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I. Introduction
1. The Honourable Court was called upon to make a determination unto the Chamber Summons Application dated 11th August, 2025. It was instituted by Anthony Gikaria T/A Anthony Gikaria & Co. Advocates, the Applicant herein. The application was brought under the provisions of Paragraph 11[2] of the Advocates Remuneration Order and all other enabling provisions of the law.
2. Upon service, the Respondent filed a Replying Affidavit dated 23rd September, 2025. The Honourable Court shall be dealing with the said replies indepth at a later stage of this Ruling whatsoever.
II. The Applicant’s Case
3. The Applicant sought the following orders:-
a. That the taxation ruling delivered by Hon R. K. Ogolla on 30th July, 2024 assessing the instructions fees in the amount of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950, 000/=) in respect of the Advocates & Client Bill of Costs dated 25th March, 2025 be set aside to the extent that the amounts assessed for
b. That the said instruction fees be substituted with a sum of Kenya Shillings One Million Four Hundred and Twenty Five Thousand (Kshs. 1, 425, 000.00/=) to include an additional 50% of the instruction fees in respect of the Advocate Client Bill provided for under Schedule 6 (B) of the Advocate Remuneration Order (ARO), 2014.
c. Costs of this application.
4. The Application was premised on the grounds, testimonial facts and the averments made out under the 7 Paragraphed supporting affidavit sworn by ANTHONY GIKARIA, together with annextures marked as “AGK” annexed thereto. He averred as follows that:-
a) He was the Advocate/Taxation Applicant herein well conversant with all the matters and hence competent and authorised to swear this application herein.
b) The Advocate Taxation Applicant lodged its Advocate & Client Bill of costs date the 25th March, 2025 in Court against the Client/Taxation Respondent for taxation herein.
c) On 30th July, 2025 the Taxing Officer, Hon. R. K Ogolla delivered her Ruling of the taxation assessing the instruction fees at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950, 000/=).
d) In so doing, the taxing Officer must have inadvertently omitted to increase the said sum by an additional 50% as provided for under Schedule 6B of the Advocates Remuneration Order, 2014.
e) The Advocate/Taxation Applicant being aggrieved and dissatisfied with the above erroneous decision by the taxing Officer joined issue with the taxation of instruction fees which was taxed at a figure that was manifestly low in the circumstances and was unsupported by principles of taxation and departed from the law.
f) Therefore, its prudent that for the ends of justice to be met the above error must be resolved so that the amount awarded as instruction fees could be complied with the relevant provision of the Advocates Remuneration Order.
III. The Replies by the Respondent
The Respondent filed a 10 Paragraphed Replying Affidavit sworn by NJERU KARUANA and dated 23rd September, 2025. She averred as follows that:-
a) She was the Group Advisor of the Respondent, SAMCHI TELECOMMUNICATIONS LIMITED, duly authorized and competent to swear this affidavit on its behalf.
b) She had read and understood the Chamber Summons and the Supporting Affidavit sworn by the Applicant, Mr. Anthony Gikaria, dated 11th August 2025, and respond thereto as follows.
c) The Applicant’s Bill of Costs dated 25th March 2025 did not plead or make provision for a fifty percent (50%) uplift on the instruction fees. It is trite that the Taxing Officer is confined to the items specifically prayed for in the Bill. In the case of “ First American Bank of Kenya – Versus - Shah & Others [2002] 1 EA 64”, the Court emphasized that the jurisdiction of the Taxing Officer is circumscribed by the items presented for taxation, and he or she cannot award what has not been claimed.
d) The fifty percent (50%) uplift contemplated under Schedule 6(B) of the Advocates Remuneration Order had consistently been applied in respect of Party-and-Party Bills of Costs for the purpose of computing Advocate/Client costs, and not as a stand-alone relief in an Advocate/Client Bill.
e) The Courts had made it clear that the instruction fee was an independent item to be assessed by the Taxing Officer, and was not subject to automatic enhancement in the context of an Advocate/Client Bill.
f) Further depone that the courts had recognized that the uplift was not automatic. In the case of:- Republic – Versus - Minister for Agriculture & 2 Others Ex - Parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR, the Court held that:- “the Taxing Officer is enjoined to exercise discretion judiciously, and that a party seeking an uplift must demonstrate a basis for such enhancement.
g) The Court had discretion which must be exercised within the framework of the Advocates Remuneration Order but remains dependent on the facts and circumstances of each case. In Kenya Airports Authority – Versus - Otieno Ragot & Company Advocates [2022] KECA 15 (KLR), the Court of Appeal underscored that the Taxing Officer retains discretion to determine what is a reasonable instruction fee, and that the fifty percent uplift is not mandatory.
h) The Taxing Officer in this matter acted within the confines of the law by declining to award an uplift that had neither been pleaded nor merited.
i) In addition, the present reference had been prematurely lodged, as the Applicant did not first seek the Taxing Officer’s reasons for the decision in accordance with Paragraph 11(2) of the Advocates Remuneration Order. That obtaining such reasons is prudent and enabled this Honourable Court to properly interrogate whether there was an error of principle. The court in the case of “Kipkorir, Titoo & Kiara Advocates – Versus - Deposit Protection Fund Board [2005] eKLR” stressed on the importance of requesting reasons to guide the Court in determining whether the Taxing Officer’s discretion was exercised on correct principles.
j) In light of the foregoing authorities and circumstances, I verily believe that the Applicant has failed to demonstrate any error of principle, illegality, or impropriety in the taxation to warrant the intervention of this Honourable Court.
k) The Applicant’s reference improperly invited this Honourable Court to re- exercise the discretion of the Taxing Officer. It was settled law that this Court would not interfere with the discretion of a Taxing Officer unless it is shown that the officer acted on a wrong principle, or that the award was manifestly excessive or unjust. This position was affirmed in the case of:- Premchand Raichand Ltd & Another - Versus - Quarry Services of East Africa Ltd & Another [1972] EA 162 and later followed in Kipkorir, Titoo & Kiara Advocates”.
IV. Submissions
5. On whether the Party and Party costs provided the basis upon which to ascertain the Advocate and Client costs, the Learned Counsel submitted that it must be appreciated that Schedule VI Part A and Schedule VI Part B of the Advocates Remuneration Order 2014, specifies in mandatory terms how instruction fees are to be determined for the Party and Party bill under Part A and for the Advocate & Client bill under Schedule VI Part B.
6. In the primary suit, the Party and Party Costs had already been ascertained and were never challenged. As was held in the case of “George Arunga Sino – Versus - Patrick J.O & Geoffrey and D.O. Yogo T/A Otieno Yogo & Co. Advocates [2012] eKLR” once there has been a determination in respect to instruction fees in a Party & Party bill under Schedule VI Part A, the minimum fee chargeable for instruction fees for an Advocate and Client bill is that fee increased by one-half.as provided for under Schedule VI Part B which was framed in mandatory terms.
7. Again, in the case of “Otieno Ragot & Co. Advocates – Versus - Kenya Airports Authority Civil Appeal No.39 of 2017” where the Court noted that Schedule VI Part B of the Advocates Remuneration Order 2014 makes it patently clear that instruction fees for Advocate and Client costs will be one-half of the party and party costs prescribed, or as ordered by a court or agreed upon by the parties. The Court further stated that Part B, being Advocate and Client costs cannot be ascertained independently unless and until Part A is determined, since the instruction fees in Part B was an arithmetical computation derived from the instruction fees in the Party and Party costs determined in Part A.
8. The Court according to the Learned Counsel in the above case further stated that unless set aside or altered, the Party and Party bill in respect of the same suit having already undergone the scrutiny of a Taxing Officer who had exercised discretion to arrive at a determination of the just Party and Party fees, and with it the instruction fees, the issue of the quantum of the advocates'''' instruction fees was effectively disposed of at that time. As such, that decision was final and binding on the concerned parties.
