Bonary’s Security Services Limited v Nakuru Water and Sanitation Services & 1 other

2) THAT the Court be pleased to admit the Chamber Summons dated 1/10/2024 being the proposed Reference as duly filed. 3) THAT the court does grant any other relief deemed fit. 2. The Application is supported by affidavit evidence of the Applicant’s Operations Manager (Moses Kipkogei Cheruiyot). He deposes to the fact that on 9/9/2024 the Taxing Officer taxed the Bill of Costs dated 2/5/2023. The Applicant objected to the sums at which certain items in the Bill of Costs were taxed. 3. It would appear that the Applicant through its Advocates thereafter wrote to the Taxing Officer seeking reasons for arriving at the contested figures but the letter dated 19/9/2024 did not elicit a response. The Applicant then went ahead to lodge a Reference to this court vide Chamber Summons dated 1/10/2024. 4. The Applicant contends through its witness that the proposed Reference raises serious issues of law and fact this court needs to consider. It is feared that the Applicant could suffer Page 2 of 11

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irreparable loss and damage if the impugned order is converted into a decree and executed by the Respondents. 5. The Applicant explains the delay to file the Reference as occasioned by the failure to obtain reasons for the taxation in question in good time. 6. For the stated reasons inter alia , the Applicant craves orders as per the Application. 7. The 1st Respondent opposes the Application through an affidavit in reply sworn by its Managing Director (James Ng’ang’a Gachathi). The Applicant is faulted for filing the Reference before receiving reasons for taxation of the contested items in the Bill of Costs, contrary to the law. The court is told that the Taxing Officer was not obliged to give her reasons within any specific period and, therefore, the Applicant ought to have waited until reasons were given. The Reference is therefore said to be premature and legally unsustainable. 8. The 1st Respondent further avers inter alia that the Applicant is guilty of inordinate delay to bring this Application and Page 3 of 11

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therefore underserving of exercise of the court’s discretion in its favour. 9. The 2nd Respondent did not respond to the Application. 10. Learned Counsel for the parties filed written submissions. Applicant’s Submissions 11. The Applicant’s Advocates cite and rely on the Court of Appeal’s decision in Nicholas Arap Kori Salat vs IEBC & 7 Others (2014) eKLR for the proposition that extension of time is an equitable remedy granted at the court’s discretion if sufficient cause is shown. It is maintained that notice of objection to the taxation in issue was filed within the stipulated 14 days and therefore no prejudice was occasioned to the Respondents. 12. The Applicant further makes reference to the Court of Appeal in Kipkorir, Protection Titoo Fund & Board Kiara (2005) Advocate vs Deposit eKLR; Evans Thiga Gaturu Advocate vs Kenya Commercial Bank Limited (2012) eKLR and Ahmednassir Abdikadir & Company Advocates vs National Bank of Kenya Limited (2006) I EA 5 in which it was observed that where the Taxing Page 4 of 11

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Officer’s Ruling already contains reasons for the decision, an Objector need not wait endlessly to file a Reference to this court. 13. The court is accordingly urged to find that the Reference is properly before the court and it be determined on merits. Merits of the Reference 14. Regarding the merits of the Reference, the Applicant’s Advocates submit on the authority of First American Bank of Kenya vs Shah & Others (2002) IEA 64 that the High Court only interferes with the Taxing Officer’s decision where there is an error of principle or where the award is manifestly excessive or low. 15. The Applicant continues to submit that the Taxing Officer’s award on the Advocates’ instruction fees does not reflect applicable principles under Schedule 6 to the Advocates (Remuneration) (Amendment) Order, 2014. In Joreth Limited vs Kigano & Associates (2002) eKLR cited by Counsel, the Court of Appeal stated the following principles to guide the Taxing Officer in assessing instruction fees; i. Complexity of the matter. Page 5 of 11

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ii. Nature and importance of the subject matter. iii. The amount of work involved. 16. According to the Applicant, the instruction fees assessed by the Taxing Officer are manifestly excessive in the circumstances. Despite acknowledging that the value of the subject matter of the dispute is not ascertainable, the Taxing Officer is said to have committed an error of principle in awarding the sum in contention. Learned Counsel for the Applicant allude to the judicial determination in Republic vs Minister for Agriculture & 2 Others Ex-parte Samuel Muchiri W’Njuguna & 6 Others (2006) eKLR, and Republic vs KRA Ex-parte Yaya Towers Limited (2008) eKLR where it was held that excessive instruction fees amounts to an error of principle and reasonable fees are recommended according to the particular circumstances of each case. 1st Respondent’s Submissions 17. It is submitted by the 1st Respondent’s Advocates that pursuant to Rule 11(1) and (2 ) of the Advocates Remuneration Order, a party dissatisfied with taxation of a Page 6 of 11

