1. Before the court is an application made by way of Chamber summons dated 1st February 2023 seeking the following orders:
1) THAT the decision of the taxing master delivered on 2nd November 2022 in so far as the same relates to the reasoning and determination pertaining to the re-taxation of item 1 of the Bill of Costs dated 12th April 2021, be set aside.
2) THAT the Honourable Court be pleased to refer the matter back for re-taxation of Item 1 of the Bill of Costs dated 12th April 2021 with proper directions thereto.
3) THAT in the alternative to prayer 2, the Honourable Court exercises its inherent jurisdiction and be pleased to re-tax the Bill of Costs dated 12th April 2021 afresh.
4) THAT the costs of this application be provided for.
2. The application is supported by the affidavit of Apollo Mutisya Muinde, Advocate, the Applicant herein. He deposed that the Advocate’s Bill of Costs dated 12th April 2021 was initially taxed on 17th August 2021 at Ksh 120,900/=. Being aggrieved by part of the taxing master’s decision, the Applicant filed a reference on the 16th of September 2021, on the grounds that the taxing master misdirected herself when she stated that the value of the subject matter of the suit could not be ascertained from the pleadings.
3. The application was heard and determined by this Court, which found that the value of the subject matter of the suit could be ascertained through the Valuation report prepared by M/S Camp Valuers dated 1st December 2014 and valued L.R. No.Aguthi/Gaki/865 at Ksh. 535,000,000/= and adding 15% statutory addition would make it Ksh 615,250,000/=. The Bill of costs was set aside for re-taxation. Re-taxation was carried out by Hon. E.N. Angima, and by a ruling dated 2nd November 2022, she awarded instruction fees of Ksh 92,250.
4. The Applicant filed a Notice of Objection to taxation on 3rd November 2022 on Item 1 of the Bill of Costs (instructions fees). The Applicant contends that the learned taxing master misdirected herself when she ruled that the value of the subject matter ought to be assessed by the Trial Court, and thereafter stated that the open market value was to guide her. Instruction fees of Ksh 92,250 were awarded with no explanation, ignoring the valuation report on record. Arising out of the Applicant''s dissatisfaction with the re-taxation, this reference was filed.
5. On 22nd July 2025, this Court gave directions that the reference dated 1st February 2023 was to proceed by way of taxation of the Bill of costs dated 12th April 2021 before this court. The Applicant did not file written submissions but instead relied on the authorities cited on the list of authorities filed in court dated 22nd August 2025, where he lists: The Advocates (Remuneration) Order, Misc Civil Application No. E207 of 2019 consolidated with Misc Civil application No. E1061 of 2020=- Insurance Regulatory Authority Vs Waweru Gatonye & Co. advocates and Kezia Njambi Maingi V Barclays Bank of Kenya Ltd (2016) Eklr.
6. The Respondent, though represented by Counsel, did not file any response to the application or file written submissions as directed by the Court.
Analysis and Determination
7. The Court has considered the Chamber Summons dated 1st February 2023, the supporting affidavit and the authorities filed by the Applicant. The Court has also considered the history of taxation of the Applicant’s Advocate-Client Bill of Costs dated 12th April 2021, and has perused the primary file that gave rise to the bill of costs Nyeri ELC Constitutional Petition No.12 of 2015, John Ndirangu Kiboga & Others Vs National Land Commission.
8. The Applicant’s Advocate-Client Bill of costs arose from representation of the Respondent in the primary suit, Nyeri ELC Constitutional Petition No.12 of 2015. In that case, the Petitioners sought various reliefs, being: a declaration that the alienation of L.R. No.Aguthi/Gaki/865 is a violation of their constitutional and fundamental right to property under Article 40 of the Constitution of Kenya. They also sought compensation in the sum of Ksh 1,662,250,000/= and a further Kshs 15,000,000 as punitive and/or aggravated damages.
