Gatei & another v Cherutoi (Miscellaneous Civil Application E013 of 2025) [2026] KEHC 12816 (KLR) (11 August 2026) (Ruling)

Gatei & another v Cherutoi (Miscellaneous Civil Application E013 of 2025) [2026] KEHC 12816 (KLR) (11 August 2026) (Ruling) Neutral citation: [2026] KEHC 12816 (KLR) Republic of Kenya In the High Court at Nakuru Miscellaneous Civil Application E013 of 2025 LA Mumassabba, PDR August 11, 2026 RULING AND REASONS FOR TAXATION ON THE RESPONDENT’S PARTY AND PARTY BILL OF COSTS DATED 29{{^TH}} AUGUST ,2025 Between Joseph Njoroge Gatei 1st Applicant Anthony Mbugua 2nd Applicant and Nancy Jepkemboi Cherutoi Respondent Ruling Introduction 1.The Applicant filed a Party and Party Bill of Costs on 19th January ,2026 urging the Taxing Master to tax the same at Kshs.28,775.00.The Bill of Costs arises from the Orders of Hon.Mr.Justice J.M.MNangea in his Ruling of 9th July ,2025 awarding the Respondent costs . 2.In opposition to the Applicant’s Bill of Costs, the Respondents filed a Replying Affidavit sworn by Joseph Njoroge Gatei and Anthony Mbugua dated 25th March 2026. The Respondents state that, upon consultation with their advocates, KRK Advocates LLP, they wish to participate in the taxation of the Bill of Costs and contest several items therein on the ground that the amounts claimed are exaggerated, punitive and excessive. 3.In particular, the Respondents contend that under the Advocates Remuneration Order, 2014, the appropriate fee chargeable for receiving instructions to oppose an Application is Kshs.3,000.00. They consequently object to items 5, 6, 9 and 11 of the Bill of Costs as being excessive. They further object to the attendance charges under items 13, 14 and 15, contending that the applicable remuneration is Kshs.1,400.00 for each attendance. 4.The Respondents accordingly urge the Court to scrutinize and tax the impugned items in accordance with the Advocates Remuneration Order. They further seek leave to contest the Bill of Costs and requested that the matter be canvassed by way of written submissions. 5.When the matter came before me on 28th July 2026, M/s Mwira, Learned Counsel for the Respondents, was directed to file the Respondents’ Written Submissions by close of business on the same day. The Respondents did not comply with the said directions and no written submissions were filed. 6.In the circumstances, I shall proceed to tax the Bill of Costs on the basis of the pleadings and material presently on record. 7.The Applicant in support of his Bill of Costs filed their Written Submissions dated 28th April,2026 urging the Court to tax the Bill as drawn as it was strictly drawn to scale . The Law 8.I have carefully considered the Bill of Costs filed by the Applicant herein. The Applicant was instructed in the year 2019 and the matter concluded in the year 2023 hence the applicable Advocates Remuneration (Amendment) Order is that of 2014.Item No.1 – Instruction Fees 9.The Applicant seeks Kshs.155,455.40.The Respondent opposes the same and states that it is exorbitant. The Law 10.The applicable law is Schedule VI(1)(b) of the Advocates Remuneration (Amendment) Order 2014 which provides that :(b)To sue in any proceedings described in paragraph (a) where a defence or other denial of liability is filed ;or to have an issue determined arising out of inter – pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the Pleadings,Judgement or settlement between the parties and…” 11.In the case of JORETH LIMITED V. KIGANO & ASSOCIATES, CIVIL APPEAL NO. 66 OF 1997 [2002] 1 E.A 92 , the Court of Appeal held as follows:“We would at this stage point out that the value of the subject matter of a suit, for the 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 fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any directions by the trial Judge and all other relevant circumstances. 12.It is therefore trite law that the instructions fees is calculated from the value of the subject matter which is discerned from the Pleadings, Judgement or settlement. 13.In the instant case ,the value of the subject matter herein can be determined from the Lower Court Judgement which is Kshs.1,547,770.00 14.This item is therefore taxed as follows:1st 1,000,000.00………………………………….…………..Kshs.120,000.002% of 547,770.00……………………………………………...Kshs.10,955.40Total ………………………………………………………….Kshs.130,955.40This item is therefore taxed at Kshs.130,955.40 (Kshs.24,500.00) 15.Item No.1 – This item relates to instructions to oppose Application for Stay of Execution pending Appeal. Schedule 6 on other matters (viii) provides that to present or oppose any other application no otherwise provided for-where the Application is opposed ,such sum as may be reasonable but not less than 5,000.00This item is taxed at Kshs.5,000.00 (Kshs.5,000.00) Disposition 16.Based on the foregoing therefore, the Respondent’s Party and Party Bill of Costs dated 29th August ,2026 and filed in Court on 19th January ,2026 is hereby taxed at Kshs.23,775.00 (Kenya Shillings two hundred and twenty nine thousand and fifty one and eighty six cents ) 17.A total sum of (Kshs.5,000.00) (Kenya Shillings five thousand)is hereby taxed off from the entire Bill.14 Days Right to file a Reference. RULING DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 11TH AUGUST ,2026L.A. MUMASSABBAPRINCIPAL DEPUTY REGISTRAR11. 8.2026In the Presence of:M/s Mwira Holding Brief for Cherotich for the RespondentApplicant :AbsentCourt Assistant: Phoebe