https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4026

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCL MISC. CASE NO. E027 OF 2025** **W. CHOKAA & CO. ADVOCATES:::::::::::::::::::::::::::::::::::APPLICANT** **VERSUS** **EAST AFRICA INSTITUTE OF CERTIFIED STUDIES::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT** **DANIEL WAKABA MACHARIA::::::::::::::::::::::::::::::2ND RESPONDENT** **SERAH WANJIRU MACHARIA:::::::::::::::::::::::::::::::3RD RESPONDENT** **RULING** The application is dated 8th September 2025 and is brought under Rule 11 (2) of the Advocates (Remuneration) Order) seeking the following orders; 1. That the decision made on taxation of the Applicant's Bill of Costs dated 8th April,2025 by the Deputy Registrar (Taxing Master) on 14th August, 2025 be set aside and/or reviewed 2. That in the alternative to (1) above, the said Bill of Costs be remitted to another Taxing Master other than Hon. Victoria Ochanda for re-taxation. 3. That the costs of this application be provided for. The application is made on the grounds that having determined that Schedule 6 of the Advocates (Remuneration) (Amendment)Order 2014 was the schedule applicable to the Bill of Costs before her and the matter was contested, the Deputy Registrar erred in awarding only Kshs. 20,000/= as instruction fees. The Learned Deputy Registrar erred and was wrong in allowing only Kshs. 295,000/= as fees for defending a counterclaim of Kshs. 90,000,000/= when the minimum fees to be charged is Kshs. 1,570,000/=. The Learned Deputy Registrar erred and was wrong in holding that there is a principle of law on taxation set out in the cases of Nyangito & Co. Advocates vs Doinyo Lessos Creameries Ltd (2014) eKLR and Mumias Sugar Company Limited-vs Tom Ojienda & Co. Associates (2019) eKLR that in Court proceedings, an Advocate is not entitled to increase his fees by 50% under Part B of the scales for Advocates Remuneration until and unless, the party and party bill of costs has been determined, an Advocate is entitled to an increase of 50% on instruction fees, whatever the stage of proceedings. The Deputy Registrar was wrong in deducting some payments made to the Advocate by Mpesa by one Judith Ngene Musyoka when there was no nexus between the said payments and the Respondents. The Deputy erred and was wrong in principle in the manner she taxed the Bill of Costs, and the fees awarded were manifestly low. This court has considered the applications and the submissions therein. The reference herein is brought under inter alia paragraph 11(2) of the (ARO) which provides as follows; *“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 receipt of reasons apply to a judge in chamber summons which shall be served on all parties concerned, setting out the grounds of his objection.”* The obligation of the taxing master provided for in paragraph 11(2) above is set in motion by an objector fulfilling the obligation imposed on him under paragraph 11(1) of the ARO which provides as follows; *“Should any party object the decision of the taxing officer, he may within fourteen days after the decision give notice to the taxing officer in writing of the items of taxation to which he objects.”* In the case of Elijah Ireri t/a Ireri & Company Advocates vs County Government of Embu (2021) e KLR, the court held that what the above provision means is that before a party can object to the decision of the taxing master, he ought to give notice in writing to the taxing officer of the items of taxation which he objects. The taxing officer is then required to forthwith record and forward to the objector the reasons for his/her decision. The objector has the discretion to file his reference within 14 days. The court further held that failure to seek reasons from the taxing officer and/or attach the reasons to the reference renders the application defective. The import of seeking for the reasons for taxation on the objected items was given in the case of Evan Thiga Gaturu Advocate vs Kenya Commercial Bank Ltd (2012) e KLR where it was held that where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound principles. In the instance reference, there is no indication that the plaintiff/applicant complied with the procedure provided in paragraph 11(1) of the ARO. I have perused the ruling of the taxing master and established that no reasons were provided by the taxing master for basing the instruction fee on the assessed general damages of Kshs.295,000/= as opposed to what is indicated in the counter claim in the value of arrears of Kshs. 90,000,000/=. It is noted that one of the grounds on which this reference is premised is failure of the taxing master in allowing only Kshs. 295,000/= as fees for defending a counterclaim of Kshs. 90,000,000/= when the minimum fees to be charged is Kshs. 1,570,000/=. As observed in the case of Evan Thiga Gaturu Advocate vs Kenya Commercial Bank Ltd supra the import of seeking for reasons for taxation on the objected items is to enable the judge in determining whether or not the discretion of the taxing master was exercised on sound principles. Without those reasons, this court has no basis of determining whether the taxing master exercised her discretion properly or not. The instant reference was filed without compliance with the procedure of filing a reference against taxation of bills of costs by taxing master as the Applicant did not file an objection with the taxing officer seeking reasons for basing the instruction fee on the Plaintiffs declaratory claims and not for defending the counterclaim of Kshs. 90,000,000/=. Failure to adhere to the procedure provided for under paragraph 11(1) and (2) of the ARO for challenging the decision of the taxing master renders the application defective as this court has no basis of determining whether or not the discretion of the taxing master was exercised in accordance with sound principle. From the Plaintiff’s pleaded case, it is clear that the Plaintiff was not seeking any reliefs on the basis of the counterclaim. In World Explorers Safaris Limited vs Cosmopolitan Travel Limited & another (2021)e KLR the court stated as follows concerning the function of pleadings; *“The function of pleading in civil proceedings is to alert the other party the case they need to meet, (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial. The cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (defence). Material facts are only those relied on to establish the essential elements of the cause of action…..parties should not be unduly encouraged to rely, in the hope, perhaps, of obtaining some tactical advantage, to treat unpleaded issues as having been fully investigated. The need for pleadings to be precise cannot be doubted.”* In Chalicha FCS Ltd vs Odhiambo & 9 others (1987) KLR 182, it was held that the court has no power to make an order, unless by consent, which is outside the pleadings. In applying the above principles to the circumstances of this case, where the Plaintiff/Applicant had neither indicated in his pleadings that the value of the subject matter nor sought for any reliefs based on the said value of the subject matter and no party and party bill of costs had been taxed as the matter is still pending, he may not be heard to insist that the taxing master erred by basing the instruction fees on the declaratory orders sought. A review of the case presented before court shows that it was basically a case in which the Plaintiff sought for declarations and a temporary injunction. There was no relief whatsoever based on the value of the subject and none has been granted. The upshot of the foregoing is that the reference is not only incompetent for failure to adhere to the mandatory provisions of paragraph 11(1) and (2) of the ARO but also lacking in merit as the Plaintiff had not sought for any relief based on the any subject matter and none was granted by the court. I find the Application is not merited and dismiss the same with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**