https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9636

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **MISC APPLICATION NO. 6 OF 2020** **IN THE MATTER OF ADVOCATE-CLIENT BILL OF COSTS** **AND** **IN THE MATTER OF PROF. TOM OJIENDA & ASSOCIATES………………………………………………...APPLICANT** **VERSUS** **NAIROBI CITY COUNTY……………………………….RESPONDENT** **RULING ON A REFERENCE DATED 30TH MAY, 2021** 1. When a Taxing Master awards minimum instructions fees in an advocate-client bill of costs without providing reasons or applying the required guiding principles, the decision constitutes an error in principle and thisprovides valid grounds to challenge the ruling. 2. This ruling determines the reference dated 30th May, 2021 filed by the Advocate challenging the ruling on taxation dated 18th May 2021 seeking that the said ruling be set aside and the matter be remitted for re taxation before a different taxing master. 3. The aforesaid ruling was in respect of advocate client bill of costs dated 10th February, 2020 wherein the applicant/advocate sought a total of kshs 35, 503,.50 inclusive of Kshs 20,000,000 instructions fees, for representing the respondent/ client in **Constitutional Petition No. 82 of 2014, Charles Karanja & Martin Fanuel v County Secretary, Nairobi City County** and the respondent is alleged to have failed to pay legal fees due to the advocate/ applicant herein. 4. The advocate contends that the taxing master in capping the instructions fees at Kshs 100,000 disregarded the nature of interest of the parties and the general conduct of the matter as well as the time and resources expended by the applicant herein in defending the respondent’s interests. 5. The advocate asserts that the taxing master committed an error in taxing item 1 of the said bill of costs at an extremely low sum and he seeks that this court do correct that error to ensure that the applicant advocate is sufficiently remunerated for the legal services rendered to the respondent. 6. In the submissions dated 22nd September, 2021, the advocate relies on decisions on the principles that guide Courts in deciding whether or not to interfere with the award of the Taxing Officer, as espoused in, among others, **DK Law Advocates v ZHONG Gang Building Material Co. Ltd & Anotehr [2021] e KLR and Kipkorir Titoo & Kiara Advocates v Deposit Protection Fund Board[2005]e KLR.** 7. He also cited schedule 6 Part A (a) of the Advocates Remuneration Order as the applicable Schedule for taxation of the relevant Bill of Costs. 8. According to the advocate, the taxing master was bound by principles set out in **Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972]EA** where the Court is said to have highlighted the principles of taxation in assessment of costs. 9. the applicant submitted on the effort made in defending the respondent in what he considers to have been an important matter hence, the instructions fees was manifestly low compared to the work done and in failing to give reasons for taxing off Kshs 19,900,000 from item 1 of the bill of costs. 10. The taxing officer is also challenged for not setting out the basic fees before venturing into considering whether to increase or reduce it as was held in **First American Bank of Kenya v Shah & others [2002]EA.** 11. The respondent/ client filed grounds of opposition dated 11TH April 2025 and submissions dated 20th November, 2025. 12. According to the respondent, no error on the part of the taxing master was disclosed and it defends the ruling on taxation asserting that it embodies all the reasons for taxation which reasons it avers, are sound and properly applied the law. The respondent contends that the applicant had not disclosed reasons for setting aside the impugned ruling and defends the taxing master on the ground that she exercised her discretion judiciously and considered the relevant factors including the nature of the case, the duration of the case and the fact that it was dismissed for want of prosecution in arriving at here decision. 13. The respondent therefore avers that the reference is frivolous, vexatious and an abuse of court process, is misconceived, lacks merit and should be dismissed because, allowing the application will greatly prejudice the respondent. 14. In the submissions, the respondent’s counsel asserts that the bill was properly taxed by legally enhancing Kshs 45,500 to Kshs 100,000 as instructions fees based on the work done, the complexity of the case, the duration of the case which was barely three months and the bulkiness of the documents involved. 15. The respondent is said to be satisfied with the decision of the taxing master which it urges this court to affirm and dismiss the reference which is said to be interfering with the taxing master’s discretion. 