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b. That this Honourable Court be pleased to tax the items of the Bill of Costs dated 26th November 2019 set out in 1 (i)-(v) above. c. That in the alternative to prayer (b) above, this Honourable Court do remit the items of the Bill of Costs dated 26th November 2019 set out in 1 (i) – (v) above to another Taxing Officer for taxation with direction on the taxation. d. That the Advocate/Applicant be awarded costs of this application. 2. The application is supported by the grounds thereto and the affidavit of the even date sworn by Martin G. Mwaniki, an Advocate and partner in the applicant’s firm. He avers that the applicant firm filed a bill of costs (herein “the bill”) dated 26th November, 2019 against the client/respondent for fees payable for retaining the applicant’s firm. 3. That the bill was taxed on 13th January, 2022 at an all-inclusive of Kshs., 133,718 as follows: a. Instruction fees --------- Kshs 42,000 b. Increased by ½ --------- Kshs 21,000 c. Amount before disbursement --------- Kshs 51,800 d. 16% VAT --------- Kshs 18,368 e. Disbursements --------- Kshs 550 f. Total --------- Kshs 133,718 4. That by a letter dated 17th January, 2022 addressed to the Deputy Registrar, the applicant objected to the taxation and called for reasons of the ruling. Subsequently, on 28th January. 2022 the applicant was informed that the reasons were contained in the ruling which was collected by the applicant on 1st February, 2022. 5. The applicant avers that it is objecting to the taxation on the following grounds that: a. The Learned Taxing Officer erred in law and misdirected herself in principle in holding that Schedule 7 of the Advocates (Remuneration) Order applied to the taxation of Bill of Costs dated 26th November 2019, when the Advocate/Applicant filed, contemporaneously with the Bill of Costs, a Notice of Election dated 26th November 2019, electing under paragraph 22 of the Advocates (Remuneration) Order ("the Order") to charge the Bill of Costs under Schedule V, Part Il of the Order. b. The Learned Taxing Officer erred in law and misdirected herself in principle in taxing off Kshs. 23,000/= on Item 1 when the sum of Kshs. 63,000 sought was charged under Schedule V with reference to full advocate-client fees for instructions fees under Schedule Vll in view of the provisions of paragraph 22 (2) of the Advocates Remuneration Order 2009. c. The Learned Taxing Officer erred in law and misdirected herself in principle in taxing off Items No. 2-43, 45-49, 51-53, 55-60, 62-66, 68-73, 75-77, 79-81, 83-89, 91-96, 98- 103, 105-1 1 1, 1 13-122, 124-128, 130-132, 134-140, 142-144,146-148, 150-176, 178, 180-, 182-190 relating to copies, correspondences, travelling to Naivasha, perusals among others on the premise that they are not provided for under Schedule 7 of the Order when the Advocate/Applicant herein filed a Notice of Election electing to charge the Bill of Costs under Schedule V, Part Il of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19647/eng@2025-11-19 2

