Kavraj Kaur & Associates Advocates v Gajipara Builders Limited

(iii) That the costs of this Application be provided for 2. The applicant filed the affidavit sworn by Kavraj Sagoo in support of the reference. 3. The Respondent on the other hand filed a Replying affidavit to oppose the summons. When the reference came up for hearing the court gave directions for the parties to file written submissions. 4. It is the submission of the applicant that the Taxing Officer erred in principle by failing to consider the defined and ascertainable value of the subject matter as disclosed in the pleadings. 5. It is said that both parties conceded to the instructions fee payable and tabulated the same based on a sum of Ksh 4,390,300/= as the value of the subject matter. 6. The second ground argued by applicant is that the Taxing Officer erred in principle by assessing instruction fees based on the stage at which the suit reached. It is further argued that instructions fee is a static and independent item, chargeable once upon receipt of instructions and not dependent on the progress or outcome of the suit. 7. The applicant urged this court to set aside the decision of the Taxing Officer delivered on 7 th March, 2025 in respect of items 1 and 3 to have the same taxed afresh. 8. The Respondent opposed the reference and urged this court not to interfere with the Taxing Officer’s decision. It is the 2 | Page

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Respondent’s argument that most items in the Bill of Costs herein were not drawn to standard and as such the Taxing Officer did not err in principle in taxing the contested Bill of costs as drawn and taxing off the exaggerated amounts. The Respondents also argued that there is no denial that special damages was stated to be Kshs 4,390,300/=. However, it is pointed out that this was not the only issue being prayed for. The plaint confirms that general damages were pleaded amongst other prayers. 9. Having considered the rival submissions, it is now clear that the plaintiff namely Gajipara Builders Ltd, filed an action by way of the plaint dated 14th February, 2023 whereof it sought for judgment inter alia as follows: (a) A declaration that the actions by the Defendants were negligent and amounted to a breach of contract. (b) Special damages in the sum of Ksh 4,390,300/= (c) General damages (d) Interest on (a), (b) and (c) above (e) Costs of the suit plus interest at court rates. (f) Any other further relief which the court deems fit. 10. The question is whether the amount claimed from the plaint can be said to be ascertainable in this matter. In the 3 | Page

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case of Joreth Ltd Vs Kigano & Associates [2002] 1 E.A 92 the court held inter alia as follows: “We would at this stage point out that the value of the subject matter for 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 ascertainable the taxing officer is entitled to use his discretion to assess such instruction fees as he considers just taking into account amongst other matters, the nature and the 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”. 11. In the instant case, it is clear that the amount claimed as special damages is Ksh 4,390,300/=. However, the plaintiff also claimed General damages amongst other prayers. 12. It is the view of this court that the value of the subject cannot be ascertained from the pleadings. With respect, I am convinced therefore that the Taxing Officer was right in stating that the subject matter of the aforesaid matter cannot be properly ascertained. In sum, there was no ascertainable figure from the pleadings or finding from the court for the Taxing Officer to attribute as instructions fees. 4 | Page

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13. In the case of Delmonte (K) Ltd Vs Kenya National Chamber of Commercial and Industry (KNCCI), Murang’a Branch Chapter & 2 others [2021 eKLR, the court stated inter alia as follows: “There are two limbs of this passage which the court wishes to emphasize. First, in taxing an advocate’s Bill of Costs, the value of the subject matter must be ascertained a priori. Where the value of the subject matter of a suit is known or can be determined form the pleadings, judgments or settlement, the Taxing Officer has no discretion in assessing instruction. However, where the value of the subject matter is unknown or cannot be ascertained, then the Taxing Officer is expressly permitted, in exercising his or her discretion to take into account any such matters as he or she may consider to assess instruction fees”. 14. This court has come to the conclusion that the Taxing Officer in this matter did not, err in principle in her findings. 15. In the end, I find no merit in the reference, Consequently, the chamber summons dated 30 th June, 2025 is dismissed with costs being awarded to the Respondent. Dated, signed and delivered at Nakuru this 30 th day of July, 2026 5 | Page

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J. K. SERGON JUDGE In presence of: Rutoh C/A Kimuge for the Advocate Muriithi for the Respondent 6 | Page

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