https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13031

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CONSTITUTIONAL PETITION NO. E024 OF 2021** **ALICE MUCHIRI ................................................................ PETITIONER** **=VERSUS=** **ELDORET HOSPITAL LIMITED ........................................ RESPONDENT** **Coram: Justice R. Nyakundi** **Ms Kirenge for the ODPP** **M/S Nyairo & Co. Advocates** **M/S Abel B.C Asuma & Co. Advocates** **RULING** **INTRODUCTION** 1. Two matters stand for determination. The first is a Reference brought by way of chamber summons, styled a “Memorandum of Appeal”, dated 25th August 2025 and expressed to be brought under paragraph 11(1), (2) and (4) of the *Advocates (Remuneration) Order*. By it the Respondent, Eldoret Hospital Limited, challenges the decision of the Deputy Registrar, Hon. Caroline Rose Tabuche Ateya, delivered on 30th July 2025 on the Petitioner’s Party and Party Bill of Costs dated 14th January 2025, and in particular the award of Kshs. 500,000/= as instruction fees. The second is a Notice of Motion of even date, supported by the affidavit of Dr. V. V. Lodhia sworn on 25th August 2025, seeking a stay of execution of that decision pending the hearing and determination of the Reference. 2. The Motion was, in its terms, a holding measure designed to preserve the position until the Reference could be heard. Both parties have since filed and exchanged written submissions directed to the Reference itself — those of the Respondent filed in October 2025 and those of the Petitioner dated 20th October 2025. In those circumstances the just, expeditious and proportionate course, consistent with Sections 1A, 1B and 3A of the *Civil Procedure Act* (Cap. 21), is to determine the Reference on its merits. That determination disposes of the Motion. 3. One matter of form deserves brief mention. A challenge to the decision of a Taxing Officer under paragraph 11 of the Order lies by way of a reference to a Judge by chamber summons; it is not an appeal, and the Taxing Officer is not an inferior tribunal whose decision is appealed against in the ordinary sense. The document filed by the Respondent, although headed “Memorandum of Appeal”, is in substance and in the manner in which it is drawn a chamber summons setting out the grounds of objection, as paragraph 11(2) requires. The misdescription is a matter of nomenclature only and, having regard to Article 159(2)(d) of the Constitution, nothing turns upon it. I treat the document as what it is: a reference. **BACKGROUND** 4. The Petition was filed on 5th October 2021. It sought the release of the medical records and treatment history of the late Hon. Peter Kiiru Chomba (deceased), who had been a patient at the Respondent’s facility. It was anchored on Articles 10, 19(2), 20(1) and (4), 22, 23, 27, 33(1)(a) and 35 of the Constitution, Sections 4, 7, 9 and 10 of the *Access to Information Act*, No. 31 of 2016, the *Medical Practitioners and Dentists Act* (Cap. 253), and section 35 of the *National Coroners Service Act*, No. 18 of 2017. 5. The Respondent opposed the Petition. Its position, as it is described in its own submissions on this Reference, was that the records sought constituted confidential and personal information touching on the health of the deceased and could only be released pursuant to an order of the Court. The Petition was canvassed by way of written submissions, without oral evidence, and was determined on 4th October 2022 in favour of the Petitioner, with costs. 6. The Petitioner thereafter filed a Party and Party Bill of Costs dated 14th January 2025, claiming under item 1 instruction fees of Kshs. 2,000,000/=. The Respondent, in its submissions before the Taxing Officer, proposed that a sum of Kshs. 100,000/= be allowed. By her ruling delivered on 30th July 2025 the learned Deputy Registrar allowed Kshs. 500,000/= under item 1; struck off item 2 (getting up fees); taxed off items 12, 13, 16 and 18; and taxed the bill as drawn in respect of the remaining items, arriving at a total of Kshs. 536,050/=. 7. The whole of the learned Taxing Officer’s operative reasoning on item 1 is contained in paragraph 3 of her ruling, which reads: *“I find that given the nature of claim that was opposed, the industry and time expended, a sum of Kshs. 500,000/= as instruction fees is reasonable and just in the circumstances.”* 8. By a letter dated 12th August 2025, filed in Court on 13th August 2025 and copied to the Petitioner’s advocates, the Respondent’s advocates gave notice of objection under paragraph 11 of the Order and requested that the reasons for the award of Kshs. 500,000/= as instruction fees be supplied, indicating that a reference would follow upon receipt of those reasons. It is common ground on the record before me that the Taxing Officer did not respond to that notice. On 25th August 2025 the Respondent lodged the present Reference together with the Notice of Motion for stay. **THE RESPONDENT’S CASE** 9. The Reference is founded on five grounds, which may be compressed into three. First, that the learned Deputy Registrar failed to give reasons for her finding on instruction fees notwithstanding the notice dated 12th August 2025. Secondly, that she failed to apply and consider the provisions of Schedule 6, paragraph 1(j) of the *Advocates (Remuneration) (Amendment) Order*, 2014, and thereby arrived at an erroneous finding. Thirdly, that the award of Kshs. 500,000/= was made without legal justification, the matter not having been complex, and is inordinately high in the circumstances. The Respondent prays that the award be set aside and that a sum of Kshs. 100,000/= be substituted. 