'INTRODUCTION
This ruling is in respect of two applications dated 8th and 13th October, 2025 which sought for the following orders:
1. THAT the Honourable Court be pleased to enlarge the time within which to file a Reference against the decision of the Taxing Master delivered on 7th August, 2025.
2. THAT the decision of the Taxing Master delivered on the 7th day of August, 2025 in so far as the same relates to the reasoning and determination pertaining to the taxation of Items No. 1, 2, 3, 4, 7, 8 and 37 of the Bill of Costs dated 10th day of March, 2025 be and is hereby set aside.
3. THAT the Honorable Court be pleased to refer the matter back for re-taxation of Items 1, 2, 3, 4, 7, 8 and 37 of the Bill of Costs and with proper directions thereof.
4. THAT in the alternative to prayer 3 the Honorable Court exercises its inherent jurisdiction and be pleased to re-asses the instruction fees due to the Advocate /Respondent in respect of Items 1, 2, 3, 4, 7, 8 and 37 of the said Bill of Costs and calculations flowing therefrom by reducing the amount payable by the Applicant under the Advocates (Remuneration) (Amendment) Order 2014 and/or make such other or further orders as regards the Bill of Costs in issue. Costs.
5. THAT the costs of this application be borne by the Advocate/Respondent.
The application was based on the grounds on its face and supported by the affidavit sworn by the Respondent’s legal officer.
He stated that the Ruling to the Bill of Costs filed in this matter was delivered by the Taxing Master on the 7th day of August 2025 and reasons issued on the 25th day of September, 2025. He further stated that a Notice of Taxation dated the 26th day of March, 2025 was served upon the Respondent with taxation scheduled on the 22nd day of May, 2025. He went on to state that the Advocate-Client Bill of Costs was excessive, unjustifiable and a clear abuse of the taxation process as it went against the double enrichment thus offending the relevant provisions of the Advocates Remuneration Order, 2014.
He stated that the Applicant had earlier lodged a Bill of Cost dated the 28th day of January, 2025 being HC COMM MISC No. E116 of 2025 Aldrin Ojiambo T/A Ojiambo & Co. Advocates vs Development Bank of Kenya Limited in the High Court of Kenya at Nairobi over the same subject matter that was yet to be determined. He also stated that the Applicant failed to disclose the existence of the earlier Bill of Costs and the fact that it was yet to be determined, amounting to non-disclosure and an abuse of the court process. He added that the Taxing Master erred in finding that the Bill of Costs dated the 10th day of March, 2025 did not have any similarity to an extent that it would be described as duplicitous. He urged the court to allow the reference as prayed.
RESPONSE
In response to the application, the Advocate/Respondent filed a replying affidavit sworn on 15th October, 2025 where he averred that the application was filed outside the statutory period. He denied that the reasons for taxation were provided on 25th September, 2025. He averred that the reasons had been included in the ruling and made available to the Client upon delivery of the award on 7th August, 2025. He averred that the Bill was proper and justified and denied that it amounted to double enrichment as alleged by the Client. He averred that his Bill of Costs in Milimani HCCOMM Misc. E116 of 2025 was heard and determined on 30th June, 2025 and could not be subject of this reference in Nakuru. He also averred that the ruling in E116 of 2025 was separate and distinct from the present taxation. He averred that the present taxation arose from their services rendered in Nakuru ELC 13 of 2018. He urged the court to dismiss the application with costs. He further filed a supplementary affidavit sworn on 22nd October, 2025 where he stated that the ruling annexed in his replying affidavit was a ruling delivered in this matter and not Nairobi.
