1. The application before court is a motion dated 21 August 2024 in which the applicant seeks the following orders expressed as follows:
“1…CERTIORARI to bring up into this court for the purpose of quashing the order of the Deputy Registrar as Taxing Master of the High Court dated 21st June, 2024 in taxation cause HC MISC E046 of 2023 assuming jurisdiction to tax costs in respect of proceedings arising from Mombasa SRMC Miscellaneous Application No. 495 of 2022.
2…PROHIBITION to prohibit the Deputy Registrar as Taxing Master from taking any further steps in facilitating execution for the costs taxed consequential upon its said decision of 21st June. 2024 in HC Misc. Application No 46 of 2023.”
The applicant has also sought for an order on costs.
2. The application is based on a statutory statement dated 30 July 2024 and an affidavit verifying the facts relied upon sworn on even date by Anthony Michael Mulwa. Mulwa has sworn that he is an auctioneer trading as Swift Auctioneers and that the 1st applicant was at all times material to this suit the landlord of the interested party in respect of residential premises situate within Changamwe Sub County, in Mombasa.
3. On 23rd November,2022, Mulwa was instructed by the 2nd applicant to proceed and recover rent arrears from the interested party by way of distress for rent, under the Distress for Rent Act. Cap 293. Since the premises were locked, Mulwa filed before the Magistrate's court an application for police assistance in accessing the premises in Miscellaneous Application No. 495 of 2022. The application was subsequently withdrawn with costs to the interested party.
4. The interested party then filed a bill of costs in this Honourable Court in Miscellanous Application No. 46/2023. The applicants objected to the Bill of Costs by way of a preliminary objection dated 11 April 2023 questioning the Deputy Registrar's jurisdiction to entertain the bill of costs. On 21 June, 2024, the respondent rendered her decision dismissing the preliminary objection and taxed the bill of costs as drawn, at Kshs. 107,300/-.
5. According to the applicants, the learned taxing officer erred in taxing a bill of costs in respect of proceedings before the subordinate court. The assessment of such costs, they urge, is the function of the magistrate's court before which the substantive proceedings lay, and that only an advocate/client bill of costs arising from such proceedings would lie before the deputy registrar.
6. In response to the application, the interested party filed a replying affidavit opposing the application. According to the interested party, the substantive motion was not been paid for, and therefore, it offends Order 53 rule 3
(1) of the Civil Procedure Rules.
7. The interested party has denied that the 1st applicant authorised the 2nd applicant to act or plead on his own behalf and, thus, the application offends Order 1 rules 8 and 13 of the Civil Procedure Rules.
8. The rest of the interested party’s “depositions” are largely issues of law that mainly revolve around the question of whether the deputy registrar had jurisdiction to entertain the bill of costs. In any event, it is urged, the taxing officer’s decision can only be challenged by way of a reference under paragraph 11 of the Advocates Remuneration Order.
9. The interested party has added that the 2nd applicant, received instructions to levy distress against the interested party from one Robert Karuku Kimondo whom the interested party has described as “a mere cleaner” of the 1st applicant’s premises.
10. As far as I gather, the facts are not in dispute and the major point of contention is whether, the deputy registrar had, in that capacity, the requisite jurisdiction to tax party and party costs awarded in an application filed by the ex parte applicants against the interested party, in the magistrates’ court.
11. As earlier noted, the application in the magistrates’ court is Miscellaneous Application No. 495 of 2022. The question is, could the successful party, in this case, the interested party, file, as he did, his bill of costs in this Honourable Court for taxation by the deputy registrar? The most pertinent provisions of the law relevant to this question are found in Order 21 rules 9A, 9B, 9C and 9D of the Civil Procedure Rules. Rule 9A reads as follows:
9A. Party to file and serve letter as to costs
(1) A party claiming costs at a Magistrates Court shall file a written request, statement of costs and supporting documents with the Court and serve it on the other parties with a breakdown of the costs sought.
12. No doubt, “a party claiming costs” is a party to whom costs are awarded and in Miscellaneous Application No. 495 of 2022, it would be the interested party. Rule 9B, on the other hand, says that the party against whom the request for costs is filed and served may admit the request, either in part or in toto or may reject it altogether. The rule reads as follows:
9B. Respondent may admit, partially reject or wholly reject letter
(2) Once served with the written request, a statement of costs and supporting documents under sub-rule 1, the Respondent may file a response with the Court within seven days of service.
13. Logically, if the request is not admitted as a whole, a dispute thereby arises calling for a determination by the court. Rule 9C (3) specifies the period within which the determination ought to be made. It reads as follows:
9C. Court to make determination within 14 days
(3) The Court shall consider the written request, statement of costs and supporting documents filed by the parties within fourteen days of response by the respondent and make appropriate orders as to costs.