9. The court went further to state that once the instruction fee in the party and party costs are ascertained, they become the basis of the computation of the instruction fees in the Advocates and client bill. The instruction fees in the party and party bill is then increased by one-half to arrive at the instruction fees for the Advocate and client bill. No further exercise of discretion is required at this point. In light of the fact that Schedule VI Part B of the Advocates Remuneration Order provides a clear basis for computing instruction fees with respect to an Advocate and Client bill, and given that the instruction fees with respect to the Party and Party bill had already been ascertained, the Taxing Officer ought to have applied the award in accordance with the mandatory requirements of the Order and increased the instruction fees of by one-half.
10. The Learned Counsel relied on the case of “Central Bank of Kenya – Versus - Makhecha & Co. Advocates [2019] eKLR”, the Court of Appeal observed that:
“It seems to us quite clear that where the Party and party costs have been taxed and agreed, then, unless there be an agreement as to fees between the client and the advocate, the advocate is entitled, as of right, by dint of Schedule VI B of the Remuneration Order, to the party and party costs plus half of the same. It is a matter of arithmetic, requiring no exercise of discretion on the part of the taxing officer..........”.
11. Again, the mechanics of this formula were explained by H. Waweru, J in the case of “Kenya Tea Development Agency – Versus - J.M. Njenga & Co Advocates [2011] eKLR” when he expressed himself thus:
“....... the taxing master did not look at each item in the party and party bill in order to know what was properly due to the Respondent. Had he done so, he would have noted that the instruction fee awarded in the party and party bill of costs was Kshs.4,540,000/=. He would then have increased this sum by one - half in order to arrive at the correct award for instruction fee for the Respondent.”
12. The corollary to this is that the instruction fees of a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs.950,000/=) awarded to the Advocate ought to be set aside and the same be substituted with the amount of a sum of Kenya Shillings One Million Four Hundred and Twenty Five Thousand (Kshs.1,425,000/=) as the minimum fee chargeable, the same having been increased by an additional one-half. This was the appropriate quantum of instruction fees and was closely applied and captured by the fees raised in the Advocate & Client Bill of Costs and is arithmetically obvious.
13. The Learned Counsel submitted that in any event, the process of taxation as defined by the Black’s Law Dictionary, 6th Edition is:
“The process of fixing the amount of litigation-related expenses that a prevailing party is entitled to be awarded.”
14. In the case of:- “Philip Muchiri Mugo – Versus - Mbeu Kithakwa [2016] eKLR”, the court relied upon the general principles applicable in award of costs as enunciated in the Canadian case of “Reese – Versus - Alberta” when it stated as follows:
“While the discretion of costs of a lawsuit is always in the discretion of the court, the exercise of that discretion must be consistent with established principles and practice....,the costs recoverable are those fees fixed for the steps in the proceeding by a schedule of fees....plus, reasonable disbursements....”
15. In conclusion, the Learned Counsel submitted that in the circumstances, they believed that the Advocate had adduced and further demonstrated sufficient and compelling reasons for this Honourable Court to allow the reference dated 11th August, 2025 with costs.
A. The Written Submissions by the Respondent
16. While opposing the Advocate/Applicant’s reference dated 11th August 2025, the Respondent through the Law firm of Messers. Lewis & Company Advocates filed their written submissions dated 29th September, 2025. The Learned Counsel held that the Reference sought to set aside the Ruling of the learned Taxing Officer, Hon. R.K. Ogolla, delivered on 30th July 2025, by substituting the taxed instruction fee of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=) with a sum of Kenya Shillings One Million Four Hundred and Twenty Five Thousand (Kshs. 1,425,000/=), ostensibly by imposing a 50% uplift under Schedule VI Part B of the Advocates Remuneration Order (“ARO”).
17. It was the Respondent’s position that the Taxing Officer exercised their discretion soundly, committed no error of principle, and arrived at a fair and reasonable fee in the circumstances of the case. The Applicant’s Reference was therefore both procedurally incompetent and substantively misconceived.
18. The Learned Counsel, submitted under the following five (5) issues for the Court’s determination. Firstly, whether the Reference was competent in light of the mandatory requirements of Paragraph 11 of the Advocates Remuneration Order. The Learned Counsel submitted that the Reference was fatally incompetent for failure to comply with Paragraph 11 (2) of the ARO. The Rule provides that a party aggrieved by the taxation must first seek the reasons of the Taxing Officer before approaching a Judge. In the present case, the Ruling of 30th July 2025 did not specifically address the 50% uplift. The Applicant nevertheless filed the Reference without requesting reasons. To buttress on this point, the Counsel cited the Court of Appeal case of:- “Kipkorir, Titoo & Kiara Advocates (Supra)” stressed the importance of reasons:
“The importance of requiring reasons for taxation cannot be overemphasized. It is only through such reasons that the Judge is enabled to determine whether the taxing officer proceeded on correct principles of law or not.”
19. By failing to seek reasons, the Applicant deprived this Court of the necessary basis for determining whether discretion was exercised properly. The Reference was therefore premature and incompetent.
20. Secondly, whether the 50% uplift under Schedule VI Part B was an automatic entitlement or subject to the discretion of the Taxing Officer. The Learned Counsel averred that the Bill of Costs dated 25th March 2025 never contained any prayer for a 50% uplift. The Taxing Officer is bound by the pleadings and cannot award that which was never claimed. In the case of “First American Bank of Kenya (Supra)”, Ringera J (as he then was) affirmed this principle, holding that:-
“The jurisdiction of the taxing officer is circumscribed by the items presented for taxation. He cannot award what has not been claimed.”
21. The Applicant’s omission to plead the uplift is a fatal waiver. It cannot now, at the appellate stage of a reference, purport to introduce an entirely new claim. To allow this would be to ambush the Respondent and stretch the jurisdiction of this Court beyond what the law permits.
22. Thirdly, whether the Applicant’s failure to plead the 50% uplift in the Bill of Costs bars it from raising the issue on reference. The Learned Counsel contended that the Applicant asserts that the uplift is mandatory and arithmetical. With respect, this is a misreading of Schedule VI Part B. The provision must be read together with Rule 16 of the ARO, which vests wide discretion in the Taxing Officer. The High Court in the case of:- “Republic – Versus - Minister for Agriculture & 2 Others Ex - Parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR explained:
“The taxing officer is enjoined to exercise discretion judiciously, and a party seeking an uplift must demonstrate a basis for such enhancement. The uplift is not to be assumed as a matter of course.”
23. The Court of Appeal echoed this in the case of “Kenya Airports Authority – Versus - Otieno Ragot & Co. Advocates [2022] KECA 15 (KLR)” when it held:
“Schedule VI Part B does not impose a mandatory increment. The taxing officer retains discretion to determine what is a reasonable instruction fee in the circumstances of each case.”
24. It therefore follows that the 50% uplift was not a mechanical right but a matter subject to judicial discretion under Rule 16 of the Advocate’s Renumeration Order.
25. Fourthly, whether the Taxing Officer exercised her discretion properly in taxing the Bill at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=). The Learned Counsel asserted that the governing principle was that a Judge would not interfere with the Taxing Officer’s discretion unless it was shown that the Officer acted on a wrong principle or the award was manifestly excessive. In the leading case of “Premchand Raichand Limited & Another (Supra) Court held:-
“A Court will not interfere with the taxing officer’s decision unless it is shown that either the officer erred in principle in assessing the costs or that the costs awarded are so manifestly excessive as to justify such interference.”
26. This was affirmed in the case of:- “Kipkorir, Titoo & Kiara Advocates (Supra)”, where the Court of Appeal cautioned against interference merely because a Judge would have reached a different figure. Here, the Taxing Officer considered the nature of the matter, evaluated the pleadings and work done, and arrived at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=) as fair and reasonable. No error of principle or manifest excess had been demonstrated.
