Ronny Patric Herbert Osser & 2 others v Uwe Heinrich Gessner (suing As Executor of The Estate of The Late Wilfred Gunther Herbert Osser)

2. The grounds in support of the application are briefly that the Applicant filed a Notice of Objection to taxation with reference to the decision of the Taxing Master. The Taxing Officer was said to have erred in principle in assessing the instruction fees and getting up fees. 3. In the Supporting Affidavit sworn by Simon P.M. Mutugi, an advocate of the High Court, it was deponed that the Bill of Costs in issue (filed in Msa HCCC No. 9 of 2019) was taxed at Kshs. 2,030,844.23/=, which was exorbitant and with no clear formula on how the amount was arrived at. The Applicants relied on a taxation ruling on how the taxation on instruction fees ought to be arrived at. 4. In response, the Replying Affidavit dated 28/05/2025 sworn by Robinson Onyango Malombo advocate, deponed that the reference had been filed prematurely as reasons for taxation had not been given by the Taxing Master. The Taxing Master was not shown to have erred in principle in assessing the bill, hence no basis for this court to interfere with the said decision. 5. Directions were taken to have the application heard by way of written submissions. The Applicant’s submissions are dated 10th March, 2025. The Respondent did not file any submissions. I shall rely on the replying affidavit. Analysis and Determination 6. I have carefully considered the application, the response, the Applicant’s submissions, the authorities cited as well as the law and the only issue for determination is whether application is merited. Corollary to this is the issue of costs. 7. The application is basically a reference on the Taxing Master’s ruling dated 06/02/2025. The role of this court on a reference is clearly delineated. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held as follows: “ …On a reference to a judge from the taxation by the Taxing Officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs…” 8. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of the Court of Appeal observed as follows: “ …where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases…” 9. The Applicants complaint is that the fees awarded to the Respondent was manifestly excessive thus inviting this court’s interference on the same. It was submitted that the Taxing Master failed to adhere to the principles outlined in Schedule 6 of the Advocates Remuneration Order, 2014 and established judicial precedents. 10. As ascertained from item 1 of the Bill of Costs, the Plaintiff sought declaratory orders against the Defendants over a dispute revolving around the shareholding of the 3rd Defendant company. The Applicants submits that the value of the subject matter is the value of shares amounting to Kshs. 75,000/=. The instruction fees ought to be Kshs. 75,000/= and getting up fees of Kshs. 25,000/=. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19594/eng@2025-12-18 2

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11. Even though the Taxing Officers did not give reasons for his ruling as requested by the Applicants, the ruling was self-explanatory. Failure to give reasons for the ruling does not make the reference premature as stated by the Respondent and as per the authorities cited herein below. 12. In the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board Civil Appeal No. 220 of 2004 (2005) eKLR it was held as hereunder; “ … It is true that the taxing officer did not record the reasons of the decision on the items objected to after the receipt of the respondent’s notice. It seems that the taxing officer decided to rely on the reasons in the ruling of taxation dated 24th February, 2004. That ruling at least indicated the formula that the taxing officer applied to access the instructions fees. Although there was no strict compliance with Rule 11 (2) of the Order, we are nevertheless, satisfied that there was substantial compliance. The adequacy or otherwise of the reasons in the ruling is another matter. Indeed, we are of the view, that if a taxing master totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference”. 13. In addition to the above, in the case of Evans Thiga Gaturu v Kenya Commercial Bank Limited [2012] eKLR, the court stated as hereunder; “ …. In most cases the court is aware that the taxing officers in their decisions on taxation do deliver comprehensive rulings which are self-contained thus obviating the necessity to furnish fresh reasons thereafter. In such circumstances, it would be fool hardy to expect the taxing officer to redraft another “ruling” containing reasons.” 14. In respect to the value of the subject matter, it is a fact that the value could not be discerned from the pleadings. In Joreth Limited v Kigano & Associates [2002] eKLR, the Court of Appeal held 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…” 15. The court shall interrogate the Taxing Master’s decision to satisfy itself as to the reasons that made the Taxing Master adopt the figure of Kshs. 1,350,000/= for purposes of computing instruction fees. The Taxing Master acknowledged that the value of the subject matter could not be ascertained the primary suit having sought for declaratory orders. Further, the matter took over 4 years in court since the date of filing, and post judgment proceedings are still ongoing. 16. The Taxing Master relying on the case of Peter Muthoka & another v Ochieng & 3 others, Civil Appeal No. 328 of 2017 [2019] eKLR and Joreth Limited case (supra) exercised his discretion to arrive at the figure as stated herein above. On getting up fees, the same is in compliance with Schedule VIA of the Advocates Remuneration Order, 2014. I find no reason to interfere with the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19594/eng@2025-12-18 3

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17. In the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd, HC Misc No. 843 of 2013 [2014] eKLR stated as follows; “ ….the instruction fees ought to take into account the amount of work done by the advocate, and where relevant, the subject matter of the suit as well as prevailing economic conditions; one must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or willing to insist on the particular high fee sometimes demanded by counsel of pre-eminent reputation; then one must know what fee this hypothetical character would be content to take on the brief; clearly it is important that advocates should be well motivated but it is also in the public interest that costs be kept to a reasonable level so that justice is not put beyond the reach of poor litigants.” 18. From the Taxing Master’s reasoning, I see no error of principle warranting this court’s intervention. As held in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board (supra), courts should be slow in interfering with a Taxing Master’s exercise of discretion. I have found no error of principle and as such, there is nothing to warrant this court to interfere with the ruling dated 06/02/2025. I have said enough to show that the application dated 07/03/2025 must fail. 19. On costs, the same follows the event. However, it must be remembered that award of costs is discretionary and the court reserves the discretion whether to award the same or not. Though the application has failed, it was not brought in bad faith and the Applicant had bona fides in bringing the same. I therefore direct that each party shall bear own costs. 20. The upshot of the foregoing is that the court renders itself as hereunder: a. The Chamber Summons application dated 7th March, 2024 lacks merit and the same is hereby dismissed; and b. Each party to bear own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 18TH DAY OF DECEMBER, 2025. ……………………… HON. F. WANGARI JUDGE In the presence of; Mr. Mkomba Advocate for the Applicant Ms. Malombo Advocate for the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19594/eng@2025-12-18 4

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