SUBMISSIONS
Counsel for the Client filed his submissions dated 18th November, 2025 where he identified two issues for determination. The first issue was whether the Honourable court should enlarge time for filing of reference. He relied on Order 11 of the Advocates Remuneration Order and submits that the Applicant acted promptly and in full compliance with the Remuneration Order. He further submits that on the 13th day of August, 2025 just six days later the Client/Applicant formally filed a Notice of Objection and a request for reasons which was done expeditiously and within the stipulated statutory timelines. He added that the Taxing Master issued the reasons on the 25th day of September, 2025, and the same transmitted to the Applicant’s advocates via email on the 7th day of October, 2025. He further stated that the Client filed the present application on the 13th day of October, 2025, six days after receiving the reasons with no delay attributable to the Client/Applicant. He submits that the Applicant acted diligently and any delay resulted from administrative processes within the court system which should not be used to deny a party their constitutional and statutory right to be heard. He went on to submit that the reference raised substantial issues of duplicity, material non-disclosure, and inflated fees that warrant hearing. He submits that the delay was entirely attributable to the time taken by the Taxing Master to furnish reasons. He urged the court to exercise its discretion in favour of the Applicant and enlarge the time within which the Reference may be filed.
The second issue was whether the Taxing master erred in taxing the bill of costs. On instruction fees, he submits that the Advocate charged Kshs 6,000,000 as instruction fees on a dispute concerning properties valued at Kshs 230,000,000. He argues that the correct computation under Schedule 6 Part 1 (b) of the Advocates Remuneration Order yields an instruction fee of Kshs 3,650,000 thus the amount awarded was excessive and contrary to the scale. He further submits that the Taxing Master erred by accepting the inflated fee without applying the mandatory scale or giving reasons for departing from it.
On item 2, he submits that the Advocate charged for 18 folios, yet the plaint contained only 6 folios. He argues that the applicable rate was Kshs 50 per folio under Schedule 6 Part A (8) (a) thus the correct charge should therefore have been Kshs 300. He submits that the Taxing Master failed to reconcile the folio count against the actual pleadings, resulting in an erroneous and inflated award. On item 3 and 4, he submits that the taxing master failed to ascertain the correct folio count and also erred in principle by accepting an inflated folio count. On items 7 and 8, he submits that the Taxing Master allowed an overstated claim and erred by failing to identify the duplication and by permitting a clearly inflated and unsubstantiated claim. On item 37, counsel submits that under Schedule 6 Part A (2), getting-up fees are limited to one-third of the instruction fee. He argues that with a correct instruction fee of Kshs 3,650,000, the permissible getting-up fee should be Kshs 1,216,666.67 and not Kshs 2,000,000 as taxed. It was his submission that the Taxing Master therefore erred in principle by adopting a wrong instruction fee and consequently applying an erroneous computation for Item 37.
In conclusion, he urged that court to have the matter referred back for re-taxation in the interest of justice and fairness or in the alternative the Honourable Court exercises its inherent jurisdiction and re-asses the instruction fees due to the Advocate/Respondent in respect of Items 1, 2, 3, 4, 7, 8 and 37 of the said Bill of Costs.
Counsel for the Advocate/Respondent filed his submissions dated 25th November, 2025 where he identified five issues for determination. The first issue is whether the Client needed to apply for reasons or wait for the remainder that reasons were in the ruling. It was his submissions that the reasons for the taxation was in the impugned ruling and therefore there was no need to seek reasons. He submits that despite the reasons given, the Client failed to file the reference but instead wrote to the court requesting for reasons. He submits that the taxing officer then replied on 25th September, 2025 informing the client that reasons were in the ruling delivered. He cited the case of Evans Thiga Gaturu, Advocate V Kenya Commercial Bank Limited [2012] eKLR and Amednasir Abdikadir & Co. Advocates V National Bank of Kenya Ltd (2) (2006) 1EA 5. It was his submission that where reasons are in the ruling or even where the reasons are not given, the party aggrieved need not wait or ask for reasons. He added that the party is under a duty to file a reference within the statutory period of 14 days. He submits that where a party delays in filing the same, it shall not use the request for reasons as an excuse to file a reference out of time.
