https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2432

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CONSTITUTIONAL PETITION NO. E145 OF 2024 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION EDWARD NJOROGE............................................................................................................1ST PETITIONER NAHASHON WAIGANJO... ............................................................................................2ND PETITIONER CAROLINE ANUNDA..........................................................................................................3RD PETITIONER VERSUS KENYA MEDICAL SUPPLIES AUTHORITY……………………………………………......1ST RESPONDENT CABINET SECRETARY MINISTRY OF HEALTH.......................................................2ND RESPONDENT ATTORNEY GENERAL..... ...............................................................................................3RD RESPONDENT PUBLIC SERVICE COMMISSION ……………………………………………………………...4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. Before the court is a reference vide Chamber Summons application dated 8th May 2026 (pursuant to paragraph 11(2) of the Advocates (Remuneration) Order, 2009), seeking the orders- 2. THAT the Honourable Court be pleased to review, revise, vary or set aside the decision of the Taxing Officer/Deputy Registrar Hon. Rebecca Thyaka delivered on 15th April, 2026 on the taxation of the 1st and 3rd Petitioners/Respondent's Party and Party Bill Costs dated 11th December, 2025. 3. THAT this Honourable Court be pleased to issue appropriate directions for the taxation/assessment of the Respondents' Party and Party Bill of Costs dated 11th December, 2025 to proceed before any other Taxing Officer other that Hon. Rebecca Thyaka. 4. That the costs of this Reference be awarded to the Applicant. Grounds of the application 1. THAT the 1st and 3rd Petitioners commenced these taxation proceedings when they filed their Party and Party Bill of Costs dated 11th December, 2025. Thereafter, the Taxation Notice was signed by the Deputy Registrar on 22nd January,2026 and thus this matter was scheduled to come up for Taxation on 4th February, 2026. 2. THAT the 1st Respondent was served with the said Bill of Costs together with a Mention Notice on 15th January, 2026. Re-service of the said Bill of Costs as well as a Taxation Notice was done on 23'd Janu ary,2026 THAT on 4s February, 2026 when the matter came up for Taxation, the 1st Respondent was granted a leave of fourteen (14) days to file their response to the said Bill of Costs and the 1st and 3rd Petitioners were given corresponding leave of one (1) day upon service to file their rejoinder. The matter was then scheduled to come up for Mention on 24th February, 2026 to confirm compliance. 3. THAT on the said 24th February, 2026, the Respondent sought for and was granted additional time their Response to the said Bill of Costs. The Court then set the matter to come up for Taxation Ruling on 30th March, 2026. Accordingly, on the 12th March,2026, the 1st Respondent filed and served its Submissions dated 12th March,2026 opposing the said Bill of Costs. 4. THAT on 13th March, 2026, the 1st and 3rd Petitioners filed their Submissions of even date in rejoinder. 5. THAT when the matter came up for Taxation Ruling on 30th March, 2026, the Parties were informed that the Taxing Officer was not sitting and the delivery of the ruling was deferred to 15th April, 2026. 6. THAT when the matter came up for Ruling on 15th April, 2026, the Honourable Court taxed the 1st and 3rd Petitioners' Party and Party Bill of Costs dated 11th December, 2025 at Kenya Shillings Four Million, One Hundred and Seventy-Four Thousand, Five Hundred and Seventy-Eight (Kshs. 4,774,578,00). A copy of the said Ruling was uploaded on the Judiciary Case Tracking System (CTS) on the same day. 7. THAT aggrieved by the said Taxation Ruling, the 1st Respondent through the firm of Ms Kemboy Law Advocates LLP applied for the Taxing Officer's Reasons pursuant to paragraph 11 (2) of the Advocates Remuneration Order as well as certified copies of the said Ruling vide a letter dated 156 April 2026. The said letter was served on the 1st and 3rd Petitioners through their Advocates on record on the same day. 8. THAT by the letter dated 7th May,2026, the Taxing Officer acknowledged receipt of the 1st Respondent's letter of 15th April, 2026 and indicated that the Reasons for Taxation were in the said Ruling. 9. THAT the 1st Respondent therefore challenge the said taxation on the following basis: - a. The Learned Taxing Officer misdirected herself on the principles of law applicable in the taxation of Party and Parry Bills of Costs arising from Constitutional Petitions. b. Despite correctly finding that the Petition did not raise any complex, difficult or novel questions, the learned Taxing Officer erred both in law and fact in awarding costs which in all the circumstances are manifestly disproportionate to the petition giving rise to the taxation, unreasonable and so excessively high as to amount to substantial oppression and injustice to the Applicant. c. The Taxing Officer erred in law and fact for failing to consider critical taxation principles and factors she was bound to consider. d. The learned Taxing Officer erred in law and fact by failing to properly and judicially exercise the powers and discretion granted to her under the law pursuant to Advocates (Remuneration) Order. e. The Learned Taxing Officer erred in law and by misapplying the provisions of Paragraph 4 (a) of Schedule 64. of the Advocates Remuneration Order and thus erroneously held that items Nos. 18, 19,20,21,22,23,24,25,26,27,28,29,30,31, 32,33,34,36,37 and 39 were drawn to scale. f. Overall, the learned Taxing Officer did not apply her mind properly to the Petition giving rise to the taxation and the 1st and 3rd Petitioners' Party and Party Bill of Costs dated 1st December, 2025 regarding the quantum of costs and thereby arrived at an erroneous decision. g. THAT the Learned Taxing Officer's misapplication of applicable law and principles jeopardizes the 1st Respondent's rights and interests and risks occasioning injustice upon them and the entire public if the Ruling delivered on 15th April, 2026 is not set aside by this Honourable Court. The said taxation sum is public funds that would have been unjustly expended to satisfy an erroneous taxation unless this Honourable Court intervenes in light of the facts highlighted above, the 1st Respondent prays that this Court do set-aside the Taxing Officer's decision of 15th April, 2026 and proceed to urgently give appropriate directions for the re-taxation/assessment of the 1st and 3rd Petitioners Party and Party Bill of Costs dated 11th December, 2025 to proceed before any other Taxing Officer other than Hon. Rebecca Thyaka. 