https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5132

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT OF KENYA AT NYERI** **ELC CASE NO. 74 OF 2014** **IN THE MATTER OF THE ADVOCATES AСТ** **-AND-** **IN THE MATTER OF THE TAXATION OF PARTY-AND-PARTY BILL OF COSTS** **-BETWEEN-** **ANGELA EVELINE (Suing on her behalf and on behalf of the Estate of the late Peter Waugh……………………………………...APPLICANT** **-VERSUS-** **RHODA WACUKA KIIRU …………………………1ST RESPONDENT** **GERALD WAROGO MWANGI …………………2ND RESPONDENT MARGARET WANGUI MERIA …………………...3RD RESPONDENT** **MWANGI RUITHIA. ………………………………..4TH RESPONDENT** **RULING** 1. The Reference, filed and dated 2nd September 2025, requests that this Honourable Court consider reviewing and/or setting aside the decision rendered by the taxing master on 20th August 2025, as well as the Plaintiff's Bill of Costs dated 4th February 2025, and to replace them with an appropriate finding. 2. Furthermore, this Court is respectfully requested to issue any additional or further orders deemed necessary in the interest of justice. 3. Finally, it is prayed that the costs of this Reference be duly provided for. 4. The same is opposed by the 1st Respondent, via grounds of opposition dated 1st October 2025, and through a replying affidavit submitted by counsel for the 2nd Respondent on 8th October 2025. 5. The Reference was further addressed through written submissions pursuant to the Court's directions. I acknowledge receipt of submissions from counsel for the Applicant and the 1st Respondent with appreciation, as they significantly assisted the Court in reaching its verdict. 6. From the materials and submissions placed before me, the issues to determine are whether the taxing master erred in her ruling in taxation dated 20th of August 2025, significantly on the flagged items by the Applicant, to warrant substitution or fresh taxation, and who should bear the costs of this Reference. 7. Citing relevant laws and judicial precedents, the Applicant notably identifies the following items as manifestly low or under-taxed, leading to awards that are wrong in principle, and recommends that they be enhanced. 8. The learned taxing master erred in law by awarding Kshs. 200,000/= as instruction fees to the Plaintiff without considering the nature of the suit, the complexities involved, the value of the suit property, the overall conduct of the proceedings, the duration from the filing of the suit to the date of judgment, and other pertinent circumstances. 9. That the learned taxing master erred in law and in fact by failing to appreciate the value of the suit property, which was Kshs. 2,250,000/= in 2013, thereby precipitating the filing of the suit in the High Court at the time. 10. That, under the current Remuneration Order, the instruction fees in a defended matter where the suit property is valued at Kshs. 1,000,000/= are Kshs. 120,000/=. That, where the value exceeds Kshs. 1,000,000/= but does not exceed Kshs. 20,000,000, the instruction fees are as for Kshs. 1,000,000/= plus an additional 2%. Therefore, Kshs. 200,000/= as instruction fees herein is inordinately low in the circumstances, does not reflect the effort taken in prosecuting this suit, and does not factor in the value of the suit properties, and thus constitutes a manifest miscarriage of justice. 11. In relation to the foregoing, imposing instruction fees at Kshs. 200,000/= constitutes a clear abuse of the taxing master's discretion. Consequently, the assessment of getting-up fees was improperly determined, resulting in an additional misuse of discretion. 12. It is evident that the learned taxing master erred both in law and fact by recognising the submission of the Supplementary Affidavit in item 9, while neglecting to acknowledge its 32 folios, and subsequently taxing the same at Kshs. 1,460/= instead of Kshs. 5,375/=. 13. It is asserted that the esteemed taxing master erred in both law and fact by recognising the submission of the Supplementary Affidavit in item 16, yet failing to acknowledge its 11 folios and three copies, and by taxing the same at Kshs. 1,280/= rather than at Kshs. 2,225/=. 14. It is asserted that the learned taxing master erred in law and in fact by acknowledging the drawing and service of a hearing notice in item 18, yet failing to observe the prescribed amount for service as stipulated in Schedule 6, Rule 9(a) of the Advocates Remuneration Order. Furthermore, the master taxed the amount at Kshs. 420/= instead of the correct sum of Kshs. 1,580/=. 