High Court 524 of 2026

Petitioner’s Case 2. The Application is supported by the grounds on the face of the Application and the Petitioner’s Counsel, Chacha Sammy’s Supporting Affidavit of even date. 3. The genesis of this matter is that the Respondent filed a Party and Party Bill of Costs dated 27th May, 2024 claiming Kshs.1,439,125.00 The same was taxed at Kshs.139,675.00 by the Taxing Master, Hon. Onkoba in the impugned Ruling. 4. He depones that afterwards the Petitioner sought a copy of the Ruling and the reasons for the decision but it was not supplied and no communication has ever been received from the Court on this issue. 5. He opposes the impugned Ruling on the grounds that the sum awarded was excessive which is indicative of error in principle. According to him, the legal work done by the 2nd Respondent in this suit was not more than is expected of an advocate for professional work done. 6. Further to this, he argues that the Taxing Master failed to apply and consider the provisions of Schedule 6 of the Advocates Remuneration Order when assessing the Bill of cost. 7. He asserts that unless this Court grants the stay of execution order, the Respondent will execute the costs awards in the impugned Ruling without the Petitioner being granted a chance to canvass a reference. He claims that the Respondent will not be prejudiced if the orders are issued. Respondents’ Case 8. The Respondent did not file any response. There are no submissions in the Court file or in the Court Online Platform (CTS). Petitioner’s Submissions 9. In support of the Application, the Petitioner through its Counsel, Kelvin Mogeni filed submissions dated 14th April 2025 and set out the issue for determination as:whether the taxing master rightly exercised her jurisdiction to determine the 2nd Respondent's Party to Party Bill of Costs. 10. Counsel submitted that Instruction Fees, Item 1, which had been set at Kshs.1,400,000/- by the 2nd Respondent was taxed at Kshs.120,000/- by the Taxing Master. As stated, Counsel submitted that the professional work that was done by the 2nd Respondent’s did not transcend the ordinary expected scope of an advocate’s professional duties. Moreover, he argues that the legal issues presented in the matter were neither novel nor complex. 11. To buttress this point reliance was placed in Joreth Ltd v Kigano & Associates [2002]1 EA 92 where it was held that: “ 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 the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances." 12. In light of this, Counsel submitted that the amount awarded for Instruction fees was manifestly excessive and also lacked a reasonable basis. He points out that Instruction fees are supposed to be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/524/eng@2026-01-29 2

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assessed upon the face of the primary pleadings where settlement was reached or on the value of the final Judgment.Reliance was placed in Republic v Minister for Agriculture and 2 others Ex parte Samuel Muchiri W’Niuguna land 6 others (2006) eKLR where it was held 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 interference that it was based on an error of principle.” 13. In view of the foregoing, Counsel submitted that the Taxing Master erred in exercising her discretion with regard to the 2nd Respondent’s Party and Party Bill of costs. Analysis and Determination 14. It is my humble view that the issue that arises for determination is: Whether the Taxing Officer in her Ruling dated 31st October 2024 failed to consider the relevant principles in arriving at her decision. 15. The jurisdiction on taxation of costs and discretion to do so by the Taxing Officer is provided under Rule 10 and Rule 16 of the Advocates Remuneration Order, 2009 respectively. This Rules states as follows: Rule 10 - ‘The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks.’ Rule 16 - ‘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 costs shall be allowed which appear to the taxing officer 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.’ 16. The legal parameters, within which a Court can interfere with the Taxing Officer’s decision are now well set in jurisprudence. The principles were emphasized in Nyangito & Co. Advocates v . Doinyo Lessos Creameries Ltd [2014] KEHC 5481 (KLR) as follows: “ 19. 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 Remuneration 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 interest of the parties, the general conduct of the proceedings and any direction by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/524/eng@2026-01-29 3

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trial judge; (3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise 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. 20. 17. Further it has been held that the Court should interfere with the decision of the Taxing Officer where there has been an error in principle but should not do so in questions solely of quantum as that is an area where the Taxing Officer is more experienced and therefore more apt to the job; the court will intervene only in exceptional cases and multiplication factors should not be considered when assessing costs by the Taxing Officer or even the Judge on appeal; the costs should not be allowed to rise to such level as to confine access to court to the wealthy; a successful litigant ought to be fairly reimbursed for the costs he had to incur in the case; the general level of remuneration of Advocates must be such as to attract recruits to the profession; so far as practicable there should be consistency in the awards made; every case must be decided on its own merit and in every variable degree, the value of the suit property may be taken into account; the instructions 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 the prevailing economic conditions; one must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particular high fee sometimes demanded by counsel of pre-eminent reputation; then one must know that 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 cost be kept to a reasonable level so that justice is not put beyond the reach of poor litigants.” In making a taxation decision, the Taxing Officer ought to be guided by the principles of taxation as laid out in the case of Premchand Raichand Ltd v Quarry Services of East Africa Ltd and Another (1972) EA 162. The Court outlined the principles of taxation as follows: “ (a) That costs should not be allowed to rise to a level as to confine access to justice as to the wealthy. (b) That a successful litigant ought to be fairly reimbursed for the cost he has had to incur. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/524/eng@2026-01-29 4