10. In his supporting affidavit, Dr. V. V. Lodhia, a director of the Respondent, deposes to the chronology set out above and exhibits the ruling (“VVL1”), the notice of objection (“VVL2”) and the Reference (“VVL3”). He states that the Respondent is ready and willing to furnish security, by way of a bank guarantee, for the due performance of the taxed costs. 11. In its submissions the Respondent contends that the Reference was lodged within time: the notice of objection having been given on the fourteenth day after the ruling, and the Taxing Officer having failed to furnish reasons, the Respondent could not indefinitely await them and lodged the Reference on the fourteenth day from the date of its notice. On the merits it submits that the matter was neither complex nor voluminous; that it was disposed of on written submissions within a year of filing; that the single question raised — whether confidential medical records could be released otherwise than by Court order — was simple and straightforward; and that the work of the Petitioner’s advocate did not go beyond the ordinary work of Counsel. It relies on ***Republic v Minister for Agriculture & 2 Others, Ex parte Samuel Muchiri W’Njuguna & 6 Others* [2006] eKLR, *Ramesh Naran Patel v Attorney General & Another* [2012] eKLR, *Lubullelah & Associates Advocates v Gilbi Construction Company Limited* [2022] eKLR, *United Millers Limited & 3 Others v Inspector General of Police & 3 Others* [2024] eKLR and *Hon. William Kabogo Gitau v Hon. Ferdinand Ndung’u Waititu* [2019] eKLR.** **THE PETITIONER’S CASE** 12. The Petitioner opposes the Reference by a Replying Affidavit sworn on 9th October 2025 and filed on 13th October 2025, and by written submissions dated 20th October 2025. She takes a preliminary point and a substantive one. 13. The preliminary point is that the Reference is incompetent. It is said that, pursuant to paragraph 11 of the Order, the Reference ought to have been filed within fourteen days of delivery of the ruling, that is, on or before 13th August 2025; that it was instead filed on 25th August 2025, out of time; that no leave to enlarge time was sought; that no explanation for the delay has been offered; and that the Respondent is guilty of laches. It is further said that the ruling was delivered in the presence of Counsel for both parties and uploaded onto the Case Tracking System the same day, and that as the learned Taxing Officer had already provided her reasons at paragraph 3 of the ruling, it was not open to the Respondent to seek reasons by the letter of 12th August 2025. In the absence of a competent Reference, the Petitioner submits, there is no foundation for the application for stay. 14. On the merits, the Petitioner submits that the Taxing Officer exercised her discretion judicially, having considered the rival positions Kshs. 2,000,000/= claimed and Kshs. 100,000/= proposed and having arrived at a figure within the parameters of the Order; that Kshs. 100,000/= is the statutory minimum and is on the extreme lower side; that the Respondent has not demonstrated *mala fides* or the application of a wrong principle, but merely quarrels with the figure; and that the Reference is an invitation to this Court to substitute its own figure for that of the Taxing Officer, which is not the function of a Court on a reference. She relies on *Visser v Gubb* 1981 (3) SA 753 (C) at 754H–755C, cited with approval in this jurisdiction, for the proposition that a Court will interfere only where the Taxing Master has not exercised his discretion judicially or has exercised it improperly, and that its conviction that he was wrong must be considerably more pronounced than would have sufficed on an ordinary appeal. **ISSUES FOR DETERMINATION** 15. Having considered the Reference, the Notice of Motion, the affidavits and the rival submissions, the following issues arise: (a) Whether the Reference dated 25th August 2025 is competent, having regard to paragraph 11 of the *Advocates (Remuneration) Order*; (b) If so, whether the Respondent has established a basis upon which this Court may interfere with the taxing officer’s award of Kshs. 500,000/= as instruction fees, and if so, what order should follow; (c) What becomes of the Notice of Motion dated 25th August 2025; and (d) Who should bear the costs of these proceedings. **ANALYSIS AND DETERMINATION** **(a) Whether the Reference is competent** 16. Paragraph 11 of the *Advocates (Remuneration) Order* provides, so far as is material: *“(1) 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.* *(2) 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) 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.”