https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10095

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MISC CIVIL APPLICATION NO. E205 OF 2025** KAMENDE D.C & COMPANY ADVOCATES………………………………APPLICANT VERSUS MACHAKOS COUNTY ASSEMBLY……………………………………RESPONDENT IN THE MATTER OF A TAXATION DECISION DELIVERED ON 5.05.2025 AND MACHAKOS HIGH COURT MISC. APPLICATION NO. E102 OF 2024; KAMENDE D.C & COMPANY ADVOCATES-VS-MACHAKOS COUNTY AND IN THE MATTER OF MACHAKOS PETITION NO. 10 OF 2018, PETER KYALO-VS-DR. ALFRED NUTUA, GOVERNOR MACHAKOS COUNTY & 3 OTHERS RULING 1. The Applicant Messrs Kamende D.C and Company Advocates instituted the reference vide a chamber summons application dated the 28th May 2025. The application is supported by factual averments contained in the supporting affidavit of Jackson Akenga sworn on the 28th of May 2025 at Machakos. 2. The Applicant seeks orders from the Court, allowing the reference against the decision of the taxing officer, Honourable M. Thibaru, on taxation made on 5th May 2025. 3. The Applicant prays that ruling on taxation delivered by Hon. M. Thibaru on 5th May 2025 with respect to items 1,2,102,103,104,105,106,107,108,109,110,111and112 on the Applicant’s Bill of Costs dated 18th April, 2024 be set aside. 4. The Applicant prays that the said items be assessed by the Court in such other sums as may appear to be reasonable. 5. The Applicant prays that in the alternative, the Honourable Court remits items 1,2,102,103,104,105,106,107,108,109,110,111 and 112 of the Applicant’s Bill of costs dated 18th April 2024 to another Taxing Officer for re-taxation. 6. The Applicants also pray that the cost of the reference be provided for. 7. The Application is predicated on grounds that the Applicant, by a notice dated 8th May 2025, notified the Deputy Registrar of its objection to her ruling and requested reasons as provided for in paragraph 11(b) of the Advocates' Remuneration Order. 8. It is the Applicant’s contention that the taxing officer misdirected herself in making an assessment on items 1 and 2 of the Applicant’s bill of costs which are so inordinately low as to arrive at an error of principle with regard to the said items in the Applicant’s bill of costs, the Applicant further contends that since the parent files were available for the taxing officer’s perusal, she should not have taxed off the bill of costs in the manner she did on the grounds of failure to file documents and that the taxing officer erred in taxing the Applicant’s bill of costs below what the respondent had agreed to as evidenced by the documents filed in support of the Applicant’s bill of costs. 9. The Applicant contends that the Taxing Officer erred in failing to award the disbursements as prayed in items 102,103,104, 105, 106, 107, 108, 109, 110, 111 and 112 despite the same not having been opposed by the respondent. 10. The Applicant further contended that the Taxing Officer erred in omitting to add 50% of the taxed bill of costs as provided for in Schedule 6 (B) of the Advocates Remuneration Order. 11. The Applicant’s reference is supported by factual averments contained in the supporting affidavit of Jackson Akenga sworn on 28th May 2025 wherein the deponent reiterates the grounds of the application. 12. The Respondent opposed the application by way of a replying affidavit in which the Respondent stated that the amount provided for instruction fees was appropriate as expressed in the Remuneration Order. 13. The Respondent stated that there was no reason for interfering with the exercise of discretion by the taxing officer whose decision on the impugned items was fair. 14. The Respondent stated that the Taxing Officer did not err in principle but gave a well-reasoned explanation on the impugned items; the disbursements that were declined were not proved by production of receipts, the costs awarded were sufficient, and that pleadings were not the only documents that could be used to assess instruction fees in a case. 15. Both the Applicant and Respondent filed rival written submissions in support of their respective submissions on the application. 16. Having read the application, the supporting affidavit and annexures thereto, the replying affidavit in opposition to the application, the respective submissions by the parties, I identify the following issues as falling for determination; 17. Whether the Taxing Officer misdirected herself to the extent of erring in principle while taxing the enumerated items in the reference in respect of the Applicant/Advocates' bill of costs in her ruling on taxation made on 5th May 2025. 