27. Finally, whether the Applicant had demonstrated any error of principle or manifest excess to warrant this Court’s interference. The Respondent posited that the law is well settled that a Judge would not interfere with the Taxing Officer’s exercise of discretion unless the Applicant demonstrates that the Taxing Officer acted on a wrong principle of law or the award was so manifestly excessive or unjust as to amount to an error of principle. This principle was affirmed in the case of:- “Premchand Raichand Ltd (Supra) and consistently followed in subsequent jurisprudence.
28. The Applicant relied on the cases of:- “George Arunga Sino – Versus - Patrick J.O. & Geoffrey D.O. Yogo T/A Otieno Yogo & Co. Advocates [2012] eKLR and Central Bank of Kenya – Versus - Makhecha & Co. Advocates [2019] eKLR” to argue that the uplift was a matter of arithmetic. Those cases, however, involved scenarios where the uplift had been expressly pleaded and formed part of the prayers in the respective Bills of Costs. The Courts were therefore dealing with an uplift that had a clear legal and factual foundation, and the exercise that followed was indeed arithmetic applying a percentage to an ascertained figure.
29. In the present case, the Applicant never specifically plead for an uplift, in their Advocate-Client Bill of cost. The Taxing Officer was therefore correct in proceeding on the basis of the Bill as drawn. To allow the Applicant to rely on authorities where uplift had been expressly prayed for was to stretch those precedents beyond their ratio. The Applicant could not benefit from a relief that was never sought in the first place.
30. Importantly, failure to specifically plead uplift was not a mere technicality. An uplift, by its very nature, was discretionary and must be both pleaded and justified before it could be awarded. It could not be presumed or implied into a Bill of Costs. The omission therefore extinguished any basis upon which the Taxing Officer could have considered or granted it.
31. It follows that the Applicant had not shown that the Taxing Officer misapplied the Advocates Remuneration Order, disregarded relevant considerations, or acted in a manner that was manifestly excessive. The Applicant’s entire grievance was premised on an alleged entitlement to uplift which was never pleaded, and thus never available for consideration.
32. In these circumstances, there was no error of principle or manifest excess demonstrated. The threshold for this Court’s interference had not been met, and the Respondent’s respectfully submit that the reference should be dismissed with costs.
33. In summary, the Respondent submitted that the Reference was procedurally incompetent, having been filed without seeking reasons from the Taxing Officer. Additionally, the 50% uplift was not pleaded in the Bill of Costs and could not be introduced on reference and uplift was not automatic, but a discretionary matter for the Taxing Officer. Lastly the Taxing Officer exercised her discretion properly in taxing the Bill at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=).
34. Conclusively, the Respondent held that the Applicant had failed to demonstrate any error of principle or manifest injustice to justify interference. On that premise the Advocate/Applicant’s Reference dated 11th August 2025 be dismissed with costs to the Respondent.
V. Analysis and Determination
35. I have considered the pleadings on record, the court record, and the relevant provisions of law relied upon in drafting the chamber summons application and the trial Court records, in order to arrive at an informed, fair and just decision on the matter, the Honourable Court has framed the following three (3) issues for determination;
a) Whether the Applicant has met the threshold for setting aside of the Taxing Master’s ruling delivered on 30th July, 2025.
b) Whether the court should independently assess the instruction fees and getting up fees.
c) Who meets the costs of this Application/ Reference?
ISSUE No. a). Whether the ruling delivered on 30th July, 2025, by Taxing Master should be set aside
36. Under this sub – title I proceed to examine whether the Applicant has met the threshold for setting aside of the Taxing Master’s ruling delivered on 30th July, 2025. It is settled law that any grievance emanating from a Ruling on Taxation can only be ventilated through Paragraph 11 of the Advocates Remuneration Order. The law further is settled that a Judge will not ordinarily interfere with the discretion of a Taxing Officer unless it is demonstrated that the Taxing Officer acted on a wrong principle of law, misapprehended the applicable schedule, or arrived at an award that is manifestly excessive or so low as to amount to an injustice. This principle was articulated in “First American Bank of Kenya Limited – Versus - Shah & Others [supra]”, where Ringera J. (as he then was) held that interference is only warranted where the decision is based on an error of principle or the award is manifestly wrong. In “Machira & Co. Advocates – Versus - Magugu [2002]2 E.A”, Ringera J (as he then was) held as follows:-
“As I understand the practice relating to Taxation of Bills of Costs, any complaint about any decision of the Taxing officer whether it relates to a point of law taken with regard to Taxation or to a grievance about the Taxation of any item in the Bill of Costs is ventilated by way of a Reference to a Judge in accordance with paragraph 11 of the Advocates Remuneration Order.”
37. Similarly, in the case of:- “Gacau Kariuki & Co. Advocates – Versus - Allan Mbugua Ng’ang’a [2012] eKLR” it was held thus: -
“I am also of the same school of thought as the Learned Judges’ as expressed above. A reference is not an appeal although it may be in the nature of one. In a reference, the court is more concerned with whether or not the taxing master has misdirected himself on a matter of principle. If the same is found to have been the case the usual course is to remit the matter back to the taxing master with the necessary directions. The decision whether or not to proceed with taxation is an exercise of discretion and if he proceeds ex parte in circumstances in which he should not have so proceeded, in my view, that would amount to an error of principle and the Judge may remit the matter back with directions that the bill be re-tax in the presence of the parties. It is therefore my view, and I so hold, that the only recourse available to the client herein was to come by way of a reference.” [emphasis added]
38. The provision of Paragraph 11 of the Advocates Remuneration Order provides for the procedure an aggrieved party must follow in challenging taxation or assessment of costs. It provides that:
“11 (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) 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 already expired.”
39. The procedure contemplated above is that:
a. The aggrieved party issues a notice within 14 days on the items objected
b. The Taxing Officer shall forthwith give reasons for his decision
c. Upon receipt of the reason, the objector shall within 14 days’ file an application to the High Court setting out grounds for objection
d. If dissatisfied with the High Court, the objector shall with leave of court appeal to the Court of Appeal.
40. It is clear from the above provision that the only avenue available to a party who wishes to object to a decision following a Taxation would be to approach the Court under Paragraph 11 of the Advocates Remuneration Order. The Applicant is seeking an order that the ruling delivered on 30th July, 2025.
41. The principles of setting aside the decisions of the Taxing Master were well established in the cases of “Premchand Raichand Limited (Supra), “First American Bank of Kenya (Supra)” and “Joreth Limited – Versus - Kigano and Associates (2002) 1 EA 92”.
42. The Principles discussed in the authorities above included:-
i. That there was an error of principle
ii. The fee awarded was manifestly excessive or is so high as to confine access to the court to the wealthy
iii. The successful litigant ought to be fairly reimbursed for the costs he has incurred
iv. That so far as practicable there should be consistency in the award.
43. Further in the case of:- “Republic – Versus - Ministry of Agriculture & 20 Others Ex-Parte Muchiri W’ Njuguna [2006] eKLR”, Ojwang J. (Retired) stated as follows:-
“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 inference that it was based on an error of principle.”
44. In the South African Case of:- “Visser – Versus - Gubb 1981 (3) SA 753 (C) 754H – 755C”; The court stated as follows:
“The court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised 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.”
45. In the present case, the Applicant contends that the Taxing Officer erred by awarding instruction fees of a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) without applying the mandatory formula under Schedule VI Part B of the Advocates Remuneration Order, which requires that Advocate–Client instruction fees be computed as the Party and Party instruction fees increased by one-half. It is not in dispute that the Party and Party instruction fees in the primary suit had been taxed and ascertained at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-). By operation of Schedule VI Part B, the Advocate was entitled to a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) plus one-half of the instruction fees thereof, amounting to Kenya Shillings One Million Four Hundred and Twenty Five Thousand (Kshs. 1,425,000/-) as pleaded for in the Chamber Summons application. Thus, the Taxing Officer’s award of a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) rather too low so to speak devoid of additional 50% as provided for under Schedule 6B of the Advocates Remuneration Order, 2014.