1. The application was supported by the affidavit of DR. WAQO DULACHA EJERSA dated 8th May 2026, who, among others, annexed the bill of costs and the impugned ruling by the taxing master dated 15th April, 2026. Response 1. The respondent filed grounds of opposition dated 24th June 2026 as follows- 2. The 1st Respondent’s notice of objection of taxation dated 15th April 2026 is incompetent for failure to pay court’s filing fee of the same despite CTS portal system issuing payment invoice-Customer Ref. No: E6F79LU3 of Ksh. 75.00 upon filing-uploading of the same on the CTS portal on the 7th May 2026. 3. The 1st Respondent’s notice of objection of taxation dated 15th April 2026 is incompetent for having been filed-uploaded on the CTS portal system on the 7th May 2026 outside the statutory 14 days from the date of the Ruling without court’s extension of time. 4. The 1st Respondent’s notice of objection of taxation dated 15th April 2026 is incompetent for it did not list any single item of objection despite the Application Bill of Costs containing 107 items. 5. The 1st Respondent’s Reference chamber summons dated 8th May 2026 is incompetent for having been filed-uploaded on the CTS portal on 11th May 2026 outside the statutory 14 days from the date of the Ruling without court’s extension of time, in the event the reasons for taxation are deemed contained in the Ruling or due to incompetence of the notice of objection of taxation. 6. The Reference Chamber Summons is thus an abuse of the court process 7. The Respondents/Petitioners pray for striking out of the 1st Respondents notice of objection dated 15th April 2026 further that the Reference Chamber Summon Application dated 8th May 2026 be dismissed with costs. 8. The application was canvassed by way of written submissions. Both parties filed. DECISION 1. The court discerned there were 2 issues for determination - whether the reference was competent and whether if competent it had merit Whether the reference was competent 1. The issue arose from the response. The respondent stated as follows- ‘The 1st Respondent’s notice of objection of taxation dated 15th April 2026 is incompetent for failure to pay court’s filing fee of the same despite CTS portal system issuing payment invoice-Customer Ref. No: E6F79LU3 of Ksh. 75.00 upon filing-uploading of the same on the CTS portal on the 7th May 2026. The 1st Respondent’s notice of objection of taxation dated 15th April 2026 is incompetent for having been filed-uploaded on the CTS portal system on the 7th May 2026 outside the statutory 14 days from the date of the Ruling without court’s extension of time. The 1st Respondent’s notice of objection of taxation dated 15th April 2026 is incompetent for it did not list any single item of objection despite the Application Bill of Costs containing 107 items. The 1st Respondent’s Reference chamber summons dated 8th May 2026 is incompetent for having been filed-uploaded on the CTS portal on 11th May 2026 outside the statutory 14 days from the date of the Ruling without court’s extension of time, in the event the reasons for taxation are deemed contained in the Ruling or due to incompetence of the notice of objection of taxation.’ 1. The respondent submitted in support of the grounds of opposition as follows- The only issue that commends itself for determination is whether the Reference Chamber Summons dated 8th May 2026 and the notice of objection dated 15th April 2026 are incompetent and thus subject to striking out and/or dismissal with costs. We urge that there is no reason to depart from the trite law as was emphasized in the case of Busia Municipal Council v T/a Manwari & Co. Advocates [2010] KEHC 1296 (KLR), that Rule 11 of the Advocates Remuneration Order is the only procedure for objecting to a taxing officer’s decision and is not optional, as thus, Where the opposite party is aggrieved with the fee allowed in any items of the Bill of costs, he has a right to refer the specific item or items to a Judge in Chambers who will revise or uphold the fee charged. That kind of objection is authorized under the Advocates Remuneration Order, Rule 11…..there is a special procedure of objecting to any taxed item over which the aggrieved party has an objection. Such rule or procedure cannot have been promulgated for fun. Advocates Remuneration Order Rule 11, is the only way of raising objection to any item wrongly, unfairly or irregularly allowed by the taxing officer. We further submit that blatant disregard of mandatory procedures under Rule 11 renders the instant Application fatally incompetent, improperly before this Court, and therefore nullity ab initio that cannot seek refuge under Article 159 (2) of the constitution as was held in Ufundi Co-operative Savings & Credit Society v Njeri Onyango & Co. Advocates [2015] KEHC 4070 (KLR), as thus; Rule 11 of the Advocates Remuneration Order mandatorily requires that before a reference is made to the Judge in Chambers, certain procedures must be followed. If a party deliberately or recklessly fails to comply with the procedures mandatorily required to be followed, he/it cannot be heard to argue that Article 159(2) of the Constitution protects such an offender. Indeed, such a party cannot argue that it is properly before the court and seeks protection under the said Article 159(2). It would be stretching the principle too far for the court to ignore the statutory mandatory provisions of Rule 11 of the Remuneration order to attempt to satisfy Article 159 (2), especially to try and assist an indolent party such as the Applicant who deliberately and/or recklessly failed to comply with the it even after being indulged by the court that extended the period to comply. I get strong support in the case of Republic Vs The Land Disputes Tribunal, Mukurweni, Misc. Application No. 405 where the court stated in relation to Article 159 (2) thus: - “In my view Article 159(2) of the Constitution is meant to ensure that justice is done to the parties in cases where the court is properly seized of the matter without locking out the parties for failure to comply with matters of procedure. Where, however, the matter is not before the court in that a party has failed to bring himself within the circumstances which clothe the court with powers to grant him the remedies sought, it would be stretching the provisions of Article 159 (2) of the Constitution too far if the court were to ignore all statutory provisions in order to accommodate a party who without any justifiable reason failed to adhere the provisions of the law.” the courts have consistently held that once Rule 11 (1) of the Advocates Remuneration Order is violated in relation to filing of a reference, such refence is summarily ruled incompetent and there would be no need to proceed any one more step as was in the case of Murunga & Associates Advocates v Chemutut (Miscellaneous Application 3 of 2020) [2024] KEELC 3841 (KLR) (15 May 2024) (Ruling), as thus; I uphold the Advocate’s/Respondent’s grounds of objection to the effect that the Reference herein is incompetent in relation to the provisions of Rule 11(1) of the Advocates Remuneration order . Having found that the application is incompetent, it logically follows that there would be no basis for determining the second issue. 