https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11798

Hassan & another v Anti Counterfeit Agency & 2 others (Petition E118 of 2024) [2026] KEHC 11798 (KLR) (Constitutional and Human Rights) (28 July 2026) (Ruling) Neutral citation: [2026] KEHC 11798 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E118 of 2024 G Mutai, J July 28, 2026 Between Abdirahman Abukar Hassan 1st Petitioner Fathiya Sheikh Ali 2nd Petitioner and Anti Counterfeit Agency 1st Respondent The Director Of Public Prosecutions 2nd Respondent and Sime Darby Oils Professional SDN.BHD Interested Party Ruling 1.The Petitioners/Applicants filed a petition dated 5th March 2024, seeking 3 declaratory reliefs and orders of prohibition. They contended that they were under constant threats of prosecution by the 1st Respondent, at the instigation of the Interested Party, arising from a trade mark dispute that was the subject of proceedings in Nairobi HCCC MISC NO E014 of 2024; Nairobi Beauty Word Ltd v Sime Darby Oils Professional SDN.BHD. They further contended that their prosecution was set for 8th March 2024. 2.Concurrently with the application, the Petitioners/Applicants filed a Notice of Motion dated 5th March 2024, seeking conservatory orders. After considering the application ex parte, the court issued interim orders, which were confirmed on 23rd April 2024, pending the hearing and determination of the petition. 3.The petition was opposed. The Interested Party filed a 43-paragraph replying affidavit, which, together with annexures, consisted of 381 typed pages. 4.The 1st Respondent, on the other hand, filed a replying affidavit sworn by Collins Okoth, whereas the 2nd Respondent filed grounds of opposition dated 4th April 2024. 5.The petition was heard on the merits by Mr Justice Lawrence N Mugambi in a very erudite judgment delivered on 26th June 2025. At paragraph 103 of the judgment, the court held that:-“It is my considered opinion that the petitioners have not demonstrated circumstances warranting this court to stop the 1st or even the 2nd Respondent from carrying (on) with their mandate and have not in any way established a violation of their rights and fundamental freedoms as alleged.” 6.At paragraph 104 thereof the Court went on to find and hold that:-“This petition is bereft of any merit and is hereby dismissed with costs to the Respondent and the Interested Party. 7.With a view to recovering the costs awarded to it by the court, the Interested Party filed a Party & Party Bill of Costs dated 9th September 2025, in which it sought to have its costs assessed at Kes 536,500/. 8.After hearing the parties, the Taxing Officer, the Hon R K Onkoba, on 6th November 2025 assessed the Party and Party costs at Kes 389,650, after taxing off146,850/-. In its reasoned ruling, the learned Taxing Officer noted that items 2–29 of the Bill of costs were uncontested. The sole contested item was the instruction fees. 9.She noted that under Schedule 6 (A) (1) (j) (ii) of the Schedule to Advocates (Remuneration) (Amendment) Order, 2014, the instruction fee in respect of contentious constitutional petitions is set at a minimum of Kes 100,000/-. The learned Taxing Officer took note of the principles of law applicable to the taxation of costs as enunciated in the cases of Premchand Raichand Ltd v Quarry Services of East Africa Ltd (1972) EA 162 and Joreth Ltd v Kigano & Associates [2002] KECA 153 (KLR). 10.It was noted that the petition did not raise novel or complex issues. The court, however, was of the view that given the importance of the suit to the parties, the time expended by the advocate, and the fact that the suit went to full trial, an award of Kes 350,000/- as instruction fees would be fair and just. 11.Being aggrieved, the Petitioners/Applicants made a reference to this court by a Chamber Summons dated 10th November 2025. They sought this court either to reassess the bill or to refer it to a different Taxing Officer, on the ground that the assessment by the Taxing Officer was manifestly unjust and not comparable to similar decisions, and that the intervention by this court was therefore warranted. 12.The reference was canvassed through written submissions. Both parties filed written submissions, which I shall summarise below. 13.In the submissions dated 19th February 2026, the Petitioners/Applicants identified the sole issue for determination as being whether the determination that the instruction fees were Kes 350,000/- was arrived at correctly. They contended that it was not. It was further contended that the petition did not raise novel, complex, or unsettled issues of law as it was based on alleged infringement of trademarks. 14.Counsel relied on the case of Joreth Ltd v Kigano & Associates [2002] KECA 153 (KLR) and Soni v Shabbir & 2 others; Ophthalmological Society of Kenya & another (Interested Parties) [2024] KEHC 11739 (KLR). It was urged that the assessment be set aside. 15.On the other hand, the Interested Party/Respondent, in its submissions of 23rd February 2026, contended that this court should not disturb the decision of the lower court. 