9. Item number 1 of the Bill of Costs herein seeks instructions fees in the sum of Kshs 25,133,750 for defending the petition. Under the same item, the Applicant seeks getting up fees of Kshs. 8,377,916 and an increase in the instruction fees and getting up fees by 1/2 at Kshs 16,755,833. The Applicant describes the services rendered and justifies the fees, stating as follows;
“ Perusing the Petition, certificate of urgency together with the attached Notice of Motion and supporting affidavit with annexures attached thereto defending the matter to its conclusion, researching into the relevant law, intensity of labour, care taken, importance of work, value or amount of subject matter bearing all other relevant factors and disbursements where the subject matter is land reference plot No. Aguthi/Gaki/865 valued at Kshs 1,662,250,000/-.”
10. The law provides that when making an award of costs, the taxing master exercises a judicial discretion which the Applicant has invited this Court to interfere with. In deciding either way, the Court is guided by observations in the Court of Appeal case of Kipkorir, Too & Kiara Advocates versus Deposit Protection Fund Board (2005) eKLR, thus:
“On a reference to a judge from the taxing by the Taxing Officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer erred in principle in assessing the costs. In Arthur v Nyeri Electricity undertaking [1961] EA 497, the predecessor of this Court said at page 492 paragraph 1: Where there has been an error in principle, the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal, and the court will interfere only in exceptional cases."
An example of an error of principle is where the costs allowed are so manifestly excessive as to justify an inference that the taxing officer acted on erroneous principles – see Arthur v Nyeri Electricity Undertaking (supra) or where the taxing officer has over emphasized the difficulties, importance and complexity of the suit (see Devshi Dhanji versus Kanji Naran Patel (No. 2), [1978] KLR 243. We have no doubt that if the taxing officer fails to apply the formula for assessing instructions fees or costs specified in schedule VI or fails to give due consideration to all relevant circumstances of the case, particularly the matters specified in proviso (1) of schedule VIA (1, that would be an error in principle. And if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle, the general practice is to remit the question of quantum for the decision of the taxing officer (see – D’Souza versus Ferrao [1960] EA 602. The judge has, however, a discretion to deal with the matter himself if the justice of the case so requires (see Devshi Dhanji versus Kanji Naran Patel (No. 2) (supra).
11. Having considered the reasoning of the Taxing master, Hon. E.N. Angima, it is notably clear that she based taxation on the Advocates (Remuneration) Order Schedule 6 (1) (b). In the present case, the Bill of Costs emanates from a Constitutional Petition filed under Articles 22(1), (2) and 23 (1), (3), Article 40 (3) and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. This is therefore a public law litigation as opposed to private law litigation.
12. In the Court''s view, instructions fees arising from suing or defending a private law litigation in the High Court and Courts of equal status are taxable under the Advocates (Remuneration) Order Schedule 6 (1) (a) to (d), while taxation of instructions fees in a Constitutional petition would fall under the Advocates (Remuneration) Order. Schedule 6(1) (j).
13. Consequently, the Court finds that the taxation of the instructions fee by the taxing master under Schedule 6 (1) (b) of the Advocates (Remuneration) Order) and failure to tax the same under Schedule 6(1) (j) was an error in principle, which led to an erroneous exercise of discretion that warrants interference by this court by setting aside the award complained of
14. The above position was taken by Mumbi Ngugi J (as she then was), in dealing with the assessment of taxation of a bill of costs in public law litigation, the case of Kenyariri And Associates Advocates v Salama Beach Hotel Limited & 3 Others [2015] KEHC 6219 (KLR) established that:
“As the court observed in its ruling in Petition No. 224 of 2010 Emange Ne-Semata Investments Limited -vs- The Attorney General & 4 Others:
This was a purely public law issue, the instructions fees in respect of which fall for determination on the basis of the principles enunciated by Ojwang J (as he then was) in Republic -vs Minister for Agriculture & 2 Others ex parte Samuel Muchiri W. Njuguna & 6 Others (supra), where the learned Judge observed as follows:
“It is noteworthy that Counsel for the Respondents herein invoked many authorities from private-law claims sounding in damages and entailing pecuniary awards. Such claims do not, in my opinion, fall in the same class as public-law claims such as those in judicial review, in constitutional applications, in public electoral matters, etc. Such matters are in a class of their own, and the instructions fees allowable in respect of them should not, in principle, be extrapolated from the practices obtaining in the private law domain, which may involve business claims and profit calculations.''