14. For the avoidance of doubt, in making its determination on the extent of the costs to be awarded, the court is enjoined, under rule 9D (4) to consider the Advocates Remuneration Order. This rule reads as follows:
9D. Court to be guided by Advocates (Remuneration) Order
(4) In awarding costs, the Court shall be guided by the Advocates (Remuneration) Order.
15. The process of determination of costs awarded is, no doubt, a process of taxation because paragraph 52 of the Advocates Remuneration Order states so. It reads as follows:
52. Costs to be taxed as between party and party unless otherwise directed.
The costs awarded by the Court on any matter or application shall be taxed and paid as between party and party unless the Court in its order shall have otherwise directed.
16. The same position is captured in paragraph 54 of the Advocates Remuneration Order where, as in the applicant’s case, an application was opposed and subsequently withdrawn, the costs ought to have been taxed, and, for reasons I have given, in the same court in which the order for costs was made. Paragraph 54 reads as follows:
54. Costs on an opposed application
In the absence of any express direction costs of an opposed motion or other application (other than an action) shall follow the event, and shall be taxed as between party and party.
17. In view of these provisions, it is beyond peradventure that party and party costs in an application or a suit in a court can only be determined in the suit or application where they were ordered and, therefore, in the same court, in this case, the magistrates’ court, in which the order for costs was made.
18. Unlike party and party costs, advocate-client costs are taxed in a separate application, distinct from the application or suit in which they arose. This is provided for in section 51(1) of the Advocates Act, cap. 16 and Paragraph 13(3) of the Advocates Remuneration Order. Section 51(1) of the Advocates Act reads as follows:
51. General provisions as to taxation
(1) Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.
19. And paragraph 13(3) of the Advocates Remuneration order, on the other hand, reads as follows:
13. Taxation of cost as between advocate and client on application of either party
(3) The bill of costs shall be filed in a miscellaneous cause in which notice of taxation may issue, but no advocate shall be entitled to an instruction fee in respect thereof.
20. Considering the express provisions of Order 9A, 9B, 9C and 9D of the Civil Procedure Rules as read with paragraphs 52 and 54 of the Advocates Remuneration Order, it was not open to the deputy registrar to entertain the party and party bill of costs arising out of the costs awarded in an application in the magistrate’s court.
21. It is also worth noting that under paragraph 10 of the Advocates Remuneration Order, the taxing officer is the registrar, district registrar or the deputy registrar. The paragraph reads as follows:
10. Taxing officer
The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks.
22. In this respect, the registrar, the district registrar or deputy registrar must be distinguished from the magistrate who, though empowered to assess or tax costs under Order 21 rules 9C and 9D of the Civil Procedure Rules and must give due regard to the Advocates Remuneration Order in that exercise, is not thereby elevated to the status of a taxing officer as defined in paragraph 10 of the Advocates Remuneration Order.
23. When one considers all these provisions of the law, it can be concluded that when the learned deputy registrar, ostensibly in exercise of her jurisdiction under paragraph 10 of the Advocates Remuneration Order, taxed a party and party bill of costs which ought to have been determined by a magistrate under Order 21 rules 9A to 9D, the learned deputy registrar acted ultra vires these provision of the law and, for this reason, her decision is tainted on the ground of illegality.
24. This ground is amongst the three grounds of judicial review which Lord Diplock defined in Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. As far as this particular ground is concerned, the learned judge defined it as follows:
“By “illegality” as a ground for judicial review I mean that the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.”
25. The learned deputy registrar obviously ignored the provisions of the law that would have influenced her decision on whether or not to tax the party and party bill of costs. In other words, she misapprehended and misdirected herself on the law regulating her decision-making power and, in so doing, did not give effect to it.
26. The argument by the respondents that each of the applicants ought to have sworn their respective affidavits verifying the facts relied upon does not carry much weight for the simple reason that any of the two applicants was competent to institute this suit to the extent that they were affected by the order of the deputy registrar. Nothing much would change even if the 1st applicant who is assumed not to have sworn the affidavit in support of the application is taken out of the equation.
27. On the question of whether a reference rather than an application for judicial review ought to have been filed, I agree with the applicants that that a reference would be filed on the presumption that the impugned bill was properly before the taxing officer and that she was properly seized of jurisdiction to tax the bill. For reasons I have stated, there was no bill or proper bill of costs before the taxing officer in the first place. The purported bill and the proceedings before her were a nullity ab initio and, therefore, the question of whether a reference ought to have been filed against the purported taxation need not arise. No reference can arise out of a nullity.
28. On the question of whether the motion was paid for, the motion is stamped as having been filed 23 August 2025. Certainly, it would not have been so stamped in the e-filing system, if it had not been paid for.
For the reasons I have given, I find merit in the applicants’ application. It is hereby allowed. The applicants will have costs of the application.
