Musyimi t/a Maingi Musyimi & Associates Advocates v County Government of Taita Taveta

the Applicant to file a letter of objection dated 02.06.2026 to the Taxing Master calling for reasons of taxation of instruction and getting up fees , which was not responded to hence the reference. 3. The Appellant being aggrieved with decision of The taxing officer approached the court vide a Chamber Summons dated 16.06.2026 pursuant (Remuneration) Order, to Rule 11(2) of the Advocates Schedule 6(VI) of the Advocates Remuneration Order ,2014 and Sections 1A, 1B & 3A of the Civil Procedure Act where the Applicant sought the following orders:“1. THAT This Honourable Court be pleased to vary and/or set aside and/or vacate the decision of the Taxing Officer, Hon. F.A Malimu (RM) delivered on 2nd June 2026 in and/or any other consequential orders arising therein. 2. THAT This Honourable Court be pleased to remit the Bill of Costs dated 14th November 2025 for retaxation before a different Page 2 of 19 Taxing officer with

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appropriate directions thereof. 3. THAT The costs of this application be provided for.” 4. The Application is supported by the Affidavit of Paul Maingi Musyimi, sworn on the same date. The Respondent/Client, having participated in the proceedings and sought leave to file a Response through its counsel, did not file any Response to the Application. B. Directions of the Court: 5. On 20.07.2026 the court with the consent from both parties directed that the matter be canvassed by way of written submissions. The Applicant filed his submissions dated 14th August 2026 while the Respondent did not file its submissions. C. Parties Submissions: 6. The Appellant in his submissions dated 14th August 2026 submitted on the following issue:“Whether the Applicant has established a valid case for setting aside the ruling of the Taxing Page 3 of 19

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Officer. ” 7. The Applicant urged that the value of the subject matter was explicitly established at Kshs 2,631,048,200/-as per the Environmental Impact Assessment Report annexed to the Respondent’s Replying Affidavit. Citing Section 2 of the Civil Procedure Act, the Applicant contended that a replying affidavit filed in defence constitutes a pleading. 8. Under Schedule VI of the Advocates Remuneration Order and established jurisprudence, including Joreth Limited v. Kigano & Associates ( 2002) keca klr and Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR), it is mandatory for a Taxing Officer to assess instruction fees based on the value disclosed in the pleadings, judgment, or settlement before resorting to general discretion. Disregarding this explicitly pleaded value constitutes a reversible error of law. 9. The Applicant submitted that in the alternative , should the court fail to ascertain the value of subject matter as nonascertainable from the pleadings, the awarded instruction fee of Kshs 500,000/- be deemed as manifestly low taking Page 4 of 19

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into consideration acknowledgement by Taxing officer of complexity of the matter, public interest and public land implications while relying on case of First American Bank of Kenya Ltd v. Shah& others(2002) and Republic Kenya Medical Supplies Authority & another; Medox Pharmaceuticals Limited(Interested Party); Ex parte Nairobi Enterprises Limited [2019] KEHC 9608 (KLR).The Applicant contends that failing to give practical effect to recognized elements of complexity and value when exercising discretion amounts to an error of principle, rendering the award irrational and liable to be set aside. D. Issues for determination: 10.The court finds the issue for determination as to whether the Taxing Officer erred in law and principle her findings on Instruction Fees and Getting Up Fees in the Ruling dated 02.06.2026. E. Analysis and determination Page 5 of 19 v

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11.This Court has been called upon to determine the reference on the applicable principles for consideration by the taxing master when taxing the instruction and getting up fees. Rule 11 & 16 of the Advocates Remuneration Order,2014 provides for objection to decision on taxation and appeal to court of appeal as follows: 1. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. 2. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. 3. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not Page 6 of 19

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otherwise, appeal to the Court of Appeal. 4. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party 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 already expired. 12. Rule 16 thereof provides for Discretion of taxing officer as follows: Notwithstanding anything contained in this Order, on every taxation the taxing officer may allow all such costs, charges and expenses as authorized in this Order as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but, save as against the party who incurred the same, no Page 7 of 19

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costs shall be allowed which appear to the taxing offi cer to have been incurred or increased through overcaution, negligence or mistake, or by payment of special charges or expenses to witnesses or other persons, or by other unusual expenses.” 13.From the foregoing, a party objecting to a decision of a Taxing Officer should give 14 days’ notice to the Taxing Officer of the items objected to and the reference should be filed within 14 days of receipt of the reasons for the decision from the Taxing Officer. In the present case, the Applicant annexed a letter dated 02.06.2026 addressed to the Deputy Registrar ,voi environment and land court objecting to taxation of item 1 and 2 thereby called for reasons in respect of the award by the Taxing Officer. However, the Taxing Officer did not respond to the letter dated 2.6.2026 that prompted The Applicant to file the reference on 16.06.2026 being the 14th day from 2.6.2026. 14.Notably on record the reference was filed devoid of Taxing master’s response to the letter dated 2.6.2026 thereby casting aspersions to competency of the reference as filed Page 8 of 19