15. In this case, the court is urged to uphold the Respondents/Petitioners’ grounds of objection dated 24th June 2026 to the effect that tragedy is quadruple in that: i. The Applicant filed the Notice of Objection under Rule 11 (1) outside of the 14 days when it filed it on the 7th May 2026 by uploading on the CTS portal system. ii. The said filing on the 7th May 2026 by uploading on the CTS portal system, was without first obtaining from this court an extension of time through an application provided at Rule 11 (4) of the Advocates Remuneration Order. iii. Legally, the said Notice of Objection has never been filed for to date, there is no evidence on record including the CTS portal system of payment receipt of the court’s filing fee as per the invoiced-Customer Ref. No: E6F79LU3 of Ksh. 75.00, or at all. iv. The said notice of objection to the taxation did NOT specify any item of taxation to which the 1st Respondent objected. 16. Unless otherwise, it is trite that the failure to pay Court fees renders the relevant document incompetent because there is no competent document filed before the Court as was held by Mativo J as he then was in the case of Mombasa Cement Limited v Speaker, National Assembly & another [2018] KEHC 5197 (KLR) that; The filing of a civil case requires the payment of filing fees. It follows that failure to pay Court fees renders the suit incompetent because there is no competent suit filed before the Court. Whereas the Court has inherent powers to allow a party who has not paid fees in time to remedy the situation, where a party as in this case is afforded the opportunity to remedy the situation or demonstrate that he paid, and fails to remedy the situation or offers out rightly conflicting explanations as happened in this case which culminated in the above affidavit. In such circumstances as has happened in this case, the Court is left with no option but to declare the suit incompetent and strike it off as I am compelled to in this case. Consequently, I find and hold that failure to pay the requisite Court filing fees, which is a prerequisite for instituting suits renders this Petition incompetent. It is also trite law that if it appears to the Applicant that the reasons are contained in the Ruling, then reference be filed within 14 days from the date of the Ruling or if any reason that may cause delay that results in filing outside of 14 days should be preceded with an application to expand the time under rule 11 (4) otherwise such a reference must be struck out. This was so in the case of Evans Thiga Gaturu Advocate V Kenya Commercial Bank Limited 2012kehc4274(Klr) where the court held and decided as thus; where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring a reference…. Where reasons are contained in the decision, I share the view that to file the reference more than 14 days after the delivery of the same would render the reference incompetent. In the present case, the ruling on taxation was made on 6th July 2011. If the client considered the said decision to contain the reasons, he could file the reference within 14 days from the date thereof. If, on the other hand, he was of the view that there were no reasons contained in the decision, he could request for the same in writing, in which case, he would be bound to wait for the same. If, however, at a later stage he decided to prefer the reference notwithstanding the failure by the Taxing Master, after the lapse of the 14 day period, it is my view that he would be bound to apply for extension of time under paragraph 11(4) of the Remuneration Order, in which case one of the grounds if not the only ground would be the failure by the Taxing Master to furnish him with the reasons which, according to the decision in Kipkorir, Titoo & Kiara Advocates (ibid), is a ground for allowing a reference. ….. I, accordingly, find that as the client filed the reference outside the 14 days of the delivery of the decision and before being furnished with the reasons, the reference is incompetent for being out of time and/or being prematurely instituted. I accordingly strike out the Chamber Summons dated 18th January, 2012 but make no order as to costs since the problem has been partly caused by inaction on the part of the court. In the instant case, since it is shown the Applicant did NOT in effect file notice of objection perhaps because the reasons were contained in the Ruling as it later turned out, it ought to have filed the reference by 29th of April 2026 but since it filed the reference on 11th May 2026, the same was filed out of time and without extension of time through an application under rule 11 (4) and thus this honorable court is constrained to strike out the Notice of Objection and thus the reference Application for being incompetent. 1. Conversely, the applicant in submissions stated as follows-The 1st and 3rd Petitioners have belaboured in the first fourteen paragraphs of their Written Submissions to justify their said Grounds of Opposition. However, they have been silent on the following facts which are well articulated in the Reference and supported by cogent evidence. These facts are not disputed by the 1st and 3rd Petitioners: a. Immediately, following the delivery of the Taxation Ruling of 15th April, 2026, on the same day, the 1st Respondent’s Advocates on record through a letter dated 15th April, 2026, applied for the Taxing Officer’s Reasons pursuant to paragraph 11 (1) of the Advocates Remuneration Order as well as certified copies of the said Ruling. The said letter was served on the 1st and 3rd Petitioners though their Advocates on record on the same day. A true copy of the said letter dated 15th April, 2026 is annexed to the instant Reference Application and marked as ‘WDE-9’. A true copy of printout of the email sent to the 1st and 3rd Petitioners’ Advocates on record on serving the letter dated 15th April, 2026 is annexed to the instant Reference Application and marked as ‘WDE-10’. b. The cursory review of the said letter dated 15th April, 2026 reveals that the 1st Respondent’s Advocate made it clear to the Taxing