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Bill of Costs may file a notice of objection within 14 days of the impugned decision and request for reasons for the Taxing Officer’s decision. The Taxing Officer then “shall forthwith” provide the reasons after which a Reference be filed and served within 14 days. 18. In Paul Gicheru T/A Gicheru & Company Advocates vs Kargua (k) Construction Company Limited referred to by Counsel, this court noted that the Taxing Officer is not obliged to give reasons within a certain timeline but should act within a reasonable time. The court stated that where a Reference is filed without giving the Taxing Officer reasonable time to give desired reasons for the impugned decision, the purported Reference is null and void. 19. The 1st Respondent in the premises urges the court to dismiss the Application with costs. 20. The 2nd Respondent has not also filed submissions. Brief analysis and Determination Page 7 of 11

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21. Based on their submissions, the parties have decided to argue both the Application for extension of time and the proposed Reference together. The court shall proceed to determine the two Applications accordingly. Beginning with the Application dated 24/6/2024 for extension of time to bring the Reference, the record shows that the Taxing Officer’s disputed decision was made on 9/9/2024. Notice of objection to the Taxation dated 19/9/2024 was thereafter transmitted to the Taxing Officer and, as per court stamp affixed on a copy of the letter exhibited, the notice was received on 23/9/2024. 22. It is common ground that there is no specific timeline within which the Taxing Officer is required to provide reasons for a decision on assessment of a Bill of Costs once the notice of objection is received. 23. The issue for determination is whether the Taxing Officer took unreasonably long to act as to warrant filing of the Reference sans reasons for the impugned decision. It is not in dispute that the Applicant’s notice of objection to the Taxation is dated 19/9/2024 and was received by the Taxing Officer on Page 8 of 11

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23/9/2024, about 4 days later. The purported Reference was filed on 2/10/2024 as per court receipt stamp thereon. 24. I don’t think that the delay of 4 days or thereabouts to provide the Applicant with the desired reasons was unreasonable in the circumstances. Besides, the impugned Ruling on taxation of the Bill seems to give reasons for the sum allowed under the item on instruction fees. From the material placed before the court this is the only disputed item. More reasons need not have been given, therefore, and the Reference is accordingly found to have been lawfully filed. 25. After stating that the value of the subject matter of the dispute in the suit is unascertained, the Taxing Officer observed thus in relation to the instruction fees in issue; “….The matter was not as complex and the same was concluded at the preliminary stage before being substantially heard on appeal. In my opinion the Kshs. 1,200,000/= sought is in the higher side. I shall then in applying my discretion tax the same at Kshs. 800,000/= also bearing in mind the time that was employed in this matter tracing the same from the lower court to the high court, and of Page 9 of 11

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course the value of the shillings and the charge in the economy.” (sic) 26. In the circumstances obtaining in the instant matter, discretion of the Taxing Officer is called for. In Premchand Raichand & Joreth Limited commonly quoted in this area of litigation, the following factors ought to be considered by the Taxing Officer;a) Nature, complexity and importance of the matter to the parties. b) The amount of time research and documentation involved. c) General conduct of proceedings. d) Interests of the parties. 27. These factors submissions. than the are also underscored in the Applicant’s Whatever amount charged should not be less minimum allowed under Schedule 6 of the Advocates Remuneration Order as is the law. 28. No particular or special complexity is shown in this matter as to call for deep research by Counsel. The suit was determined at the preliminary stage. I agree that allowing instruction fees at Kshs. 800,000/= was a bit on the higher side in the circumstances. It is instead allowed in the sum of Kshs. Page 10 of 11

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500,000/= and the Taxing Officer’s decision on instruction fees is substituted accordingly. 29. The parties shall bear their own costs of the Reference and the Notice of Motion dated 24/6/2024. 30. Judgement accordingly. J. M. NANG’EA, JUDGE. Ruling dated, signed and delivered virtually at Nakuru this 12 th day of June, 2026. In the presence of: Applicant’s Advocate, Absent. 1st Respondent’s Advocate, Ms Chepkemoi for Mr Kipkoech. 2nd Respondent, Absent. Court Assistant (Jeniffer). J. M. NANG’EA, JUDGE. Page 11 of 11

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