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before this court for hearing and determination .The High Court in Authority the & Republic v Kenya another; Medox Medical Supplies Pharmaceuticals Limited(Interested Party); Ex parte Nairobi Enterprises Limited [2019] KEHC 9608 (KLR) while answering the question stipulated as follows:“The circumstances arising in this application were addressed by the holding in Ahmednasir Abdikadir & Co. Advocates vs National Bank of Kenya Ltd (2) (2006) 1 EA 5 as follows: “Although rule 11 (1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons. Where the reasons for the taxation on the disputed items in the Bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of subrule (2) of rule 11 of the Advocates remuneration order,2014. 15.The Taxing officer in the ruling dated 2.6.2026 gave reasons Page 9 of 19

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for award of each item hence it was not necessary for the applicant to seek for further reasons for award of instruction and getting up fees having been guided by the case of AhmedNasir Abdikadir & Co. Advocates vs National Bank of Kenya Ltd (2) (2006) 1 EA 5. 16. The Taxing Officer had the discretion to tax the bill of costs dated 14.11.2025 as presented before her herein pursuant to rule 16 of the Advocates remuneration order 2014 and laid down principles hence this court will only interfere with the taxed bill by the taxing master if 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 a miscarriage of justice as stated in the case of Mbogo vs Shah(1968)EA and Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR), Joreth Limited -Vs- Kigano & Associates( 2002)keca klr , Kipkorir Titoo & Kiara Advocates -Vs- Deposit Protection Fund Board [2005] Eklr though this court is mandated to remit the bill for retaxtion by the taxing officer Page 10 of 19

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should it find commission of an error on principle on the part of taxing mater as emaciated in the case of D’Sonza Vs Ferrao (1960) EA 602. 17.Further in Authority & Republic v Kenya another; Medox Limited(Interested Party); Medical Supplies Pharmaceuticals Ex parte Nairobi Enterprises Limited [2019] KEHC 9608 (KLR) it was restated that the taxing officer’s decision can be interfered if it is shown that the decision was based on an error on principle or the fee awarded was manifestly excessive as to justify interference . 18. In the case of Republic vs. Ministry of Agriculture & 2 Others Ex parte Muchiri W’Njuguna & 6 Others, (2006) e KLR Ojwang J (as he then was ) provided the parameters for taxing instruction fees as follows : “1. the proceedings in question were purely publiclaw proceedings and are to be considered entirely free of any private-business arrangements earnings of the tea production sector; Page 11 of 19 or

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2. the taxation of advocates’ instruction fees is to seek no more and no less than reasonable compensation for professional work done; 3. the taxation of advocates’ instruction fees should avoid any prospect of unjust enrichment, for any particular party or parties; 4. so far as apposite, comparability should be applied in the assessment of advocate’s instruction fees; 5. objectivity is to be sought, when applying loose- textures criteria in the taxation of costs; 6. where complexity of proceedings is a relevant factor, firstly, the specific elements of the same are to be judged on the basis of the express or implied recognition and mode of treatment by the trial judge; 7. where responsibility borne by advocates is taken into account, its nature is to be specified; 8. where novelty is taken into account, its nature is to be clarified; 9. where account is taken of time spent, research done, skill deployed by counsel, the pertinent details Page 12 of 19

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are to be set out in summarized form.” 19.In the case of Nyangito & Co Advocates – Vs - Doinyo Lessos Creameries Ltd, [2014] eKLR, Odunga J (as he then was ) and the learned Judge in addition also held that the taxing officer must first recognize the basic instructions fee payable before venturing to consider whether to reduce or increase it. 20.The foregoing cited decisions affirm that the Taxing Officer while taxing a bill of costs must exercise the discretion judiciously and in line with laid down principles. The Taxing Officer in this case in her Ruling dated 2.6.2026 observed as follows:“Although the matter was important and involved public land, devolution and public participation, and conservatory orders, the petition did not contain a liquidated claim for recovery of Kshs. 2,631,048,200. That figure was not the relief sought in the petition and should not be mechanically applied as the value of the subject matter. The claim for Kshs. 30,000,000 Page 13 of 19

