James M Mctough v Amin Hassan Ali

5. That items 45 – 57 are opposed as they ought to be supported with receipts to prove actual costs incurred. That items 50, 52, 53 and 57 ought to have been taxed off since they relate to filing of affidavits of service which are not chargeable. The applicant urged the court to allow his application. 6. I have considered the record. I have also considered the submissions on record. This is a reference. The principles applicable in such an application are well settled. In Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held: “ The learned judge like the taxing officer was exercising judicial discretion when he allowed the reference. This Court cannot interfere with the exercise of that discretion unless it is shown that the learned judge acted on the wrong principles of law. The appeal to this Court from the decision of a judge on reference from a taxing officer is akin to a second appeal and should be governed by Section 72 (1) of the Civil Procedure Act. In our view, such an appeal can only be allowed on any of the three grounds specified in Section 72 (1) of the Civil Procedure Act, that is to say, if the decision is contrary to law or some usage having the force of law; or the decision has failed to determine some issue(s) of law or usage having the force of law or where there is a substantial error or defect in the procedure provided by law which may possibly have produced error or defect in the decision on the case upon merits.” 7. Further, in Peter Muthoka & another v Ochieng & 3 others [2019] eKLR, the Court of Appeal held: “ It is not lost to us … that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them. 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 v Shah (supra), then the decision though discretionary, may properly be interfered with. See also Attorney General of Kenya v Prof. Anyang’ Nyong’o & 10 Others, EACJ App. No. 1 of 2009.” 8. And in Republic v Competition Authority Ex Parte Ukwala Supermarket Ltd & Anor [2017] eKLR, the court held: “ 25. The circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. These principles are, (1) that the Court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle; (2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15350/eng@2025-10-31 2

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interest of the parties, the general conduct of the proceedings and any direction by the trial judge; (3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high; (4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it; (6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees; (7) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. These principles were stated in the case of First American Bank of Kenya v Shah and Others [2002] 1 EA 64.” 9. It is evident that there were errors in the awards for attendances under items 9,10 and 43 as in some cases the said attendances related to necessary application to or attendance on Magistrate in court or chambers Kshs 1,400/- as provided under schedule 7 rule 6. 10. Items 9 & 10 are thus taxed down to Kshs. 1,400 each and Item 43 is taxed down to Kshs. 2,800. Further, it is not clear how the sum of Kshs.75/- was allowed for the filing of a verifying affidavit under item 48 when Kshs. 39,815/- had already been allowed for filing of a defence and counterclaim under item 46. Item 48 is thus taxed off. 11. The consequence of the aforementioned is that I find that the taxing officer erred in her assessment of the bill of costs dated 17/11/2022 and the ruling dated 4/11/2024 is hereby set aside. Since the Court has proceeded and identified what should have been awarded and therefore taxed the bill, the same is hereby taxed at Kshs. 181,985/-. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF OCTOBER, 2025. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15350/eng@2025-10-31 3

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