https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4199

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **MISCELLANEOUS CIVIL APPLICATION NO. E014 OF 2021** **JOHN MACHARIA GICHOHO………..….……… …………….. APPLICANT** **VERSUS** **CHARLES M KARWERU t/a** **KARWERU ADVOCATES……….………………...….……… RESPONDENT** **RULING** 1. This Ruling is in respect of the Chamber Summons dated 22.10.2024. The Reference arose from the taxation of the Bill of Costs dated 20.1.2021 is said to have arisen from Mukurweini PMCC No. 4 of 2011 in which the Applicants were represented by the Respondent advocates. 2. The Applicant seeks to set aside the Ruling of the Taxing Officer dated 7.10.2024 that was taxed at Khs. 140,374.50. The reliefs sought were as follows: 3. The court be pleased to review and set aside assessment/taxed costs dated 7.10.2024. 4. The court be pleased to retax the bill of costs taking into account the amount paid by the Applicant as legal fees to the Respondent. 5. The court be pleased to retax the bill of costs taking into account amount paid by the defendant in Mukurweini PMCC No. 4 of 2011 but held by the Respondent advocate. 6. In the alternative, the court be pleased to remit the advocate client bill of costs dated 20.1.2021 to be taxed afresh by a different taxing officer other than E.N. Angima. 7. The Application was supported by the affidavit of John Macharia Gichoho, the Applicant in which it was contended that the Taxing Officer erred in taxing a bill of costs without considering the amount that was paid by the Defendants in Mukurweini PMCC No. 4 of 2011 and which amount was held by the Respondent advocate. 1. It is further deposed that the Honourable Taxing Officer wrongly failed to consider the fees that the Applicant had paid to the advocate which ought to have reduced the awardable costs. 2. The case of the Applicant was that there was error in arithmetic as the figures did not add up as summed by the taxing officer. 3. The Respondent filed a replying affidavit sworn by Karweru Muchemi Charles on 21.1.2026. It was deposed that the reference was incompetent and for striking out as an abuse of the court process. 4. The issues raised in paragraphs 5, 6 and 7 were outside the purview of the taxing master. Submissions 1. The Applicant filed submissions by which it was submitted that the learned taxing master failed to exercise her discretion and failed to consider relevant factors hence arriving at an erroneous decision. Reliance was placed on *inter alia* **Kipkorir Tito & Co. Advocates v Deposit Protection Fund Borad (2005) eKLR**. 1. It was submitted that the client produced evidence of payment legal fees through receipts. 2. The Respondent also filed submissions dated 3.3.2026. It was submitted that the Respondent should fail because the Ruling was not included in the reference. The Application was also filed out of time by one day. 3. It was submitted on merits that when the Application to enter assessment as judgment of court will be made, then it will be at that point that accounts will be taken and the Applicant was misplaced in his request to this court. 4. The reference according to the Respondent did not reveal any misapprehension of the law by the taxing master. Analysis 1. The issue is whether the learned taxing officer erred in her assessment of the Respondent’s Bill of Costs. The court then had a simple task to proceed as required of it under rule 11 of the Advocates Remuneration order. The same provides as follows: 2. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. 3. 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 the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. 4. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. 5. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired. 6. The circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. These principles were laid down in the case of **First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64**., as follows: **(1) that the 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 manifestly excessive as to justify an inference that it was based on an error of principle;** **(2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge;** **(3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high;** **(4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it;** **(6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees;** **(7) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary.** **assessing an amount commensurate to the work undertaken, it is of fundamental importance to consider the value of the subject…”** **“…The law gives the taxing master some leeway but like all discretions, it must be exercised judicially and in line to the material presented before court.”** 1. One of the parameters the Taxing Officer must consider is the labour required in a given case. This does not apply to labour that has already been done. It is labour that will be required after the onset of the work and this is determined at the time of taking instructions but depends on whether the advocate undertook the action to completion or stopped before completion. The position was reiterated in **Karen & Associates Advocates vs. Caroline Wangari Njoroge [2019] eKLR**, in which the Court cited the decision of the Court in *Ochieng, Onyango, Kibet and Ohaga Advocates vs. Adopt Light Ltd. HC Misc 729 of 2006* where the court stated that; **“…The taxing master must consider the case and the labour required in the matter, the nature or importance of the matter more so the amount or value of the subject matter involved, the interest of the client in sustaining or losing a brief and the complexity of the dispute.