https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9083

Khelifa v Chebukati & another; Odinga & another (Interested Parties) (Miscellaneous Application E033 of 2021) [2026] KEHC 9083 (KLR) (Constitutional and Human Rights) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9083 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Miscellaneous Application E033 of 2021 LN Mugambi, J June 25, 2026 Between Khelef Khelifa Applicant and Wafula Chebukati 1st Respondent Ethics and Anti-Corruption Commission 2nd Respondent and Hon.Raila Odinga Interested Party Stephen Kalonzo Musyoka Interested Party Ruling Introduction 1.By a Chamber Summons Application dated 4th August 2022, the Applicant herein seeks Orders that:i.The ruling of the Taxing officer dated 5th July 2022 delivered in miscellaneous Aapplication 542 of 2016 in reference to the whole bill of cost of the 2nd Interested Party be set aside.ii.This Court be pleased to re-tax the Respondent's Party to Party bill of costs.iii.In the alternative and without prejudice to the forgoing, this Court be pleased to refer back the taxation of the 1st Respondent's Party to Party bill of costs to the taxing officer for re-taxation of the entire bill of costs with proper directions.iv.The costs of this Application be provide for. Applicant’s Case 2.The Application is supported by the Applicant’s supporting affidavit. 3.By way of background, the 2nd Interested Party filed a Party and Party Bill of costs dated 8th April 2022 claiming Ksh.1,875,678.34. The same was taxed at Kshs. 246,523.33 by the Taxing Officer, Hon. Tessy Marienga in the Ruling dated 5th July 2022. As a result, the Applicant filed a Notice of Objection dated 26th July 2022. 4.According to the Applicant, the Taxing Officer’s Ruling did not consider his submissions dated 17th May 2022. The Applicant contends that the Taxing Officer erred in holding that the 2nd Interested Party was entitled to receive the instructions fees and other costs. 5.Particularly, the Applicant avers that the Taxing Officer misdirected herself in holding that the instruction fees fell under Schedule 6(j) of the Advocates Remuneration) (Amendment) Order, 2014 yet the applicable order should have been Schedule 6 (j)(iii). The Applicant points out that Schedule 6(j), deals with substantive orders in a constitutional petition hence cannot be relied on in matter pertaining a miscellaneous application. 6.Further to this, the Applicant contends that no reasons were given for taxing item 3 as drawn yet the accurate number of folios were 57 folios. Equally, item 34 is also contested on the premise that the same is awarded for proceedings that only took 5 hours and 1 hour when matter came up for submissions. In light of this, the Applicant argues that the award of Ksh.5000 is not justifiable. Respondents and 1st Interested Party’s Case 7.There no submissions filed by the Respondents and 1st Interested Party. 2nd Interested Party’s Case 8.In reaction to the Application, the 2nd Interested Party filed a Replying Affidavit through his Counsel, Diana Nekoye sworn on 26th March 2024. 9.Reiterating the facts of this case, Counsel avers that the Application is misconceived, bad in law and meant to deny the 2nd Interested Party the costs awarded in relation to Miscellaneous Application No. E033 of 2021. 10.Counsel contended that since the Bill of Costs was filed on 8th April 2022, the applicable provisions were those contained in the Advocates Remuneration (Amendment)Order, 2014. For this reason, Counsel submitted that the Applicant erroneously relied on the Advocates Remuneration (Amendment) Order, 2009 in its submissions dated 17th May 2022 which was erroneous. 11.In that regard, Counsel contended that Schedule 6(j) (iii) of the Advocates Renumeration (Amendment) Order,2014 cited by the Applicant as the appropriate order relates an application to set aside an arbitral award which was not the substance of this matter. 12.Counsel averred that the orders that were sought in the Application pertained violation and infringement of constitutional rights and therefore fall under Schedule 6 (j) (ii) of the Advocates Renumeration (Amendment) Order,2014. 13.Considering this, Counsel contended that the Taxing Officer did not err in taxing the instruction fees at Ksh.100,000. Equally, she states that the Taxing Officer in taxing the getting up fees and item 3 and 34 of the Bill of costs applied the correct principles. 14.Counsel opposed the re-taxation of the Bill of costs on the premise that it is not judicious and also not an efficient use of the Court’s time since the impugned Bill of Costs was properly based on the Advocates Renumeration (Amendment) Order,2014. Counsel submitted that this Application is for dismissal. Applicant’s Submissions 15.Otieno Ogola and Company Advocates filed submissions dated 28th December 2023. 