* 17. The provision establishes a sequential, two-stage procedure governed by two distinct periods of fourteen days. The first, under subparagraph (1), runs from the date of the Taxing Officer’s decision and is the period within which the dissatisfied party must give written notice of the items objected to. The second, under subparagraph (2), does not run from the decision at all. Its express trigger is the *receipt of the reasons* which the Taxing Officer is obliged to record and forward. Between the two stands a mandatory duty on the Taxing Officer, expressed in the imperative — she “*shall forthwith record and forward*” the reasons. 18. With respect, the Petitioner’s preliminary objection conflates the two periods. It proceeds on the premise that the fourteen days for filing the Reference ran from 30th July 2025. That is not what paragraph 11(2) says. Had the framers intended the reference to be filed within fourteen days of the decision, they would have said so, as they did in subparagraph (1). 19. Applying the provision to the facts: the ruling was delivered on 30th July 2025. The notice of objection is dated 12th August 2025 and was filed on 13th August 2025 — the fourteenth day. The Respondent therefore complied strictly with paragraph 11(1). No complaint is, or could sensibly be, made about that step; indeed the Petitioner’s own submissions accept that 13th August 2025 was the last day. 20. What then of the second stage? The Taxing Officer did not record and forward any reasons. Nor did she write to the Respondent to say, as the Deputy Registrar did in ***Hon. William Kabogo Gitau v Hon. Ferdinand Ndung’u Waititu* [2019] eKLR,** that her reasons were already contained in the ruling. There was simply silence. On the plain language of paragraph 11(2), the fourteen-day period never began to run, because the event from which it is measured — receipt of the reasons — never occurred. 21. It would be a curious and unjust result if a Taxing Officer’s own omission to perform a duty cast upon her by the Order operated to extinguish the right of a party to have her decision reviewed by a Judge. A litigant cannot be penalized for a default that is not his. The Respondent, faced with silence and conscious that time might be said to be running against it, did not sleep on its rights; it lodged the Reference on 25th August 2025, some twelve days after its notice. That was, if anything, a course of prudence. 22. The Petitioner’s answer is that the reasons were already contained in paragraph 3 of the ruling, so that nothing remained to be furnished. That argument proves too much. Whether the single sentence at paragraph 3 amounts to “the reasons for [the] decision” within the meaning of paragraph 11(2) is the very question that lies at the heart of this Reference. The Petitioner cannot invoke the adequacy of those reasons to defeat the Reference in limine and then resist, on the merits, the contention that they were inadequate. In any event, a party who has formally requested reasons is entitled to be told, one way or the other, whether what appears in the ruling is all the reasoning there is. Only then can he know the case he must meet. 23. I am aware of the line of authority, of which ***Nyakundi & Co. Advocates v Kenyatta National Hospital Board*, Milimani Commercial Court Misc. Application No. 657 of 2004 (cited with approval in the *W’Njuguna* Case)** is an example, in which a reference filed out of time without leave was struck out as incompetent. That case is distinguishable on its facts. There, the reasons for taxation had actually been received on 23rd February 2005; the reference fell due on 9th March 2005; and it was filed on 22nd March 2005. Time had begun to run and had expired. Here, it never began. 24. In any event, and assuming (without deciding) that the Petitioner is right that the reasons must be taken to have been contained in the ruling delivered on 30th July 2025, so that the outer date for the Reference was 13th August 2025, I would not on that account strike out the Reference. Paragraph 11(4) confers upon this Court an express discretion to enlarge the time fixed by subparagraph (1) or subparagraph (2), and to do so “notwithstanding that the time sought to be enlarged may have already expired.” The Reference before me is expressly brought under paragraph 11(4), and in ***Lubullelah & Associates Advocates v Gilbi Construction Company Limited* [2022] KEHC 15953 (KLR)** the Court entertained a reference in which precisely such enlargement was sought and the reasons were said to be ostensibly contained in the ruling. 25. The discretion falls to be exercised on familiar principles: the length of the delay, the explanation for it, the prejudice to the opposite party and the prospects of the intended challenge. The delay here would be twelve days — short by any measure. It is fully explained: the Respondent was awaiting the reasons it had timeously and properly requested. No prejudice whatever has been demonstrated by the Petitioner beyond the delay in realizing the fruits of her taxation, which is a consequence of every reference and is answered by an award of interest or costs. And, for the reasons that follow, the challenge is not without substance. Article 159(2)(d) of the Constitution enjoins this Court to administer justice without undue regard to procedural technicalities, and Sections 1A, 1B and 3A of the *Civil Procedure Act* point in the same direction. 