https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3079

Dima t/a Juliet Dima & Associates Advocates v Ajwang (Environment and Land Civil Miscellaneous Application E022 of 2025) [2026] KEELC 3079 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3079 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Civil Miscellaneous Application E022 of 2025 SO Okong'o, J May 21, 2026 IN THE MATTER OF A REFERENCE FROM THE DECISION OF THE TAXING OFFICER HON. MAUREEN NYIGEI, P.M, DELIVERED ON 27TH MARCH 2025 IN THE ADVOCATE/CLIENT BILL OF COSTS Between Juliet Akinyi Dima t/a Juliet Dima & Associates Advocates Applicant and Pamela Aoko Ajwang Respondent Ruling Background 1.The Applicant acted for the Respondent in Kisumu CMC ELC No. 62 of 2020 (the primary suit). The primary suit was still pending hearing and determination at the time these proceedings were instituted by the Applicant. The Applicant and the Respondent disagreed on the fees payable to the Applicant for the services rendered to the Respondent in the primary suit. The Applicant filed her advocate and client bill of costs dated 7th March 2024 for taxation in the Environment and Land Court Miscellaneous Application No. E010 of 2024 (the taxation suit). The Applicant’s bill of costs was taxed at Kshs. 131,945/- from which the taxing officer deducted a sum of Kshs. 75,000/-, which she found to have been paid by the Respondent to the Applicant. That left a sum of Kshs. 56,945/- payable to the Applicant by the Respondent. The reference 2The Applicant was aggrieved by the said taxation and preferred this reference. In her Chamber Summons application dated 9th April 2025, the Applicant challenged the taxation of the instruction fees, and the sum of Kshs. 75,000/-, which was deducted by the taxing officer as the amount that had been paid to the Applicant by the Respondent. The Applicant contended that she had only admitted receipt of Kshs. 5,000/- from the Respondent and not Kshs. 75,000/-, which was deducted from her taxed costs. The Applicant contended that the said deduction was erroneous and urged the court to set it aside. 3.The Respondent opposed the application by way of a replying affidavit sworn on 29th August 2025. The Respondent contended that the taxing officer exercised her discretion properly while taxing the Applicant’s bill of costs, and as such, there was no reason to disturb the taxation. 4.The Applicant’s application was argued by way of written submissions. The Applicant filed submissions dated 22nd October 2025 in which she limited her challenge to the taxation to the deduction of the sum of Kshs. 75,000/- from the taxed costs, instead of the admitted sum of Kshs. 5,000/-. The Applicant submitted that her bill of costs should have been taxed at Kshs. 126,945/-. She urged the court to allow the reference. 5.The Respondent filed submissions dated 30th September 2025. The Respondent submitted that there was no material before the court on which the court could review the taxation by the taxing officer, the Applicant having decided to file her application as a new miscellaneous application rather than in the taxation suit. The Respondent urged the court to dismiss the Applicant’s application on that ground. The Respondent submitted that, even if the application were considered on its merits, there was no reason to disturb the taxation by the taxing officer. The Respondent submitted that the taxing officer properly exercised her discretion and that there was no reason warranting interference with it. The Respondent urged the court to dismiss the reference with costs. Analysis and determination 6.In Kipkorir, Tito & Kiara Advocates v. Deposit Protection Fund Board [2005] eKLR, the court stated as follows:“On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.” 7.In Republic v. Kenyatta University & Another Ex parte Wellington Kihato Wamburu [2018] eKLR, the court cited with approval the Ugandan Supreme Court case of Bank of Uganda v. Banco Arabe Espanol SC Civil Application No. 23 of 1999, where the court stated that:“Save in exceptional circumstances, a judge does not interfere with the assessment of what the taxing officer considers to be a reasonable fee. This is because it is generally accepted that questions which are solely of quantum of costs are matters with which the taxing officer is particularly fitted to deal, and in which he has more experience than the judge. Consequently, a judge will not alter a fee allowed by the taxing officer, merely because in his opinion he should have allowed a higher or lower amount. 8.Secondly, an exceptional case is where it is shown expressly or by inference that in assessing and arriving at the quantum of the fee allowed, the taxing officer exercised, or applied a wrong principle. In this regard, application of a wrong principle is capable of being inferred from an award of an amount which is manifestly excessive or manifestly low. 9.Thirdly, even if it is shown that the taxing officer erred on principle, the judge should interfere only on being satisfied that the error substantially affected the decision on quantum and that upholding the amount allowed would cause injustice to one of the parties." 10.In Joreth Limited v. Kigano & Associates [2002]eKLR, the court stated that:“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 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 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... 11....What the learned Judge did not appreciate was that sitting on a reference against the assessment of instruction fee by the taxing officer he ought not to have interfered with the assessment of costs unless the taxing officer had misdirected himself on a matter of principle.” 12.I have considered the Applicant’s application together with the affidavit filed in support thereof. I have also considered the Respondent’s replying affidavit filed in opposition to the application. Finally, I have considered the submissions by the advocates for the parties. The burden was on the Applicant to satisfy this court that while taxing the Applicant’s bill of costs, the taxing officer made an error of principle warranting interference by this court. The Applicant claimed that the taxing officer erred by taxing the instruction fees at Kshs. 50,000/- and deducting a sum of Kshs. 75,000/- from the taxed costs, as the amount paid by the Respondent to the Applicant instead of Kshs. 5,000/- admitted by the Applicant. 13.As observed by the Respondent in her submissions, when the Applicant’s application came before me for the first time on 22nd July 2025, I took issue with the Applicant’s decision to file the reference as a new miscellaneous case instead of filing it in the same file (taxation suit) where the decision on the taxation of her bill of costs being challenged was made. I pointed out to counsel that the court would be handicapped if it were to proceed with the reference in the present file, as it does not contain the bill of costs whose taxation is being challenged and the proceedings of the taxing officer. The Applicant has challenged the taxation of the instruction fees at Kshs. 50,000/-. In the absence of the bill of costs and the proceedings of the taxing officer, the court is unaware of what the Applicant claimed as instruction fees and therefore cannot determine whether the taxing officer properly exercised her discretion. The Applicant has also challenged the deduction of Kshs. 75,000/- from her taxed costs as a fees deposit that the Respondent had made to the Applicant. The Applicant submitted that during the taxation, she admitted to having received as part payment from the Respondent, Kshs. 5000/- and not Kshs. 75,000/-. Without the proceedings of the taxing officer, this court is unable to verify the Applicant’s claim. 14.Instead of summarily striking out the application, I granted the Applicant leave to file a supplementary affidavit, to which she was to annex all documents filed in the taxation suit and the proceedings of the taxing officer. The Applicant did not comply with this direction, with the result that I am in the same position I was when the matter first came before me. In the circumstances, I reiterate that I am not in a position to determine the Applicant’s application. The application was irregularly filed, and the Applicant failed to heed the court’s advice and indulgence to regularise the record. That being the case, I only have one option in the matter, which is to strike out the irregular application before me. Conclusion 15.In conclusion, the Chamber Summons dated 9th April 2025 is struck out with costs to the Respondent. WRITTEN AND SIGNED AT NAIROBI BYS. OKONG’OJUDGEDELIVERED, COUNTERSIGNED AND DATED AT KISUMU THIS 21ST DAY OF MAY 2006E.ASATIJUDGERuling delivered virtually through Microsoft Teams Platform in the presence of;Atieno for the ApplicantNo appearance for the RespondentAtika Court Assistant