“1…CERTIORARI to bring up into this court for the purpose of quashing the order of the Deputy Registrar as Taxing Master of the High Court dated 21st June, 2024 in taxation cause HC MISC E046 of 2023 assuming jurisdiction to tax costs in respect of proceedings arising from Mombasa SRMC Miscellaneous Application No. 495 of 2022.
2…PROHIBITION to prohibit the Deputy Registrar as Taxing Master from taking any further steps in facilitating execution for the costs taxed consequential upon its said decision of 21st June. 2024 in HC Misc. Application No 46 of 2023.”
The applicant has also sought for an order on costs.
2. The application is based on a statutory statement dated 30 July 2024 and an affidavit verifying the facts relied upon sworn on even date by Anthony Michael Mulwa. Mulwa has sworn that he is an auctioneer trading as Swift Auctioneers and that the 1st applicant was at all times material to this suit the landlord of the interested party in respect of residential premises situate within Changamwe Sub County, in Mombasa.
3. On 23rd November,2022, Mulwa was instructed by the 2nd applicant to proceed and recover rent arrears from the interested party by way of distress for rent, under the Distress for Rent Act. Cap 293. Since the premises were locked, Mulwa filed before the Magistrate's court an application for police assistance in accessing the premises in Miscellaneous Application No. 495 of 2022. The application was subsequently withdrawn with costs to the interested party.
4. The interested party then filed a bill of costs in this Honourable Court in Miscellanous Application No. 46/2023. The applicants objected to the Bill of Costs by way of a preliminary objection dated 11 April 2023 questioning the Deputy Registrar's jurisdiction to entertain the bill of costs. On 21 June, 2024, the respondent rendered her decision dismissing the preliminary objection and taxed the bill of costs as drawn, at Kshs. 107,300/-.
5. According to the applicants, the learned taxing officer erred in taxing a bill of costs in respect of proceedings before the subordinate court. The assessment of such costs, they urge, is the function of the magistrate's court before which the substantive proceedings lay, and that only an advocate/client bill of costs arising from such proceedings would lie before the deputy registrar.
6. In response to the application, the interested party filed a replying affidavit opposing the application. According to the interested party, the substantive motion was not been paid for, and therefore, it offends Order 53 rule 3
(1) of the Civil Procedure Rules.
7. The interested party has denied that the 1st applicant authorised the 2nd applicant to act or plead on his own behalf and, thus, the application offends Order 1 rules 8 and 13 of the Civil Procedure Rules.
8. The rest of the interested party’s “depositions” are largely issues of law that mainly revolve around the question of whether the deputy registrar had jurisdiction to entertain the bill of costs. In any event, it is urged, the taxing officer’s decision can only be challenged by way of a reference under paragraph 11 of the Advocates Remuneration Order.
9. The interested party has added that the 2nd applicant, received instructions to levy distress against the interested party from one Robert Karuku Kimondo whom the interested party has described as “a mere cleaner” of the 1st applicant’s premises.
10. As far as I gather, the facts are not in dispute and the major point of contention is whether, the deputy registrar had, in that capacity, the requisite jurisdiction to tax party and party costs awarded in an application filed by the ex parte applicants against the interested party, in the magistrates’ court.
11. As earlier noted, the application in the magistrates’ court is Miscellaneous Application No. 495 of 2022. The question is, could the successful party, in this case, the interested party, file, as he did, his bill of costs in this Honourable Court for taxation by the deputy registrar? The most pertinent provisions of the law relevant to this question are found in Order 21 rules 9A, 9B, 9C and 9D of the Civil Procedure Rules. Rule 9A reads as follows:
9A. Party to file and serve letter as to costs
(1) A party claiming costs at a Magistrates Court shall file a written request, statement of costs and supporting documents with the Court and serve it on the other parties with a breakdown of the costs sought.
12. No doubt, “a party claiming costs” is a party to whom costs are awarded and in Miscellaneous Application No. 495 of 2022, it would be the interested party. Rule 9B, on the other hand, says that the party against whom the request for costs is filed and served may admit the request, either in part or in toto or may reject it altogether. The rule reads as follows:
9B. Respondent may admit, partially reject or wholly reject letter
(2) Once served with the written request, a statement of costs and supporting documents under sub-rule 1, the Respondent may file a response with the Court within seven days of service.
13. Logically, if the request is not admitted as a whole, a dispute thereby arises calling for a determination by the court. Rule 9C (3) specifies the period within which the determination ought to be made. It reads as follows:
9C. Court to make determination within 14 days
(3) The Court shall consider the written request, statement of costs and supporting documents filed by the parties within fourteen days of response by the respondent and make appropriate orders as to costs.