The second issue was whether the Client made a case for extension of time within which to file the Reference. He cited the Court of Appeal case in Njoroge V Kimani [2022] KECA 1188 (KLR) and submits that ruling was delivered on 7th August, 2025 while the reference dated 8th October, 2025 was filed on 13th October, 2025, a delay of 52 days. He adds that the explanation offered in the submissions was that the Client was waiting for reasons. He relied on the case of National Bank of Kenya Ltd V Singh Gitau Advocates [2021] KEHC 4150 (KLR). He submits that the Client failed to explain the reason for the delay in filing the reference. He adds that the explanation was not in the Client’s affidavit but made in the submissions which do not substitute evidence. He relied on the case of Moi V Muriithi & another [2014] KECA 642 (KLR).
Counsel went on to submit that the court’s discretion to extend time to file reference ought to be exercised judiciously. He relied on the Supreme Court case in Fahim Yasin Twaha V Timamy Issa Abdalla & 2 Others [2015] eKLR. He submits that in the present case, there was absence of an explanation for the delay hence the court ought to decline the Clients prayer of extension.
The third issue was whether the court should review and set aside the taxation of items 1,2,3,4,7,8 and 37 of the Bill of Costs. He submits that the value of the subject matter was not contested in this case Kshs. 230,000,000 and therefore there was no error of principle in the assessment of costs. He relied on the case of First American Bank of Kenya Ltd V Gulab P. Shah & 2 Others [2002] KEHC 1277 (KLR) and Republic V Ministry of Agriculture & 2 Others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR. He submits that the Client contested that the taxation of the Bill of Costs dated 10th March, 2025 was on grounds of duplicity, alleged payment of fees and inflated fees. On duplicity of the Bill of Costs, he argues that there was no duplicity as the Bill of Costs in Nairobi HC COMM MSC E116 of 2025 had been served upon the Client who opposed it and was taxed on 30th June, 2025. He further submits that the suit in Nairobi arose from a debt recovery hence the two Bills arose from different subject matters. It was his submission that the taxing master in her ruling found no similarity in the two Bill of Costs.
On alleged payment of fees, he submits that there was no evidence that linked the payment of Kshs. 640, 350 to the present suit thus unrelated to the present matter. He argues that any part payment to the Advocate would not be a bar to the taxation or ground for reference but simply reduced from the judgment sum on execution.
On inflated fees on the disputed sums, he submits that taxation on items 1,2,3,4,7,8 and 37 did not demonstrate that there was an error in principal in taxation. He adds that if any party challenged the reduction it ought to be the Advocate. It was his submission that the Bill of Costs was justified and not excessive. He relied on the Court of Appeal case in Kipkorir, Tito & Kiara Advocates V Deposit Protection Fund Board [2005] eKLR and Thomas James Arthur V Nyeri Electricity Undertaking [1961] E.A 492.
On the final issue of costs, he submits that the Client ought to bear the costs of the reference.
ANALYSIS AND DETERMINATION
This court has considered the application, replying affidavits and submissions and the main issue for determination is whether the Applicant should be granted extension of time to enable it file a reference against the ruling of the Taxing Master.
Paragraph 11 of the Advocates Remuneration Order (ARO) on the filing of reference objecting to the decision of the Taxing Master provides that:-
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 which he objects.
2) The Taxing Officer shall forthwith record and forward to the objector the reasons or 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. [Emphasis mine]
3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (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) for 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 expired.”
In the case of Magdalena Alphonce Cheposowor V Cheposupko Lonyareng & 5 others [2021] KEELC 971 (KLR) the court held as follows:
“…it means that a reference is to be filed before the judge after the reasons for the taxation have been given. Before then, there is no reference that can lie to the judge.”
It is therefore trite law that a party can only challenge the Taxing Master’s decision after receiving of the reasons. In the preliminary, it is noteworthy that the Bill of Costs in the present matter and the alleged one in Milimani HC E 116/2025 are distinct in form and nature thus no duplication. It is not in contention that the Advocate’s Bill of Costs dated 10th March, 2025 was taxed vide the Taxing Master’s ruling delivered on 7th August, 2025. It is also not in contention that the Applicant being aggrieved by the ruling lodged an objection on 13th August, 2025 requesting for reasons. This was well within the statutory timeline of 14 days as provided above under the ARO. It is also a fact that vide a letter dated 25th September, 2025, the Taxing Master informed the Client/Applicant that the reasons for the decision were in the ruling.