16.It was urged, on the basis of the decision of Ringera, J., as he then was, in First American Bank of Kenya Ltd v Shah & 2 others [2002] KEHC 1277 (KLR), that this court may not interfere with the Taxing Officer's decision unless it was shown that the decision was based on an error of law or principle, or that the fee awarded was manifestly excessive, thereby justifying interference. 17.It was urged that the taxing officer did not misdirect herself and that the taxation was not manifestly excessive. Counsel contended, relying on the case of Premchand Raichand Ltd v Quarry Services of East Africa Ltd (1972) EA 64, that a successful litigant ought to be fairly reimbursed for the cost he has incurred. 18.Counsel for the Interested Party therefore urged that the reference be dismissed with costs. 19.I have considered the reference. This court is called upon to consider only one item in the Bill of costs and to determine whether the court below made a correct assessment or if this court should disturb its findings. 20.Schedule 6A (1) (j) of the Advocates (Remuneration)(Amendment) Order, 2014 states that:Constitutional petitions and prerogative orderTo present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate-(i)where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000;(ii)where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000;(iii)to present or oppose application for setting aside arbitral award 50,000. 21.The petition was heard on the merits, and a judgment was delivered after the court heard all the parties. In my view, Kes 100,000/- is the minimum figure; a taxing officer is entitled to award a higher amount if the nature of the brief justifies it; that is, whether it was novel or complex, or required an outlay of time beyond that which would be expected of a counsel offering routine work in the specified area of law. 22.A court considering a reference must, in my view, have due regard to the fact that Taxing Officers have specialized knowledge and skill in assessing costs obtained in the course of their work and that their skills have been honed appropriately. In my view, the holding by Ringera, J, as then was, in the First American Bank of Kenya Ltd v Shah & 2 others [2002] KEHC 1277 (KLR) is especially apt. In the said case, the learned judge stated that:-“First, I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle. (See Steel & Petroleum (e.a) Ltd Vs. Uganda Sugar Factory (Supra). Of course. It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors.” 23.In Kipkorir, Titoo & Kiara Advocates V Deposit Protection Fund Board [2006] KEHC 1796 (KLR), Mary Kasango, J, stated that:“I have considered all the other arguments by counsel, and I find that they show no basis for interfering with the taxation. I am unable to see how the taxing officer wrongly exercised the discretion afforded to her. The fact that she did not award the advocate the amount he expected is not a reason enough to upset that taxation…” 24.It is true that the value of the subject matter is not ascertainable from the pleadings. In Joreth Ltd v Kigano & Associates [2002] 1 EA 92 it was held that:-“if the value of the subject matter is not ascertainable from the pleadings, judgment or settlement, the taxing officer is entitled to use its discretion to assess such instruction fees as he considers just, taking into account amongst other matters, the nature and importance of the cause or matter the interests of the parties, the general conduct of the proceedings and all other relevant circumstances.” 25.I have carefully perused the ruling of the Taxing Officer. I do not agree with the Petitioner/Applicant that the reason for the enhancement wasn’t set out in the decision, or that no justification was given. The learned magistrate, in fact, anchored her decision on the interests of the parties, the time expended by the advocate, the fact that the matter went to full trial, and the cases she cited in her decision. 26.Having said that, I note that the amount of Kes 350,000/- is 3 ½ times the minimum fee. The reasons given by the learned Taxing Officers do not appear to me to justify enhancement of the fee to that extent. That said, the volume of documents involved, the interest of the parties and the nature of the matter required a higher amount than the Kes 100,000/- proposed by the Interested Party/Respondent. 27.I agree with the dicta in Premchand Raichand Ltd v Quarry Services of East Africa Ltd (1972) EA 162 that one of the considerations the court must have is to ensure that a successful litigant is fairly reimbursed for the costs incurred. 28.What follows from the foregoing is that I must strike a careful balance; I must disturb the decision of the court below, but not award an amount so low as to fail to fairly compensate the successful party. In the circumstances, I tax the amount payable as instruction fees at Kes 250,000/-, which amount is, in my view, a suitable sum. 29.It is so ordered. DATED AND SIGNED AT NAIROBI ON THIS 28TH DAY OF JULY 2026.GREGORY MUTAIJUDGEIn the presence of:Ms Gaita, holding brief for Mr Oscar Otieno, for the Petitioner/Applicant;Mr Olonde, holding brief for Mr Onyony, for the Respondent; andMs Neema Lwambia – Court Assistant.