** 1. Therefore, this Court should interfere with the decision of the Taxing Officer where there has been an error in principle but should not do so in questions solely of quantum as that is an area where the taxing officer is more experienced and therefore more apt to the job. 2. The amounts that have been paid are Paramount. If it is only one matter, it is safe to deal with them after taxation. However, in a matter of this nature, it is important that the amount paid as fees be settled. It is however not an avenue for settling other amounts. The court may even indicate that the taxed amount is net of fees paid or the same to be taken into consideration at the time of adoption of the certificate as a decree. In the case of [**Alex S. Masika V Epco Builders Limited [2008] KEHC 2649 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2008/2649/eng%402008-02-08), the court, Lesiit, J, as the she was held as follows: As to the issue whether the disparity between the amount sued for and amount charged was an issue, Mr. Ouma argued that the Taxing Master ought to have resolved that point since the client raised it in its submissions. No authorities were cited in support of that preposition and I am not aware of any dealing with that point. However, the Taxing Master must have considered that point and this is borne out in her observation thus: Even if the Court were to ensure that the Advocate does not undercut by charging less than that prescribed under the other schedules as was stipulated in the case of Muthoga & Gaturu Advocates –vs- Corporate Insurance, Misc. App. No. 433 of 2000 the finding will be as follows … It is clear from the foregoing that the amount charged by the Advocate was material to the Taxing Master. What concerned the Taxing Master was whether it was less than provided under the Schedules, the importance of which was to prevent undercutting by the Advocate. I do think that the duty of the Taxing Master is to tax the Bill as presented before them. In exercise of that power, the Taxing Master may reduce or increase the amount taxed for reasons to be given in the ruling. 1. The certificate of taxation becomes final unless the amounts paid are indicated. In the case of [**Lubulellah & Associates Advocates v N K Brothers Limited** [2014] KEHC 8685 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/8685/eng%402014-07-10), J. KAMAUJ addressed the issue as follows; The Respondent did not file a reference. In fact it was the Applicant that filed a reference after the cots were taxed. The Respondent cannot therefore approbate and reprobate. Having admitted that the decision that had been given by the taxing master was final, the Respondent cannot therefore be heard to say that amounts it had paid had not been credited. Once a reference had been determined, the court can do nothing more than to enter judgment as indicated in the Certificate of Costs. The matters raised by the Respondent herein do not obtain in this case and were for all purposes and intent, res judicata. The court cannot re-open the arguments of what or was not paid at this stage. The court agrees with the Applicant that so long as the Respondent did not provide the court with any proof that the Certificate of Costs issued on 29th January 2014 was set aside and/or altered or that there were any proceedings pending before a court of competent jurisdiction, the court has no option but to be persuaded by the Applicant’s submissions that it was entitled to entry of judgment under Section 51(2) of the Advocates Act as it had prayed for in its application. The Applicant ought not to be barred from enjoying the fruits of its hard work. 1. The court will intervene only in exceptional cases and multiplication factors should not be considered when assessing costs by the Taxing Officer or even the Judge on appeal; the costs should not be allowed to rise to such level as to confine access to court to the wealthy; a successful litigant ought to be fairly reimbursed for the costs he had to incur in the case; the general level of remuneration must be such as to attract recruits to the profession; so far as practicable there should be consistency in the awards made; every case must be decided on its own merit and in every variable degree, the value of the suit property may be taken into account. 2. Similarly, the instructions fees ought to take into account the amount of work done, and where relevant, the subject matter of the suit as well as the prevailing economic conditions; one must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particular high fee sometimes demanded by counsel of pre-eminent reputation; then one must know that what fee this hypothetical character would be content to take on the brief; clearly it is important that advocates should be well motivated but it is also in the public interest that cost be kept to a reasonable level so that justice is not put beyond the reach of poor litigants. 3. The discretion allowed to the taxing officer is unfettered allowing the taxing officer to assess such instruction fee as considers just, taking into account, amongst other matters, the nature and the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances. On instruction fees in the case of **Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 at 99** the Court of Appeal held thus: **The value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so 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 the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances. It is not really in the province of a Judge to re-tax the bill. If the Judge comes to the conclusion that the taxing officer has erred in principle, he should refer the bill back for taxation by the same or another taxing officer with appropriate directions on how it should be done. The Judge ought not to interfere with the assessment of costs by the Taxing Officer unless the officer has misdirected himself on a matter of principle. In principle the instruction fee is an independent and static item, is charged once only and is not affected or determined by the stage the suit has reached. The Taxing Officer whilst taxing his bill of costs is carrying out his functions as such only. He is an officer of the Superior court appointed to tax bills of costs.