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Advocates Remuneration Order where all the above mentioned items are provided for and were accordingly drawn in the Bill of Costs. d. The Learned Taxing Officer erred in law and misdirected herself in principle in taxing Items No. 44 & 129 relating to attendance for hearing under Schedule 7(i) of the Advocates Remuneration Order when the same ought to have been taxed under paragraph 3 of Schedule 5 of the Advocates Remuneration Order of 2009 and 2014 as the case may be. e. The Learned Taxing Officer erred in law and misdirected herself in principle in taxing Items No. 50, 54, 61, 67, 74, 78, 82, 90, 97, 104, 112, 123, 133, 141, 145, 149, 179 &181 which relate to attending the court for mention under Schedule 7(ii) of the Advocates Remuneration Order when the same ought to have been taxed under paragraph 3 of Schedule 5 of the Advocates Remuneration Order of 2009 and 2014 as the case may be. f. The Learned Taxing Officer erred in law and misdirected herself in principle in the taxation of Item No. 177 which relate to attendance before the DR for taxation pursuant to Schedule 7 of the Advocates Remuneration Order when the same ought to have been taxed under paragraph 3 of Schedule 5 of the Advocates Remuneration Order of 2014. g. The Learned Taxing Master erred in principle by failing to exercise her discretion properly and made manifest error in principle resulting in the grant of grossly deficient award of Kshs. 133,718/=. h. It is in the interest of justice that the Learned Taxing Officer's taxation in the ruling of 13th January 2022 be set aside and that this Honourable Court be pleased to tax the Bill of Costs or remit it to another Taxing Officer for taxation. 6. However, the respondent opposed the application and filed a replying affidavit dated 9th May 2022 sworn by its legal officer Morine Wangeci. She avers that, the application is fatally defective for failing to comply with the provisions of paragraph 11 of the Advocates Remuneration Order as the applicant’s letter dated, 17th January, 2022 only sought for a copy of the ruling and therefore it does not qualify as a notice of objection to the taxing officer’s decision neither does it specify the items in the bill of costs the applicant was aggrieved with. 7. Further, the court will not normally interfere with the exercise of discretion by the Taxing Officer unless there was an error in principle in assessing costs. Further, the applicant has failed to demonstrate how the Taxing Officer erred in exercise of her discretion and as the Taxing Officer did not err in her decision, the application should be dismissed in its entirety with costs. 8. However, the applicant filed a supplementary affidavit dated 3rd February, 2023 sworn by Martin G. Mwaniki in response to the respondent’s replying affidavit. He avers that, the application complies with the provisions of paragraph 11 of the Advocate Remuneration Order, since the applicant objected to and sought reasons for the taxation within fourteen (14) days. 9. Further, the applicant lodged two letters dated 17th January, 2022; one seeking a copy of the ruling, and the other objecting to the ruling. However, the letter objecting to the taxation was inadvertently not annexed to the supporting affidavit. 10. Furthermore, it is clear from the email correspondence annexed to the supporting affidavit that both letters were sent to court and acknowledged by the Court vide email dated 17th January, 2022. 11. The application was disposed of by filing of submissions. The applicant in submission dated, 3rd February 2022, arguing that, paragraph 11 of the Order requires the notice to the taxing officer of items https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19647/eng@2025-11-19 3

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of taxation objected to be filed with fourteen (14) days of the taxing officer’s decision and thereafter the application to the court be filed within fourteen (14) days of receipt of reasons of taxation. 12. The applicant argued that, it complied with paragraph 11 of the Advocates Remuneration Order as the taxation ruling was delivered on 13th January, 2022 and the notice of objection to taxation filed vide a letter dated 17th January, 2022. 13. Further, the court vide a letter dated 28th January, 2022 the court notified the applicant that the reasons of taxation were contained in the ruling. That the applicant collected the ruling on 1st February, 2022 and subsequently filed the present application on 11th February 2022. 14. The applicant reiterated that, the Taxing officer erred in holding that Schedule 7 of the Advocates Remuneration Order was applicable to the taxation despite the applicant filing a Notice of Election dated 26th November, 2019, contemporaneously with the bill. 15. That, the Notice of Election clearly indicate that, the applicant had elected under paragraph 22 of the Advocates Remuneration Order to charge the respondent under Schedule 5 instead of Schedule 7 of the Order. Reliance was placed on the case of Nyamogo & Nyamogo Advocates v Protex (K) EPZ Limited Machakos HCMCA No. 176 of 2007 where the court found that where an Advocate files a Notice of Election contemporaneously with the bill electing to use Schedule 5, the Taxing Officer lacks discretion to not apply Schedule 5. 16. The applicant further submitted that, it sought instruction fees of Kshs. 63,000 by relying on paragraph 22 (2) of the Advocates Remuneration Order which states that in making an election under Schedule 5, an Advocate will not charge less than the appropriate schedule. That in the instant case, Schedule 7 of the Advocates Remuneration Order was the appropriate schedule which provides the minimum advocate-client costs as the party and party costs being Ksh. 42,000 increased by one half (½). However, the taxing officer taxed item 1 at Kshs 42,000 but erred in failing to increase it by one half (1/2). 17. The applicant relied the case of; Civil Appeal (application) No. 48 of 2014, Central Bank of Kenya v Makhecha & Co. Advocates [2019] eKLR where the Court of Appeal stated that, where taxed and agreed, unless there is an agreement as to fees between the client and the advocate, the advocate is entitled as a right by dint of Schedule 7B of the Order to party and party costs plus half of the same. 18. The applicant reiterated his averments in the supporting affidavit to the effect that, the taxing officer erred in taxing off items on the ground that they are not provided for under Schedule 7 of the Order and ignored the provisions of paragraph 3 of the Schedule 5 of the Advocates Remuneration Order of 2006, 2009 and 2014. 19. The applicant urged the court to set aside the ruling of the Taxing Officer and re-tax the Bill of Costs or in the alternative remit the Bill of Costs to another Taxing Officer for taxation. 20. However, the respondent in submissions dated 17th February, 2023 argued that, notice of election annexed to the chamber summons application was received by the respondent on the 16th January, 2022 which date was after the bill had been filed on 3rd December, 2019.That in the circumstances, the Taxing Master was correct in holding that, the election was not communicated as required under paragraph 22 of the Advocates Remuneration Order. 21. Further, it was the duty of the advocate to demonstrate to the Taxing Master that the Notice of Election had been issued and served to the client as required. However, the applicant failed to do so thus there was no error in principle. The respondent urged the court to dismiss the application with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19647/eng@2025-11-19 4