16. The respondent submits that none of the grounds alluded to by the advocate/ applicant meet the legally required threshold to warrant the setting aside of the ruling on taxation. That the subject representation was in respect of a constitutional petition which is in the public law realm hence, the notion that the value of the subject matter should be the sole determinant of the instructions fees does not arise. 17. The respondent relies on various decisions to support the above submission including ***Tom Ojienda & Associates v Nairobi City County JR Misc Appl No. E051 of 2017[2022]e KLR*** at paragraphs 10 and 11 of the ruling by A.K.Ndun’gu J on the principles, citing the ***First American Bank of Kenya v Shah & others*** (supra) case. 18. Counsel for the respondent urged this court to dismiss the reference with costs to the respondent. 19. According to the respondent, the taxing master’s ruling was based on the relevant Advocates Remuneration Order, the decided cases and that she never considered irrelevant factors in her ruling which should be upheld. **Analysis and Determination** 1. I have considered the reference, the grounds of opposition and the rival submissions as filed and the main issue for determination is whether the reference is merited. 2. The principles that guide courts in taxing of costs in constitutional petitions and more specifically on instructions fees were set out in ***SC Petition (Appl.) No. E024 of 2023 and Applications Nos. E030, E034 & E038 of 2024 Nairobi Bottlers Limited Versus Mark Ndumia Ndungu and Coca Cola Central, East &West Africa Limited*** where the Supreme Court stated as follows: ***“[8] This Court, in the case of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR) highlighted the following principles to be considered in an application for setting aside a taxation decision:*** ***“(11) A certificate of taxation will be set aside, and a single Judge can only interfere with the taxing officer’s decision on taxation if;*** ***a. there is an error of principle committed by the taxing officer;*** ***b. the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy;(and I may add, conversely, if the award is so manifestly deficient as to amount to an injustice to one party).*** ***c. the court is satisfied that the successful litigant is entitled to fair reimbursement for the costs he has incurred, (and I may add, the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party); and*** ***d. the award proposed is so far as practicable, consistent with previous awards in similar cases.*** ***To these general principles, I may add that;*** 1. ***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, iii. The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a different figure had he been in the taxing officer’s shoes.”*** 1. Regarding item 1 on instructions fees, the Supreme Court stated as follows, and I quote it in extenso for its relevance to this reference: ***“[9] Bearing these principles in mind, I turn to the reference. Starting with the value of the subject matter. The Taxing Officer handled the issue as follows:*** ***“[9] The last issue for determination is on what really constitutes the value of the subject matter in this case. Counsel for the 1st respondent has submitted at length on this issue and posited that the value of the subject matter is Ksh.8,888,367,426.00. This figure, they submit, was the petitioner’s own calculation hence they ought to be bound by it. In rebuttal, the petitioner has argued that, this was merely an approximation of what the petitioner would have incurred in compliance with the final orders of the High Court had the Supreme Court not granted the conservatory orders. According to the Petitioner, the claim before the High Court, Court of Appeal and Supreme Court was on the issue of breach and or violation of consumer rights as enshrined under Article 46 of the Constitution and nothing turned on the value of the subject matter. [10] I have perused the entire court record and I must agree with the petitioner that the petition before the High Court did not have any quantifiable value. The foot prints of Kshs.8,888,367,426.00 found their way in these proceedings at stage of seeking conservatory orders.”*** ***[10] It has to be restated that the genesis of this Reference is a constitutional petition that originated from the High Court through the Court of Appeal up to this Court and concerned the appellant/respondent’s omission in displaying the nutritional value, storage directions, customer care email address and phone number on the Coca Cola, Fanta, Krest, Stoney and Sprite glass bottles as it does on its plastic bottles and how this constituted a violation of consumer rights under Article 46(1)(a), (b) and (c) of the Constitution. The High Court and the Court of Appeal decided in favour of the 1st respondent and issued declarations that the appellant/respondent’s omission constituted a violation of the consumer rights under Article 46(1)(a), (b) and (c) of the Constitution and that the omission amounted to discrimination and unequal treatment of consumers contrary to Article 27(2), (4) and (5) of the Constitution. The Court issued a mandatory injunction directing the appellant/respondent to provide the nutritional information storage directions and customer care mobile number and email address on all of their Coca Cola, Fanta, Krest, Stoney and Sprite brands glass bottles within six (6) months of the date of delivery of the High Court judgment.