https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7987

REPUBLIC OF KENYA HIGH COURT OF KENYA AT MACHAKOS MISC. APPLICATION NO. **E129** OF 2024 MURI MWANIKI & WAMITI ADVOCATES.……………………...APPLICANT -VERSUS- SANLAM INSURANCE LIMITED……………………….……....RESPONDENT ***(Being an appeal from part of ruling and orders of Hon. M. Thibaru (Taxing Officer) dated 5th May 2025 in respect of the Applicant’s Bill of Costs dated 14th May 2024)*** **RULING** This matter was commenced as an Advocates-Client’s bill of costs dated 14th May 2024 which emanated from the respondent’s instructions to applicant to act in Machakos High Court civil appeal number 191 of 2009. On 5th May 2025, the Taxing Officer, Honourable M. Thibaru delivered a ruling where she taxed the bill at Kshs 210,600.32. The applicant was not satisfied with the taxation and filed reference vide chamber summons dated 21st May 2025 objecting to taxation of the following; 1. Item number 147 which was charged as additional ½ increment as advocates client costs under Part B of the Advocates Remuneration Order (hereinafter referred to as ‘the Order’). 2. Items 151, 152, 153, 154 and 155 being disbursements towards filing and perusal fees. The applicant has averred that the Taxing Officer had no discretion to tax off item 147 because Schedule 6 of the Advocates Remuneration Order makes it mandatory for the Taxing officer to increase the costs taxed under Part A by one half. In respect of items 151 to 155, the applicant faults the Taxing Officer for taxing them off yet the court file had the receipts in proof of the disbursements. These arguments are contained in both the applicant’s supporting affidavit dated 21st May 2021 and submissions dated 10th November 2025. The respondent did not file any submissions. Instead, it uploaded replying affidavit dated 25-02-2025 on 2-03-2026 and grounds of opposition dated 5-03-2025 on 25-02-2026. In the replying affidavit, the respondent through its legal officer one Mary Ng’ang’a avers that the Taxing Officer’s ruling was properly reasoned and lawful and in accordance with the applicable scale. She adds that whether or not to increase the fees is a matter of judicial discretion and the applicant did not demonstrate that the matter was complex, novel or of unusual importance. On disbursements, the respondent states that it’s the duty of the applicant to provide receipts and the burden cannot be shifted to the court. The deponent adds that the respondent has since paid the taxed costs and therefore the application to set aside has been overtaken by events. Having read the affidavits of the parties and the applicant’s submissions, I believe that there are two issues for determination. The first one is whether the Order makes it mandatory for the Taxing Officer to increase fees taxed under Part A of 6th Schedule by half or the Taxing Officer has discretion to deny the same. The second issue is whether the Taxing Officer was wrong in failing to allow the items on filing fees. It is an established principle of law that a Judge will not interfere with the Taxing Officer’s decision on taxation unless it is demonstrated 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 which includes taking would into account irrelevant factors or failing to take into account relevant factors. The Court of Appeal held in ***Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR)*** 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.’* I have read the reasoned ruling of the Taxing Officer. On the issue of item 147, she stated that she was guided by the case of *Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR* and quoted the following excerpt from the Judge’s ruling; *‘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; the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it; 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; 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 v Shah and others*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2002/1277)*[2002] 1 EA 64.’* She also cited Justice Fred Ochieng (may he continue resting in peace) in *Mumias Sugar Company Ltd v Professor Tom Ojienda & Associates [2019[ eKLR* where he held that; *‘However, I feel obliged to point out that the taxing officer must bear in mind the fact that this is an Advocate/Client Bill of Costs. There has not been any Party and Party Bill of Costs taxed in the Parent case.* *If there had been a taxation of the Party and Party Bill of Costs, the taxing officer could have had the option of awarding the Advocate/Client costs by ordering that there be an increase of the Party and Party Costs by one-half.* *There is no justification whatsoever, in my considered opinion, for taxing an Advocate/Client Bill of Costs, and then increasing it by 50%.* *If the taxing officer has good reason for increasing the Instruction Fee, he or she may do so during the process of taxing the Bill.* *If the reason for increasing the Instruction Fee was;* **“….. the nature and the importance of the cause or the matter; the interest of the parties; the general conduct of the proceedings, or any direction by the trial Judge or any other relevant factors,”** t*he taxing officer would have to specifically indicate the factors which he or she relied upon.’* In my opinion, the Taxing Officer misinterpreted the courts’ findings in the authorities she cited. The Honourable Judges in those matters were addressing a question of instructions fees under paragraph 1 of Part A of the Order while item 147 which is in dispute here fell under Part B of the Order concerning increment of the fees taxed under Part A by half. The instructions fees are quite different from advocates-client costs. In the matter before the Taxing Officer, the instructions fees fell under item 1 which she taxed at Kshs 49,000.00 as drawn and which the applicant herein is not challenging. I have considered the authorities cited by the applicant on this issue which found that the issue of increasing the taxed costs by half in an advocate-clients’ bill of costs is mandatory under part B of the Order. I entirely agree with this position. The most significant of the authorities is ***Central Bank of Kenya v Makhecha & Company Advocates [2019] KECA 338 (KLR)*** where the Court of appeal rendered itself thus; *‘It seems to us quite clear that where the party and party costs have been taxed and agreed, then, unless there be an agreement as to fees between the client and the advocate, the advocate is entitled, as of right, by dint of Schedule VIB of the Remuneration Order, to the party and party costs plus half of the same. It is a matter of arithmetic, requiring no exercise of discretion on the part of the taxing officer, hence our decision that the reference was granted with the effect that the bill be taxed as drawn. It is for these reasons that the authorities cited by the applicant cannot advance its cause in the circumstances of this case.’* In view of the above and the position I have taken, it is my holding that the Taxing Officer applied wrong principle and as a result reached a wrong conclusion on item 147. The applicant was entitled as a matter of right to the increment by half. That would translate to Kshs 90,776.00 which should also see the VAT component adjusted upwards. On items 151 to 155, I agree with the submissions by the respondent that it was the duty of the applicant to supply the court with the receipts in support of the filing and perusal fees. The applicant cannot invoke Paragraph 13A of the Order to shift the burden of proof to the court. The Taxing Officer cannot prosecute a bill on behalf of the applicant. Looking at the bill shows that, the applicant did not even make reference to the receipt numbers. The applicant has advanced an argument that the documents referenced as having been filed were stamped and received by the court’s registry which meant that they were duly filed. That may be so but disbursements cannot be proved by way of a rubber stamp. There must be receipts or some other evidence to establish how much was paid for the documents. I therefore decline to upset the Taxing Officer’s finding on these items. I disagree with the respondent’s argument that since it has already paid the taxed costs, the application is overtaken by events. That is not the correct position in law. Taxation of bill of costs, be it party and party or advocate-client is not dependent on whether the advocate has been paid or not. The issue of payment comes in when either of the parties wants to move the court to enforce findings or fruits accruing from the decision. In view of the above, the ruling of Taxing Officer dated 5th May 2025 is adjusted to the extent that the bill of costs is hereby taxed at Kshs 315,900.48 made up as follows; 1. Taxed costs Kshs 272,328.00 2. 16 per cent VAT Kshs 43,572.48 Total Kshs **315,900.48** Dated, signed and delivered at Nairobi this **5th** day of **June** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Ruling delivered in presence of Miss Muhindi for the applicant and in absence of the respondent.