46. The next question for consideration is whether sufficient grounds have been laid out to warrant the setting aside of the decision of the Taxing Officer. There are two aspects to this Reference namely, whether the Applicant wrote to the Taxing Master asking for reasons for taxation on specific items that the Applicant was opposed to, as required by Paragraph 11 of the Advocates Remuneration Order. I dare set it aside to examine the item the Applicant is therefore allowed.
ISSUE No. b). Whether the court should independently assess the instruction fees
47. Under this sub – title, the Honourable Court shall examine whether the now objected items were properly assessed and awarded to the Applicant. Under the provision of Paragraph 11 of the Advocates Remuneration Order:
“11(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.…”
48. From the affidavit in support of the application, the Applicant indicates that the reasons for the ruling by the Taxing Officer were given pursuant to the provisions of Order 50 of the Civil Procedure Rules, 2010. However, the Applicant still faulted the Taxing Officer’s reasoning and how she assessed the instructions fees and getting up fees. The question therefore is whether the Taxing Officer erred in taxation of the instructions fees as alleged.
49. Although the Courts respects the position that it would not interfere with the Taxing Master’s discretion in taxing bills but in this case the Court will apply its discretion to consider the amount on instruction fees awarded being on the lower side. In the case of:- “Rachier & Amollo Advocates LLP – Versus - National Hospital Insurance Fund Board of Management [2019] eKLR”, that:
“The principle to be applied when assessing instruction fee in a suit are well settled. The Court of Appeal in the case of Joreth Ltd – Versus - Kigano & Associates [2002] eKLR outlined the principle as follows:
“We would at this stage point out that the value of the subject matter of a suit for the purpose of taxation of a bill of costs ought to be determined from the pleadings, Judgment or settlement (if such be the case) but if the same is not ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among 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”
50. Similarly, in the matter of:-“Kanu National Elections Board & 2 others – Versus - Salah Yakub Farah [2018] eKLR”, it was held that:
“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.”
51. Based on the above cited cases and the principles governing review/setting aside of rulings on taxation, I find that the rationale behind the principle is to apply discretion of the Court where extremely necessary as it is in the instant case.. The advocate disputes the amount the taxing master based her decision as the value of the subject matter for the purpose of calculating instruction fees. I concur fully.
52. In the decision of the Taxing Master, she opined as follows on the issue of Instruction fees: -
Noting the party to party ruling I delivered on 8th May, 2024 in respect to the taxation in being Kwale ELC Case No. 4 of 2021 Socaf & Co. Limited – Versus – John Maina Njoroge and 6 Others which is the main suit in this matter, I make a similar finding that based on the pleading therein, it is stated that the 2nd Respondent obtained a loan from the 3rd Respondent of Kshs 50,000,000 against a charge over the suit property which is valued at Kshs 49,000,000/=. Thus, according to the ARO the instruction fees for the High Court as per Schedule 6 in the matter is assessed at Kshs. 950,000/=.”
53. The approach in determining the value of the subject matter for purposes of determining instruction fees was clearly outlined by the Court of Appeal in the case of “Peter Muthoka & another – Versus - Ochieng & 3 others [2019] eKLR”, thus: -
“It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgement, it is the pleadings that form the basis for determining subject value. Once judgement has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgement does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court.”
54. The approach to be adopted in taxing instruction fees lies in the principles in the case of “Jorerth Ltd – Versus - Kigano Advocates (Supra)” where the court held inter alia that: -
“The instructions fee is an independent and static item it is charged once only and it is not affected or determined by the stage the suit has reached.”
g) In the present case, the Taxing Master the Taxing Master awarded a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) having taxed off the same from the amount of Kenya Shillings Four Sixty Thousand (Kshs 460,000/-). The taxing master in her reasons for granting the said amount stated that the same was because in the party to party costs she had awarded a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) which in my opinion was erroneous as provided for under Schedule 6B of the Advocates Remuneration Order, 2014.
55. Principles for Taxation are well settled. In assessing instruction fees, the Taxing Officer ought to consider the value of the subject matter as the basis of her award for instruction fees. The value of the subject matter may be ascertained from the Pleadings, Judgment or Settlement by the parties. Where the material before the Taxing Officer is not sufficient to show the value of the subject matter, the Taxing Officer will then apply his or her discretion in arriving at the instruction fees. Where the value of the subject matter is unascertainable, the Taxing Officer should use his or her discretion to assess instruction fees. In this regard, the discretion of the Taxing Officer ought to be exercised judiciously by considering among other matters, the nature and importance of the suit, parties’ interest and other relevant matters.
56. In the case of “Joreth Limited – Versus - Kigano & Associates (Supra)”, the court held as follows: -
“We would at this stage point out that the value of the subject matter of a suit for the purposes of Taxation of a Bill of Costs ought to be determined from the Pleadings, Judgment 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 the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances.”
57. Taxation of Costs is within the competence and judicial discretion of the Taxing Officer and therefore this court will not ordinarily or lightly interfere with the exercise of that discretion unless it is demonstrated clearly that the Taxing Officer erred in principle and failed to properly exercise his or her discretion. I have already stated my reasoning as far as the instant case is concerned. In the case of “Kamunyori & Company Advocates – Versus - Development Bank of Kenya Limited (2015) eKLR”, the court held as follows: -
“Failure to ascertain the correct subject matter in a suit for the purpose of Taxation is an error of principle. So too, failure to ascribe the correct value to the subject matter is an error of principle. Authorities on Taxation show that a Judge will normally not interfere with the Taxing Officer’s decision on Taxation unless it is based on an error of principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of principle can be inferred. If instruction fee is arrived at on the wrong principles, it will be set aside.”
58. In the present case, the Party and Party instruction fees had already been taxed and ascertained at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=). Schedule VI Part B of the Advocates Remuneration Order requires, in mandatory terms, that Advocate–Client instruction fees be computed as the Party and Party instruction fees increased by one-half. The computation is therefore a matter of arithmetic, not discretion. The Taxing Officer’s award of a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) ignored this statutory requirement and amounted to an error of principle. I will proceed to be guided by Para 1(b)(ii) of Schedule 6 of the 2014 Advocates Remuneration Orders.
59. I find that the computation by the Taxing Master was erroneous and therefore the need to set aside her ruling and reference her findings on the instruction’s fees. Having regard to the contents of the impugned ruling and the reasons advanced by the Taxing Master, I find that the Taxing Master to have adopted the wrong principles in coming up with the amount due to the Applicant herein but awarded the Applicant what she thought was just only that it was slightly on the higher side which I discretely find was an error.
60. Consequently, for the reasons and computation above done by this Court I find basis of the grounds upon which the Reference herein partially with some merited, and proceed to set aside the ruling by Hon. R. K. Ogolla. I find the Chamber summons Application dated 11th August, 2025 merited and allowed but with no orders as to costs.
ISSUE No C. Who meets the costs of this Application/ Reference?
61. It is now well established that issue of costs is a discretion of the Court. Costs mean the award that a party is granted at the conclusion of any legal action or proceedings in any litigation. The Proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 holds that costs follow the event. By the event it means the result or outcome of the legal action.
62. In the instant case, in the given circumstances, the Honourable Court feels it fair and reasonable that each arty bears their own costs.
VI. Conclusion and Disposition
63. Ultimately in view of the foregoing detailed and expansive analysis to the application, the Court arrives at the following decision and make below orders: -
a). THAT the Chamber Summons application dated 11th August, 2025 be and is hereby found to have merit and thus entirely allowed.
b). THAT there shall be no orders as to costs.
IT IS SO ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS …….13TH …………DAY OF ………NOVEMBER………………..……..2025.
Ruling delivered in the presence of:
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Gakiria Advocate for the Advocate Taxation/Applicant.
c) M/s. Njeru Advocate for the Client/Respondent.