Officer and to all the parties that the 1st Respondent was aggrieved the entire taxation ruling and thus sought for reasons of the said decision. c. It is also clear from the copy of the said letter dated 15th April, 2026 that is annexed to the instant Reference Application and marked as ‘WDE-9’ that the same was filed and received by the Court’s registry on the same 15th April, 2026. It is therefore not true that the same was not filed and served within the timeline stipulated under paragraph 11 (1) of the Advocates Remuneration Order. d. Further, as it is clear from the instant Reference, on 7th May, 2026, the Taxing Officer acknowledged receipt of the 1st Respondent’s Letter of 15th April, 2026 and indicated that the Reasons for Taxation were in the said Ruling. A copy of the Letter dated 7th May, 2026 received from the Deputy Registrar is annexed to the instant Reference Application and marked as ‘WDE-11’. e. The instant Reference Application dated 8th May, 2026 was then filed on 11th May, 2026. That was four (4) days after receipt of the Taxing Officer’s letter dated 7th May, 2026. The applicant relied on the decision in Muturi Mwangi & Associates v Mwangi (Environment and Land Miscellaneous Application E163 of 2021) [2024] KEELC 1604 (KLR) (14 March 2024) (Ruling): “The timelines stipulated in the Advocates Remuneration Order are that a party seeking to object to a decision should, within fourteen days of such decision, give notice in writing to the Taxing Officer of the items of taxation to which he objects. The Taxing Officer should thereafter forward the reasons for her decision with respect to those items. Within fourteen days of receiving the reasons, the objector should file a Chamber Summons setting out the grounds of his objection.” Decision on issue of competence of the reference 1. The applicable procedure for objection to taxation is stated in rule 11 of the Advocates (Remuneration) Order- ‘**11. Objection to decision on taxation and appeal to Court of Appeal** (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. (3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. (4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far 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.’ 1. The court established vide letter dated 15th April 2026 the applicant wrote to the taxing master as follows- ‘: NAIROBI ELRC PETITION NO. E145 OF 2024 EDWARD NJOROGE, NAHASHON WAIGANJO & CAROLINE ANUNDA -VS- KENYA MEDICAL SUPPLIES AUTHORITY, CABINET SECRETARY MINISTRY OF HEALTH, ATTORNEY GENERAL AND PUBLIC SERVICE COMMISSION We refer to the above matter and the Taxation Ruling delivered this morning by Hon. Rebecca Thyaka with respect to the Petitioners' Party and Party Bill of Costs dated 11th December, 2025. We are aggrieved by the said Taxation Ruling and intend to exercise our rights under Rule 11 (2) of the Advocates Remuneration Order to apply to a Judge to review and reverse the same. In this respect, kindly supply us with Written Reasons of the said decision to enable us file the appropriate Reference. We undertake to settle the requisite charges. Yours faithfully, KEMBOY LAW ADVOCATES’’ 1. On receipt of the letter, the taxing master, vide letter dated 7th May 2026, responded that the reasons for the taxation of the bill of costs are in the ruling dated 15th April 2026. On 7th May 2026, the applicant uploaded the said letter on the portal, and it was assessed at Kshs. 75 which remains unpaid as per the record. The respondent contended that the applicant, having uploaded the letter on 7th May 2026, was in compliance with rule 11(1) of the Advocates Remuneration Order. The court is persuaded by the decision in Muturi Mwangi & Associates v Mwangi (Environment and Land Miscellaneous Application E163 of 2021) [2024] KEELC 1604 (KLR) (14 March 2024) (Ruling): “The timelines stipulated in the Advocates Remuneration Order are that a party seeking to object to a decision should, within fourteen days of such decision, give notice in writing to the Taxing Officer of the items of taxation to which he objects. The Taxing Officer thereafter forward the reasons for her decision with respect to those items. Within fourteen days of receiving the reasons, the objector should file a Chamber Summons setting out the grounds of his objection.” The court finds that the taxing master received the letter dated 15th April 2026 requesting reasons as stamped by the court(received) on the even date and responded to the same vide letter of 7th May 2026. The subsequent uploading on CTS was overtaken by events as the letter had already been received by the court and responded to . The ruling was dated 15th April 2026, and the court received a request for reasons on the same date. Delving into the subsequent uploading on CTS of the already received and responded-to request is a matter of technicality. In the opinion of the court, the upload was of no legal consequence, as by that time the taxing master had already received the objection and responded on 7th May 2026. 2. On whether the request complied with the requirement for the items of taxation to which he objects. The letter dated 15th April 2026 requested Written Reasons for the said decision. The taxing master appears to have understood the request and responded. The court again finds that where a party is aggrieved by the entire ruling, it is superfluous to particularize the items. Again, it is for the taxing master to raise the issue of lack of particulars, and in this case the taxing master had no issue. I find that the applicant complied with the rule by making the request for reasons within 14 days. 3. The applicant there after lodged reference on the 11th May 2026 within 14 days of decision of 7th May 2026 as per rule 11(2) to wit-‘(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.’ The court holds the reference is competent. Whether the reference was merited The applicant’s submissions 1. Whether the Taxation Ruling of 15th April, 2026 ought to be set aside – At the very outset that the principles of setting aside the decision of a Taxing Officer are now old, going by the numerous decisions of this Court and other superior Courts. As early as 1972, these principles were propounded by Spry VP, in the leading case of Premchand Raichand Limited & Another v. Quarry Services of East Africa Limited and Another; [1972] EA 162, which has been approved in a long line of subsequent Rulings, for example, First American Bank of Kenya v. Shah and Others; (2002) EA 64, Joreth Ltd v. Kigano and Associates (2002); 1 EA 92 and Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) (2 August 2024) (Judgment), just but to name a few. It is trite that in a Reference, a Judge will not interfere with the exercise of discretion of a Taxing Officer, unless such Taxing Officer erred in principle in assessing costs. In Bank of Uganda v Banco Arabe Espanol (Civil Application 23 of 1999) [2000] UGSC 3 (19 April 2000), the Supreme Court of Uganda stated that, “The first is that save in exceptional cases, a judge does not interfere with the assessment of what the taxing officer considers to be a reasonable fee. This is because it is generally accepted that questions which are solely of quantum of costs are matters with which the taxing officer is particularly fitted to deal, and in which he has more experience than the judge. Consequently, a Judge will not alter a fee allowed by the taxing officer, merely because in his opinion he should have allowed a higher or lower amount. ”It was observed in Lucy Waithera & 2 Others v Edwin Njagi T/A E. K. Njagi & Company Advocates [2017] eKLR as follows: “It is evident from the aforestated paragraph that the taxing officer exercises a discretionary power in taxing the Bill of Costs. Such power has to be exercised judiciously in that it must be done in accordance with the scale provided in the Remuneration Order, and where discretion is given for variation, justification must be given for such variations. Thus, in a reference one of the reasons that can justify interference with the decision of the taxing officer is if the discretion has not been exercised judiciously. It is trite that the taxing officer’s decision is not exercised judiciously where relevant consideration has not been taken into account, or irrelevant considerations have been taken into account and this would amount to an error of principle.” The principles of setting aside the decisions of Taxing Master were well established in the cases of Premchand Raichand Limited & Another v Quarry Services of East Africa Limited and Other (No. 3) [1972] E.A 162 (CAN), First American Bank of Kenya v Gulab P. Shah & 2 Others [2002] eKLR and Joreth Ltd v Kigano and Associates [2002] eKLR. These includes: a. That there was an error of principle. b. The fee awarded was manifestly excessive or is so high as to confine access to the court to the wealthy. c. That the successful litigant ought to be fairly reimbursed for the costs he has incurred. d. That so far as practicable there should be consistency in the award. Further, in First American Bank of Kenya v Gulab P. Shah & 2 Others (supra), the Court held as follows: “First, I find that on the authorities, this 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 so manifestly excessive as to justify an inference that it was based on an error of principle”. Additionally, the rationale of the exercise of judicial discretion of the taxing officer was well considered by the Court in the case of Republic v Minister of Agriculture & 2 others ex-parte Samuel Muchiri W Njuguna and 6 Others [2006] eKLR, as an aspect of judicial decision making, to be conducted regularly, and 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. My Lady, the singular question before this Honourable Court is whether the learned Taxing Officer erred in law and principle while taxing instruction fees, getting up fees as well at items Nos. 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37 and 39 as sought in the 1 st and 3rd Petitioners’ Party and Party Bill of Costs dated 11th December, 2025. 3.18. We humbly submit that the Taxing Officer misapplied the highlighted principles of taxation in taxing the 1st and 3rd Petitioners’ Party and Party Bill of Costs dated 11th December, 2025 on the following basis: a. The Learned Taxing Officer misdirected herself on the principles of law applicable in the taxation of Party and Party Bills of Costs arising from Constitutional Petitions. b. Despite correctly finding that the Petition did not raise any complex, difficult or novel questions, the learned Taxing Officer erred both in law and fact in awarding costs which in all the circumstances are manifestly disproportionate to the petition giving rise to the taxation, unreasonable and so excessively high as to amount to substantial oppression and injustice to the Applicant. c. The Taxing Officer erred in law and fact for failing to consider critical taxation principles and factors she was bound to consider. d. The learned Taxing Officer erred in law and fact by failing to properly and judicially exercise the powers and discretion granted to her under the law pursuant to Advocates (Remuneration) Order. e. The Learned Taxing Officer erred in law and by misapplying the provisions of Paragraph 4 (a) of Schedule 6A of the Advocates Remuneration Order and thus erroneously held that items Nos. 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37 and 39 were drawn to scale. f. Overall, the learned Taxing Officer did not apply her mind properly to the Petition giving rise to the taxation and the 1 st and 3rd Petitioners’ Party and Party Bill of Costs dated 11December, 2025 regarding the quantum of costs and thereby arrived at an erroneous decision. we hereby reproduce, for ease of the Court’s reference, the relevant part of the said Ruling: “On the bill, Item 1, the instructions fees is drawn at KSHS. 9,000,000/=. That applicable provision regarding this is Paragraph 1 (J) of Schedule 6 of the Advocates Remuneration Order. According to that provision, the least amount at which the item should be taxed is KSHS. 100,000/=. If I am to tax the item at any amount beyond KSHS. 100,000/=, I must consider the nature and importance of the matter, complexity and difficulty or novelty, value of the subject matter and time expended by the Advocate. The petitioners, on their part, submit that the petition involved extensive labour and involved voluminous documents. The 1st Respondent, on its part, submits that the petition did not raise any complex issue and there was no substantive response by the respondents. I have perused the petition and the judgement and find that it does not raise any complex, difficult or novel questions. Owing to the value of the subject matter, I am convinced that the minimum instruction fees of KSHS. 100,000/= should be raised. I have read the judgement and I hold that the value of the subject matter is ascertainable and is KSHS. 3,000,000. I tax the item 1 at KSHS. 3,000,000/=. Item 2, getting up fees is drawn at Kshs. 3,000,000/=. Under Paragraph 2 of Schedule 6A of the Advocates (Remuneration) Order, getting up fees should be 1/3 of the instruction’s fees. I therefore tax the item at Kshs. 1000,000/=. ….. Item 35 is drawing of submission. I tax it at KSHS. 4,700/= in line with Paragraph 4 of Schedule 6A to the Advocates (Remuneration) order. I also tax item 40 at KSHS. 2,150/= According to Paragraph 4 of Schedule 6A of the Advocates (Remuneration) Order. Items 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37 and 39 are drawings that are in line with Paragraph 4 (a) of Schedule 6A of the Advocates (Remuneration) Order and I tax them as drawn Totaling to Ksh. 91,194. The principles of taxation in Kenya are fairly settled. Ojwang, J (as he then was) in Republic v Minister for Agriculture & 2 Others ex-parte Samuel Muchiri W’njuguna & 6 Others [2006] eKLR offered a critical guide to this effect when he cited with approval the case of Premchand Raichand Ltd & Another v. Quarry Services of East Africa Ltd & Another [1972] E.A. 162 and pronounced himself as follows: “The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience…A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved…” 3.22. The above position has been endorsed by the Supreme Court in the recent case of Nairobi Bottlers Limited v Ndungu & another (Petition (Application) E024 of 2023 & Application E030, E034 & E038 of 2023 (Consolidated)) [2024] KESC 73 (KLR) (6 December 2024) (Ruling), where the late MK Ibrahim, SCJ reiterated the court’s decision in case of Fredrick Otieno Outa 2 v Jared Otieno Odoto & 3 others SC Petition No 6 of 2014 [2023] KESC 75 (KLR) in the following terms: “To these general principles, I may add that; i. There is no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances, ii. Although the taxing officer exercises unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically,” In Republic v Competition Authority ex-parte Ukwala Supermarket Limited and another (2017) KEHC1874 (KLR), Hon. Justice G. V. Odunga (as he then was) expressed himself thus: “The principles guiding taxation were similarly reiterated by the Court of Appeal of Uganda in Makula International vs. Cardinal Nsubuga & Another [1982] HCB 11 where the Court 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.” Item 1 – Instruction fees 3.24. The total amount that was sought as instructions fees by the 1st and 3rd Petitioners was Kshs. 9,000,000. As seen above, the Taxing Officer taxed Item 1 at Kshs. 3,000,000 on the basis that the said sum was equivalent of the value of the subject matter. This was an error in principle! The appropriate scale for taxing instruction fees in Petitions and related matters is provided for under Schedule 6 A (1) (j), which stipulates as follows: “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 (iii) to present or oppose application for setting aside arbitral award 50,000” 3.26. Mwita J. (as he then was) in the case of Cannon Assurance Limited v Attorney General & another [2018] eKLR embraced the above position by citing with approval the decision in Kenyariri and Associates Advocates v Salama Beach Hotel Limited & 3 Others [2015] eKLR in the following terms: “And in Kenyariri Associates Advocates v Salama Beach Hotel Limited & 2 others (supra), the court was clear and I also agree, that it is fairly settled now that taxation of bills of costs arising out of public law matters such as applications for prerogative orders and petitions alleging violation constitutional rights, falls under Schedule VI (1) (j) of the Advocates Remuneration Order. The taxing officer cannot therefore use decisions under private law as a guide for determining matters under public law.” 3.27. See also the decision of the High Court (Hon. Justice G. V. Odunga as he then was) in Republic v Public Procurement and Administrative Review Board & 2 others Ex-Parte Sanitam Services (EA) Limited [2015] KEHC 3812 (KLR). 3.28. We also rely on the dicta of Hon. Justice J. B. Ojwang (as he then was) in Republic v Minister for Agriculture; W'Njuguna & 8 others (Ex parte) [2006] KEHC 3504 (KLR) on the inapplicability of decisions on private law to public law matters. The above authorities points to the importance of judicious exercise of discretion when taxing a party’s bill of costs arising from constitutional petitions. While the value of subject matter as emphasized by the Court in Joreth v Kigano & Associates [2002] EA 92 ought to be a factor during taxation in private law matters, the same is not a consideration in the taxation of bills of costs arising from constitutional petitions. It is, therefore, our submission that the correct scale that was to be used to tax the instruction fees in this matter, being that it was a Constitutional Petition, is provided for under Schedule 6 A (1) (j). The provision provides that the instruction fees for an opposed constitutional petition should be around Kshs. 100,000, the taxing officer should only increase or decrease the same through the judicious exercise of his/her discretion by considering other factors, inter alia, complexity of the constitutional matter, importance of the matter and time expended. In this case, while the Taxing Officer clearly identified the correct provisions of the Advocates Remuneration Order to use in taxing the Bill of Costs before her, she instead went on a tangent by basis her taxation on the private law consideration of value of the subject matter which is provided for under Schedule 6 A (1) (a) & (b) of the Advocates Remuneration Order. Even then, she again wrongly identified the value of the subject matter as being Kshs. 3,000,000/= and on that basis awarded instruction fees equal to that amount. 3.32. Even if the Taxing Officer were to have applied the provisions of Schedule 6 A (1) (a) & (b) of the Advocates Remuneration Order in determining the instructions fees, the same would not result in an award equal to Kshs. 3,000,000.00. 3.33. It must be remembered as was held in Joreth Limited v Kigano & Associates, Civil Appeal No. 66 of 1999 [2002] 1 EA 92 that: “…..the value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgements, 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 importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” In this case, if the private law consideration of value of the subject matter was to be considered, the value of the subject matter can be ascertained from the Judgement delivered by the Court (Hon. Justice Nduma Nderi, as he then was) on 3rd November, 2025: a. This Court awarded the 1st and 3rd Petitioners general damages for violation of their human rights in the sum of Kenya Shillings Six Million (Kshs. 6,000,000/=) each. b. The 1st Petitioner was also awarded compensation for unlawful constructive dismissal equivalent to six (6) months gross salary to be computed and paid by the 1st Respondent. The above would have resulted in a calculation of a decretal sum in the amount of Kshs. 16,613,200.80 as at the date of taxation, 15th April, 2026If the provisions of Schedule 6 A (1) (a) & (b) of the Advocates Remuneration Order were to be properly applied against the subject matter value of Kshs. 16,613,200.80, the