Before this Court are two competing references arising from the taxation of the Party and Party Bill of Costs dated 24 April 2024. The Taxing Officer, Hon. Harriet Getenga, delivered her ruling on 2 October 2024 taxing the Bill at Kshs. 457,241.67 all inclusive.
Aggrieved, the 2nd Respondent/Applicant filed a Notice of Objection dated 2 November 2024 and a Reference by Chamber Summons dated 17 July 2025 challenging, inter alia, the instruction fee, the computation of folios on drawings and perusals, the taxation off of Item No. 47 relating to the contempt application, and the disallowance of certain disbursements.
The Petitioners/Respondents equally filed a Reference by Chamber Summons dated 4 November 2024 contending that the instruction fee of Kshs. 200,000 was excessive and that the Taxing Officer ought to have further reduced the same.
Directions were given that both references be canvassed by way of written submissions. The Court has considered the respective affidavits, submissions and authorities cited.
Issues for Determination
From the rival references and submissions, the issues that commend themselves for determination are:
a) Whether the Taxing Officer erred in principle in assessing the instruction fee at Kshs. 200,000.
b) Whether the Taxing Officer misdirected herself in the computation of folios for drawings and perusals.
c) Whether the Taxing Officer erred in taxing off Item No. 47 relating to the contempt proceedings without assigning reasons.
d) Whether the Taxing Officer erred in disallowing Items 85 and 86 on disbursements.
e) What orders should issue as to stay and costs.
Applicable Legal Principles
The jurisdiction of this Court on a reference from a taxation is circumscribed. It is now settled that a Judge will not interfere with the discretion of a Taxing Officer unless it is shown that the decision is based on an error of principle, or that the fee awarded is so manifestly excessive or so manifestly low as to amount to an injustice. (Joreth Ltd v Kigano & Associates [2002] 1 EA 92; Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] EA 162).
The same restrained approach has been adopted in comparative common law jurisdictions. In England, it has long been held that a taxing authority’s decision will only be disturbed where it is shown to be plainly wrong or based on an erroneous principle (see Re Eastwood [1975] Ch 112). In India, courts have similarly emphasized that interference is warranted only where taxation is arbitrary, capricious or ignores settled principles (State of Punjab v Ram Singh AIR 1992 SC 2188).
Instruction Fees
Instruction fees in party and party costs are governed by Schedule 6 of the Advocates (Remuneration) Order, 2014. Where the value of the subject matter is ascertainable from the pleadings, judgment or settlement, it forms the basis of taxation. Where it is not, the Taxing Officer is entitled to exercise discretion taking into account the nature and importance of the cause, the interest of the parties, the general conduct of the proceedings and all other relevant circumstances (Joreth Ltd v Kigano & Associates (supra)).
In the present matter, the Petition was a constitutional petition relating to alleged compulsory acquisition and interference with land said to be ancestral, involving 26 beneficiaries. It proceeded to a full hearing over a span of about eight years, involved viva voce evidence, interlocutory applications including a contempt motion, site visits and extensive submissions.
The minimum instruction fee for an opposed constitutional petition under Schedule 6 is Kshs. 100,000. The Taxing Officer enhanced this to Kshs. 200,000, citing the duration, nature and complexity of the matter.
The 2nd Respondent/Applicant contends that the sum is inordinately low given the sensitivity, complexity and longevity of the dispute. The Petitioners/Respondents on the other hand argue that the sum is excessive and that the matter was not novel or particularly complex.
I have considered the ruling of the Taxing Officer and the material placed before her. While she identified relevant factors such as the duration of the matter and its constitutional character, the record discloses that she did not adequately interrogate or articulate the qualitative weight of the complexity, the multiplicity of applications, the socio-cultural importance of the land to the parties, and the intensity of the proceedings over nearly a decade.
Comparative jurisprudence is instructive. In South Africa, courts have emphasized that instruction fees must reflect not only the monetary value but also the responsibility undertaken, the importance of the matter to the client and the complexity involved (President of the RSA v Gauteng Lions Rugby Union 2002 (2) SA 64 (CC)).
In my view, while the Taxing Officer was right to enhance the minimum fee, the enhancement to Kshs. 200,000 did not sufficiently capture the totality of the relevant factors. Conversely, however, the Court must remain mindful of the principle that costs should not be allowed to rise to a level that inhibits access to justice (Premchand Raichand (supra)).
Doing the best I can, and exercising a restrained appellate discretion, I find that the instruction fee was based on a misapprehension of principle in so far as it failed to proportionately reflect the duration, complexity and responsibility borne by counsel. I accordingly set aside the instruction fee of Kshs. 200,000 and substitute it with an instruction fee of Kshs. 350,000.
Folios in Drawings and Perusals
Rule 17 of the Advocates (Remuneration) Order defines a folio as 100 words and provides that any fraction of a folio shall be charged as one folio.