The Client/Applicant claims that the said letter was sent to their email on 7th October, 2025 thus leading to filing of the present reference. The Advocate/Respondent on the other hand contends that the reasons having been in the ruling, it was not necessary for the Client/Applicant to wait for the reasons by the Taxing Master then claim that the delay was administrative.
Section 107 and 108 of the Evidence Act provides that: -
“107. Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. Incidence of burden
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
I have keenly perused the email dated 7th October, 2025 and it is my view that this court cannot conclusively find that the reasons for the ruling was delivered to the Applicant on the said day. I say so since from the annexed email extract, it contained an attached document titled “directions” which this court cannot establish that the same were reasons for the ruling. It is this court’s view that the Client/Applicant failed to prove to this court that in fact the reasons for the ruling were sent to it on 7th October, 2025 and not 25th September, 2025. It therefore my finding that there was no evidence that the reasons for the ruling was received by the Client/Applicant on 7th October, 2025. As a result, time started running from 25th September, 2025 and the Client/Applicant had until 9th October, 2025 to have filed the present reference. Notably, the Client/Applicant has before this court two similar reference applications dated 8th and 13th October, 2025. I have also taken the liberty to peruse the CTS and it is not in dispute that in as much as there were the two applications in the system, only one was paid, that is the application dated 13th October, 2025 as evidenced from the court invoice reference number RB-0306785.
In the circumstance, I find that the Client/Applicant has failed to provide plausible reasons to warrant this court’s discretion to extend time to allow it file a reference out of time. I therefore decline to grant the Client/Applicant leave to lodge the reference out of time.
Be that as it may, this court shall not proceed to handle the issue of setting aside the Taxing Master’s Ruling nor re-taxing and/or re-assessing the same since these can only be dealt with if there was a valid reference which is not the case herein. The upshot of the foregoing is that both applications lack merit and are thus dismissed with costs. Orders accordingly.
'
This ruling is in respect of two applications dated 8th and 13th October, 2025 which sought for the following orders:
1. THAT the Honourable Court be pleased to enlarge the time within which to file a Reference against the decision of the Taxing Master delivered on 7th August, 2025.
2. THAT the decision of the Taxing Master delivered on the 7th day of August, 2025 in so far as the same relates to the reasoning and determination pertaining to the taxation of Items No. 1, 2, 3, 4, 7, 8 and 37 of the Bill of Costs dated 10th day of March, 2025 be and is hereby set aside.
3. THAT the Honorable Court be pleased to refer the matter back for re-taxation of Items 1, 2, 3, 4, 7, 8 and 37 of the Bill of Costs and with proper directions thereof.
4. THAT in the alternative to prayer 3 the Honorable Court exercises its inherent jurisdiction and be pleased to re-asses the instruction fees due to the Advocate /Respondent in respect of Items 1, 2, 3, 4, 7, 8 and 37 of the said Bill of Costs and calculations flowing therefrom by reducing the amount payable by the Applicant under the Advocates (Remuneration) (Amendment) Order 2014 and/or make such other or further orders as regards the Bill of Costs in issue. Costs.
5. THAT the costs of this application be borne by the Advocate/Respondent.
The application was based on the grounds on its face and supported by the affidavit sworn by the Respondent’s legal officer.
He stated that the Ruling to the Bill of Costs filed in this matter was delivered by the Taxing Master on the 7th day of August 2025 and reasons issued on the 25th day of September, 2025. He further stated that a Notice of Taxation dated the 26th day of March, 2025 was served upon the Respondent with taxation scheduled on the 22nd day of May, 2025. He went on to state that the Advocate-Client Bill of Costs was excessive, unjustifiable and a clear abuse of the taxation process as it went against the double enrichment thus offending the relevant provisions of the Advocates Remuneration Order, 2014.