'' '1. The Honourable Court was called upon to make a determination unto the Chamber Summons Application dated 11th August, 2025. It was instituted by Anthony Gikaria T/A Anthony Gikaria & Co. Advocates, the Applicant herein. The application was brought under the provisions of Paragraph 11[2] of the Advocates Remuneration Order and all other enabling provisions of the law.
2. Upon service, the Respondent filed a Replying Affidavit dated 23rd September, 2025. The Honourable Court shall be dealing with the said replies indepth at a later stage of this Ruling whatsoever.
II. The Applicant’s Case
3. The Applicant sought the following orders:-
a. That the taxation ruling delivered by Hon R. K. Ogolla on 30th July, 2024 assessing the instructions fees in the amount of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950, 000/=) in respect of the Advocates & Client Bill of Costs dated 25th March, 2025 be set aside to the extent that the amounts assessed for
b. That the said instruction fees be substituted with a sum of Kenya Shillings One Million Four Hundred and Twenty Five Thousand (Kshs. 1, 425, 000.00/=) to include an additional 50% of the instruction fees in respect of the Advocate Client Bill provided for under Schedule 6 (B) of the Advocate Remuneration Order (ARO), 2014.
c. Costs of this application.
4. The Application was premised on the grounds, testimonial facts and the averments made out under the 7 Paragraphed supporting affidavit sworn by ANTHONY GIKARIA, together with annextures marked as “AGK” annexed thereto. He averred as follows that:-
a) He was the Advocate/Taxation Applicant herein well conversant with all the matters and hence competent and authorised to swear this application herein.
b) The Advocate Taxation Applicant lodged its Advocate & Client Bill of costs date the 25th March, 2025 in Court against the Client/Taxation Respondent for taxation herein.
c) On 30th July, 2025 the Taxing Officer, Hon. R. K Ogolla delivered her Ruling of the taxation assessing the instruction fees at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950, 000/=).
d) In so doing, the taxing Officer must have inadvertently omitted to increase the said sum by an additional 50% as provided for under Schedule 6B of the Advocates Remuneration Order, 2014.
e) The Advocate/Taxation Applicant being aggrieved and dissatisfied with the above erroneous decision by the taxing Officer joined issue with the taxation of instruction fees which was taxed at a figure that was manifestly low in the circumstances and was unsupported by principles of taxation and departed from the law.
f) Therefore, its prudent that for the ends of justice to be met the above error must be resolved so that the amount awarded as instruction fees could be complied with the relevant provision of the Advocates Remuneration Order.
III. The Replies by the Respondent
The Respondent filed a 10 Paragraphed Replying Affidavit sworn by NJERU KARUANA and dated 23rd September, 2025. She averred as follows that:-
a) She was the Group Advisor of the Respondent, SAMCHI TELECOMMUNICATIONS LIMITED, duly authorized and competent to swear this affidavit on its behalf.
b) She had read and understood the Chamber Summons and the Supporting Affidavit sworn by the Applicant, Mr. Anthony Gikaria, dated 11th August 2025, and respond thereto as follows.
c) The Applicant’s Bill of Costs dated 25th March 2025 did not plead or make provision for a fifty percent (50%) uplift on the instruction fees. It is trite that the Taxing Officer is confined to the items specifically prayed for in the Bill. In the case of “ First American Bank of Kenya – Versus - Shah & Others [2002] 1 EA 64”, the Court emphasized that the jurisdiction of the Taxing Officer is circumscribed by the items presented for taxation, and he or she cannot award what has not been claimed.
d) The fifty percent (50%) uplift contemplated under Schedule 6(B) of the Advocates Remuneration Order had consistently been applied in respect of Party-and-Party Bills of Costs for the purpose of computing Advocate/Client costs, and not as a stand-alone relief in an Advocate/Client Bill.
e) The Courts had made it clear that the instruction fee was an independent item to be assessed by the Taxing Officer, and was not subject to automatic enhancement in the context of an Advocate/Client Bill.
f) Further depone that the courts had recognized that the uplift was not automatic. In the case of:- Republic – Versus - Minister for Agriculture & 2 Others Ex - Parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR, the Court held that:- “the Taxing Officer is enjoined to exercise discretion judiciously, and that a party seeking an uplift must demonstrate a basis for such enhancement.
g) The Court had discretion which must be exercised within the framework of the Advocates Remuneration Order but remains dependent on the facts and circumstances of each case. In Kenya Airports Authority – Versus - Otieno Ragot & Company Advocates [2022] KECA 15 (KLR), the Court of Appeal underscored that the Taxing Officer retains discretion to determine what is a reasonable instruction fee, and that the fifty percent uplift is not mandatory.
h) The Taxing Officer in this matter acted within the confines of the law by declining to award an uplift that had neither been pleaded nor merited.
i) In addition, the present reference had been prematurely lodged, as the Applicant did not first seek the Taxing Officer’s reasons for the decision in accordance with Paragraph 11(2) of the Advocates Remuneration Order. That obtaining such reasons is prudent and enabled this Honourable Court to properly interrogate whether there was an error of principle. The court in the case of “Kipkorir, Titoo & Kiara Advocates – Versus - Deposit Protection Fund Board [2005] eKLR” stressed on the importance of requesting reasons to guide the Court in determining whether the Taxing Officer’s discretion was exercised on correct principles.
j) In light of the foregoing authorities and circumstances, I verily believe that the Applicant has failed to demonstrate any error of principle, illegality, or impropriety in the taxation to warrant the intervention of this Honourable Court.
k) The Applicant’s reference improperly invited this Honourable Court to re- exercise the discretion of the Taxing Officer. It was settled law that this Court would not interfere with the discretion of a Taxing Officer unless it is shown that the officer acted on a wrong principle, or that the award was manifestly excessive or unjust. This position was affirmed in the case of:- Premchand Raichand Ltd & Another - Versus - Quarry Services of East Africa Ltd & Another [1972] EA 162 and later followed in Kipkorir, Titoo & Kiara Advocates”.
IV. Submissions
5. On whether the Party and Party costs provided the basis upon which to ascertain the Advocate and Client costs, the Learned Counsel submitted that it must be appreciated that Schedule VI Part A and Schedule VI Part B of the Advocates Remuneration Order 2014, specifies in mandatory terms how instruction fees are to be determined for the Party and Party bill under Part A and for the Advocate & Client bill under Schedule VI Part B.
6. In the primary suit, the Party and Party Costs had already been ascertained and were never challenged. As was held in the case of “George Arunga Sino – Versus - Patrick J.O & Geoffrey and D.O. Yogo T/A Otieno Yogo & Co. Advocates [2012] eKLR” once there has been a determination in respect to instruction fees in a Party & Party bill under Schedule VI Part A, the minimum fee chargeable for instruction fees for an Advocate and Client bill is that fee increased by one-half.as provided for under Schedule VI Part B which was framed in mandatory terms.
7. Again, in the case of “Otieno Ragot & Co. Advocates – Versus - Kenya Airports Authority Civil Appeal No.39 of 2017” where the Court noted that Schedule VI Part B of the Advocates Remuneration Order 2014 makes it patently clear that instruction fees for Advocate and Client costs will be one-half of the party and party costs prescribed, or as ordered by a court or agreed upon by the parties. The Court further stated that Part B, being Advocate and Client costs cannot be ascertained independently unless and until Part A is determined, since the instruction fees in Part B was an arithmetical computation derived from the instruction fees in the Party and Party costs determined in Part A.
8. The Court according to the Learned Counsel in the above case further stated that unless set aside or altered, the Party and Party bill in respect of the same suit having already undergone the scrutiny of a Taxing Officer who had exercised discretion to arrive at a determination of the just Party and Party fees, and with it the instruction fees, the issue of the quantum of the advocates'''' instruction fees was effectively disposed of at that time. As such, that decision was final and binding on the concerned parties.