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is therefore manifestly excessive. In balancing the petition’s constitutional nature, public importance, urgency, volume of pleadings and the need to avoid an oppressive award, I tax Item 1 at Kshs. 500,000. Accordingly, Kshs. 29,500,000 is taxed off Item.” 21.In assessing instruction fees, the Taxing Officer must ascertain the value of the subject matter from the pleadings, judgment or settlement as held in the case of Joreth Limited v. Kigano & Associates( 2002)keca klr and restated in the case of Republic v Kenya Medical Supplies Authority & another; Limited(Interested Medox Party); Ex Pharmaceuticals parte Nairobi Enterprises Limited [2019] KEHC 9608 (KLR . 22.The gist of the reference is whether the value of the subject matter could be ascertained from the pleadings. The Applicant relied on section 2 of the Civil Procedure Act in support of the proposition that A Replying Affidavit constitutes a pleading hence the environmental impact assessment report attached to the replying affidavit provides the value of Page 14 of 19

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proposed subject matter which the taxing officer ought to have considered as value of the subject matter while assessing the instruction and getting up fees. The Applicant represented the Client/Respondent in Environment and Land Constitutional Petition No. E008 of 2024, concerning the alleged unlawful leasing of approximately 15,000 acres of Bachuma LMD Farm in Taita Taveta County to private entities for 30 years under Tender No. MOALD/SDA/BLQS/IT/01/2024/2025. 23.The Petition ascertainable did not monetary disclose value as any liquidated claim or its subject matter. It principally sought declaratory relief and the prerogative orders of prohibition and certiorari. In the Court’s view, the proceedings were in substance, public and constitutional law in nature that could not be characterized as private ,commercial or tender dispute for purposes of determining the value of the subject matter. Having found that matter was a constitutional petition, the Taxing Officer in assessing instruction fees payable to the Applicant was bound by the principles set in the case Joreth Ltd v Kigano & Associates [2002] KECA Page 15 of 19

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153 (KLR) being 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. 24.The taxing officer taxed instruction fees at kshs 500000/= which the Applicant contended is manifestly too low. This Court observes that, although a Judge undoubtedly has jurisdiction to re-tax a Bill of Costs, the practice is to do so only to the extent necessary to Accordingly, give the effect to the Court’s determination. applicable provision is Paragraph 1(j) of Schedule 6 of the Advocates Remuneration Order, provides prerogative for Constitutional petitions and which orders as follows: “To present or oppose an application for a Constitutional and Prerogative Orders such fee as the Taxing Officer in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate. Page 16 of 19

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(i) where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000. (ii) where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000 (iii) to present or oppose application for setting aside arbitral award 50,000. 25.The Taxing officer’s role in this case was to ensure reasonable compensation for the professional work undertaken by the Applicant on behalf of the Respondent without occasioning unjust enrichment to either party. Taking into consideration the minimum sum provided for as instruction fees while handling constitutional petitions as Kshs 100,000/= and reasoning of taxing master/officer having considered complexity of the matter and its public nature thereof , this court concurs with the Taxing Officer’s findings on instruction and getting up fees thereby declines to interfere with same. 26.It is therefore the Court’s finding Page 17 of 19 that the award of

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Kshs.500,000/= as instruction fees was justified. Consequently, the getting-up fee is in tandem with Paragraph 6 of Part A of the Advocates Remuneration Order 2014, which provides for a minimum of one-third of the instruction fee. The Taxing Officer accordingly and correctly assessed the getting-up fee at Kshs. 166,667.00, being one-third of the taxed instruction fee of Kshs. 500,000.00. 27.On costs this court takes cognizance of section 27 of the Civil Procedure Act,2010 and the Supreme Court in Rai & 3 others v. Rai & 4 others [2014] KESC 31 (KLR) where it is settled that costs follow the event and Court has the discretion in awarding costs to a party to a suit based on the circumstances of the case. Taking in consideration the Advocate/Client the relationship between the parties to reference , I order that each party to bear own costs of the reference. F. Final Orders 28.In view of the foregoing principles, the court finds no sufficient basis to interfere with or substitute its own view for Page 18 of 19

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that of the Taxing Officer. Accordingly, the Application dated 16.06.2026 is devoid of merit and is hereby dismissed with each party to bear own costs of the reference. It is so ordered accordingly. Dated, Signed and Delivered on this 17th day of September, 2026 at Voi HON. J. ORWA JUDGE In the presence of: Ms. Mwangi for Mr. Maingi for the applicant (virtually) Mr. Kebiro for Ms. Mburia for the respondent (virtually) Mr. Letisia - Court Assistant Page 19 of 19

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