18. What relief should the Court grant in the circumstances of the case, if any? 19. In matters of taxation and a reference such as this, a court hearing the reference must warn itself that the decision of the Taxing Officer can only be interfered with where there is an error in principle in the taxation giving rise to the reference. 20. In the case of Kipkorir, Titoo ***&*** Kiara Advocates ***v***Deposit Protection Fund [2005] eKLR it was stated by the court that the taxing officer’s decision cannot be interfered with unless it can be shown to have been on an error in principle. This position was reiterated in the case of Nyangito Co. Advocates ***v***Ndoinyo Lessos Creameries Ltd [2014] eKLR. Having so warned myself, I proceed to determine the reference before me. 21. The Court of Appeal in the locus classicus case of *Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No 3)* [1972] EA 162 captured the rationale best by formulating the following guiding principles in assessing costs under the [Advocates Remuneration Order](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%2016): That costs should not be allowed to rise to a level as to confine access to justice to the wealthy; That a successful litigant ought to be fairly reimbursed for the cost he has had to incur; That the general level of remuneration of advocates must be such as to attract recruits to the profession; and That so far as practicable there should be consistency in the award made…” 1. The Supreme Court in the case of Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR) addressed how instruction fees under Schedule VIB of the [Advocates Remuneration Order](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%2016) should be assessed and/or taxed. The Court in material part stated as follows; *‘..61.In the event that the value of the subject matter of a suit can not be determined from either the pleadings, judgment or settlement by the parties, and the nature of the said suit is not provided for in Paragraph 1 of Schedule VIA, proviso (i) thereunder empowers a Taxing Officer to exercise his/her discretion in assessing instruction fees for such a suit. The proviso in question reads as follows:* * + 1. *“... the Taxing Officer may take into consideration other fees and allowances due to the advocate (if any) in respect of the work to which any such allowance applies,* *the nature and importance of the cause or matter, the amount involved, the interest of the parties, the general conduct of the proceedings, a direction by the trial judge, and all other relevant circumstances; ...”See*[*Joreth Ltd v Kigano & Associates*](https://new.kenyalaw.org/akn/ke/judgment/keca/2002/153)*(supra).* *62.The Court of Appeal in the*[*Peter Muthoka Case*](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/597)*found and rightly so, when the aforementioned discretion comes into play as follows:* * + 1. *“It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the Taxing Officer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing.**He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement. He has no leeway to disregard the statutorily commanded starting point. And we think, with respect, that the starting point can only be one of the three. It is not open to choose one or the other or to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive.” [Emphasis added]* *Failure to evaluate a disputed item under taxation and determine it judiciously is contrary to the clear provisions of Rule 16 of the*[*Advocates Remuneration Order*](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%2016)*. Besides, a Taxing Officer being a judicial officer exercising a judicial mandate cannot be said to be performing such mandate mechanically or merely as a formality.* *69. What is more, Gould, JA in Thomas James Arthur v Nyeri Electricity Undertaking [1961] EA 492 at p 494, stated that 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.” In any event, the essence of the assessment of instruction fees as appreciated by the Court of Appeal in*[*Ratemo Oira & Co Advocates v Magereza Sacco Society Ltd*](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/302)*, Civil Appeal No 75 of 2018; [2019] eKLR is that –* * + 1. *“Indeed, it is trite that an advocate is entitled to his fees once he is instructed, retained or employed by a client… However, it must be noted that an Advocate will be entitled to payment of a reasonable fee which is commensurate with the work done. The business of taxation of costs must ensure a delicate balance between the guiding principles aptly pronounced by the Premchand case which include: the “court owes a duty to the general public to see that costs are not allowed to rise to such a level as to deprive of access to courts but the worthy” and “the general level of the remuneration must be such as to attract worthy recruits to the profession”. What is a reasonable fee in the circumstances can only be adjudicated by a taxing master by application of his discretion. [Emphasis added]* 1. Considering the above basic principles, I think the pertinent questions in this ruling are whether or not it has been shown by the Applicant that the Taxing Officer acted on the wrong principles or arrived at so inordinately low an amount as to occasion an error in principle. 