P. Mulwa, J. v Edward C. Asitiba & Associates Advocates & 2 others

HCCOMM MISC NO. E589 OF 2023 iii. P. MULWA, J. An order directing that the respective Bills of Costs be remitted for taxation before a different Taxing Officer, or re-taxed by this Honourable Court; iv. Costs of the References. 2. The application is premised on the various grounds set forth as: That the Taxing Officer erred in principle by failing to take into consideration the Client’s detailed submissions resulting in a manifestly excessive award; by applying Schedule 5 of the Advocates Remuneration Order (ARO) 2014 instead of Schedule 7; by awarding exceedingly high and excessive costs considering the premature termination of the cases in the subordinate court and the limited scope and duration of the engagement as well as the Advocate’s prior fee communication at the time of termination. 3. It was further contended that the Taxing Officer proceeded with taxation without confirming service of one of the Bill of Costs hence denying the Client the right to contest the same, and that unless the orders sought are granted, the Applicant will be executed upon for the total amount of Kshs. 78,500/=. 4. The Respondent opposes the References by way of the Replying Affidavit of its learned counsel, Edward C. Asitiba, sworn on 12th March 2026. The Respondent urges the Court to uphold the Taxing Officer’s reasoned rulings of 27 th October 2025 wherein she taxed the Advocate-Client Bill of Costs at Kshs. 43,900/= and the Party and Party Bill of Costs at Kshs. 34,600/=. It avers that the Taxing Officer properly Page 2 of 6

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HCCOMM MISC NO. E589 OF 2023 P. MULWA, J. exercised her discretion and therefore the Applicant’s application is misconceived, frivolous and devoid of merit. 5. The Respondent maintains that the Applicant has not demonstrated any error of principle committed by the Taxing Officer to warrant interference by this Court. That the amounts taxed are reasonable, fair and commensurate with the professional services rendered. 6. The Respondent avers that learned Taxing Officer correctly applied the applicable schedule and provisions of the ARO when she taxed the two Bills of Costs which arose from the same cause. The Respondent observes that Applicant is simply dissatisfied with the quantum of costs awarded rather than any specific misdirection in law or improper exercise of discretion by the Taxing Officer. All this in an effort to avoid settlement of the taxed costs. The Respondent therefore prays that the Reference be dismissed with costs. 7. The application was heard by way of oral submissions by learned counsel for both parties. Analysis and determination 8. I have considered the Reference, the affidavits filed by the parties, and the oral submissions. In my view, the sole issue for determination is whether the learned Taxing Officer erred in principle by taxing the Party and Party Bill of Costs as well as the Advocate-Client Bill of Costs and whether the respective taxed amounts were excessive. 9. The jurisdiction of a Judge on a reference from the decision of a Taxing Officer is well settled. The High Court does not Page 3 of 6

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HCCOMM MISC NO. E589 OF 2023 P. MULWA, J. interfere with the exercise of the Taxing Officer’s discretion merely because it would have reached a different conclusion. Interference is warranted only where it is demonstrated that the Taxing Officer acted on a wrong principle of law, misapprehended the law, took into account irrelevant considerations, failed to consider relevant matters, or where the decision is plainly wrong. 10. In Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR this Court observed that: “On reference to a Judge from the taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.” 11. With this in mind, the question is whether the Taxing Officer acted on the wrong principles or arrived at a manifestly excessive taxation. 12. Let me state from the on-set that there is nothing wrong or un-procedural for the Taxing Officer to have simultaneously entertained the handling of both the Party and Party Bill of Costs and the Advocate-Client Bill of Costs. In the circumstances, it was proper for the Taxing Officer to have separately heard and considered the two Bills of Costs and deliver separate rulings even though on the same date. 13. The Applicant also faults the Taxing Officer for allegedly determining the Bills of Costs under Schedule 5 instead of Page 4 of 6

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HCCOMM MISC NO. E589 OF 2023 P. MULWA, J. Schedule 7 of the ARO. The Applicant further complained that one of the Bills was not served. 14. Before embarking upon taxation, a Taxing Officer is entitled and indeed obliged to determine whether any bill is properly before the Court. In her rulings, the Taxing Officer stated that she had looked at the Bills of Costs against the provisions of Schedule 5 of the Advocates Remuneration Order under which the bills fell. I also find no merit in the contention by the Applicant that he was not served. The record, and indeed the ruling reveal that the Taxing Officer carefully considered the return of service and satisfied herself that the Applicant had been served. 15. I find it unpersuasive the contention that the Taxing Officer erred in principle or misdirected herself in the application of the taxing framework. The Taxing Officer clearly considered the nature of the claim, the work performed and the expertise involved before arriving at the amounts taxed. The Applicant’s argument overlooks the fundamental distinction between Party-and-Party costs and Advocate-and-Client costs. Taxation of both, when the cause is connected is not fatal. 16. What is evident in this matter is a general dissatisfaction by the Applicant with the taxed amounts, which prima facie cannot be a basis for interference by this Court. 17. Having carefully reviewed the impugned ruling, I am not persuaded that the learned Deputy Registrar acted upon Page 5 of 6

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HCCOMM MISC NO. E589 OF 2023 P. MULWA, J. any wrong principle of law or misapprehended the applicable legal framework. In the result, the Advocate’s Reference dated 5th November 2025 is without merit and is hereby dismissed. 18. The rulings of the learned Deputy Registrar delivered on 27th October 2025 are upheld. The Respondent shall have the costs of the Reference. RULING delivered virtually, dated and signed at NAIROBI This 13th day of August 2026. PETER M. MULWA JUDGE In the presence of: Mr. Shimoli h/b for Mr. Ayisi for Applicant/Client Mr. Asitiba for Respondent/Advocate Court Assistant: Sharon Page 6 of 6

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