https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8062

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL MISC. (REFERENCE) APPLICATION NO. E025 OF 2026** **LIONS CLUB KAKAMEGA………………………………………………………. APPLICANT** **VERSUS** **DR. STELLA WANJALA………………………………………….………………..RESPONDENT** **RULING** 1. The Applicant moved this Court by way of a Reference under Rule 11(2) of the Advocates Remuneration Order challenging the taxation ruling delivered on 19th February 2026 in Kakamega Miscellaneous Civil Application No. E049 of 2023. 2. The Applicant seeks the setting aside of the taxation of Items 1 and 2 of the Respondent’s Party and Party Bill of Costs dated 12th August 2024 on the grounds that the taxing officer applied the wrong principles in assessing the said items. 3. The Applicant contends that the proceedings before the subordinate court were execution proceedings and not a substantive suit and that the taxing officer therefore erred in assessing instruction fees by reference to the decretal sum of Kshs. 3,176,500/=. 4. The Respondent opposes the Reference and urges the Court to uphold the taxation. 5. I have carefully considered the Reference, the ruling of the taxing officer, the pleadings on record and the submissions by the parties. **ISSUE FOR DETERMNATION** 1. The issue falling for determination is whether the taxing officer committed an error of principle in taxing Items 1 and 2 of the Bill of Costs. 2. In **First American Bank of Kenya Ltd v Shah and Others**, the Court held that Judge will not interfere merely because he or she would have arrived at a different figure. Interference is only justified where it is shown that the taxing officer acted on a wrong principle, failed to consider relevant factors, considered irrelevant factors or where the amount awarded is so manifestly excessive or low as to amount to an injustice. 3. Similarly, in **Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd,** the Court stated that costs should not be allowed to rise to such a level as to confine access to justice to the wealthy and that a successful litigant ought to be fairly reimbursed for costs reasonably incurred. 4. The same principles were reiterated by the Court of Appeal in **Joreth Ltd v Kigano & Associates** where the Court emphasized that instruction fees should be determined on the basis of the nature and importance of the matter, the amount involved, the interests of the parties and all the circumstances of the case. 5. The impugned ruling shows that in taxing Item 1, the taxing officer stated as follows: “It is trite that instruction fees is calculated based on the subject matter of the suit. The value of the subject matter of the claim is obtained from pleadings, settlement or judgment.” 1. The taxing officer thereafter observed that judgment had been entered for Kshs. 3,176,500/= and proceeded to tax Item 1 as drawn at Kshs. 180,000/=, the foregoing approach discloses an error of principle. 2. The record before this Court demonstrates that the proceedings from which the bill arose were execution proceedings. Liability had already been determined. Judgment had already been entered. The court was not called upon to determine substantive rights or adjudicate the merits of the dispute between the parties. 3. Execution proceedings are intended to facilitate enforcement of an existing decree. They are therefore distinct from proceedings leading to the determination of the suit itself. 4. In the case of **Lubulellah & Associates Advocates v N K Brothers Ltd**, the Court emphasized that taxation must be based on the actual work undertaken by counsel and the nature of the proceedings involved. 5. Likewise, **in Republic v Minister for Agriculture ex parte Samuel Muchiri W’Njuguna,** the Court held that taxation is not a mathematical exercise but must be grounded on sound legal principles and a proper appreciation of the work performed. 6. The taxing officer in the present matter appears to have proceeded on the assumption that because the original judgment was for Kshs. 3,176,500/=, the instruction fee automatically had to be assessed by reference to that sum. That approach would have been appropriate if counsel had been instructed in the substantive proceedings leading to the judgment. However, the bill before the taxing officer arose from execution proceedings and not from the prosecution or defence of the primary claim. 7. The Court is therefore persuaded that the taxing officer conflated the substantive suit with the subsequent execution proceedings. 8. The Supreme Court *in* ***Kenya Airports Authority v Otieno Ragot & Company Advocates*** reaffirmed that the value of the subject matter may be derived from pleadings, judgment or settlement. However, that principle presupposes that the taxation relates to proceedings in which the substantive claim is directly in issue. It does not relieve a taxing officer of the obligation to first determine the nature of the proceedings before the court. 9. Having found that the taxing officer applied the wrong principle in taxing Item 1, the question that arises is whether this Court should itself reassess the item or remit it for fresh taxation. 10. The Court of Appeal *in* ***Kipkorir Titoo & Kiara Advocates v Deposit Protection Fund Board*** observed that where a taxing officer has acted on an erroneous principle, the Judge may remit the bill back for taxation with appropriate directions. 11. Regarding Item 2, the Applicant also challenges the taxation of drawing a replying affidavit. While the amount taxed appears modest, the Court is of the view that once the bill is remitted for reconsideration of the principal item, it is appropriate that Item 2 also be reconsidered in the context of the entire bill to ensure consistency and coherence in taxation. 12. In the end, I am satisfied that the Applicant has demonstrated that the taxing officer acted on a wrong principle by treating execution proceedings as though they were substantive proceedings and by basing instruction fees solely on the decretal amount. 13. Accordingly, I make the following orders: 14. The Reference dated 23rd February 2026 is hereby allowed. 15. The taxation of Items 1 and 2 of the Respondent’s Party and Party Bill of Costs dated 12th August 2024 is hereby set aside. 16. The Bill of Costs is remitted for fresh taxation of Items 1 and 2 before a different taxing officer other than the taxing officer who delivered the ruling dated 19th February 2026. 17. The taxation of all other items shall remain undisturbed. 18. Each party shall bear its own costs of this Reference. 19. It is so ordered. 20. The file is closed. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 5TH DAY OF JUNE, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zilda/Velma Mr. Oduru for the Respondent present online. Ms. Cherono holding brief for the Appellant present.