2. The first error of principle complained of is that the Taxing Officer misdirected herself in making an assessment on items 1 and 2 of the Advocate/Applicant’s bill of costs which are so inordinately low as to arrive at an error of principle with regard to the said items in the Applicant’s bill of costs. 3. The Advocate sought Kshs 2,000,000 as instruction fees for defending the client in a Constitutional petition where the client was sued for contravention of several provisions of the Constitution, the County Governments Act and Standing Orders of the County Assembly. The petition was said to be sensitive, important, and that it entailed national interest. 4. The Advocate further stated that the taxing officer taxed below what the Respondents had agreed, as evidenced by documents presented before the Taxing Officer by the Advocate. 5. The client responded that instruction fees of Kshs 100,000 were sufficient as provided for in the Advocates Remuneration Order. 6. The Taxing Officer held that the Advocate/Applicant did not file copies of the pleadings to help the court understand the nature and complexity of the matter in determining the instruction fees; therefore, there was no justification for the sum claimed as the complexity of the matter had not been demonstrated. 7. The Taxing Officer arrived at the conclusion that an amount of Kshs 150,000 would be sufficient as instruction fees for item 1 and Kshs 50,000 for item 2 as getting up fees for trial. 8. The Advocate/applicant contends that the parent files were available to the Taxing Officer to peruse; therefore, the Taxing Officer should not have taxed off the bill of costs in the manner she did. 9. On the issue of ascertaining the subject matter of the suit, I am persuaded by the Advocate/Applicant’s position that the Taxing Officer ought to have referred to the parent file which the law permits a Taxing Officer to call for and peruse in her exercise of jurisdiction over such matters. 10. As stated by the Supreme Court, which quoted with approval the decision of the Court of appeal in the Peter Muthoka case, the Taxing officer must exercise discretion judiciously, that discretion kicks in only after she has engaged with either the pleadings, the judgment or settlement and that the starting point could only be one of the three, in that regard the Court of Appeal held as follows; *‘..He does have discretion as to what he considers just, but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement. He has no leeway to disregard the statutorily commanded starting point. And we think, with respect, that the starting point can only be one of the three. It is not open to choose one or the other or to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive’* 1. In the present case, the Taxing Officer admits to not having perused the pleadings, finds that there is no settlement between the parties on fees and makes no reference to any judgment. In the circumstances, I have no hesitation in making a finding that the amount of Kshs 150,000 as instruction fees by the Taxing Officer was arrived at arbitrarily, constituting an error in principle. 2. It is left to conjecture how the Taxing Officer was able to determine the nature and importance of the cause or matter, the amount involved, the interest of the parties, and the general conduct of the proceedings without reference to the pleadings. 3. The failure to correctly ascertain the subject matter in a suit, which in my view can only be done with reference to the pleadings or judgment for purposes of taxation, is an error in principle. 4. The Court of Appeal in the case of [Kamunyori & Company Advocates v Development Bank of Kenya Limited](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/595) (2015) held as follows; *It is now an accepted principle that a Judge will normally remit the matter to the Taxing Officer for reconsideration where there is an error of principle. Spry, Ag. P. held in****Nanyuki Esso Service v. Touring******Cars Ltd****[1972] EA 500 that an error of principle can be inferred where an award is manifestly excessive unless, in the opinion of the Judge, it has not materially affected the assessment.