15. It is asserted that the learned taxing master erred in law and fact by taxing item 21 at Kshs. 180 instead of the prescribed amount of Kshs. 1100. 16. It is averred that the learned taxing master made an error in both law and fact by failing to account for the three copies in item 35, amounting to Kshs. 1,175/=, and by taxing them at only Kshs. 1,100/=. 17. It is contended that the esteemed taxing master erred both in law and fact by calculating item 37 at Kshs. 1,100/= for drawing a Supplementary Affidavit and by neglecting to consider its 32 folios, which should have been taxed at Kshs. 5,375/=. 18. It is contended that the learned taxing master erred both in law and fact by neglecting to consider the three copies of the amended plaint referenced in item 38 and by taxing Kshs. 1,100/= instead of the correct amount of Kshs. 1,325/=. 19. It is asserted that the learned taxing master committed errors in both law and fact by neglecting to properly calculate the 63 folios and 3 copies of submissions under item 40. Furthermore, the taxing master incorrectly assessed the charges at Kshs. 1,100/= in contrast to the correct amount of Kshs. 8,925/=. 20. It is argued that the learned taxing master committed an error in both law and fact by neglecting to consider the number of folios, the certificate of urgency, and its three copies, resulting in the figure being calculated at Kshs. 1,100/= instead of Kshs. 1,475/. 21. The learned taxing master erred in law and in fact by assessing items 61-69 at Kshs. 1,900/= for attending a mention, noting that the amount of 1,900/= stipulated by Rule 7 of Schedule 6 of the Advocates Remuneration Order applies solely to attendances of half an hour or less. It has been established that court mentions can last for several hours, depending on the cause list and the commencement time of court sessions, and thus, it cannot be deemed that counsel attended for half an hour or less. 22. It is argued that the taxing master made an error in law and fact by refusing to deduct the amount for substituted service, amounting to Kshs. 93,000/-, on the incorrect ground that there was no evidence. 23. It is submitted that the award granted by the taxing master is manifestly inadequate, resulting in injustice to the Plaintiff/Applicant, who initiated the suit in 2014. 24. It is concluded that the decision of the learned taxing master on 20th August 2025 was founded on an error of principle, hence this Reference. 25. The Respondents, conversely, citing pertinent provisions and case law, assert that the taxing master identified the appropriate schedule as Schedule 6(1) of the Advocates Remuneration Order for the assessment of instruction fees and getting-up fees. 26. Further, that on the issues of the assessment, including the folio-based assessment and charges for drawing documents and service items, she did not err in the calculations regarding court attendances and advertisement via substituted service. 27. The Superior Court will reverse or overturn a taxing master’s award in taxation only where a demonstrable error of principle is identified, or where the award is so clearly excessive or low that an inference of an error of principle must be drawn. 28. Superior Courts exercise considerable restraint, particularly when the taxation of a bill of costs is a discretionary judicial function. The taxing master is acknowledged as an expert in determining the appropriate award in taxation. Consequently, a judge cannot overturn an award solely because they might have awarded a different amount. 29. The primary ground for court intervention is where the taxing master misdirects themselves on the law or the applicable remuneration scales. An error of principle is reckoned to include using the wrong legal framework; applying an incorrect schedule or an outdated version of the Advocates (Remuneration) Order. 30. Further miscalculating the subject matter value - improperly identifying the financial value of the subject matter from the pleadings, judgment, or settlement, which forms the basis of the instruction fees. 31. Double-counting items commits an error, that is, awarding costs for procedures or documents that were never filed, were duplicated, or were already covered by basic instruction fees. 32. Failure by the taxing master to consider relevant factors (or to consider irrelevant ones). The court will intervene if the taxing master fails to assess specific case dynamics—such as complexity, skills applied, or overall conduct—as required by the Advocates (Remuneration) Order. 