16.The Applicant submitted that this matter was commenced by an Application for contempt filed by the Applicant against the 2nd Interested Party, for allegedly failing to obey court orders upon conclusion of a constitutional petition. 17.The Applicant submitted that in taxing the instant Bill of costs, the Taxing Officer erroneously relied in Schedule 6(j) of the Advocates Remuneration Order 2014 instead of Schedule 6(c) (viii). 18.The Applicant argued that Schedule 6(j) refers to constitutional petitions and prerogative orders while Schedule 6(c) (viii) refers to any other application. On this premise, Counsel argued that the instruction fees ought to have been taxed at Kshs.5000. 19.Reliance was placed in Mwangi Keng’ara and Company Advocates v Invesco Assurance Company Limited [2021] eKLR where it was held that the questions solely on quantum are regarded as matters which the Taxing Officer are particularly fitted to deal with. In the matter, the Court noted that the amount awarded was reasonable and within the range provided by the relevant Advocates Remuneration Order whereby an application whether presented or opposed would attract a fee of not less than Ksh.5000. 20.Further reliance was placed on Mwangi Keng'ara & Co. Advocates v Invesco Assurance Company Limited [2021] eKLR. 21.On Item 2, getting up fees, Counsel submitted that the instruction fees being Ksh.5000, it then follows that the getting up fees should be 1/3 of the instruction fees, that is Ksh.750. 22.On Item 9, Counsel submitted that the same was not drawn to scale as the Respondent’s replying affidavit is 9 folios hence the same should be Kshs. 450 and not Ksh.10,000. 23.Turning to Item 10, Counsel submitted that the correct number of folios is 14 not 200 as indicated by the Taxing Officer hence the correct sum is Ksh.700. Similar sentiments were submitted in relation to Item 11, 14, 17 and 18. Counsel stated that the correct number of folios is 8 not 16, 4 not 8 and 14 respectively. 24.On item 21, 22, 23 and 24, being court attendance, the Applicant submitted that the correct scale should be Schedule 6(7)(a) hence the three attendances should attract Ksh.7,600 and not Ksh.12,000 as per the Taxing Officer’s ruling. In sum, Counsel submitted that the Bill of Costs ought to have been taxed at Kshs.29,478 and not Kshs.246,523.33. 2nd Interested Parties Submissions 25.The 2nd Interested Party filed submissions dated 1st July 2025 through Musyoka Murambi and Associates Advocates who set out the issues for discussion as: whether the impugned ruling ought to be set aside and whether this Court should re-tax the impugned Bill of Costs. 26.On the first issue, the 2nd Interested Party submitted that the Taxing Officer applied the correct principles under Schedule 6(j) Advocates Renumeration (Amendment) Order,2014 to tax item 1, the instruction fees at Ksh.100,000. The 2nd Interested Party submitted that orders sought in High Court Miscellaneous Application No. E033 of 2021 were prerogative in nature as they touched on the infringement of constitutional rights. Counsel pointed out that the Applicant’s allegation otherwise was misleading and misconceived as Schedule 6 (c) (viii) is not envisaged in the Advocates Remuneration Order 2014, thus cannot be relied upon. 27.To buttress this point reliance was placed in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR where it was held that:“The quantum of such costs is to be what is reasonable to prosecute the proceedings. Generally, the objective of taxation is to award the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him or her in relation to his or her claim or defence and to ensure that all such costs shall be borne by the party against whom such order has been awarded The Taxing Master is required to allow all such costs, charges and expenses as appear to him or her to have been necessary or proper for the attainment of justice or for defending the rights of any party, but save as against the party who incurred the same.” 28.Furthermore, on items 2, 9, 10, 11, 14, 17, 18, 21, 22, 23 and 24, the 2nd Interested Party submitted that the Taxing Officer applied the right principles thus the taxation was precise and should remain as taxed. According to the 2nd Interested Party, the decision of the Taxing Officer cannot be interfered with unless it is shown that either the decision was based on an error of principle or the fee awarded was so manifestly excessive. As such, the 2nd Interested Party argued in reaching the impugned decision, the Taxing Officer did not misapply the principles under the Advocates Remuneration Order. 