https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3114

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **MISC. CIVIL APPLICATION NO. E012 OF 2024** **IN THE MATTER OF A REFERENCE FROM THE DECISION OF THE TAXING OFFICER HON. MAUREEN NYIGEI DELIVERED ON 21ST NOVEMBER 2024 IN THE ADVOCATE/CLIENT BILL OF COSTS** **JAMES AGGREY MWAMU T/A** **MWAMU & COMPANY ADVOCATES.............APPLICANT/ADVOCATE** **-VERSUS-** **ADONGO AGO.........................……...………1ST RESPONDENT/CLIENT** **MAUREEN AKOTH CHUMBA….………………2ND RESPONDENT/CLIENT** **SAMUEL OKAYO OMBAKA….………………..3RD RESPONDENT/CLIENT** Arising from the services rendered by the Applicant/Advocate to the Respondents in **KISUMU CMCC NO. 94 OF 2019** **ADONGO AGO…............................……...…………………1ST PLAINTIFF** **MAUREEN AKOTH CHUMBA………..……….……………….2ND PLAINTIFF** **SAMUEL OKAYO OMBAKA…………..……….……………….3RD PLAINTIFF** **(Suing on their own behalf and on behalf of** **Kisian Market Traders Community Based Organization)** **-VERSUS-** **KISUMU COUNTY GOVERNMENT…………………………1ST DEFENDANT** **CITY MANAGER KISUMU CITY................................2ND DEFENDANT** **RULING** **Background** The Applicant/Advocate filed a suit on behalf of the Respondents/Clients against the Kisumu County Government and the Kisumu City Manager on 27th February 2019 in the Chief Magistrate’s Court at Kisumu, namely, Kisumu CMCC No. 94 of 2019 (the primary suit) seeking among others, an order that the City Physical Planner and the County Surveyor be ordered to revisit the Kisian Old Market and measure the market and carry out a fresh demarcation using the old map and an order that the Defendants relocate the said market and allocate to the Plaintiffs the plots and stalls in the open air market to carry on their businesses. The Primary suit was defended, and the same was pending hearing when the proceedings giving rise to the present application were instituted. The Applicant applied for leave to cease acting for the Respondents in the primary suit, which was granted. On 8th April 2024, the Applicant filed an advocate and client bill of costs dated 30th August 2023 for taxation against the Respondents. The Applicant’s bill of costs, which had 28 items, was drawn in the sum of Kshs. 809,570/- of which the instruction fees (Item 1) was Kshs. 500,000/-. The Respondents filed two (2) replying affidavits sworn by Adongo Ago and Joseph Onyango Otiende on 28th June 2024 in opposition to the Applicant’s bill of costs. The Respondents contended that they had agreed with the Applicant on an all-inclusive fee of Kshs. 60,000/-, which was paid to the Applicant in full in cash before he instituted the primary suit on their behalf. The Respondents averred that they paid an additional sum of about Kshs. 10,480/- to the Applicant’s Legal Assistant, Teddy Omondi, through M-Pesa as facilitation fees. The Respondents contended that they had settled the Applicant’s legal fees in full and urged the Taxing Officer to dismiss the Applicant’s bill of costs. In a ruling delivered on 21st November 2024, the taxing officer taxed the Applicant’s bill of costs at Kshs. 150,284/- inclusive of 16% VAT. **The reference** The Respondents were aggrieved with the said ruling on taxation and preferred this reference. In their Chamber Summons application dated 3rd December 2024, the Respondents challenged the Taxing Officer's ruling on the ground that the Taxing Officer erred in taxing the Applicant’s bill of costs, as the parties had agreed on the fees, which the Respondents settled in full. The Respondents also faulted the Taxing Officer for failing to take into account the sum of Kshs. 60,000/- the Respondents had paid to the Applicant in cash, and an additional sum of Kshs. 10,300/- paid to the Applicant through M-Pesa. The Respondents contended that the Taxing Officer’s failure to consider the fees agreement between the parties and the payment made to the Applicant pursuant thereto was an error of law. The reference was opposed by the Applicant through a replying affidavit sworn by James Aggrey Mwamu S.C on 25th June 2025. The Applicant denied that the Respondent and the Applicant agreed on an all-inclusive fee of Kshs. 60,000/- or Kshs. 70,000/- as claimed by the Respondents. The Applicant averred that since there was no agreement on fees, the quantum of fees remained open and subject to taxation. The Applicant averred that the taxed costs of Kshs. 150,284/- was fair and reasonable for the services rendered by the Applicant to the Respondents. The Applicant averred that the alleged payment of Kshs.10,300/- to the Applicant’s legal assistant, Teddy Omondi, was vague and appeared to be an ad hoc facilitation fee rather than legal fees. The application was heard through written submissions. The Respondents filed submissions on 27th January 2025 and further submissions on 13th February 2026, while the Applicant filed submissions on 25th June 2025. In their submissions, the Respondents reiterated the grounds set out in their application for challenging the Taxing Officer's ruling. The Respondents also raised issues which did not form part of the reference. In his submissions, the Applicant reiterated that there was no valid agreement on fees between the parties, and that none was produced before the Taxing Officer, and as such, the taxation of his bill of costs was proper and lawful. The Applicant cited several authorities, which I have considered. **Analysis and Determination** In Kipkorir, Tito & Kiara Advocates *v*. Deposit Protection Fund Board [2005] eKLR the court stated as follows: **“On 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.”