** 1. Therefore, 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 manifestly excessive as to justify an inference that it was based on an error of principle. In **Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna** **& 6 Others (2006) eKLR** Ojwang, J (as he then was) expressed himself *inter alia* as follows: “The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…The 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 manifestly excessive as to justify an inference that it was based on an error of principle. Of course it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment…A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved…Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorizing clause in the law, or a particularized justification of the mode of exercise of any discretion provided for…The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs…” 1. The fulcrum of the above dispositions is that the instruction fees is to seek no more and no less than reasonable compensation for professional work done. The taxation of instruction fees should avoid any prospect of unjust enrichment, for any particular party or parties and so far as possible, comparability should be applied in the assessment of the instruction fees based on objectivity. I wish to add that the Taxing Officer ought to disclose what informed the decision to tax the costs in one way as opposed to another. I therefore agree with the decision in **Republic -vs- Minister for Agriculture & 2 Others Ex-Parte Samuel Muchiri W’njuguna (supra**) that: “… **It is necessary to ascertain how she arrived at that figure; for although the judicial review applicant’s firm position is that it was an exercise of lawful discretion which therefore, this court should uphold, the correct perception of the discretion donated by law, I believe, is that such a discretion is only duly exercised when it is guided by transparent, regular, reliable and just criteria…”** **“…it was necessary to specify clearly and candidly how she exercised her discretion… it is not enough to set by attributing to oneself discretion originating from legal provision and thereafter merely cite wonted rubrics under which that discretion may be exercised, as if these by themselves could permit of assignment of mystical figures of taxed costs…complex elements in the proceedings which guide the exercise of the taxing officer’s discretion must be specified cogently and with conviction…if novelty is involved in the main proceedings the nature of it must be identified and set out in a conscientious mode….if the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time consuming, the details of such a situation must be set out in a clear manner…”** 1. The Respondent sought to dismiss the reference on the basis that it was filed without attaching the impugned ruling and one day outside the 14 days required for such filing. The court notes that there are 24 related files on this tax assessment dispute and the Applicant was acting in person. The court does not consider that a delay of 1 days or so would warrant sweeping out the Applicant from the seat of justice in light of the many related files and most of which were filed within time. The court has also noted that a copy of the Ruling was attached to the supporting affidavit as annexture. 2. The Applicants contended that the taxing officer failed to take into account the legal fees paid in Mukurweini PMCC No. 4 of 2011 and that there was also the amount that the Defendant in the said suit had paid to the Applicant through the Respondent advocate but which the advocate withheld and which ought to have been considered. 3. A perusal of the impugned Ruling reveals that the taxing officer taxed item one which was instruction fees on the basis of the judgment sum in Mukurweini PMCC No. 4 of 2011 which was Ksh. 36,000/=. The court therefore awarded Ksh. 10,000/=. It is not disputed that the court noted that there were amounts that the Applicant had proved to have paid to the Respondent as fees. 4. Considering the judgment sum, the awarded instruction fees and the taxed amount for the bull of costs, there was no justification and basis. I say so because the taxing master did not state how she arrived at a taxed amount of Ksh. 140,374.50. The amount of legal fees received though stated to have been considered did not also reflect in the awarded costs. On those grounds only, the bill of costs was not taxed in tandem with principles that are above elaborated in decided cases. The best I can do is to get the bill of costs presented back for fresh taxation of the costs due to the Respondent. 5. However, the assertion by the Applicant that some moneys were paid by the defendant in Mukurweini PMCC No. 4 of 2011 but which was withheld by the Advocate and should be taken into account was not a matter to be determined in the taxation. The same cannot be counterclaimed or set off in the bill of the costs that is restricted to advocate - client costs. 6. Consequently, I find basis to disturb the finding arrived at by the taxing officer. Accordingly, this reference is merited. Determination 1. In the upshot, I issue the following orders:- 2. The Ruling and Order of the Taxing Officer dated 7.10.2024 be and is hereby set aside and the Bill of Costs dated 20.1.2021 remitted back for taxation by a taxing officer other than Hon. Angima, Deputy Registrar. 3. Each party shall bear their own costs. **DELIVERED, DATED** and **SIGNED** at **NYERI** this **23rd** day of **June** the year of our Lord **Two Thousand and Twenty-Six**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of:** Pro se Applicant Pro se Respondent Court Assistant – Martin