It is, I believe, fairly settled now that taxation of bills of costs arising out of public law matters such as applications for prerogative orders and petitions alleging violation of constitutional rights falls under Schedule VI(1) (j)."
15. The same position that assessment of costs for Constitutional Petitions falls under Schedule 6(1)(j), Ojwang J (as he then was) in Republic v Minister for Agriculture & 2 others Ex parte Samuel Muchiri W’Njuguna & 6 others [2006] KEHC 3504 (KLR) gave the following principles to be followed in taxation of public law matters:
“The bill of costs dated 29th June, 2004 is hereby remitted for fresh taxation by a different taxing officer who will be guided by the principles enumerated in this judgement, and more particularly by the following principles –
(i) the proceedings in question were purely public-law proceedings and are to be considered entirely free of any private-business arrangements or earnings of the tea production sector;
(ii) the taxation of advocates’ instruction fees is to seek no more and no less than reasonable compensation for professional work done;
(iii) the taxation of advocates’ instruction fees should avoid any prospect of unjust enrichment, for any particular party or parties;
(iv) so far as apposite, comparability should be applied in the assessment of an advocate''s instruction fees;
(v) objectivity is to be sought when applying loose-texture criteria in the taxation of costs;
(vi) where complexity of proceedings is a relevant factor, firstly, the specific elements of the same are to be identified and stated; and secondly, complexity is to be judged on the basis of the express or implied recognition and mode of treatment by the trial Judge.
(vii) where responsibility borne by advocates is taken into account, its nature is to be specified;
(viii) where novelty is taken into account, its nature is to be clarified;
(ix) where account is taken of time spent, research done, skill deployed by counsel, the pertinent details are to be set out in summarised form.
16. Schedule 6(1)(j) of the Advocate’s Remuneration Order, 2014, provides for costs for Constitutional petitions and prerogative orders and states that;
To present or oppose an application for a Constitutional and Prerogative Orders, such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate—
(i) where the matter is not complex or opposed, such sum as may be reasonable but not less than 45,000
(ii) where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000
(iii) To present or oppose application for setting aside arbitral award 50,000
17. The Court has taken into account the above legal provisions and considered the amount of time taken to determine the Advocate-Client bill and the need to bring to finality the taxation herein. As per the directions given by the Court on 22nd July 2025, item 1 of the bill of costs will be taxed by this Court.
18. Though the parties did not bring to the Court’s attention any awards made under Schedule 6 (1) (J) Advocates (Remuneration) Order, the Court has considered the award of the Court Ombwayo J. in Benson Ambuti Adega 2 others v Kibos Sugar and Allied Industries Ltd 4 others Kenya Union of Sugar Plantation and Allied Workers(Interested Party) 2022 KEELC1245 (KLR) where the matter had proceeded for hearing was as follows:
“Schedule 6 (1) (j) (ii) of the Advocates Remuneration Order clearly provides for a reasonable sum but not less than Kshs. 100,000/=. Based on this provision and the complexity of the matter, this court finds that the Taxing Officer was fair in awarding Kshs. 3,000,000/= as basic instruction fees and Kshs. 1,000,000/= as getting up fees.”
19. Okong’o J awarded as follows in the case of Kenya Agricultural & Livestock Research Organization v Attorney General & 3 others (Environment & Land Petition 1012 of 2013) [2022] KEELC 13587 (KLR), where the court dismissed the petition with costs for failure on the part of the Petitioner to tender evidence in proof of the petition.