*** ***[11] Therefore, I agree with the Taxing Officer that the subject matter is not discernible either from the Judgment or settled consent and the figure put forward of Kshs.8.8 billion emanated from the conservatory proceedings. It is thus my finding that the Taxing Officer was well guided by the Court’s decision in Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) where the Court held as follows:*** ***“57. Whilst the determination of the value of subject matter from a judgment and settlement of the parties is quite straight forward, the determination from pleadings is not. The determination of the value of the subject matter, may be difficult, for instance, where the pleadings/suit is struck out at a preliminary stage, such as in this case, and the value can only be determined/ascertained upon the conclusion of a trial. …..*** ***59. We are of a considered opinion that a claim in a suit which is struck out at the preliminary stage does not ipso facto render that claim or amount pleaded therein without more the value of the subject matter. The position still remains that the amount therein has not been ascertained or determined, and as such, it cannot be applied as the value of a subject matter in a disputed taxation. The application of such a claim or amount as the value of the subject matter would go against the rationale that the fees/costs paid to an advocate and a successful party should be reasonable.” [Emphasis added]*** ***[12] Now turning to item No. 1 being the instruction fees, I am guided by Paragraph 9 (2) of the Third Schedule to the effect that the fees allowed for instructions to appeal or to oppose an appeal is the discretion of the taxing officer and shall be such sum as he shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings, the person to bear the costs and all other relevant circumstances; and shall include all the work done in connection with the appeal, including attendances, correspondence, perusals, and consulting authorities. The absolute least is that fees must be commensurate to work done, and it will amount to unjust enrichment if it is not awarded for this purpose.*** ***[13] After examination of various matters previously taxed, the Taxing Officer arrived at the following decision:*** ***“[13] I have already found that there is no known value of the subject matter. In SC Petition No. 16 of 2019 Non-Governmental Organisations Coordination Board Vs. Eric Gitari & 5 Others that dealt with the rights of the LGBTIQ community, the petitioner had sought instruction fee of Kshs.25,000,000/= but I taxed it at Kshs.5,000,000/= having considered the complexity of the matter, the industry involved and other relevant factors. In SC Application No. E042 of 2023 Symbion Kenya Limited Vs. Goodison Sixty-One Schools Limited, a matter involving arbitration, Kshs.36,367,945.33 had been sought under instruction fee but I taxed instruction fee at Kshs.1,000,000/=. In SC Petition No. 6 of 2017 Fredrick Outa Vs. Jared O. Okello & Others that sought for instruction fee of Kshs.10,000,000/=, I taxed it at Ksh.6,000,000/= but on review, it was reviewed to Kshs.1,000,000/=. [14] Having sufficiently alluded to my previous decisions, I hereby tax item 1 at Ksh.1,000,000/= (One Million Shillings) considering that the petition’s life was cut short at its infancy stage vide the Ruling delivered on 10th November, 2023. Ksh.89,000,000/= is taxed off.”*** ***[14] It is acknowledged that the subject matter revolved around constitutional issues on consumer protection. However, the appeal was struck out at a preliminary stage and, therefore, was not heard. I am further guided by the principles set out earlier in this Ruling, including the fact that taxation is not a mathematical exercise, but a discretionary process and a single Judge will not normally interfere with the decision of the Taxing Officer just because they would have awarded a different figure. Additionally, taking into account that the novelty and complexity of the matter were not determined and further considering the range of costs awarded in other matters, I am of the view that the sum awarded by the Taxing Officer was reasonable in the circumstances, and I therefore decline to interfere with the Taxing Officer’s decision. [15] On the instruction fees for Applications Nos. E030, E034 and E038 of 2023 the Taxing Officer reasoned as follows:*** ***“[18] On items 1, the 1st respondent seeks Ksh.500,000/- as instruction fee. This has been opposed by the petitioner on the basis that the same is exaggerated and contrary to the Third Schedule which provides as Kshs.1000/- as instruction fee to