appropriate instructions fee would Kshs. 432,264.02 calculated as follows: 120,000 + (2% of 15,613,200.80) = 432,264.02 3.37. Therefore, even by applying the provision of Schedule 6 A (1) (a) & (b) of the Advocates Remuneration Order, the same does not result in the assessment of instructions fees to the sum of Kshs. 3 million that was awarded by the Taxing Officer. The said sum was thus awarded arbitrarily and through the application of the wrong provisions of the Advocate Remuneration Order. We must emphasize that on the basis of the decisions in Cannon Assurance Limited v Attorney General & another [2018] eKLR, Kenyariri and Associates Advocates v Salama Beach Hotel Limited & 3 Others [2015] eKLR, Republic v Public Procurement and Administrative Review Board & 2 others Ex-Parte Sanitam Services (EA) Limited [2015] KEHC 3812 (KLR) and Republic v Minister for Agriculture; W'Njuguna & 8 others (Ex parte) [2006] KEHC 3504 (KLR), under the Advocates Remuneration Order, instruction fees for constitutional petitions and prerogative orders fall exclusively under Schedule 6 A (1) (j) of the Advocates Remuneration Order. This removes them from the value-based scales of Schedule 6 A (1) (a) & (b) of the Advocates Remuneration Order that allows the taxing master to use his/her discretion to award reasonable instruction fees based on the value of the subject matter. On whether the Taxing Officer could increase the scale fee provided under Schedule 6 A (1) (j) of the Advocates Remuneration Order from Kshs. 100,000/= to Kshs. 3,000,000/=, we answer in the negative! The taxing officer already determined that there was nothing complex or novel about the petition that was brought by the 1st and 3 rd Petitioners and as such there was no justification to increase the scale fee provided under Schedule 6 A (1) (j) of the Advocates Remuneration Order. 3.40. The upshot is that the Taxing Officer erred by applying the wrong provision of the Advocates Remuneration Order in awarding exorbitant instruction fees in the amount of Kshs. 3 million. What the Taxing Officer ought to have done is to apply the provisions of Schedule 6 A (1) (j) of the Advocates Remuneration Order and awarded on the sum of Kshs. 100,000.00 as instructions fees. Item 2 – Getting Up Fees 3.41. The 1 st and 3 rd Petitioners further sought Kshs. 3,000,000 as getting up fees. The Taxing Officer awarded to them the sum of Kshs. 1 million based on her erroneous award of Kshs. 3 million as instructions fees. It is trite law that getting up fees is pegged on the value awarded as instruction fees. We, therefore, submit that the same ought to be a percentage of the awarded instruction fees and not more than one third of the amount sought. As the correct award for instruction fees ought to be Kshs. 100,000/= in accordance with of Schedule 6 A (1) (j) of the Advocates Remuneration Order, the allowable getting up fees ought to have been taxed at Kshs. 33,333.33. Items 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37 and 39 – Drawings 4.1. With respect to drawings, items 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37 and 39 the Taxing Officer determined that the same were drawn to scale in accordance with the provisions of Paragraph 4 (a) of Schedule 6A to the Advocates Remuneration Order. Thus, she awarded the sum of Kshs. 91,194/= with respect with those items. It must be remembered that Paragraph 6A (4) (a) of the Advocates Remuneration Order provide for fees for drawings of pleadings as follows: “Concise statement, plaint, written statement of defense, interlocutory application, notice of motion or chamber application, originating summons, affidavit, petition of appeal, interrogatories, agreement for compromise, adjustment or satisfaction of suit, or for reference to arbitration or any other pleading not otherwise provided for—(i) four folios or less 1,100 (ii) in excess of four folios; additional per folio after the first four folios 150” 4.4. Pleadings are formal legal documents that define the scope of a lawsuit. They outline the material facts, claims, and defenses. Examples include plaints, statements of claim, defences, counterclaims, and petitions as well as the other examples listed under Paragraph 6A (4) (a) of the Advocates Remuneration Order. Affidavits of Service, letters, Mention and Hearing Notices are not pleadings: a. An Affidavit of Service is a sworn, notarized or commissioned legal document confirming that official court papers were formally delivered to a party. It is not a pleading, but rather a procedural document serving as physical proof to the court that due process has been met. Ordinarily that is why it never even served on the other parties. b. Mention and Hearing notices are not pleadings, as they do not state the facts, legal arguments, or the claims and defenses of the parties. They are simply administrative documents issued by the court or the parties to notify participants of a scheduled court date or procedural step. c. Letters between parties are similarly not pleadings. They are never even usually filed in Court on their own unless as an annexture in support of a pleading. 4.5. Thus, there was no basis for taxing items 19, 20, 23, 24, 29, 30, 31, 33, 34, 36, 37 and 38 on the basis of Paragraph 6A (4) (a) of the Advocates Remuneration Order. The same out to be taxed off. 4.6. With respect to the other items Nos. 18, 21, 22, 25, 26, 27, 28, 32, 35, 39, what the 1 st and 3rd Petitioners did was to demand fees for actual drawn pleadings as well as the supporting documents attached to those pleadings which were never drawn by the 1st and 3rd Petitioners’ Advocates. Paragraph 6A (4) (a) of the Advocates Remuneration Order only applies to actual drawn pleadings and not copies of documents attached to the drawn pleadings. 4.7. A perusal of the actual record will show that the actual folios for the pleadings described under items Nos. Nos. 18, 21, 22, 25, 26, 27, 28, 32, 35, 39 out to be as below. The fees for the said drawings are also set out below: the Learned Taxing Officer’s misapplication of applicable law and principles jeopardize the 1st Respondent’s rights and interests and risk occasioning injustice upon them and the entire public if the Ruling delivered on 15th April, 2026 is not set aside by this Honourable Court. The said taxation sum are public funds which will have been unjustly expended to satisfy an erroneous taxation unless this Honourable Court intervenes. 4.9. In light of the facts highlighted above, the 1st Respondent prays that this Court do set-aside the Taxing Officer’s decision of 15th April, 2026 and proceed to urgently give appropriate directions for the re-taxation/assessment of the 1 st and 3rd Petitioners Party and Party Bill of Costs dated 11th December, 2025 to proceed before any other Taxing Officer other than Hon. Rebecca Thyaka. 