https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4996

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCMISC NO. E053 OF 2025** **IN THE MATTER OF PARTY AND PARTY BILL OF COSTS UNDER THE ADVOCATES (REMUNERATION) ORDER OF THE ADVOCATES ACT (CAP. 16 LAWS OF KENYA)** **BETWEEN** **EXPORT PROCESSING ZONES AUTHORITY::::::::::::::::::::::::::::::::::::::::::::::OBJECTOR/APPLICANT** **VERSUS** **TANATHI WATER SERVICES BOARD::::::::::::::::::::::::::RESPONDENT** **AND** **MAVOKO WATER & SEWERAGE Co. LTD::::::::::INTERESTED PARTY** **RULING** The application is dated 29th October 2024 and is brought under Article 159 of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act Rule 11 of the Advocates (Remuneration) Order, Order 51 Rule 10 of the Civil Procedure Rules 2010 seeking the following orders; 1. That this application be certified as urgent, service dispensed with and heard ex-parte in the first instance. 2. That this Honourable Court be pleased to hear determine and allow the Objector/Applicant’s Objection dated 4th October 2024. 3. That this Honourable Court be pleased to set aside the decision of the Honourable Taxing Officer dated 25th September 2024 with regard to the Objector/Applicant’s Bill of Costs dated 7th October 2023 and the same be taxed afresh by this Court. 4. That this Honourable Court be pleased to find that the subject matter in the Water Tribunal (Water Appeals Board) Appeal No. 13 (WS) of 2012 was discernible. 5. That in the alternative to prayer 3 hereinabove, this Honourable Court be pleased to order and direct that the Bill of Costs dated 7th October 2023 be remitted for taxation before a different Taxing Officer. 6. That costs of this application/reference be provided for. It is based on the grounds that the Taxing Officer erred in principle by not considering an affidavit in support of the Bill of Costs dated 7th October 2023 sworn on 7th November 2023. The Taxing Officer misapplied the law and principles of taxation thereby awarding costs that were manifestly low so as to constitute an error of principle. The Taxing Officer erred in principle buy failing to appreciate that the subject matter was discernible and its value was ascertainable in the pleadings as well as the ruling that determined the matter. The Taxing Officer erred in principle by taking into account irrelevant factors while omitting relevant factors in taxation of the Bill of Costs dated 7th October 2023. The Taxing Officer erred in failing to consider the provisions of Section 11 of the Advocates (Remuneration) (Amendment) Order 2014 and failing to appreciate the complexity of the matter as well as its nature and importance to parties. The Taxing Officer misapplied the law and principles of Taxation thereby arriving at a wrong decision. The costs awarded were manifestly low and not commensurate to the work done vis-à-vis the subject matter of the suit and the interest of the parties. The Taxing Officer erred in failing to administer oaths, to direct the production of books, paper and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him as by law provided. This Honourable Court cannot interfere with the discretion of the Taxing Officer with regard to Taxation of a Bill of Costs except by way of reference hence the instant proceedings. This court has considered the application and the submissions therein. The reference herein is brought under inter alia paragraph 11(2) of the (ARO) which provides as follows; *“The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from receipt of reasons apply to a judge in chamber summons which shall be served on all parties concerned, setting out the grounds of his objection.”* The obligation of the Taxing Master provided for in paragraph 11(2) above is set in motion by an objector fulfilling the obligation imposed on him under paragraph 11(1) of the ARO which provides as follows; *“Should any party object the decision of the taxing officer, he may within fourteen days after the decision give notice to the taxing officer in writing of the items of taxation to which he objects.”* In the case of Elijah Ireri t/a Ireri & Company Advocates vs County Government of Embu (2021) e KLR, the court held that what the above provision means is that before a party can object to the decision of the Taxing Master, he ought to give notice in writing to the Taxing Officer of the items of taxation which he objects. The Taxing Officer is then required to forthwith record and forward to the Objector the reasons for his/her decision. The Objector has the discretion to file his reference within 14 days. The court further held that failure to seek reasons from the Taxing Officer and/or attach the reasons to the reference renders the application defective. The import of seeking for the reasons for taxation on the objected items was given in the case of Evan Thiga Gaturu Advocate vs Kenya Commercial Bank Ltd (2012) e KLR where it was held that where no reasons appear on the face of the decision of the Taxing Master, it is only prudent that such reasons be furnished in order for the judge to make an informed decision as to whether or not the discretion of the Taxing Master was exercised on sound principles. In the instance reference, there is no indication that the Applicant complied with the procedure provided in paragraph 11(1) of the ARO. I have perused the ruling of the Taxing Master and established that no reasons were provided by the Taxing Master for basing the instruction fee on the minimum provided when the subject matter cannot be ascertained as opposed to what the objector states is the value Kshs. 700,000,000/=. It is noted that one of the grounds on which this reference is premised that the costs awarded were manifestly low and not commensurate to the work done vis-à-vis the subject matter of the suit and the interest of the parties. As observed in the case of Evan Thiga Gaturu Advocate vs Kenya Commercial Bank Ltd supra the import of seeking for reasons for taxation on the objected items is to enable the judge in determining whether or not the discretion of the taxing master was exercised on sound principles. Without those reasons, this court has no basis of determining whether the Taxing Master exercised her discretion properly or not. The instant reference was filed without compliance with the procedure of filing a reference against taxation of bills of costs by Taxing Master as the Applicant did not file an objection with the Taxing Officer seeking reasons for basing the instruction fee on the where the value of the subject matter cannot be ascertained and not for Kshs. 700,000,000/= as claimed by the Objector. Failure to adhere to the procedure provided for under paragraph 11(1) and (2) of the ARO for challenging the decision of the Taxing Master renders the application defective as this court has no basis of determining whether or not the discretion of the Taxing Master was exercised in accordance with sound principle. Be that as it may, from the Appellant’s pleaded case, it is clear that the Appellant was not seeking any reliefs on the basis of any valued subject matter. In World Explorers Safaris Limited vs Cosmopolitan Travel Limited & another (2021)e KLR the court stated as follows concerning the function of pleadings; *“The function of pleading in civil proceedings is to alert the other party the case they need to meet, (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial. The cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (defence). Material facts are only those relied on to establish the essential elements of the cause of action…..parties should not be unduly encouraged to rely, in the hope, perhaps, of obtaining some tactical advantage, to treat unpleaded issues as having been fully investigated. The need for pleadings to be precise cannot be doubted.”* In Chalicha FCS Ltd vs Odhiambo & 9 others (1987) KLR 182, it was held that the court has no power to make an order, unless by consent, which is outside the pleadings. A review of the case presented before court shows that it was basically a case in which the Plaintiff sought for declarations and a permanent injunctions and accounts. There was no relief whatsoever based on the value of the subject and none was been granted as the matter was concluded at the preliminary stage. The upshot of the foregoing is that the reference is not only incompetent for failure to adhere to the mandatory provisions of paragraph 11(1) and (2) of the ARO but also lacking in merit as the Appellant had not sought for any relief based on the any subject matter and none was granted by the court. I find the Application is not merited and dismiss the same with no orders as to costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**