9. The court went further to state that once the instruction fee in the party and party costs are ascertained, they become the basis of the computation of the instruction fees in the Advocates and client bill. The instruction fees in the party and party bill is then increased by one-half to arrive at the instruction fees for the Advocate and client bill. No further exercise of discretion is required at this point. In light of the fact that Schedule VI Part B of the Advocates Remuneration Order provides a clear basis for computing instruction fees with respect to an Advocate and Client bill, and given that the instruction fees with respect to the Party and Party bill had already been ascertained, the Taxing Officer ought to have applied the award in accordance with the mandatory requirements of the Order and increased the instruction fees of by one-half.
10. The Learned Counsel relied on the case of “Central Bank of Kenya – Versus - Makhecha & Co. Advocates [2019] eKLR”, the Court of Appeal observed that:
“It seems to us quite clear that where the Party and party costs have been taxed and agreed, then, unless there be an agreement as to fees between the client and the advocate, the advocate is entitled, as of right, by dint of Schedule VI B of the Remuneration Order, to the party and party costs plus half of the same. It is a matter of arithmetic, requiring no exercise of discretion on the part of the taxing officer..........”.
11. Again, the mechanics of this formula were explained by H. Waweru, J in the case of “Kenya Tea Development Agency – Versus - J.M. Njenga & Co Advocates [2011] eKLR” when he expressed himself thus:
“....... the taxing master did not look at each item in the party and party bill in order to know what was properly due to the Respondent. Had he done so, he would have noted that the instruction fee awarded in the party and party bill of costs was Kshs.4,540,000/=. He would then have increased this sum by one - half in order to arrive at the correct award for instruction fee for the Respondent.”
12. The corollary to this is that the instruction fees of a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs.950,000/=) awarded to the Advocate ought to be set aside and the same be substituted with the amount of a sum of Kenya Shillings One Million Four Hundred and Twenty Five Thousand (Kshs.1,425,000/=) as the minimum fee chargeable, the same having been increased by an additional one-half. This was the appropriate quantum of instruction fees and was closely applied and captured by the fees raised in the Advocate & Client Bill of Costs and is arithmetically obvious.
13. The Learned Counsel submitted that in any event, the process of taxation as defined by the Black’s Law Dictionary, 6th Edition is:
“The process of fixing the amount of litigation-related expenses that a prevailing party is entitled to be awarded.”
14. In the case of:- “Philip Muchiri Mugo – Versus - Mbeu Kithakwa [2016] eKLR”, the court relied upon the general principles applicable in award of costs as enunciated in the Canadian case of “Reese – Versus - Alberta” when it stated as follows:
“While the discretion of costs of a lawsuit is always in the discretion of the court, the exercise of that discretion must be consistent with established principles and practice....,the costs recoverable are those fees fixed for the steps in the proceeding by a schedule of fees....plus, reasonable disbursements....”
15. In conclusion, the Learned Counsel submitted that in the circumstances, they believed that the Advocate had adduced and further demonstrated sufficient and compelling reasons for this Honourable Court to allow the reference dated 11th August, 2025 with costs.
A. The Written Submissions by the Respondent
16. While opposing the Advocate/Applicant’s reference dated 11th August 2025, the Respondent through the Law firm of Messers. Lewis & Company Advocates filed their written submissions dated 29th September, 2025. The Learned Counsel held that the Reference sought to set aside the Ruling of the learned Taxing Officer, Hon. R.K. Ogolla, delivered on 30th July 2025, by substituting the taxed instruction fee of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=) with a sum of Kenya Shillings One Million Four Hundred and Twenty Five Thousand (Kshs. 1,425,000/=), ostensibly by imposing a 50% uplift under Schedule VI Part B of the Advocates Remuneration Order (“ARO”).
17. It was the Respondent’s position that the Taxing Officer exercised their discretion soundly, committed no error of principle, and arrived at a fair and reasonable fee in the circumstances of the case. The Applicant’s Reference was therefore both procedurally incompetent and substantively misconceived.
18. The Learned Counsel, submitted under the following five (5) issues for the Court’s determination. Firstly, whether the Reference was competent in light of the mandatory requirements of Paragraph 11 of the Advocates Remuneration Order. The Learned Counsel submitted that the Reference was fatally incompetent for failure to comply with Paragraph 11 (2) of the ARO. The Rule provides that a party aggrieved by the taxation must first seek the reasons of the Taxing Officer before approaching a Judge. In the present case, the Ruling of 30th July 2025 did not specifically address the 50% uplift. The Applicant nevertheless filed the Reference without requesting reasons. To buttress on this point, the Counsel cited the Court of Appeal case of:- “Kipkorir, Titoo & Kiara Advocates (Supra)” stressed the importance of reasons:
“The importance of requiring reasons for taxation cannot be overemphasized. It is only through such reasons that the Judge is enabled to determine whether the taxing officer proceeded on correct principles of law or not.”
19. By failing to seek reasons, the Applicant deprived this Court of the necessary basis for determining whether discretion was exercised properly. The Reference was therefore premature and incompetent.
20. Secondly, whether the 50% uplift under Schedule VI Part B was an automatic entitlement or subject to the discretion of the Taxing Officer. The Learned Counsel averred that the Bill of Costs dated 25th March 2025 never contained any prayer for a 50% uplift. The Taxing Officer is bound by the pleadings and cannot award that which was never claimed. In the case of “First American Bank of Kenya (Supra)”, Ringera J (as he then was) affirmed this principle, holding that:-
“The jurisdiction of the taxing officer is circumscribed by the items presented for taxation. He cannot award what has not been claimed.”
21. The Applicant’s omission to plead the uplift is a fatal waiver. It cannot now, at the appellate stage of a reference, purport to introduce an entirely new claim. To allow this would be to ambush the Respondent and stretch the jurisdiction of this Court beyond what the law permits.
22. Thirdly, whether the Applicant’s failure to plead the 50% uplift in the Bill of Costs bars it from raising the issue on reference. The Learned Counsel contended that the Applicant asserts that the uplift is mandatory and arithmetical. With respect, this is a misreading of Schedule VI Part B. The provision must be read together with Rule 16 of the ARO, which vests wide discretion in the Taxing Officer. The High Court in the case of:- “Republic – Versus - Minister for Agriculture & 2 Others Ex - Parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR explained:
“The taxing officer is enjoined to exercise discretion judiciously, and a party seeking an uplift must demonstrate a basis for such enhancement. The uplift is not to be assumed as a matter of course.”
23. The Court of Appeal echoed this in the case of “Kenya Airports Authority – Versus - Otieno Ragot & Co. Advocates [2022] KECA 15 (KLR)” when it held:
“Schedule VI Part B does not impose a mandatory increment. The taxing officer retains discretion to determine what is a reasonable instruction fee in the circumstances of each case.”
24. It therefore follows that the 50% uplift was not a mechanical right but a matter subject to judicial discretion under Rule 16 of the Advocate’s Renumeration Order.
25. Fourthly, whether the Taxing Officer exercised her discretion properly in taxing the Bill at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=). The Learned Counsel asserted that the governing principle was that a Judge would not interfere with the Taxing Officer’s discretion unless it was shown that the Officer acted on a wrong principle or the award was manifestly excessive. In the leading case of “Premchand Raichand Limited & Another (Supra) Court held:-
“A Court will not interfere with the taxing officer’s decision unless it is shown that either the officer erred in principle in assessing the costs or that the costs awarded are so manifestly excessive as to justify such interference.”
26. This was affirmed in the case of:- “Kipkorir, Titoo & Kiara Advocates (Supra)”, where the Court of Appeal cautioned against interference merely because a Judge would have reached a different figure. Here, the Taxing Officer considered the nature of the matter, evaluated the pleadings and work done, and arrived at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=) as fair and reasonable. No error of principle or manifest excess had been demonstrated.