He stated that the Applicant had earlier lodged a Bill of Cost dated the 28th day of January, 2025 being HC COMM MISC No. E116 of 2025 Aldrin Ojiambo T/A Ojiambo & Co. Advocates vs Development Bank of Kenya Limited in the High Court of Kenya at Nairobi over the same subject matter that was yet to be determined. He also stated that the Applicant failed to disclose the existence of the earlier Bill of Costs and the fact that it was yet to be determined, amounting to non-disclosure and an abuse of the court process. He added that the Taxing Master erred in finding that the Bill of Costs dated the 10th day of March, 2025 did not have any similarity to an extent that it would be described as duplicitous. He urged the court to allow the reference as prayed.
RESPONSE
In response to the application, the Advocate/Respondent filed a replying affidavit sworn on 15th October, 2025 where he averred that the application was filed outside the statutory period. He denied that the reasons for taxation were provided on 25th September, 2025. He averred that the reasons had been included in the ruling and made available to the Client upon delivery of the award on 7th August, 2025. He averred that the Bill was proper and justified and denied that it amounted to double enrichment as alleged by the Client. He averred that his Bill of Costs in Milimani HCCOMM Misc. E116 of 2025 was heard and determined on 30th June, 2025 and could not be subject of this reference in Nakuru. He also averred that the ruling in E116 of 2025 was separate and distinct from the present taxation. He averred that the present taxation arose from their services rendered in Nakuru ELC 13 of 2018. He urged the court to dismiss the application with costs. He further filed a supplementary affidavit sworn on 22nd October, 2025 where he stated that the ruling annexed in his replying affidavit was a ruling delivered in this matter and not Nairobi.
SUBMISSIONS
Counsel for the Client filed his submissions dated 18th November, 2025 where he identified two issues for determination. The first issue was whether the Honourable court should enlarge time for filing of reference. He relied on Order 11 of the Advocates Remuneration Order and submits that the Applicant acted promptly and in full compliance with the Remuneration Order. He further submits that on the 13th day of August, 2025 just six days later the Client/Applicant formally filed a Notice of Objection and a request for reasons which was done expeditiously and within the stipulated statutory timelines. He added that the Taxing Master issued the reasons on the 25th day of September, 2025, and the same transmitted to the Applicant’s advocates via email on the 7th day of October, 2025. He further stated that the Client filed the present application on the 13th day of October, 2025, six days after receiving the reasons with no delay attributable to the Client/Applicant. He submits that the Applicant acted diligently and any delay resulted from administrative processes within the court system which should not be used to deny a party their constitutional and statutory right to be heard. He went on to submit that the reference raised substantial issues of duplicity, material non-disclosure, and inflated fees that warrant hearing. He submits that the delay was entirely attributable to the time taken by the Taxing Master to furnish reasons. He urged the court to exercise its discretion in favour of the Applicant and enlarge the time within which the Reference may be filed.
The second issue was whether the Taxing master erred in taxing the bill of costs. On instruction fees, he submits that the Advocate charged Kshs 6,000,000 as instruction fees on a dispute concerning properties valued at Kshs 230,000,000. He argues that the correct computation under Schedule 6 Part 1 (b) of the Advocates Remuneration Order yields an instruction fee of Kshs 3,650,000 thus the amount awarded was excessive and contrary to the scale. He further submits that the Taxing Master erred by accepting the inflated fee without applying the mandatory scale or giving reasons for departing from it.
On item 2, he submits that the Advocate charged for 18 folios, yet the plaint contained only 6 folios. He argues that the applicable rate was Kshs 50 per folio under Schedule 6 Part A (8) (a) thus the correct charge should therefore have been Kshs 300. He submits that the Taxing Master failed to reconcile the folio count against the actual pleadings, resulting in an erroneous and inflated award. On item 3 and 4, he submits that the taxing master failed to ascertain the correct folio count and also erred in principle by accepting an inflated folio count. On items 7 and 8, he submits that the Taxing Master allowed an overstated claim and erred by failing to identify the duplication and by permitting a clearly inflated and unsubstantiated claim. On item 37, counsel submits that under Schedule 6 Part A (2), getting-up fees are limited to one-third of the instruction fee. He argues that with a correct instruction fee of Kshs 3,650,000, the permissible getting-up fee should be Kshs 1,216,666.67 and not Kshs 2,000,000 as taxed. It was his submission that the Taxing Master therefore erred in principle by adopting a wrong instruction fee and consequently applying an erroneous computation for Item 37.