“I have considered the minimum instruction fees provided for in the ARO, the care and labour that was put into the matter by the advocates for the 3rd Respondent, the interest of the parties in the properties that were in dispute, the size of the suit properties, the issues that were in contention in the suit, the fact that the suit was brought to reclaim what was considered to be public land and the fact that the suit was dismissed summarily without a trial. Taking all these factors into account, I am of the view that an award of Kshs. 6,000,000/- as instruction fees would be fair and reasonable…… In conclusion, the Applicant’s Chamber Summons application dated 15th November 2021 is allowed on the following terms;
1. The ruling and orders made by the taxing officer Hon. I.N.Barasa on 3rd November 2021 in respect of the items relating to instruction fees and getting up fees in the Bill of costs dated 19th August 2021 is set aside, and in place thereof, the said items are taxed as follows;
a. Item relating to instruction fees is taxed at Kshs. 6,000,000/-. A sum of Kshs. 30,000,000/- is taxed off.
b. Item relating to getting up fees is taxed at KShs. 2,000,000/-. Kshs. 8,000,000/- is taxed off.
2. The other items in the Bill of costs shall remain as taxed by the taxing officer. 3. Each party shall bear its own costs of the reference. Items in the Bill of costs shall remain as taxed by the taxing officer.”
20. As stated earlier, the Court has perused the file Petition No. 12 of 2015 that gave rise to the present application and noted that the petition was filed on 8th June 2015 and at the time the Respondent herein was not a party. Along the way, the Respondent was joined as the 4th Respondent. However, the Petition was never amended to reflect any claim against the Respondent herein. The Applicant first filed Notice of Appointment of Advocates as Apollo Muinde & Ngunze Advocates on 21st June 2016 and filed a Notice of Change of Advocates to Apollo Muinde Advocates on 12th September 2017. The Applicant then filed Grounds of Objection to the Petition dated 12th September 2017.
21. Subsequently, a consent order was recorded by the parties on 7th November 2017, where the parties agreed that;
1. The National Land Commission has taken consignment of this matter and has classified it as one of the historical injustices under Article 67 (2) e of the Constitution. Accordingly, the parties have agreed that the National Land Commission should proceed and hear the matter for the purpose of recommending appropriate compensation.
2. The National Land Commission has agreed to hear the matter within 60 days.
3. That mention date to be taken at the registry within 90 days.
22. The Court record shows that the matter was heard by the Respondent herein and a determination was made on 7th February 2019, vesting the suit land to the 3rd Respondent, Kagumo Teachers Training College and the National Treasury and essentially dismissing the Petitioner''s claim.
23. The Applicant herein filed an application dated 10th February 2021 seeking to cease acting for the Respondent, and the same was allowed on 24th March 2021.
24. The Court history of the matters giving rise to the present application shows the nature of the claim the Applicant was instructed to defend. In determining the Chamber Summons herein dated 1st February 2023, the Court has considered the minimum instruction fees provided under the Advocates (Remuneration) Order Schedule 6 (1) (j), the nature and importance of the petition and indeed the fact that no orders in the petition were directed against the Respondent herein. The court has also taken into account the fact that the Respondent ended up being acknowledged as the proper, rightful and legally mandated arbitrator to the dispute between the initial parties to the petition.
25. The Court is of the view that the matters raised in the petition were not novel or complex, as they were matters within the purview of historical land injustices, within the mandate of the Respondent. The Court has also considered the time expended by the advocate, the care and labour that was put into the matter and the fact that the dispute was determined by the Respondent without going to a full trial before the Court.