** InKamunyori & Company Advocates *v*. Development Bank of Kenya Limited Civil Appeal No. 206 of 2006[2015]eKLR, the court stated as follows: **“…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 instruction fee is arrived at on the wrong principles, it will be set aside”** I have considered the Respondents’ application together with the affidavit in support thereof. I have also considered the Applicant’s response to the application and the parties' submissions. The Respondents had a duty to satisfy this court that the Taxing Officer committed an error of principle warranting this court's interference with her decision. As mentioned earlier in the ruling, the Respondents challenged the taxation of the Applicant’s bill of costs on two grounds, namely, that the parties had an agreement on the Applicant’s remuneration, which the Respondents had complied with, and as such, the Applicant should not have filed a bill of costs for taxation, and secondly, that the Taxing Officer failed to take into account the payments which the Respondents had made to the Applicant in the sum of Kshs. 70,300/- in her taxation of the cost payable to the Applicant. These issues were raised by the Respondents in their replying affidavit in opposition to the Applicant’s bill of costs and should have been considered by the Taxing Officer. The Taxing Officer did not give any explanation in her ruling why she did not consider the replying affidavits filed by the Respondents, which were on record and in which they had raised these issues. The Taxing Officer had a duty to consider the objections raised by the Respondents to the Applicant’s bill of costs and to express an opinion on the same. In the South African case*,*Visser *v.* Gubb 1981(3) SA 753 (C) 754H – 755 C, which was cited with approval in the case ofKTK Advocates*v.*Baringo County Government [2017] eKLR, the court stated as follows: **“The court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised discretion judicially and has exercised it improperly, for example, by disregarding factors which he should properly have considered, or considering matters which it was improper for him to have considered; or he had failed to bring his mind to bear on the question in issue; or he has acted on a wrong principle. The court will also interfere where it is of the opinion that the taxing master was clearly wrong but will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue…. The court must be of the view that the taxing officer was clearly wrong, i.e its conviction on a review that he was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal.”** It is my finding that due to her failure to consider the objections raised by the Respondents to the Applicant’s bill of costs, the Taxing Officer did not exercise her powers judicially, which is an error of principle. In Kipkorir Titoo & Kiara Advocates *v*. Deposit Protection Fund Board(supra), the court stated as follows: **“And if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle the general practice is to remit the question of quantum for the decision of taxing officer (see – D'Sonza v Ferrao [1960] EA 602. The Judge has however a discretion to deal with the matter himself if the justice of the case so requires.”** In the matter before me, the Taxing Officer’s error was not in her assessment of the quantum of the costs payable, but her failure to consider relevant matters which could have affected the quantum of costs. Since the Taxing Officer did not consider and express any opinion on the said issues, namely, whether or not there was an agreement on remuneration between the parties, and whether the Respondents had paid the Applicant a sum of Kshs. 70,300/- as legal fees, which should have been deducted from the cost payable to the Applicant, it would not be in order for the court to deal with the issues on a reference. It would only be proper that the Taxing Officer deals with such issues in the first instance. **Conclusion** In conclusion, the ruling and orders made by the Taxing Officer, Hon. Maureen Nyigei, on 21st November 2024, are set aside. The Applicant’s bill of costs dated 30th August 2023 shall be taxed afresh before another Taxing Officer, who shall consider the Respondents’ objections to the said bill of costs highlighted in this ruling. The costs of the reference shall be in the cause. **Written and signed at Nairobi by**  **S. OKONG’O** **JUDGE** **Delivered, dated and countersigned at Kisumu on this 21st day of May 2026** **E. ASATI** **JUDGE** Ruling delivered virtually through Microsoft Teams Platform in the presence of: Omondi T for the Applicant No appearance for the Respondents Atika - Court Assistant