33. An error is committed by the taxing master when it is evident that there have been manifestly excessive or insufficient awards. Intervention becomes necessary if an award is so substantial that it impedes access to justice, or so minimal that it results in injustice, thereby indicating an inference of an error of principle. 34. Failure to give reasons for the award is considered a misdirection by the taxing master, warranting review. An award made without a rational basis, or a failure to provide reasons for specific, escalated fees, constitutes a fatal error of principle. 35. The Supreme Court in **Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR)** affirmed that costs must not impede access to justice. Instruction fees ought to consider the amount of work done by an advocate and prevailing economic conditions. They should be reasonable to the point that the charges do not impede access to justice. 36. In **Nairobi Bottlers Limited v Ndungu & another [2024] KESC 73 (KLR),** the Supreme Court in Nairobi held that a certificate of taxation is set aside only on grounds of error, or if the fee is excessively high or low, causing manifest injustice. 37. In the case of **Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR)**, the Court of Appeal affirmed that a judge will refrain from intervening in a taxing master’s discretion unless an apparent error of principle is demonstrated. 38. In **Republic v Competition Authority ex parte Ukwala Supermarket Limited & another [2017] KEHC 1874 (KLR),** the High Court clarified that a Superior Court cannot replace its judgment with that of a taxing master unless there is evidence of misdirection or improper assessment. 39. Having guided myself in the manner I have done, and considering the relevant provision of the law on the taxation of bills of costs, the parties' averments, the submissions, and the taxed bill as it appears in the case file and the CTS, I reckon that what we have is tabulated pronounced figures as calculated by the taxing master, without the reasons for each award or tabulation. 40. This now brings me to the basics: a decision made by a taxing master (usually a Registrar or Deputy Registrar of the High Court) on a bill of costs cannot be appealed directly as a standard judgment. Instead, it is challenged through a specific statutory mechanism known as a Reference to a Judge, in our case an ELC judge. 41. This procedure is strictly governed by Paragraph 11 of the Advocates (Remuneration) Order. Failure to strictly adhere to its multi-step timelines constitutes a jurisdictional defect that may render the entire challenge inadmissible. 42. The step-by-step procedure is as follows: if you wish to mount a Reference, you must provide written notice to the taxing master, specifying the exact items in the bill of costs to which you object, within 14 days of the taxing master's ruling. 43. This requirement constitutes a statutory condition precedent. Failure to file this notice within 14 days results in the loss of your right to challenge the bill, and the court will be precluded from entertaining any subsequent application. 44. Upon receipt of your notice of objection, the taxing master is obliged to record and transmit the official written reasons for their decision regarding the disputed items to you. 45. Once you receive the reasons provided by the taxing master, you are required to lodge a formal application before a High Court Judge within 14 days of receipt. Such a challenge shall be initiated by way of a Chamber Summons (referred to as a *"Reference to a Judge*"). The Chamber Summons must delineate the detailed grounds of your objection and be served upon all relevant parties involved in the matter. 46. In this matter, it is not indicated that, before the reference was filed, the Applicant sought reasons and the taxing master failed to provide them. If reasons were sought and declined or not given, that would be a basis for a Reference citing grounds that no reasons were assigned to the items as tabulated by the taxing master. 47. I see nothing to interfere with the taxing master's pronounced calculations in taxation. This leaves me with no option but to strike out the Reference with costs, as I cannot re-tax the bill. The items as taxed are left to stand. **Dated, signed, and delivered virtually in Nyeri on this 23rd day of July, 2026** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr Mutuma for the Applicant** **Mr Karanja for the 1st Respondent** **Mr Muhoho for the 2nd and 3rd Respondents** **Denis - Court Assistant**