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22. 23. Be that as it were, having considered the material placed before the court I note the issues for consideration are whether: a. The applicant complied with the provisions of Paragraph 11 of the Advocates Remuneration Order. b. The Taxing Master erred in applying Schedule 7 in taxing the subject costs instead of Schedule 5 as elected by the applicant under paragraph 22 of the Advocates Remuneration Order. c. The orders sought can be granted. The principles under which a court will interfere with the exercise of discretion by a taxing master are clear. In First American Bank of Kenya v Shah and Others [2002] E.A.L.R 64 at 69, Ringera J (as he then was) observed as follows: “ This 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 so manifestly excessive as to justify an inference that it was based on an error of principle… it would be an error of principle to take into account irrelevant factors or to omit to take into account relevant factors… some of the relevant factors include the nature and importance of the cause or matter, the amount or value of this subject matter involved, the interest of the parties, the general conduct of proceedings and any direction by the trial judge…not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him…” 24. Further, in the case of Kipkorir Titoo & Kiara Advocates v. Deposit Protection Fund Board [2005] eKLR the Court of Appeal held that: “ 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.” 25. As regards the issue of compliance with paragraph 11 of the Advocates Remuneration Order states as follow: “ (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” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19647/eng@2025-11-19 5

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26. I find that, the applicant produced a letter dated 17th January 2022 addressed to the Deputy Registrar seeking for a certified copy of the ruling. That letter is annexed to the deponent’s supporting and supplementary affidavit marked as MGM2(a) and MGM1(c) respectively. Further, the applicant produced a letter dated 17th January 2022 addressed to the Deputy Registrar objecting to the taxation on item 1 through to item 120 of the Ruling and requesting for reasons for the said ruling which letter was annexed to the supplementary affidavit and marked MGM1(b). I also note that the applicant annexed to the supplementary affidavit and marked as MGM1(a) an email sent to Naivasha High Court forwarding the notice of objection and the letter requesting ruling. 27. As regards the schedule applied by the taxing master, the applicant has objected to the decision of the taxing Officer to apply Schedule 7 of the Order in determining the bill on the ground that it filed a notice of election of Schedule 5 of the Order. 28. In that regard Paragraph 22 of the Advocates Remuneration Order provides for the liberty of an advocate to elect to have the bill taxed under Schedule 5, which states as follows: - 29. “ (1) In all cases in which any other Schedule applies, an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under such Schedule, his remuneration shall be according to Schedule 5, but if no election is made his remuneration shall be according to the scale applicable under the other Schedule. (2) Subject to paragraph 3, an advocate who makes an election under subparagraph (1) of this paragraph may not by reason of his election charge less than the scale fee under the appropriate Schedule.” In the case of Sophie Chirchir v Africa Merchant Assurance Co. Ltd [2022] eKLR, Odunga J (as he then was) stated that: “ 17. 30. It follows that once an advocate makes an election as to which schedule of the Advocates Remuneration Order applies to taxation of his costs as against his client, the Taxing Master has no option but to proceed in the manner elected.” Furthermore, in the case of Mutisya & Co Advocates v Lazaro Omita Nyagol[2004] eKLR the High Court at Mombasa stated that: “ The court considering both views above concluded that for any items that costs fell to be paid but were not provided for under Schedule VII, they were properly put forth under Schedule V and the taxing officer was obliged to consider them and tax according to her discretion as such and not strike them out altogether. Paragraph 22 applies when an advocate knowing that there exists a Schedule under which his remuneration ought to be charged opts out of it altogether and elects/decides instead to get remunerated wholly under Schedule V. In such a case he will notify his client in advance or at the same time as he files his bill of costs.” 31. From the above it is clear that where an advocate elects to have his bill taxed under the provisions of Schedule 5, a duty is placed on them to inform the client of the same before or at time of filing his Bill of Costs. In the case of Nyamogo & Nyamogo Advocates v Protex (K) EPZ Limited [2008] eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19647/eng@2025-11-19 6