26. The Court is of the further view that the amount or value of the subject matter was one of the many factors to be taken into account in determining the instructions fees following Schedule 6 (1) (j) of the Advocate’s (Remuneration) Order. In any case the question of the value of the subject matter of a suit that does not go for hearing was determined by the Supreme court of Kenya in Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) (2 August 2024) (Judgment) Neutral citation: [2024] KESC 44 (KLR) where it stated that;
“We are of a considered opinion that a claim in a suit which is struck out at the preliminary stage does not ipso facto render that claim or amount pleaded therein without more the value of the subject matter. The position still remains that the amount therein has not been ascertained or determined, and as such, it cannot be applied as the value of a subject matter in a disputed taxation. The application of such a claim or amount as the value of the subject matter would go against the rationale that the fees/costs paid to an advocate and a successful party should be reasonable. Consequently, we are not persuaded by the respondent’s contention that even where the amount claimed in a pleading which is struck out by a court, as in the instant appeal, the said amount would still act as the value of the subject matter when it comes to taxation of instruction fees.”
27. Further, the essence of the assessment of instruction fees was appreciated by the Court of Appeal in Ratemo Oira & Co Advocates v Magereza Sacco Society Ltd, Civil Appeal No 75 of 2018; [2019] eKLR, stating that -
“ Indeed, it is trite that an advocate is entitled to his fees once he is instructed, retained or employed by a client… However, it must be noted that an Advocate will be entitled to payment of a reasonable fee which is commensurate with the work done. The business of taxation of costs must ensure a delicate balance between the guiding principles aptly pronounced by the Premchand case which include: the "court owes a duty to the general public to see that costs are not allowed to rise to such a level as to deprive of access to courts but the worthy" and "the general level of the remuneration must be such as to attract worthy recruits to the profession". What is a reasonable fee in the circumstances can only be adjudicated by a taxing master by application of his discretion.”
28. Taking all these factors into account, the Court is of the view that an award of Kshs. 1,000,000/- as instruction fees would be fair and reasonable. On the question of getting up fees, the Court has considered the fact that the petition did not proceed to a hearing and at no time did the Applicant show that the case was confirmed for a hearing. The Court thus finds that the Applicant was not entitled to a getting-up fee. Fees for getting up or preparing for trial are provided for under Schedule 6 (2), which states that;
In any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall be not less than one-third of the instruction fee allowed on taxation:
Provided that —
(I) This fee may be increased as the taxation officer considers reasonable, but it does not include any work comprised in the instruction fee;
(ii) no fee under this paragraph is chargeable until the case has been confirmed for hearing, but an additional sum of not more than 15% of the instruction fee allowed on taxation may, if the judge so directs, be allowed against the party seeking the adjournment in respect of each occasion upon which a confirmed hearing is adjourned;
(iv) In every case which is not heard, the taxing officer must be satisfied that the case has been prepared for trial under this paragraph.
29. In conclusion, the Court finds that the Applicant’s Chamber Summons application dated 1st February 2023 is allowed on the following terms:
1) The decision of the taxing master delivered on 2nd November 2022 on the determination and re-taxation of item 1 of the Bill of Costs dated 12th April 2021 is hereby set aside.
2) The Court hereby exercises its inherent jurisdiction and re-taxes item Number 1 of the Bill of Costs dated 12th April 2021 as follows:
i) Instruction fees are taxed at Kshs 1,000,000, and a sum of Kshs 24,133,750 is taxed off.
ii) The Applicant is not entitled to getting up fees, and the entire sum of Kshs.8, 377,916 is hereby taxed off.
iii) Instructions fees are increased by ½ as provided under Schedule 6 (B) of the Advocates (Remuneration) Order, making a total of Kshs 500,000; the sum of Kshs 16,255,833 is taxed off.
iv) The other items were properly taxed at a total sum of Kshs 24,524.
v) The Bill of costs dated 12th April 2021 is hereby taxed in the total sum of Kshs.1, 524,524.
vi) Each party shall bear its own costs of the reference.
Dated, Signed and Delivered at Nyeri, this 27th day of November 2025
Delivered in the Presence of:-
Ms Kendi-Court Assistant
Apollo Muinde, the Applicant
Adano for the Respondent