The Taxing Officer stated that it was not humanly possible to manually verify the word count of each page and adopted a sampling method, treating each page as comprising three folios.
While practicality is an important consideration, Rule 17 does not donate power to a taxing officer to substitute an average or notional folio count for actual verification. The duty of a taxing officer is to verify the number of folios, and only thereafter compute the applicable fees (Amalo Company Ltd v BN Kotecha & Sons Ltd [2022] eKLR).
The adoption of a flat rate of three folios per page, without verification, amounted to a misdirection in principle. The Court of Appeal of Uganda, in Attorney General v Tinyefuza Constitutional Appeal No. 1 of 1997, underscored that taxation must be anchored on ascertainable criteria and not on conjecture or convenience.
I accordingly find that the Taxing Officer erred in principle in her approach to the computation of folios. The items under drawings and perusals are hereby set aside and remitted to the Taxing Officer for fresh taxation strictly in accordance with Rule 17.
Item No. 47 (Contempt Application)
Item No. 47 related to instruction fees to oppose a contempt application dated 14 July 2022, which was heard and determined by B.N. Olao J on 17 November 2022, with costs awarded to the 2nd Respondent.
The Taxing Officer taxed off this item without assigning any reason.
It is a cardinal principle that a taxing officer must give reasons for disallowing items that are otherwise provided for under the Advocates (Remuneration) Order. Failure to give reasons amounts to an error of principle (Gladys Pereruan v Betty Chepkorir [2021] eKLR; Mumias Sugar Company Ltd v Tom Ojienda & Associates [2019] eKLR).
While it is correct that not every interlocutory application attracts a separate instruction fee, the contempt proceedings in this matter were sui generis, entailed personal liability against named officers, were fully contested, and culminated in a reasoned ruling with costs awarded.
Comparative authority again reinforces this position. In England, separate costs are ordinarily recoverable where contempt proceedings impose additional forensic responsibility distinct from the main cause (see Re L (A Child) [2016] EWCA Civ 173).
In the circumstances, I find that the Taxing Officer erred in principle by taxing off Item No. 47 without assigning reasons and in disregard of the express award of costs by the trial court. Item No. 47 is hereby remitted to the Taxing Officer for fresh taxation.
Disbursements (Items 85 and 86)
Rule 74 of the Advocates (Remuneration) Order provides that receipts or vouchers for all disbursements charged in a Bill of Costs shall be produced if required by the Taxing Officer.
The Taxing Officer disallowed Items 85 and 86 on the basis that no receipts had been produced.
The 2nd Respondent/Applicant contends that the receipts were in the court file and that the Taxing Officer failed to peruse the same or to call for them.
The obligation to prove disbursements lies with the party claiming them. However, once it is brought to the attention of the taxing officer that the receipts are on record, it is incumbent upon her to verify the same or to call for their production (Export Processing Zones Authority v Nzei & Co Advocates [2021] eKLR).
The record discloses that the Taxing Officer did not undertake such verification nor did she invite production of the receipts.
I therefore find that the disallowance of Items 85 and 86 without verification was an error of principle. The said items are remitted to the Taxing Officer for fresh taxation upon verification of the supporting receipts.
Stay of Execution
The Petitioners/Respondents sought a stay of execution of the taxation ruling pending the determination of the references. In light of the partial success of the 2nd Respondent/Applicant’s reference and the setting aside of material components of the taxation, it would be inequitable to allow execution to proceed on a manifestly unsettled certificate of costs.
In keeping with the principles under Order 42 Rule 6 of the Civil Procedure Rules and the comparative proportionality doctrine articulated in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, I am satisfied that substantial loss would result if execution were to proceed.
A stay of execution of the taxation ruling dated 2 October 2024 is hereby granted pending the fresh taxation directed herein.
Disposition
In the result, the Court makes the following orders:
a) The instruction fee of Kshs. 200,000 is set aside and substituted with an instruction fee of Kshs. 350,000.
b) The taxation of items under drawings and perusals is set aside and remitted to the Taxing Officer for fresh taxation strictly in accordance with Rule 17 of the Advocates (Remuneration) Order.
c) Item No. 47 is remitted to the Taxing Officer for fresh taxation.
d) Items 85 and 86 on disbursements are remitted to the Taxing Officer for fresh taxation upon verification of supporting receipts.
e) There shall be a stay of execution of the taxation ruling dated 2 October 2024 pending the fresh taxation.
f) Each party shall bear its own costs of the references.
DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 29th DAY OF JANUARY, 2026.
…………………….
HON. E. C CHERONO
ELC JUDGE
In the presence of;
1. Mr. Wangila for the Respondents.
2. Petitioner/Advocate-absent.
3. Diana C/A