In conclusion, he urged that court to have the matter referred back for re-taxation in the interest of justice and fairness or in the alternative the Honourable Court exercises its inherent jurisdiction and re-asses the instruction fees due to the Advocate/Respondent in respect of Items 1, 2, 3, 4, 7, 8 and 37 of the said Bill of Costs.
Counsel for the Advocate/Respondent filed his submissions dated 25th November, 2025 where he identified five issues for determination. The first issue is whether the Client needed to apply for reasons or wait for the remainder that reasons were in the ruling. It was his submissions that the reasons for the taxation was in the impugned ruling and therefore there was no need to seek reasons. He submits that despite the reasons given, the Client failed to file the reference but instead wrote to the court requesting for reasons. He submits that the taxing officer then replied on 25th September, 2025 informing the client that reasons were in the ruling delivered. He cited the case of Evans Thiga Gaturu, Advocate V Kenya Commercial Bank Limited [2012] eKLR and Amednasir Abdikadir & Co. Advocates V National Bank of Kenya Ltd (2) (2006) 1EA 5. It was his submission that where reasons are in the ruling or even where the reasons are not given, the party aggrieved need not wait or ask for reasons. He added that the party is under a duty to file a reference within the statutory period of 14 days. He submits that where a party delays in filing the same, it shall not use the request for reasons as an excuse to file a reference out of time.
The second issue was whether the Client made a case for extension of time within which to file the Reference. He cited the Court of Appeal case in Njoroge V Kimani [2022] KECA 1188 (KLR) and submits that ruling was delivered on 7th August, 2025 while the reference dated 8th October, 2025 was filed on 13th October, 2025, a delay of 52 days. He adds that the explanation offered in the submissions was that the Client was waiting for reasons. He relied on the case of National Bank of Kenya Ltd V Singh Gitau Advocates [2021] KEHC 4150 (KLR). He submits that the Client failed to explain the reason for the delay in filing the reference. He adds that the explanation was not in the Client’s affidavit but made in the submissions which do not substitute evidence. He relied on the case of Moi V Muriithi & another [2014] KECA 642 (KLR).
Counsel went on to submit that the court’s discretion to extend time to file reference ought to be exercised judiciously. He relied on the Supreme Court case in Fahim Yasin Twaha V Timamy Issa Abdalla & 2 Others [2015] eKLR. He submits that in the present case, there was absence of an explanation for the delay hence the court ought to decline the Clients prayer of extension.
The third issue was whether the court should review and set aside the taxation of items 1,2,3,4,7,8 and 37 of the Bill of Costs. He submits that the value of the subject matter was not contested in this case Kshs. 230,000,000 and therefore there was no error of principle in the assessment of costs. He relied on the case of First American Bank of Kenya Ltd V Gulab P. Shah & 2 Others [2002] KEHC 1277 (KLR) and Republic V Ministry of Agriculture & 2 Others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR. He submits that the Client contested that the taxation of the Bill of Costs dated 10th March, 2025 was on grounds of duplicity, alleged payment of fees and inflated fees. On duplicity of the Bill of Costs, he argues that there was no duplicity as the Bill of Costs in Nairobi HC COMM MSC E116 of 2025 had been served upon the Client who opposed it and was taxed on 30th June, 2025. He further submits that the suit in Nairobi arose from a debt recovery hence the two Bills arose from different subject matters. It was his submission that the taxing master in her ruling found no similarity in the two Bill of Costs.
On alleged payment of fees, he submits that there was no evidence that linked the payment of Kshs. 640, 350 to the present suit thus unrelated to the present matter. He argues that any part payment to the Advocate would not be a bar to the taxation or ground for reference but simply reduced from the judgment sum on execution.