2. The respondent did not respond to this issue of merit of the reference. Decision on merit of the reference 1. The contested taxation arose from a judgment dated 3rd November 2025 in favour of the 1st and 3rd petitioners in a constitutional petition between the parties. The trial court awarded general damages for violation of constitutional rights of Kshs. 6 million to each of the 2 petitioners plus compensation for unfair termination with interest and costs. The bill of costs was drawn indicating instruction fee of Kshs. 9 million. The taxing master in ruling of 15th April 2026 held –‘On the bill, Item 1, the instructions fees is drawn at KSHS. 9,000,000/=. That applicable provision regarding this is Paragraph 1 (J) of Schedule 6 of the Advocates Remuneration Order. According to that provision, the least amount at which the item should be taxed is KSHS. 100,000/=. If I am to tax the item at any amount beyond KSHS. 100,000/=, I must consider the nature and importance of the matter, complexity and difficulty or novelty, value of the subject matter and time expended by the Advocate. The petitioners, on their part, submit that the petition involved extensive labour and involved voluminous documents. The 1st Respondent, on its part, submits that the petition did not raise any complex issue and there was no substantive response by the respondents. I have perused the petition and the judgement and find that it does not raise any complex, difficult or novel questions. Owing to the value of the subject matter, I am convinced that the minimum instruction fees of KSHS. 100,000/= should be raised. I have read the judgement and I hold that the value of the subject matter is ascertainable and is KSHS. 3,000,000. I tax the item 1 at KSHS. 3,000,000/=. ‘ 2. I do find the taxing master relied on the relevant provision of the Order being Paragraph 1 (J) of Schedule 6 of the Advocates Remuneration Order to wit-‘*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’’ 1. The court further finds the taxing master was on the right trajectory when she stated-‘ If I am to tax the item at any amount beyond KSHS. 100,000/=, I must consider the nature and importance of the matter, complexity and difficulty or novelty, value of the subject matter and time expended by the Advocate. The petitioners, on their part, submit that the petition involved extensive labour and involved voluminous documents. The 1st Respondent, on its part, submits that the petition did not raise any complex issue and there was no substantive response by the respondents. ‘The taxing master then held –‘I have perused the petition and the judgement and find that it did not raise any complex, difficult or novel questions. ‘ The taxing master proceeded to hold as follows-‘Owing to the value of the subject matter, I am convinced that the minimum instruction fees of KSHS. 100,000/= should be raised. I have read the judgement and I hold that the value of the subject matter is ascertainable and is KSHS. 3,000,000. I tax the item 1 at KSHS. 3,000,000/=.’ (emphasis given) The applicant correctly submitted reliance on the value of the subject matter in a constitutional petition was in error and contrary to the provision of being Paragraph 1 (J) of Schedule 6 of the Advocates Remuneration Order . I upheld the decision in Kenyariri and Associates Advocates v Salama Beach Hotel Limited & 3 Others [2015] eKLR in the following terms: “And in Kenyariri Associates Advocates v Salama Beach Hotel Limited & 2 others (supra), the court was clear and I also agree, that it is fairly settled now that taxation of bills of costs arising out of public law matters such as applications for prerogative orders and petitions alleging violation constitutional rights, falls under Schedule VI (1) (j) of the Advocates Remuneration Order. The taxing officer cannot therefore use decisions under private law as a guide for determining matters under public law.” 2. I do hold that the value of subject matter was not a relevant factor in the taxation of the impugned bill of costs in a constitutional petition. The award on instruction fee and the getting up is held as erroneous. The taxing master ought to have justified the increase of fees from Kes 100,000 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. 3. On the other items challenged on basis that some of the items were not pleadings - rule 75 states-‘**75. Numbering of folios on documents charged by the folio** (1)All drafts and other documents or copies thereof, the preparation of which is charged for, shall be produced at taxation if required by the taxing officer.(2)The length of all documents not vouched by production of the original or copies thereof or other evidence satisfactory to the taxing officer may be certified by the advocate in writing, and if such certificate be found by the taxing officer to be erroneous, the taxing officer may disallow the cost of the document so erroneously certified or any part thereof.’ Schedule 6 provides for drawing as follows- ‘*Drawing*(a)Concise statement, plaint, written statement of defense, interlocutory application, notice of motion or chamber application, originating summons, affidavit, petition of appeal, interrogatories, agreement for compromise, adjustment or satisfaction of suit, or for reference to arbitration or any other pleading not otherwise provided for—(i)four folios or less 1,100 (ii)in excess of four folios; additional per folio after the first four folios 150.’ (d)All other documents (including proofs of witnesses and evidence) so far as necessary per folio. Kshs.180. *Correspondence*(a)Letters before action or other necessary letters Kshs 1,000 or per folio Kshs 118.’In the opinion of the court all documents drawn by the advocate as relates to the suit and the bill of costs was chargeable as above. On perusal of the drawings I did not find any error in the decision of the taxing master on the drawn items. 1. The court finds merit in the reference as related to error in the taxation of instruction fee and getting up fee only which are set aside and remitted for fresh taxation in compliance with Paragraph 1 (J) of Schedule 6 of the Advocates Remuneration Order to wit-‘*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’’ 1. The court orders fresh taxation/assessment of the Respondents/petitioners' Party and Party Bill of Costs dated 11th December, 2025 on instruction fee and getting up fee to proceed before the Taxing Officer other that Hon. Rebecca Thyaka. Each party to bear own costs. 1. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant/Respondent: Otieno h/b Kere Respondents/Petitioners: Simiyu