14. For the avoidance of doubt, in making its determination on the extent of the costs to be awarded, the court is enjoined, under rule 9D (4) to consider the Advocates Remuneration Order. This rule reads as follows:
9D. Court to be guided by Advocates (Remuneration) Order
(4) In awarding costs, the Court shall be guided by the Advocates (Remuneration) Order.
15. The process of determination of costs awarded is, no doubt, a process of taxation because paragraph 52 of the Advocates Remuneration Order states so. It reads as follows:
52. Costs to be taxed as between party and party unless otherwise directed.
The costs awarded by the Court on any matter or application shall be taxed and paid as between party and party unless the Court in its order shall have otherwise directed.
16. The same position is captured in paragraph 54 of the Advocates Remuneration Order where, as in the applicant’s case, an application was opposed and subsequently withdrawn, the costs ought to have been taxed, and, for reasons I have given, in the same court in which the order for costs was made. Paragraph 54 reads as follows:
54. Costs on an opposed application
In the absence of any express direction costs of an opposed motion or other application (other than an action) shall follow the event, and shall be taxed as between party and party.
17. In view of these provisions, it is beyond peradventure that party and party costs in an application or a suit in a court can only be determined in the suit or application where they were ordered and, therefore, in the same court, in this case, the magistrates’ court, in which the order for costs was made.
18. Unlike party and party costs, advocate-client costs are taxed in a separate application, distinct from the application or suit in which they arose. This is provided for in section 51(1) of the Advocates Act, cap. 16 and Paragraph 13(3) of the Advocates Remuneration Order. Section 51(1) of the Advocates Act reads as follows:
51. General provisions as to taxation
(1) Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.
19. And paragraph 13(3) of the Advocates Remuneration order, on the other hand, reads as follows:
13. Taxation of cost as between advocate and client on application of either party
(3) The bill of costs shall be filed in a miscellaneous cause in which notice of taxation may issue, but no advocate shall be entitled to an instruction fee in respect thereof.
20. Considering the express provisions of Order 9A, 9B, 9C and 9D of the Civil Procedure Rules as read with paragraphs 52 and 54 of the Advocates Remuneration Order, it was not open to the deputy registrar to entertain the party and party bill of costs arising out of the costs awarded in an application in the magistrate’s court.
21. It is also worth noting that under paragraph 10 of the Advocates Remuneration Order, the taxing officer is the registrar, district registrar or the deputy registrar. The paragraph reads as follows:
10. Taxing officer
The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks.
22. In this respect, the registrar, the district registrar or deputy registrar must be distinguished from the magistrate who, though empowered to assess or tax costs under Order 21 rules 9C and 9D of the Civil Procedure Rules and must give due regard to the Advocates Remuneration Order in that exercise, is not thereby elevated to the status of a taxing officer as defined in paragraph 10 of the Advocates Remuneration Order.
23. When one considers all these provisions of the law, it can be concluded that when the learned deputy registrar, ostensibly in exercise of her jurisdiction under paragraph 10 of the Advocates Remuneration Order, taxed a party and party bill of costs which ought to have been determined by a magistrate under Order 21 rules 9A to 9D, the learned deputy registrar acted ultra vires these provision of the law and, for this reason, her decision is tainted on the ground of illegality.
24. This ground is amongst the three grounds of judicial review which Lord Diplock defined in Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. As far as this particular ground is concerned, the learned judge defined it as follows:
“By “illegality” as a ground for judicial review I mean that the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.”
25. The learned deputy registrar obviously ignored the provisions of the law that would have influenced her decision on whether or not to tax the party and party bill of costs. In other words, she misapprehended and misdirected herself on the law regulating her decision-making power and, in so doing, did not give effect to it.
26. The argument by the respondents that each of the applicants ought to have sworn their respective affidavits verifying the facts relied upon does not carry much weight for the simple reason that any of the two applicants was competent to institute this suit to the extent that they were affected by the order of the deputy registrar. Nothing much would change even if the 1st applicant who is assumed not to have sworn the affidavit in support of the application is taken out of the equation.
27. On the question of whether a reference rather than an application for judicial review ought to have been filed, I agree with the applicants that that a reference would be filed on the presumption that the impugned bill was properly before the taxing officer and that she was properly seized of jurisdiction to tax the bill. For reasons I have stated, there was no bill or proper bill of costs before the taxing officer in the first place. The purported bill and the proceedings before her were a nullity ab initio and, therefore, the question of whether a reference ought to have been filed against the purported taxation need not arise. No reference can arise out of a nullity.
28. On the question of whether the motion was paid for, the motion is stamped as having been filed 23 August 2025. Certainly, it would not have been so stamped in the e-filing system, if it had not been paid for.
For the reasons I have given, I find merit in the applicants’ application. It is hereby allowed. The applicants will have costs of the application.