oppose an application. I have read Paragraph 9(1) of the Supreme Court Third Schedule and I agree with the petition that the fee to be allowed for instruction to make, support or oppose any application shall be such sum as the taxing master shall consider reasonable by shall not be less than one thousand shillings. …*** ***[19] However, considering the nature of the dispute and the industry involved in opposing the same, awarding Ksh. 1,000/- will not be fair representation of the work done by counsel ….. [20] In view of my previous decisions referred to herein and bearing in mind that the three applications herein were dealt with simultaneously and the appeal struck out for having been filed out of time, I am of the of 2024 view that this taxation ought not to appear as a punishment to the Petitioner for failure to file the appeal in time but rather appease the victor with a reasonable order of cost. In SC Petition (Application) No. 6 of 2016 Manchester Outfitters Suiting Division Limited now called King Woollen Mills Limited & Another Vs. Standard Chartered Financial Services Limited & Another, the Supreme Court awarded costs of a nominal amount of Kshs.20,000/=. Furthermore, the 1st respondent is equally being compensated with other costs in the main petition.”*** ***[16] I find that it is evident the Taxing Officer, in arriving at the instructions fees for the three applications, took into account Paragraph 9(1) of the Third Schedule of the Supreme Court Rules, 2020 alongside the relevant principles of taxation. Paragraph 9(1) of the Third Schedule of the Supreme Court Rules, 2020 provides as follows:*** ***“The fee to be allowed for instruction to make, support or oppose any application shall be such sum as the taxing officer shall consider reasonable but shall not be less than one thousand shillings.”*** ***[17] By awarding a sum reflective of the work involved while ensuring that the outcome neither penalized the appellant/respondent nor unduly favoured the 1st respondent/applicant, it is my considered finding that the Taxing Officer adhered to the principles of fairness and proportionality. This measured approach underscores the critical balance between compensating legal efforts and discouraging excessive claims.*** ***[18] Having evaluated the matter holistically, I find no justification to interfere with the decision of the Taxing Officer. The sums awarded were both reasonable and fair compensation, aligning with the legal framework and the underlying objective of cost taxation. Consequently, the award on instruction fees for Applications Nos. E030, E034 and E038 of 2023 is upheld.”*** 1. Much earlier, in **Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR**, Ojwang J (as he then was) expressed himself inter alia: ***“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The 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 manifestly excessive as to justify an interference that it was based on an error of principle.”*** 1. The above decisions say it all in terms of factors to be taken into account in taxing bills of costs in matters constitutional petitions proceedings. It is therefore expected that every taxation in this Division, where the issue is not that of solely the value of the subject matter, taxing masters would, in taxing instructions fees, be guided accordingly. 2. In this reference, the advocate/ applicant contends that the instructions fees awarded in the sum of Kshs 100,000 is manifestly low as to amount to an error of principle and that the taxing master neither gave reasons nor applied the principles relevant in taxation. 3. This Court is cognizant of the general rule that it should not interfere with the Taxing Master’s award on taxation except in exceptional circumstances where there is an error of principle. This position was espoused in **KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR** where the Court stated: ***“The general principles governing interference with the exercise of the taxing master’s discretion were authoritatively stated by the South African court in the case of Visser vs Gubb 1981 (3) SA 753 (C) 754H – 755C as follows:*** ***“The court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised his 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 master 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.”*** 1. In principle, costs are awarded, having regard to such factors as: ***(a)****the difficulty and complexity of the issues;* ***b)****the length of the trial;* ***(c)****value of the subject matter and* ***(d)****other factors which may affect the fairness of an award of costs.* 1. The law obligates the Taxing Master to take into account these principles. The Ugandan Supreme court in Bank ***of Uganda vs. Banco Arabe Espanol SC Civil Application No. 23 of 1999 (Mulenga JSC)*** put it best when it stated: ***"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.