* *Failure to ascertain the correct subject matter in a suit for the purpose of taxation is an error of principle. So too, failure to ascribe the correct value to the subject matter is an error of principle. Authorities on taxation show that a Judge will normally not interfere with the Taxing Officer’s decision on taxation unless it is based on an error of principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of principle can be inferred. If the instructions fee is arrived at on the wrong principles, it will be set aside (see****Elmandry and Others v. Salim****[1956] EACA 313). As long ago as 1961, the predecessor of this Court emphasized in****Arthur v. Nyeri******Electricity****[1961] EA 492 that* *“where there has been an error in* *principle, the Court will interfere, but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal, and the Court will intervene only in exceptional cases.”*That is still good law. 1. The Applicant contended that since the parent files were available for the Taxing Officer’s perusal, she should not have taxed off the bill of costs in the manner she did on the grounds of failure to file documents; I am inclined to agree with the Advocate/ Applicant on the same. 2. The provisions of rule 13A of the Advocates Remuneration Order empower a Taxing officer to direct the production of any document as may be necessary for the determination of any matter in dispute before him. The parent file was legally within reach of the Taxing officer and was essential for the exercise of her discretion under the Advocates Remuneration Order in taxing the impugned Advocate/Client bill of costs. 3. The decision of the Taxing Officer in respect of the instruction fees was therefore an error of principle. Having found that the Taxing Officer erred in assessing instruction fees, there is no basis to determine whether the same was inordinately low or otherwise in the circumstances of the case. 4. I wish to point out that the Applicant/Advocate is not without blame as they had the responsibility of either presenting their pleadings or judgment to the Taxing Officer or taking necessary steps to make sure that the parent file was availed to the Taxing Officer for taxation of their bill of costs. 5. The Advocate/Applicant challenges the Taxing officer’s assessment on items 102 to 112 of their bill of costs on the basis that the same were not challenged by the Respondent. 6. I do not find the decision by the Taxing Officer not to award items 102 to 112 for disbursements on account of want of production of receipts as an error in principle. 7. The Advocate applicant lastly alleges that the Taxing Officer erred by omitting to add 50% of the taxed bill of costs as provided for in Schedule 6(B) of the Advocates Remuneration Order. 8. It is trite law that the Taxing Officer has discretion to increase or reduce the instruction fees and the amount of increase or reduction is discretionary. The Taxing officer in this case cited the decision of Odunga J in Nyangito and Co. Advocates -vs- Donyo Lessos Creameries Ltd (2014) eKLR, the Taxing officer was also guided by the decision of the Fred Ochieng J in the case of Mumias Sugar Company Ltd-vs-Professor Tom Ojienda and Assocoates (2019) eKLR where the court held that there was no basis for an increase of 50% where there were no party and party costs. 9. I find that by following precedent from the High Court, the Taxing Officer did not err in principle by declining to grant the 50% as claimed by the Advocate/Applicant. It was held in D'Souza v. Ferao [1960] EA 602 and Arthur v. Nyeri Electricity Undertaking [1961] EA 492 that although a judge undoubtedly has jurisdiction to re-tax a bill himself, he should as a matter of practice do so only to make corrections which follow from his decision and that the general rule is that where a fee has to be re -assessed on different principles, the proper course is to remit to the same or another taxing officer. 10. I find that the Taxing Officer erred in principle by assessing instructions fees without reference to either the pleadings or judgment in circumstances where there was no settlement on fees. In consequence, the Reference partially succeeds, and I order as follows; 1. The reference is hereby allowed against the decision on taxation of the Taxing Officer, Honourable M. Thibaru, made on 5th May 2025 in respect of items 1 and 2 only. 2. The matter be remitted for taxation of the Advocates/client bill of costs of items1 and 2 only of the Applicant’s bill of costs dated 18th April 2024 before another Taxing Officer other than the Honourable M. Thibaru 3. The Applicant shall have the costs of the reference. Signed, dated and delivered at Nairobi this 29th day of May 2026 **Emmanuel Bitta** **Judge of the High Court**