The learned taxing master equally used his discretion to tax the amount from Kshs.6,000,000 to Kshs.700,000/=. The amount of Kshs.75,000/= provided under schedule 6 Rule was the minimum amount. Having given reasons for exercising the discretion as he did, the Applicant has not demonstrated that the learned master used his discretion improperly. Page 6|7

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29. The matter before the ELC was a constitutional petition and it involved many Respondents and was heard and determined by way of a judgment, the court finds that the fees taxed by the taxing master was reasonable in respect of the instruction fees, and the getting up fees and that the reference is therefore not merited. The answer to issue No. 2 is that the application is not merited. 30. On what reliefs ought to issue, having found the application to lack merit, the application is dismissed with costs. 31. As the costs were to be paid jointly and severally by the Respondents, the counsels herein are directed to calculate the amount payable by each Respondent. Dated at Kilgoris this 16th day of September, 2026 Hon. M.N. Mwanyale Judge In the presence of CA – Sylvia/Clara Mr. Koome for the Respondent/Applicant Mr. Machage for Petitioner Page 7|7

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