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4. The memorandum of appeal raises the grounds below; a) The learned registrar of this Honourable court had no jurisdiction to entertain an application for joinder of the appellant as a party after taxation of the second respondents bill of costs and to undertake afresh taxation after she had taxed the 2nd respondent bill of costs as between the 1st and 2nd respondents and made a ruling thereon. b) The learned registrar failed to consider and held that the appellant has not been enjoined as a party to miscellaneous civil application no. 143 of 2019 as a basis. c) The learned registrar was functus officio and had no jurisdiction to set aside her ruling of 21st December 2020. d) The registrar erred by holding that the appellant was liable to pay auctioneers costs in any event. e) The learned registrar erred by failing to acknowledge and to hold that the only costs payable to the 2nd respondent was the sum of 261,980 and that the 1st respondent was liable to pay the same having participated in the taxation which culminated in the ruling of 21st December 2020, and not having appealed against the same. f) The learned registrar of this honourable court erred by holding that the sum of 2,365,987 was payable to the 2nd respondent when the same was wholly unsupported by her record and there being no lawful taxation preceding the same. g) The ruling of the learned registrar is a miscarriage of justice. The appellant herein prays that; a. The ruling delivered on 3rd June be vacated in its entirety. b. The 1st respondent is liable to pay the 2nd respondents cost as taxed pursuant to the ruling delivered on 21st December 2020. c. Costs of the application dated 6.2.2022 and costs of this appeal be awarded to the appellant. Appellants Submission 5. In his submissions, the appellant herein states that this court has the jurisdiction to hear and a reevaluate new evidence before the trial court as well as the judgement and arrive at its own independent judgement on whether or not to allow the appeal. He relied on selle and another v associated motor boat co.ltd and others and in peters v Sunday post limited .21 (1968). He also cited the case Santosh hazari Vs purushottam tiwari. On the issue on whether the taxing master have jurisdiction to entertain the application dated 6th February, 2022 and he argues that the taxing master has no jurisdiction to review his own ruling or rather substitute the original taxed amount with the highly inflated sum. He relies on the case of independent electoral and boundaries commission and another v Stephen mutinda mule and three others (2014) where the court stated that; “ As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19751/eng@2025-06-13 2

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they are themselves……It is no part of the duty of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice....In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific maybe raised without notice.” 1st Respondents submissions 6. The respondent in his submissions argued that the Deputy Registrar acted in accordance with the law in entertaining the application dated 6th Feb 2022 for enjoining the appellant, he relies on article 159(2)(d) which states “In exercising judicial authority, the courts and tribunals shall be guided by the following principles; (d) Justice shall be administered without undue regards to procedural technicalities. On the issue whether the 1st respondent settled the 2nd respondent’s fees in the miscellaneous application 143 of 2019, the respondent it was submitted settled all financial obligations to the 2nd respondent through the appellant adduced as evidence at the lower court, the evidence remained unrebutted by the appellant, acknowledged receipts were also produced. 7. This is an appellant court whose duty is to re-evaluate the entire evidence on record and come to its own determination bearing in mind that it neither saw nor heard witnesses during trial as was held in the cited case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA. Issues and determination 8. Having considered the memorandum of appeal, the submissions by parties and the cited case the issues for determination are; a) whether the Deputy Registrar erred in entertaining the application dated 6.2.2022 for enjoining the appellant. b) whether the taxing master ruling dated 3.6.2022 ought to be set aside. c.) whether the 1st Respondent is liable to pay the 2nd respondent costs. Analysis 9. On whether the Deputy Registrar erred in entertaining the application dated 6th February 2022 seeking to enjoin the Appellant as a party for purposes of settling the decretal sum. I will start with the issue of whether the taxing master was functus officio in the matter upon delivering the taxation ruling dated 21.12.20. This was the argument by the appellant. The respondents denied this and submitted that the court was not functus official as the issue of satisfaction of the auctioneers fees was pending determination and the 1st respondent remitted the decretal sum plus the auctioneers fees to the appellant for onward transmission to the decree holder and the 2nd respondent thus it was necessary to enjoin the appellant as a party to satisfy the said fees. Order 1 rule 10 (2) of the civil procedure rules provides that a party can be enjoined in a suit at any stage if his presence will assist the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19751/eng@2025-06-13 3