27. Finally, whether the Applicant had demonstrated any error of principle or manifest excess to warrant this Court’s interference. The Respondent posited that the law is well settled that a Judge would not interfere with the Taxing Officer’s exercise of discretion unless the Applicant demonstrates that the Taxing Officer acted on a wrong principle of law or the award was so manifestly excessive or unjust as to amount to an error of principle. This principle was affirmed in the case of:- “Premchand Raichand Ltd (Supra) and consistently followed in subsequent jurisprudence.
28. The Applicant relied on the cases of:- “George Arunga Sino – Versus - Patrick J.O. & Geoffrey D.O. Yogo T/A Otieno Yogo & Co. Advocates [2012] eKLR and Central Bank of Kenya – Versus - Makhecha & Co. Advocates [2019] eKLR” to argue that the uplift was a matter of arithmetic. Those cases, however, involved scenarios where the uplift had been expressly pleaded and formed part of the prayers in the respective Bills of Costs. The Courts were therefore dealing with an uplift that had a clear legal and factual foundation, and the exercise that followed was indeed arithmetic applying a percentage to an ascertained figure.
29. In the present case, the Applicant never specifically plead for an uplift, in their Advocate-Client Bill of cost. The Taxing Officer was therefore correct in proceeding on the basis of the Bill as drawn. To allow the Applicant to rely on authorities where uplift had been expressly prayed for was to stretch those precedents beyond their ratio. The Applicant could not benefit from a relief that was never sought in the first place.
30. Importantly, failure to specifically plead uplift was not a mere technicality. An uplift, by its very nature, was discretionary and must be both pleaded and justified before it could be awarded. It could not be presumed or implied into a Bill of Costs. The omission therefore extinguished any basis upon which the Taxing Officer could have considered or granted it.
31. It follows that the Applicant had not shown that the Taxing Officer misapplied the Advocates Remuneration Order, disregarded relevant considerations, or acted in a manner that was manifestly excessive. The Applicant’s entire grievance was premised on an alleged entitlement to uplift which was never pleaded, and thus never available for consideration.
32. In these circumstances, there was no error of principle or manifest excess demonstrated. The threshold for this Court’s interference had not been met, and the Respondent’s respectfully submit that the reference should be dismissed with costs.
33. In summary, the Respondent submitted that the Reference was procedurally incompetent, having been filed without seeking reasons from the Taxing Officer. Additionally, the 50% uplift was not pleaded in the Bill of Costs and could not be introduced on reference and uplift was not automatic, but a discretionary matter for the Taxing Officer. Lastly the Taxing Officer exercised her discretion properly in taxing the Bill at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=).
34. Conclusively, the Respondent held that the Applicant had failed to demonstrate any error of principle or manifest injustice to justify interference. On that premise the Advocate/Applicant’s Reference dated 11th August 2025 be dismissed with costs to the Respondent.
V. Analysis and Determination
35. I have considered the pleadings on record, the court record, and the relevant provisions of law relied upon in drafting the chamber summons application and the trial Court records, in order to arrive at an informed, fair and just decision on the matter, the Honourable Court has framed the following three (3) issues for determination;
a) Whether the Applicant has met the threshold for setting aside of the Taxing Master’s ruling delivered on 30th July, 2025.
b) Whether the court should independently assess the instruction fees and getting up fees.
c) Who meets the costs of this Application/ Reference?
ISSUE No. a). Whether the ruling delivered on 30th July, 2025, by Taxing Master should be set aside
36. Under this sub – title I proceed to examine whether the Applicant has met the threshold for setting aside of the Taxing Master’s ruling delivered on 30th July, 2025. It is settled law that any grievance emanating from a Ruling on Taxation can only be ventilated through Paragraph 11 of the Advocates Remuneration Order. The law further is settled that a Judge will not ordinarily interfere with the discretion of a Taxing Officer unless it is demonstrated that the Taxing Officer acted on a wrong principle of law, misapprehended the applicable schedule, or arrived at an award that is manifestly excessive or so low as to amount to an injustice. This principle was articulated in “First American Bank of Kenya Limited – Versus - Shah & Others [supra]”, where Ringera J. (as he then was) held that interference is only warranted where the decision is based on an error of principle or the award is manifestly wrong. In “Machira & Co. Advocates – Versus - Magugu [2002]2 E.A”, Ringera J (as he then was) held as follows:-
“As I understand the practice relating to Taxation of Bills of Costs, any complaint about any decision of the Taxing officer whether it relates to a point of law taken with regard to Taxation or to a grievance about the Taxation of any item in the Bill of Costs is ventilated by way of a Reference to a Judge in accordance with paragraph 11 of the Advocates Remuneration Order.”
37. Similarly, in the case of:- “Gacau Kariuki & Co. Advocates – Versus - Allan Mbugua Ng’ang’a [2012] eKLR” it was held thus: -
“I am also of the same school of thought as the Learned Judges’ as expressed above. A reference is not an appeal although it may be in the nature of one. In a reference, the court is more concerned with whether or not the taxing master has misdirected himself on a matter of principle. If the same is found to have been the case the usual course is to remit the matter back to the taxing master with the necessary directions. The decision whether or not to proceed with taxation is an exercise of discretion and if he proceeds ex parte in circumstances in which he should not have so proceeded, in my view, that would amount to an error of principle and the Judge may remit the matter back with directions that the bill be re-tax in the presence of the parties. It is therefore my view, and I so hold, that the only recourse available to the client herein was to come by way of a reference.” [emphasis added]
38. The provision of Paragraph 11 of the Advocates Remuneration Order provides for the procedure an aggrieved party must follow in challenging taxation or assessment of costs. It provides that:
“11 (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) 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 already expired.”
39. The procedure contemplated above is that:
a. The aggrieved party issues a notice within 14 days on the items objected
b. The Taxing Officer shall forthwith give reasons for his decision
c. Upon receipt of the reason, the objector shall within 14 days’ file an application to the High Court setting out grounds for objection
d. If dissatisfied with the High Court, the objector shall with leave of court appeal to the Court of Appeal.
40. It is clear from the above provision that the only avenue available to a party who wishes to object to a decision following a Taxation would be to approach the Court under Paragraph 11 of the Advocates Remuneration Order. The Applicant is seeking an order that the ruling delivered on 30th July, 2025.
41. The principles of setting aside the decisions of the Taxing Master were well established in the cases of “Premchand Raichand Limited (Supra), “First American Bank of Kenya (Supra)” and “Joreth Limited – Versus - Kigano and Associates (2002) 1 EA 92”.
42. The Principles discussed in the authorities above included:-
i. That there was an error of principle
ii. The fee awarded was manifestly excessive or is so high as to confine access to the court to the wealthy
iii. The successful litigant ought to be fairly reimbursed for the costs he has incurred
iv. That so far as practicable there should be consistency in the award.
43. Further in the case of:- “Republic – Versus - Ministry of Agriculture & 20 Others Ex-Parte Muchiri W’ Njuguna [2006] eKLR”, Ojwang J. (Retired) stated as follows:-
“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 inference that it was based on an error of principle.”
44. In the South African Case of:- “Visser – Versus - Gubb 1981 (3) SA 753 (C) 754H – 755C”; The court stated as follows:
“The court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised 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.”
45. In the present case, the Applicant contends that the Taxing Officer erred by awarding instruction fees of a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) without applying the mandatory formula under Schedule VI Part B of the Advocates Remuneration Order, which requires that Advocate–Client instruction fees be computed as the Party and Party instruction fees increased by one-half. It is not in dispute that the Party and Party instruction fees in the primary suit had been taxed and ascertained at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-). By operation of Schedule VI Part B, the Advocate was entitled to a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) plus one-half of the instruction fees thereof, amounting to Kenya Shillings One Million Four Hundred and Twenty Five Thousand (Kshs. 1,425,000/-) as pleaded for in the Chamber Summons application. Thus, the Taxing Officer’s award of a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) rather too low so to speak devoid of additional 50% as provided for under Schedule 6B of the Advocates Remuneration Order, 2014.