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18. (c) that the general level of remuneration of Advocates must be such as to attract recruits to the profession. (d) so far as practicable there should be consistency in the award made and (e) The Court will only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party.” Furthermore, the Taxing Officer in taxing the Bill of Costs is required to be guided by the relevant Schedule in the Advocates (Remuneration) Order to make a determination. The Court of Appeal of Uganda in Makula International v . Cardinal Nsubuga & Another [1982] HCB 11 as cited with approval in Truth Justice & Reconciliation Commission v Chief Justice of the Republic of Kenya & another[2014] KEHC 5447 (KLR) pronounced itself as follows: “ The taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI, and then consider whether the basic fee should be increased or reduced. He must give reasons for deciding that the basic fee should be increased or decreased. When he has decided that the scale should be exceeded, he does not arrive at a figure which he awards by multiplying the scale fee by a multiplication factor, but places what he considers a fair value upon the work or responsibility involved. Lastly, he taxes the instruction fee, either by awarding the basic fee or by increasing or decreasing it.” 19. Correspondingly, the Court in the case of Republic v Minister of Agriculture & 2 others ex parte Samuel Muchiri W’njuguna (supra) discussing the issue of instruction fees outlined the following principles: “ …(ii) the taxation of advocates’ instruction fees is to seek no more and no less than reasonable compensation for professional work done; 20. (iii) the taxation of advocates’ instruction fees should avoid any prospect of unjust enrichment, for any particular party or parties; (iv) so far as apposite, comparability should be applied in the assessment of advocate’s instruction fees…” Furthermore, in assessing whether the Taxing Officer exercised her discretion properly, the Court of Appeal in Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] KECA 587 (KLR) citing the case of Joreth Ltd (supra) with approval observed as follows: “ The beginning point is whether the taxing officer properly exercised her discretion to determine the Advocate and client bill of costs. In the case of Joreth Ltd v Kigano & Associates [2002] 1 EA 92, this Court addressed the issue thus; “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 the importance of the cause or the matter, the interest https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/524/eng@2026-01-29 5

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of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” 21. The Petitioner’s main grievance arises out of taxation of Item 1 – where the Taxing Officer awarded Instruction Fees at Ksh.120,000/-. 22. In assessing the 2nd Respondent’s Bill of Costs, the Taxing Officer cited the case of Joreth Limited (supra) where the Court outlined the relevant principles for taxation. She also alluded to Schedule 6(1) (j)(i) of the Advocates Remuneration Order, 2014 as the applicable scale in taxing the Bill of Costs. 23. In arriving at the taxed amount, the Taxing Officer reasoned that the Court had noted in the substantive suit that the matter was neither novel nor complex. In the end, the entire Party and Party Bill of Costs were taxed at Kshs. 139,675.00. 24. It is thus apparent that the Taxing Officer gave clear reasons for making her decision in Item 1 and among others stated that the suit was not complex. She taxed off item 2 reasoning that awarding the same would amount to double taxation. Item 3 was taxed off as the 2nd Respondent had failed to adduce supporting documents or evidence to support the claim therein. The Taxing Officer as well highlighted that Item 7 was taxed as such, based on the number of folios that had been recorded. This was 10 folios taxed at Ksh.180 as guided by the Schedule 6(A) (4) (d) of the Advocates Remuneration Order. 25. Focusing on Item 1; The Advocates (Remuneration) (Amendment) Order, 2014 under Schedule 6 (1) (j) (ii) provides as follows on this issue: Constitutional petitions and prerogative orders To present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master 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— i. ..... 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. ..... 26. As stated previously, in making her decision in the Instruction Fees, the Taxing Officer observed that the suit had not raised any complexity to justify the award of Ksh.1,400,000. As such the same was taxed at Ksh.120,000/-. 27. A perusal of the suit herein reveals that the matter herein was straight forward as rightly observed by the Taxing Officer. There are no unique reasons given by the Petitioner to demonstrate that the revision of the Instruction fees downwards was premised on irrelevant factors or that the wrong Scale of the Advocates Remuneration Order was used so as to allege that there was error of principle. 28. This Court is thus satisfied that the Taxing Officer properly addressed her mind to the relevant Advocates Remuneration Order and taxed the Bill of costs under the relevant Schedule. Further, she provided sufficient reasons for taxation on each item hence in assessing the 2nd Respondent’s Bill of Costs, the Taxing Officer exercised her discretion judiciously in arriving at her Ruling. 29. This Application thus lacks merit and is hereby dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/524/eng@2026-01-29 6

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DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH JANUARY, 2026. L N MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/524/eng@2026-01-29 7

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