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relied on by the applicant, the Court took note that the advocate had written a letter to the client giving notice that the Bill of Costs was prepared and brought under Schedule 5. 32. The question that arises then is whether the applicant duly informed the client of its election to have the bill taxed under Schedule 5. On the 3rd December, 2019 the applicant filed the bill dated 26th November 2019 brought under Schedule 5 of the Advocates Remuneration Order. Attached to the bill was a Notice of Election dated 26th November, 2019 and served upon the respondent on 16th January, 2020. The bill was taxed on 13th January 2022. 33. The Taxing Officer in taxing the Bill of Costs under schedule 7 in the ruling held that: “ The bill is taxed under Schedule 7 Advocate Remuneration Order 2009 & 2014 which provides for costs of proceedings in the lower court as the applicant did not communicate to the client of his election of Schedule V in writing as required by statute.” 34. In my considered opinion the applicant complied with the provisions of Paragraph 22 of the Advocates Remuneration Order and the taxing master erred in disregarding the notice of election, consequently I set aside the taxing master’s decision. 35. It is trite where the Court finds that there was an error of principle by the Taxing Officer, the practice is to remit it for re-taxation before a different Taxing Officer. In the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal stated thus: “ And if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle the general practice is to remit the question of quantum for the decision of taxing officer (see - D’Souza v Ferrao [1960] EA 602. The judge has however a discretion to deal with the matter himself if the justice of the case so requires (see Devhi Dhanji v Kanji Naran Patel (No. 2) (supra).” 36. Similarly, in the case of Nyamogo & Nyamogo Advocates v Protex (K) EPZ Limited (supra), the Court held that: “ 10. I will order that the Bill be re-taxed because it is not good practice for the High Court to assume the jurisdiction which is one of discretion given to the Taxing Officer. That is why Kuloba J. in Judicial Hints on Civil Procedure stated as follows:“ 11. Whether, if the matter were to be remitted, it should be remitted to the same or to another different taxing officer; The proper course, where a taxing officer has erred in principle, is to make a remit to another taxing officer and to order a retaxation of the bill in terms of the court’s ruling. That is the usual and proper course: Cram J in a ruling dated 3 October 1958, at folio 18 on “Taxation Rulings”. Where a case is remitted, there is sometimes an advantage in its coming before a different taxing officer, sometimes an advantage in its coming before a different taxing officer, who can bring a fresh mind to it. On the other hand, if the taxing officer from whose taxation appeal was made, is familiar with what is a complex case, no objection https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19647/eng@2025-11-19 7

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being taken against him and especially if there is no other officer of comparable experience, the same taxing officer should re-assess the bill: Spry JA in Steel Construction and Petroleum Engineering (EA) Ltd v Uganda Sugar Factory Ltd, (1970) EA 141 at 146 (20 December 1969). Cf paragraph 180, Note 2, post.” 37. In conclusion, I direct that the bill be taxed before a different taxing master. In view of the circumstances of this case no orders are made as to costs. 38. It is so ordered. DATED, SIGNED AND PUBLISHED ON THIS 19TH DAY OF NOVEMBER 2025 GRACE L. NZIOKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19647/eng@2025-11-19 8

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