26. I therefore find and hold that the Reference dated 25th August 2025 is competently before this Court. To the extent that it may be necessary to do so, I invoke paragraph 11(4) of the Order, enlarge the time within which the Reference was to be filed, and deem the Reference as having been duly and properly filed. The Petitioner’s preliminary objection accordingly fails. **(b) Whether there is a basis for interfering with the award of instruction fees** 27. Instruction fees in a constitutional petition are governed by Schedule 6, paragraph 1(j) of the *Advocates (Remuneration) (Amendment) Order*, 2014, which provides: *“****Constitutional Petitions and Prerogative Orders*** *To 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 100,000 …”* 28. The threshold for interference with a Taxing Officer’s decision is high, and deliberately so. In ***Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another* [1972] E.A. 162**, Spry V-P observed that the taxation of costs is not a mathematical exercise but is entirely a matter of opinion based on experience, and that a Court will not interfere with the award of a Taxing Officer, particularly one of great experience, merely because it thinks the award somewhat too high or too low; it will interfere only if it thinks the award so high or so low as to amount to an injustice to one party or the other. The same case laid down the four cardinal principles: that costs should not be allowed to rise to a level that limits access to the Courts to the wealthy; that a successful litigant ought to be fairly reimbursed; 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 awards made. 29. In ***First American Bank of Kenya v Shah & Others* [2002] 1 E.A. 64** at 69, Ringera J (as he then was) put the matter thus: this Court cannot interfere with the Taxing Officer’s decision on taxation unless it is shown either that the decision was based on an error of principle, or that the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle. To the same effect are ***Joreth Limited v Kigano & Associates* [2002] 1 E.A. 92 and *Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd* [2014] eKLR,** in which Odunga J (as he then was) cautioned that the Court should interfere where there has been an error in principle but not in questions solely of quantum, that being an area in which the Taxing Officer is more experienced and therefore more apt to the job. ***Visser v Gubb*,** upon which the Petitioner relies, is to like effect. 30. But deference is not abdication. The discretion conferred by paragraph 1(j) is a judicial discretion, and a judicial discretion is one exercised upon stated and rational grounds. The point was put memorably by Ojwang J (as he then was) in ***Republic v Minister for Agriculture & 2 Others, Ex parte Samuel Muchiri W’Njuguna & 6 Others* [2006] eKLR:** *“It was necessary to specify clearly and candidly how she had exercised her discretion. Discretion, as an aspect of judicial decision-making, is to be guided by principles, the elements of which are clearly stated and which are logical and conscientiously conceived. It is not enough to set out 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.”* 31. The learned Judge went on to hold that the complex elements guiding the exercise of the Taxing Officer’s discretion must be specified cogently and with conviction; that the nature of the forensic responsibility placed upon Counsel must be described with specificity; that if novelty is involved its nature must be identified and set out in a conscientious mode; and that where large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by Counsel must be specifically indicated. 32. That reasoning was distilled into seven elements by Emukule J in ***Ramesh Naran Patel v Attorney General & Another* [2012] eKLR**, namely: the care and labour required of the advocate; the number and length of the papers to be perused; the nature and importance of the matter; the value (where ascertainable) of the subject matter; the interest of the parties; the complexity of the matter; and the novelty of the matter — each of which “must however be broken down cogently and with specificity (and not generalizations).” 33. Measured against that standard, the ruling under challenge cannot, with respect, stand. The learned Deputy Registrar’s reasoning on item 1 consists of a single sentence which invokes three matters: the nature of the claim, the fact that it was opposed, and “the industry and time expended.” Not one of them is particularized. It is not stated what it was about the nature of the claim that called for an enhancement of the prescribed minimum. The number and length of the papers perused are not mentioned. Complexity is not addressed; novelty is not addressed; the value of the subject matter is not addressed; the interest of the parties, the responsibility reposed in Counsel and the general conduct of the proceedings are not addressed. What “industry” was deployed beyond that which any competent advocate would bring to a petition of this kind is not identified, and what “time expended” means in this context — whether hours, days or the passage of the proceedings — is left wholly at large. 