*** ***Secondly, an exceptional case is where it is shown expressly or by inference that in assessing and arriving at the quantum of the fee allowed, the taxing officer exercised, or applied a wrong principle. In this regard, application of a wrong principle is capable of being inferred from an award of an amount which is manifestly excessive or manifestly low.*** ***Thirdly, even if it is shown that the taxing officer erred on principle, the judge should interfere only on being satisfied that the error substantially affected the decision on quantum and that upholding the amount allowed would cause injustice to one of the parties."*** 1. As stated in in ***Republic v Ministry of Agriculture & 2 others Ex parte Muchiri Njuguna & 6 Others******[supra****],* taxation of costs is a discretionary, rather than a mathematical exercise and a court will only interfere with a taxing officer's assessment where it is shown that the decision was based on an error of principle or the amount awarded is so manifestly high or low as to result in an injustice. An error of principle includes taking into account irrelevant factors, failing to consider relevant factors, or misapplying the law. In exercising this discretion, the taxing officer must consider relevant factors such as the nature and importance of the case, the value of the subject matter, the interests of the parties, the conduct of the proceedings, and any directions of the trial judge, while also assessing the work, responsibility, complexity, novelty, time, industry, and documentation involved. The reasons for the assessment must be clearly articulated, and where an error of principle is established, the usual remedy is to remit the bill for reassessment unless the error could not have materially affected the taxation. 2. In addition, the taxing master is enjoined to adopt a flexible and sensible approach to the task of striking the balance while taking into account the particular features of the case. The discretion vested in the Taxing Master is to allow fees, costs, charges and expenses as appear to him or her to have been necessary or proper, and not those which may objectively attain such qualities, and that such opinion must relate to fees and all costs reasonably incurred, but also imports a value judgment as to what is reasonable. The discretion to decide is given to the Taxing Master and not to this court. This discretion must however be exercised judicially in the sense that the Taxing Master must act reasonably, justly and on the basis of sound principles with due regard to the circumstances of the case. See Mativo J (as he then was) in ***Rachier & Amollo Advocates LLP v Kenya Commercial Bank Limited [2021] KEHC 4173 (KLR)*** 3. The advocate/applicant herein impugns the decision of the taxing master for not taking into account the submission filed in support of the bill of costs in arriving at item number 1 on instructions fees. 4. I have perused the impugned ruling on taxation. The taxing master appears to have developed a checklist on justification for the figures or rejection of the figures pleaded by simply saying “***This is in line with the ARO, 2006”*** OR ***“ No proof to support.”*** 5. In awarding Kshs 100, 000 instructions fees out of Kshs 20,000,000 pleaded, and this Court is not saying that she should have awarded the pleaded sum, the taxing master did not give any reasons for awarding the minimum amount provided for under the relevant Schedule of the Advocates Remuneration Order and neither did she even state which schedule she was using for the taxation. 6. The authorities that the taxing master claimed to have used were not linked at all to the submissions and the taxed amounts and therefore it is impossible to appreciate what principles the taxing master applied in arriving at the figure that she did. As stated above, the reasons for the assessment must be clearly articulated, and where an error of principle is established, the usual remedy is to remit the bill for reassessment unless the error could not have materially affected the taxation. 7. In the circumstances, I am not satisfied that the taxing master applied herself to the principles established guiding the taxation of costs, specifically on instructions fees . She therefore erred in principle. Having said that, as the reference only challenges item 1 of the Bill of Costs dated 10th February, 2020, I hereby set aside the ruling on taxation dated 18th may 2021 on item 1 of instructions fees and remit the bill of costs to the Taxing master for reassessment taking into account the principles captured in this ruling. 8. As the taxing master who taxed the impugned Bill of costs is no longer in the court Division, the Deputy Registrar of the Court shall reassess the Bill on item No. 1 only. 9. I order that each party shall bear their own costs in view of the fact that the error was that of the taxing master. 10. I so order. **Dated, Signed and Delivered virtually at Nairobi this 3rd Day of July, 2026** **R.E. ABURILI** **JUDGE**