29.The 2nd Interested Party relied on Rachuonyo and Rachuonvo Advocates vs National Bank of Kenya Limited [2021] eKLR where it was held that:“On a 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. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of this court said at page 492 paragraph "where there has been an error in principle the court will interfere; questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases.” 30.Similar reliance was placed on First American Bank of Ken ya Ltd v Guiab P Shah 2 Others Nairobi HCCC No. 2255 of 2002. 31.On the second issue, the 2nd Interested Party’s Bill of Costs argued that it should not be re-taxed as the same was correctly taxed by the Taxing Officer in the Ruling dated 5th July 2022. Analysis and Determination 32.It is the considered view of this Court that there is only one issue for determination, namely:Whether the Taxing Officer failed to consider the relevant principles in taxing the 2nd Interested Party’s Bill of costs. 33.The jurisdiction on taxation of costs is discretional and is conferred upon the Taxing Officer under Rule 10 and 16 of the Advocates Remuneration Order, 2009 respectively. This Rules states as follows:Rule 10 - ‘The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks.’Rule 16 - ‘Notwithstanding anything contained in this Order, on every taxation the taxing officer may allow all such costs, charges and expenses as authorized in this Order as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the taxing officer to have been incurred or increased through over-caution, negligence or mistake, or by payment of special charges or expenses to witnesses or other persons, or by other unusual expenses.’ 34.The factors that may necessitate a Court’s interference with the Taxing Officer’s discretion were laid down in the case of Nyangito & Co Advocates v Doinyo Lessos Creameries Ltd [2014] KEHC 5481 (KLR) as follows:“ 19.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 are, (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 Remuneration 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 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 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. These principles were stated in the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64. 20.Further it has been held that the 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; 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 of Advocates 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; the instructions fees ought to take into account the amount of work done by the advocate, 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.” 35.In making a taxation decision, the taxing master ought to be guided by the principles of taxation as laid out in the case of Premchand Raichand Ltd v Quarry Services of East Africa Ltd and Others (No. 3) [1972] EA 162. The Court outlined the principles of taxation as follows:“(a)That costs should not be allowed to rise to a level as to confine access to justice as to the wealthy.(b)That a successful litigant ought to be fairly reimbursed for the cost he has had to incur.(c)that the general level of remuneration of Advocates must be such as to attract recruits to the profession.(d)so far as practicable there should be consistency in the award made and(e)The Court will only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party.” 36.Furthermore, the Taxing Officer in taxing the Bill of Costs is required to be guided by the relevant Schedule in the Advocates (Remuneration) Order to make a determination. The Court of Appeal of Uganda in Makula International vs. Cardinal Nsubuga & Another [1982] HCB 11 as cited with approval in Truth Justice & Reconciliation Commission v Chief Justice of the Republic of Kenya & another [2014] KEHC 5447 (KLR) pronounced itself as follows:“The taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI, and then consider whether the basic fee should be increased or reduced. He must give reasons for deciding that the basic fee should be increased or decreased. When he has decided that the scale should be exceeded, he does not arrive at a figure which he awards by multiplying the scale fee by a multiplication factor, but places what he considers a fair value upon the work or responsibility involved. Lastly, he taxes the instruction fee, either by awarding the basic fee or by increasing or decreasing it.” 37.Furthermore, in assessing whether the Taxing Officer exercised her discretion properly, the Court of Appeal in Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] KECA 587 (KLR) guided as follows:“The beginning point is whether the taxing officer properly exercised her discretion to determine the Advocate and client bill of costs.In the case of Joreth Ltd vs Kigano & Associates [2002] 1 E.A. 92, this Court addressed the issue