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court to finally determine all the issues before it. The ruling dated 21st December 2020 directed the 1st Respondent to settle the 2nd Respondent’s costs. The 1st respondent had argued that it has remitted the decretal sum and the auctioneers fees to the appellant for onward transmission to the decree holder and the auctioneer having already remitted the auctioneer’s fees to the Appellant and thus it was therefore only fair and just right to have the Appellant enjoined in the matter to have them answer as to whether they were paid the said amounts or not. It is not denied that the issue of payment of auctioneer’s fees is still pending and thus the taxing master was not functus officio in the matter. 10. On the issue of joinder, the appellant argued that the taxing master erred in enjoining him. 11. Appellant argued that the taxing master erred in enjoining him to the proceedings after taxation. The respondents told the court that the taxing mater was right enjoining appellant as a party for purposes of fulfilling its obligation to pay the auctioneers fees to the 22nd respondent. 12. In Civil Appeal No. 15 oF 2015: JMK Versus MWM and Another wherein the Court of Appeal of Kenya while quoting the Court of Appeal of Tanzania in Tang Gas Distributors Ltd V. Said & Others [2014] EA 448, noted the following: “ stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage.” 13. In the case of BWK (of unsound mind suing through the next friend CMK) V Samuel Maina Kung’u & 4 Others [2021] EKLR it was held that The law on joining of parties is entrenched under Order 1 Rule 10(2) which provides that; “ The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added”. This order requires the Court to evaluate the importance of such a party to the suit and their relevance to the just determination of the suit. The provisions were echoed by the Court of Appeal of Tanzania in TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS [2014] EA 448 as quoted by the Court of Appeal in Mombasa CoA App No. 15 of 2015 JMK v MWM & another [2015] eKLR quoted: “ Joiner of a party can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19751/eng@2025-06-13 4

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14. 15. 16. Hon. Lady Justice Nambuye, in Eldoret High Court Civ’ No. 136 of 2000: - Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR enumerated four aspects to look at before joining a party to a suit to wit: i. Is a necessary party? ii. A proper party; iii. There is a relief flowing from him to the plaintiff; iv. The ultimate order or decree cannot be enforced without his participation in the proceedings. Similarly, the Judges sitting in Nairobi High Court case of Julius Meme v Republic & another [2004] eKLR Misc Criminal App. No 495 of 2003, while looking at the principles for joinder of parties in Constitutional reference, though different circumstances, held: i. Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings; ii. Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law; iii. Joinder to preempt a likely course of proliferated litigation. In the case of Civicon Limited V Kivuwatt Limited & 2 Others [2015] EDKLR it was held ‘’ Again, the power given under the Rules is discretionary which discretion must of necessity be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined. In the same vein, a party seeking joinder who fails to establish any right over or interest in the subject matter cannot be enjoined. This Court in Meme vs Republic (2004) KLR 637 considering an application for joinder held that joinder will be permissible: (i) Where the presence of the party will result in the complete settlement of all the question involved in the proceedings; ii. Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and iii. Where the joinder will prevent a likely course of proliferated litigation. The Court made reference to the Supreme Court of Uganda case of Deported Asians Property Custodian Board vs Jaffer Brothers Limited (1999) I EA 55 (SCU) in which it was held that; “ A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter… https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19751/eng@2025-06-13 5