34. There is a further and more fundamental difficulty. Paragraph 1(j)(ii) makes the fact that a matter was *opposed* the very condition that qualifies it for the floor of Kshs. 100,000/= rather than the floor of Kshs. 45,000/= under paragraph 1(j)(i). Opposition is thus the gateway to the higher minimum; it cannot simultaneously serve as the justification for going above that minimum. Were it otherwise, every opposed constitutional petition would attract an increment as of right, and the statutory floor would cease to be a floor at all. To rely upon opposition as a ground of enhancement is, in my respectful view, to misapply the paragraph, and that is an error of principle. 35. I am fortified in this conclusion by the observation of Thande J in ***Lubullelah & Associates Advocates v Gilbi Construction Company Limited*** (supra) at paragraph 19, and of Ojwang J in ***W’Njuguna*** (supra), that an increase of instruction fees is not an automatic right and that there must be something in the proceedings above “the workaday chores of legal practitioners” before an enhanced award can be justified. Nothing of that kind was identified here. The exercise of discretion was, to borrow Ojwang J’s phrase, “done perfunctorily and as a mere formality.” 36. I therefore find that an error of principle has been established, and that this Court is entitled and indeed obliged to interfere. That, however, is not the end of the matter, for two questions remain: what figure is appropriate, and whether this Court should fix it or remit the bill for fresh taxation. **The appropriate figure** 37. The Respondent invites me to substitute the sum of Kshs. 100,000/=. I decline that invitation for the same reason that I have faulted the Taxing Officer: paragraph 1(j)(ii) prescribes a minimum, not a tariff. To award the minimum in every opposed petition without inquiry would be as mechanical as to enhance it in every opposed petition without inquiry. The Petitioner is equally correct that Kshs. 100,000/= sits at the very bottom of the scale. 38. I have therefore considered the matter afresh on the material on the record, applying the elements identified in *Ramesh Naran Patel* and the principles enumerated by Ojwang J in ***W’Njuguna*.** 39. *Nature and importance of the matter, and the interest of the parties.* The Petition was not a trivial one. It engaged the right of access to information under Article 35, the right to privacy under Article 31, and the confidentiality that attaches to a patient’s medical records and which does not simply evaporate upon death. The question of the entitlement of a family member to the medical records and treatment history of a deceased relative, and the conditions upon which a hospital may release them, is a matter of real consequence to the parties and of some wider significance. To that extent the matter rose above the wholly routine. 40. *Complexity, novelty, care and labour, and volume of papers.* Against that must be set the manner in which the Petition was in fact conducted and determined. There was a single, narrow issue. The Respondent’s answer to the Petition was correspondingly narrow — that the records could be released only upon a Court order — which is a position that required little by way of research or elaboration. The Petition was disposed of on written submissions, without *viva voce* evidence and without a full hearing. There is nothing on the record to suggest a voluminous file or documentation requiring classification, analysis and simplification. Significantly, the Taxing Officer herself struck off item 2 (getting up fees) precisely because the matter did not proceed to trial, a finding that is unchallenged and which confirms the limited compass of the proceedings. The responsibility entrusted to Counsel was, in the language of the authorities, ordinary, calling for nothing but the normal diligence that must attend the work of a professional in any field. 41. *Time expended.* The Petition was filed on 5th October 2021 and determined on 4th October 2022 — within a year, and without interlocutory skirmishing of any note appearing on the record. 42. *Value of the subject matter.* The relief sought was declaratory and mandatory in character. No pecuniary value is ascertainable from the pleadings, the judgment or any settlement, and in accordance with ***Joreth Limited v Kigano & Associates*** (supra) the Taxing Officer was in those circumstances entitled to assess such instruction fee as she considered just, taking into account the other matters set out above. 43. *Comparability.