On inflated fees on the disputed sums, he submits that taxation on items 1,2,3,4,7,8 and 37 did not demonstrate that there was an error in principal in taxation. He adds that if any party challenged the reduction it ought to be the Advocate. It was his submission that the Bill of Costs was justified and not excessive. He relied on the Court of Appeal case in Kipkorir, Tito & Kiara Advocates V Deposit Protection Fund Board [2005] eKLR and Thomas James Arthur V Nyeri Electricity Undertaking [1961] E.A 492.
On the final issue of costs, he submits that the Client ought to bear the costs of the reference.
ANALYSIS AND DETERMINATION
This court has considered the application, replying affidavits and submissions and the main issue for determination is whether the Applicant should be granted extension of time to enable it file a reference against the ruling of the Taxing Master.
Paragraph 11 of the Advocates Remuneration Order (ARO) on the filing of reference objecting to the decision of the Taxing Master provides that:-
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 which he objects.
2) The Taxing Officer shall forthwith record and forward to the objector the reasons or 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. [Emphasis mine]
3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (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) for 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 expired.”
In the case of Magdalena Alphonce Cheposowor V Cheposupko Lonyareng & 5 others [2021] KEELC 971 (KLR) the court held as follows:
“…it means that a reference is to be filed before the judge after the reasons for the taxation have been given. Before then, there is no reference that can lie to the judge.”
It is therefore trite law that a party can only challenge the Taxing Master’s decision after receiving of the reasons. In the preliminary, it is noteworthy that the Bill of Costs in the present matter and the alleged one in Milimani HC E 116/2025 are distinct in form and nature thus no duplication. It is not in contention that the Advocate’s Bill of Costs dated 10th March, 2025 was taxed vide the Taxing Master’s ruling delivered on 7th August, 2025. It is also not in contention that the Applicant being aggrieved by the ruling lodged an objection on 13th August, 2025 requesting for reasons. This was well within the statutory timeline of 14 days as provided above under the ARO. It is also a fact that vide a letter dated 25th September, 2025, the Taxing Master informed the Client/Applicant that the reasons for the decision were in the ruling.
The Client/Applicant claims that the said letter was sent to their email on 7th October, 2025 thus leading to filing of the present reference. The Advocate/Respondent on the other hand contends that the reasons having been in the ruling, it was not necessary for the Client/Applicant to wait for the reasons by the Taxing Master then claim that the delay was administrative.
Section 107 and 108 of the Evidence Act provides that: -
“107. Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. Incidence of burden
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
I have keenly perused the email dated 7th October, 2025 and it is my view that this court cannot conclusively find that the reasons for the ruling was delivered to the Applicant on the said day. I say so since from the annexed email extract, it contained an attached document titled “directions” which this court cannot establish that the same were reasons for the ruling. It is this court’s view that the Client/Applicant failed to prove to this court that in fact the reasons for the ruling were sent to it on 7th October, 2025 and not 25th September, 2025. It therefore my finding that there was no evidence that the reasons for the ruling was received by the Client/Applicant on 7th October, 2025. As a result, time started running from 25th September, 2025 and the Client/Applicant had until 9th October, 2025 to have filed the present reference. Notably, the Client/Applicant has before this court two similar reference applications dated 8th and 13th October, 2025. I have also taken the liberty to peruse the CTS and it is not in dispute that in as much as there were the two applications in the system, only one was paid, that is the application dated 13th October, 2025 as evidenced from the court invoice reference number RB-0306785.
In the circumstance, I find that the Client/Applicant has failed to provide plausible reasons to warrant this court’s discretion to extend time to allow it file a reference out of time. I therefore decline to grant the Client/Applicant leave to lodge the reference out of time.
Be that as it may, this court shall not proceed to handle the issue of setting aside the Taxing Master’s Ruling nor re-taxing and/or re-assessing the same since these can only be dealt with if there was a valid reference which is not the case herein. The upshot of the foregoing is that both applications lack merit and are thus dismissed with costs. Orders accordingly.
'