46. The next question for consideration is whether sufficient grounds have been laid out to warrant the setting aside of the decision of the Taxing Officer. There are two aspects to this Reference namely, whether the Applicant wrote to the Taxing Master asking for reasons for taxation on specific items that the Applicant was opposed to, as required by Paragraph 11 of the Advocates Remuneration Order. I dare set it aside to examine the item the Applicant is therefore allowed.
ISSUE No. b). Whether the court should independently assess the instruction fees
47. Under this sub – title, the Honourable Court shall examine whether the now objected items were properly assessed and awarded to the Applicant. Under the provision of Paragraph 11 of the Advocates Remuneration Order:
“11(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.…”
48. From the affidavit in support of the application, the Applicant indicates that the reasons for the ruling by the Taxing Officer were given pursuant to the provisions of Order 50 of the Civil Procedure Rules, 2010. However, the Applicant still faulted the Taxing Officer’s reasoning and how she assessed the instructions fees and getting up fees. The question therefore is whether the Taxing Officer erred in taxation of the instructions fees as alleged.
49. Although the Courts respects the position that it would not interfere with the Taxing Master’s discretion in taxing bills but in this case the Court will apply its discretion to consider the amount on instruction fees awarded being on the lower side. In the case of:- “Rachier & Amollo Advocates LLP – Versus - National Hospital Insurance Fund Board of Management [2019] eKLR”, that:
“The principle to be applied when assessing instruction fee in a suit are well settled. The Court of Appeal in the case of Joreth Ltd – Versus - Kigano & Associates [2002] eKLR outlined the principle as follows:
“We would at this stage point out that the value of the subject matter of a suit for the purpose of taxation of a bill of costs ought to be determined from the pleadings, Judgment or settlement (if such be the case) but if the same is not ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among 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”
50. Similarly, in the matter of:-“Kanu National Elections Board & 2 others – Versus - Salah Yakub Farah [2018] eKLR”, it was held that:
“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.”
51. Based on the above cited cases and the principles governing review/setting aside of rulings on taxation, I find that the rationale behind the principle is to apply discretion of the Court where extremely necessary as it is in the instant case.. The advocate disputes the amount the taxing master based her decision as the value of the subject matter for the purpose of calculating instruction fees. I concur fully.
52. In the decision of the Taxing Master, she opined as follows on the issue of Instruction fees: -
Noting the party to party ruling I delivered on 8th May, 2024 in respect to the taxation in being Kwale ELC Case No. 4 of 2021 Socaf & Co. Limited – Versus – John Maina Njoroge and 6 Others which is the main suit in this matter, I make a similar finding that based on the pleading therein, it is stated that the 2nd Respondent obtained a loan from the 3rd Respondent of Kshs 50,000,000 against a charge over the suit property which is valued at Kshs 49,000,000/=. Thus, according to the ARO the instruction fees for the High Court as per Schedule 6 in the matter is assessed at Kshs. 950,000/=.”
53. The approach in determining the value of the subject matter for purposes of determining instruction fees was clearly outlined by the Court of Appeal in the case of “Peter Muthoka & another – Versus - Ochieng & 3 others [2019] eKLR”, thus: -
“It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgement, it is the pleadings that form the basis for determining subject value. Once judgement has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgement does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court.”
54. The approach to be adopted in taxing instruction fees lies in the principles in the case of “Jorerth Ltd – Versus - Kigano Advocates (Supra)” where the court held inter alia that: -
“The instructions fee is an independent and static item it is charged once only and it is not affected or determined by the stage the suit has reached.”
g) In the present case, the Taxing Master the Taxing Master awarded a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) having taxed off the same from the amount of Kenya Shillings Four Sixty Thousand (Kshs 460,000/-). The taxing master in her reasons for granting the said amount stated that the same was because in the party to party costs she had awarded a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) which in my opinion was erroneous as provided for under Schedule 6B of the Advocates Remuneration Order, 2014.
55. Principles for Taxation are well settled. In assessing instruction fees, the Taxing Officer ought to consider the value of the subject matter as the basis of her award for instruction fees. The value of the subject matter may be ascertained from the Pleadings, Judgment or Settlement by the parties. Where the material before the Taxing Officer is not sufficient to show the value of the subject matter, the Taxing Officer will then apply his or her discretion in arriving at the instruction fees. Where the value of the subject matter is unascertainable, the Taxing Officer should use his or her discretion to assess instruction fees. In this regard, the discretion of the Taxing Officer ought to be exercised judiciously by considering among other matters, the nature and importance of the suit, parties’ interest and other relevant matters.
56. In the case of “Joreth Limited – Versus - Kigano & Associates (Supra)”, the court held as follows: -
“We would at this stage point out that the value of the subject matter of a suit for the purposes of Taxation of a Bill of Costs ought to be determined from the Pleadings, Judgment 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 the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances.”
57. Taxation of Costs is within the competence and judicial discretion of the Taxing Officer and therefore this court will not ordinarily or lightly interfere with the exercise of that discretion unless it is demonstrated clearly that the Taxing Officer erred in principle and failed to properly exercise his or her discretion. I have already stated my reasoning as far as the instant case is concerned. In the case of “Kamunyori & Company Advocates – Versus - Development Bank of Kenya Limited (2015) eKLR”, the court held as follows: -
“Failure to ascertain the correct subject matter in a suit for the purpose of Taxation is an error of principle. So too, failure to ascribe the correct value to the subject matter is an error of principle. Authorities on Taxation show that a Judge will normally not interfere with the Taxing Officer’s decision on Taxation unless it is based on an error of principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of principle can be inferred. If instruction fee is arrived at on the wrong principles, it will be set aside.”
58. In the present case, the Party and Party instruction fees had already been taxed and ascertained at a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/=). Schedule VI Part B of the Advocates Remuneration Order requires, in mandatory terms, that Advocate–Client instruction fees be computed as the Party and Party instruction fees increased by one-half. The computation is therefore a matter of arithmetic, not discretion. The Taxing Officer’s award of a sum of Kenya Shillings Nine Hundred and Fifty Thousand (Kshs. 950,000/-) ignored this statutory requirement and amounted to an error of principle. I will proceed to be guided by Para 1(b)(ii) of Schedule 6 of the 2014 Advocates Remuneration Orders.
59. I find that the computation by the Taxing Master was erroneous and therefore the need to set aside her ruling and reference her findings on the instruction’s fees. Having regard to the contents of the impugned ruling and the reasons advanced by the Taxing Master, I find that the Taxing Master to have adopted the wrong principles in coming up with the amount due to the Applicant herein but awarded the Applicant what she thought was just only that it was slightly on the higher side which I discretely find was an error.
60. Consequently, for the reasons and computation above done by this Court I find basis of the grounds upon which the Reference herein partially with some merited, and proceed to set aside the ruling by Hon. R. K. Ogolla. I find the Chamber summons Application dated 11th August, 2025 merited and allowed but with no orders as to costs.
ISSUE No C. Who meets the costs of this Application/ Reference?
61. It is now well established that issue of costs is a discretion of the Court. Costs mean the award that a party is granted at the conclusion of any legal action or proceedings in any litigation. The Proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 holds that costs follow the event. By the event it means the result or outcome of the legal action.
62. In the instant case, in the given circumstances, the Honourable Court feels it fair and reasonable that each arty bears their own costs.
VI. Conclusion and Disposition
63. Ultimately in view of the foregoing detailed and expansive analysis to the application, the Court arrives at the following decision and make below orders: -
a). THAT the Chamber Summons application dated 11th August, 2025 be and is hereby found to have merit and thus entirely allowed.
b). THAT there shall be no orders as to costs.
IT IS SO ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS …….13TH …………DAY OF ………NOVEMBER………………..……..2025.
Ruling delivered in the presence of:
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Gakiria Advocate for the Advocate Taxation/Applicant.
c) M/s. Njeru Advocate for the Client/Respondent.