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For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” (emphasis provided). 17. The amount awarded by the taxing master in the ruling dated 3rd June 2022, was in regard to the amount requested by the appellant as auctioneers’ fees in (Exhibit A0-1). Which they confirmed having received vide the acknowledgement receipt dated 3rd October 2019, that was received in satisfaction of all the liabilities of the 1st respondent in the case which was not displaced. It is clear that under order 1 rule 10 of the Civil procedure rules, a party can be joined in a suit at any stage of the proceedings; even at the execution stage provided his joinder is necessary to assist the court to finally determine the issues before it. I find that the 1st respondent proved that he had forwarded the decretal sum and the auctioneers fees to the appellant in settlement of the decretal sum and the auctioneers fees. It was therefore necessary to enjoin the appellant in the matters for final settlement of the issue of whether the sum was settled or not. I find that Deputy Registrar acted judicially in enjoining the appellant as a party to the proceedings and therefore did not err in her said findings. Whether the taxing master ruling dated 3rd June 2022 should be set aside. 18. The appellant asked this court to set aside the ruling of the taxing master dated 3.6.22 for being against the law. In the case of Strategic Urembo Sacco Society Limited v Meli [2024] KEELC 13904 (KLR) that; the principles of varying or setting aside a Taxing Master’s decision as set out in the cases of First American Bank of Kenya v Shah and Others (2002) EA 64 and Joreth Ltd v Kigano and Associates (2002) 1 EA 92, that the Taxing Master’s judicial discretion can only be interfered with when it is established that the there was an error of principle, that the fee awarded is manifestly excessive for such an inference to arise, and where discretion is exercised capriciously and in abuse of the proper application of the correct principles of law. In First American Bank of Kenya v Shah and Others (2002) EALR 64 the court held that;“First, I find that on the authorities, 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”. These principles reiterate the position of the Court of Appeal in Joreth Ltd v Kigano & Associates (2002) eKLR, where the said Court held that a taxing master in assessing costs to be paid to an advocate in a bill of costs was exercising her judicial discretion and that such judicial discretion can only be interfered with when it is established that the discretion was exercised capriciously, and in abuse of proper application of the correct principles of law, or where the amount of fees awarded by the taxing master is excessive to amount to an error in principle. In order to overturn a taxing masters ruling, it has to be established that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19751/eng@2025-06-13 6

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19. a. there was an error of principle, b. the fee awarded is manifestly excessive for such an inference to arise, c. where discretion is exercised capriciously and in abuse of the proper application of the correct principles of law. The appellant has failed to prove the above grounds and I have not found any err of principle, the amount ordered to be paid was the actual taxed auctioneers fees and there is thus no evidence that the Deputy Registrar wrongly exercised her discretion. The ruling was well reasoned and within the law and I see no reason to disturb it. I thus uphold the ruling dated 3.6.25. Whether the 1st Respondent is liable to pay the 2nd Respondent's costs as per the ruling dated 3.6.22 20. On the issue of whether the 1st respondent is liable to pay the 2nd respondent’s costs as per the ruling dated 3.6.22 in Kisii HC Miscellaneous Civil Application No 143 of 2019, I have already found that the appellant was counsel on record of the 1st respondent in Kisii HCC 24 of 2014 and upon determination of the said case, the 1st respondent did forward the entire decretal sum of Ksh. 15,139,262/= inclusive of auctioneers’ fees in the sum of Ksh. 2,365,987/=, for onward transmission to the decree holder and the auctioneer. The appellant acknowledged but failed to remit the auctioneers fees. This was the basis of the ruling dated 3.6.22 which discharged the 1st respondent from paying the auctioneers fees and enjoined the appellant for purposes of meeting its obligation to pay the auctioneers fees. The applicant had a duty to remit the auctioneers fees to the auctioneer but he failed to do so. I agree with the taxing master that the appellant is liable to pay the said sum of Ksh. 2,365,987/= to the auctioneer. The ruling of taxing master dated 3.6.22 is upheld. 21. I find that this appeal is devoid of merit and I proceed to make the following orders: 22. a. The appeal is dismissed. b. The ruling of the taxing master dated 3.6.22 is upheld. c. The appellant to pay the 2nd respondent Kshs. 2,365,987/= as ordered by the taxing master plus interest from 3.6.22 till payment in full. d. Costs of this appeal in the sum of Ksh. 50,000/= is awarded to each respondent. It is so ordered. T.A ODERA JUDGE 13.6.25 DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 13TH DAY OF JUNE 2025 IN THE PRESENCE OF: Mbakaya for 1st Respondent Miss Kebungo for Appellant N/A for 2nd respondent Court Assistant - Kipchirchir Miss Kebungo: we seek 30 days stay of execution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19751/eng@2025-06-13 7

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Mbakaya: No objection. Order: 30 days stay of execution is granted. T.A ODERA JUDGE 13.6.25 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19751/eng@2025-06-13 8

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