* Ojwang J listed comparability among the principles to be applied “so far as apposite”. In *Lubullelah* (supra) an award of Kshs. 100,000/= was upheld in an opposed constitutional petition in which the petition itself ran to 74 pages and the response to over 403 pages in two volumes. In *United Millers Limited & 3 Others v Inspector General of Police & 3 Others* [2024] KEHC 4487 (KLR) an award of Kshs. 100,000/= was likewise upheld against a claim of Kshs. 15,000,000/=. At the other end, in *Hon. William Kabogo Gitau v Hon. Ferdinand Ndung’u Waititu* (supra) an award of Kshs. 5,000,000/= — fifty times the minimum — was set aside as astronomical, and in *Mark Kubai Kariuki & 5 Others v Japhet Noti Charo & 2 Others* [2015] eKLR the Court, in setting aside an award of Kshs. 500,000/=, observed that an increment of three to four times the instruction fees could be fair, but not seventeen times. 44. Weighing these matters, and bearing in mind the countervailing principles in *Premchand Raichand* — that a successful litigant ought to be fairly reimbursed and that the level of remuneration must be such as to attract recruits to the profession, but equally that costs are not a means of enriching the successful party — I am satisfied that the award of Kshs. 500,000/=, being five times the prescribed minimum, is not supported by anything on the record and is excessive. Equally, the minimum of Kshs. 100,000/= would not fairly reimburse the Petitioner for work done in an opposed constitutional petition that was successfully prosecuted to judgment. In my assessment a sum of Kshs. 250,000/= represents fair and reasonable remuneration for the professional work done, recognizes the constitutional character and modest importance of the matter, and avoids any prospect of unjust enrichment. **Remission or substitution** 45. The ordinary practice, where a taxation is set aside, is to remit the bill to a different Taxing Officer for fresh taxation: see ***Thomas James Arthur v Nyeri Electricity Undertaking* [1961] E.A. 492**, and the order made by Ojwang J in *W’Njuguna* (supra). That practice reflects the reality that a Judge is not as expert in the taxation of bills as a Taxing Officer. It is not, however, an inflexible rule. In *Ramesh Naran Patel* (supra) Emukule J declined to remit and substituted his own figure, giving as his reasons that the reference involved only two related items and that he had formed a clear view on the merits of the applicable minimum. 46. The same considerations apply here, and with added force. Only item 1 is in contest; the balance of the bill, amounting to Kshs. 36,050/=, is unchallenged and stands. The substantive Petition was concluded almost four years ago and the bill of costs has itself been pending since January 2025. To remit the matter would occasion further delay, further hearings and further costs, all out of all proportion to the sum at stake, and would sit uneasily with the overriding objective. I therefore elect to substitute the figure rather than to remit. **(c) The Notice of Motion dated 25th August 2025** 47. The Motion sought a stay of execution of the Taxing Officer’s decision pending the hearing and determination of the Reference. The Reference having now been heard and determined, the Motion has been overtaken by events and is spent. No orders are called for upon it, save as to costs, which I deal with below. **(d) Costs** 48. Costs ordinarily follow the event, but the event here is a divided one. The Respondent has succeeded in establishing an error of principle and in obtaining a substantial reduction, but it has not obtained the figure of Kshs. 100,000/= for which it contended. The Petitioner has failed on her preliminary objection but has successfully resisted the reduction of the award to the statutory minimum. In those circumstances, and mindful that this is a dispute about costs and ought not itself to generate disproportionate costs, the just order is that each party bears its own costs of the Reference and of the Motion. **DISPOSITION** 49. For the foregoing reasons, I make the following orders: 1. *The Petitioner’s objection that the Reference dated 25th August 2025 is incompetent for having been filed out of time is dismissed; to the extent necessary, time is enlarged under paragraph 11(4) of the Advocates (Remuneration) Order and the Reference is deemed to have been duly filed.* 2. *The Reference dated 25th August 2025 succeeds in part.* 3. *The award of Kshs. 500,000/= made by the learned Deputy Registrar on 30th July 2025 in respect of item 1 (instruction fees) of the Party and Party Bill of Costs dated 14th January 2025 is set aside, and there is substituted therefor an award of Kshs. 250,000/=.* 4. *The balance of the taxation, in the sum of Kshs. 36,050/=, being unchallenged, is affirmed. The Party and Party Bill of Costs dated 14th January 2025 is accordingly taxed and allowed at Kshs. 286,050/=, and the Certificate of Costs shall be amended accordingly.* 5. *The Notice of Motion dated 25th August 2025 having been overtaken by this Ruling, no orders are made thereon.* 6. *Each party shall bear its own costs of the Reference and of the Notice of Motion.* **DATED, SIGNED AND DELIVERED THROUGH CTS AND EMAIL AT ELDORET THIS 19TH DAY OF AUGUST 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **JUSTICE R. NYAKUNDI** **JUDGE**