thus;“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 the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” 38.Correspondingly, the Court in Republic v Minister for Agriculture; W'Njuguna & 8 others (Ex parte) [2006] KEHC 3504 (KLR) discussing the issue of instruction fees outlined the following principles:“…(ii) the taxation of advocates’ instruction fees is to seek no more and no less than reasonable compensation for professional work done;(iii)the taxation of advocates’ instruction fees should avoid any prospect of unjust enrichment, for any particular party or parties;(iv)so far as apposite, comparability should be applied in the assessment of advocate’s instruction fees…” 39.The Taxing Officer in assessing the 2nd Interested Party’s, Party and Party Bill of Costs was guided by the opine in Joreth Ltd (supra) where the Court emphasized the principles to be considered in taxation of a Bill of Costs. The Taxing Officer under paragraph one sets out that:The matter herein emanates from the Notice of Motion Application dated 27th September, 2021 where the Applicant sought for leave to institute contempt of court proceedings against the Respondent for continued disobedience of the Orders issued by the Supreme Court of Kenya in Petition No. 1 of 2017 on the 28th August 2017 among other prayers. The Court delivered its Ruling on 17th March 2022 upholding the preliminary objection and striking out the application with costs. 40.The Taxing Officer in light of this and considering that the matter was filed in 2021, determined that the applicable law was the Advocates Remuneration (Amendment) Order,2014 and appropriate scale, Schedule 6(j). The Applicant argued that the matter was a contempt application and so should fall under provisions applicable to other applications, while the 2nd Interested Party maintained that it arose from enforcement of constitutional rights. Consequently, the Applicant’s claimed that the Taxing Officer ultimately misdirected herself by applying the wrong principle. 41.The Advocates (Remuneration) (Amendment) Order, 2014 under Schedule 6 (1)(j) provides as follows on this issue:Constitutional petitions and prerogative ordersTo 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 100,000iii.to present or oppose application for setting aside arbitral award 50,000. 42The Applicant in the Application, averred that the appropriate Schedule is 6(j)(iii), whereas in the submissions submitted that the appropriate Schedule is 6 (c) (viii). First, it is worthy to mention that the Supreme Court in Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] KESC 32 (KLR) held as follows:“It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…” 43.That said, the provision upon which the Applicant relied on in his submissions is found under Appeals under Schedule 6 and provides as follows:(c)Matters arising during proceedings—(viii)to present or oppose any other application not otherwise provided for—where the application is unopposed 3,000where the application is opposed, such sum as may be reasonable but not less than 5,000 44.Evidently, the substantive application was not an appeal but a contempt application in view of the Supreme Court orders issued on 28th August 2017 in Petition No.1 of 2017. Further the application was not any other ordinary Application, it was an application directed at the disobedience of court orders issued in an election Petition. It therefore follows that such an application cannot be lightly taken. It inherently implicates the enforcement of constitutional rights, the preservation of the Country’s electoral governance besides upholding the dignity and authority of this Court. 45.I am therefore not persuaded that the Applicant has demonstrated any error of principle on the part of the Taxing Officer. Additionally, the Applicant’s case is primarily on the taxed amount, which falls within the discretion of the Taxing Officer. 46.Owing to the guiding principles highlighted herein and an examination of the parties’ cases, I am of the considered view that the Taxing Officer addressed her mind properly to the relevant Advocates Remuneration Order and taxed the Bill of costs in the relevant Schedule, whilst providing sufficient reasons for taxation of each item. 47.Additionally, the Taxing officer adhered to the general principles stipulated in the Advocates Renumeration Order and judicial precedents on taxation of Bill of Costs. 48.It is thus my finding that the Taxing Officer did not error in law and principle in arriving at the 2nd Interested Party’s Bill of costs and thus there is no established basis laid for this Honourable Court to interfere with the taxed Bill of Costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JUNE, 2026.………………………………………….L N MUGAMBIJUDGE