REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CIVIL APPEAL NO. E018 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
(Being an application for review of the ruling of the bill of costs of Hon. W.C.Waswa(Deputy Registrar, High Court) delivered on 15 th January, 2026)
EMMANUEL MEITEKINI KISARU…………………………………………..APPELLANT
Versus
DAVID KONOI TELE..……………………………………………………1 ST RESPONDENT
ALEX SHAKEI…………………………………………….……………..2 ND RESPONDENT
GABRIEL PAYIANI TELE……………………………………………….3 RD RESPONDENT
WILSON LIAULO OLOLTELE……………….......………..…………..4 TH RESPONDENT
RULING
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) Before this Court is a reference arising from the decision of the Taxing Master, Hon. W. C. Waswa (Deputy Registrar), delivered on 15 th January 2026 in respect of the Respondents' Party-and-Party Bill of Costs following the withdrawal of this appeal. The Appellant/Applicant challenges the taxation through a Chamber Summons dated 29 th January 2026 brought under Rule 11(1) and (2) of the Advocates Remuneration Order, Sections 1A, 1B, and 3A of the Civil Procedure Act, and Articles 159 and 165 of the Constitution. The Applicant principally seeks the review, revision, and variation of the taxation on the ground that the Taxing Master misdirected herself in assessing the Bill of Costs, particularly the instruction fees and other impugned items, contrary to the Advocates' Remuneration Order and the express directions previously issued by this Court.
2) The dispute has its genesis in an appeal filed by the Appellant on 31st December 2024, challenging the judgment of the subordinate court concerning Land Parcel No. Transmara/Poroko/70. Before the appeal could be admitted for hearing and determined on its merits, the parties engaged in negotiations with the assistance of area elders and agreed to pursue an amicable settlement. Consequently, the Appellant filed a Notice of Withdrawal dated 2 nd May 2025, and on 5 th June 2025, this Court marked the appeal as withdrawn. Upon the Respondents' application for costs, the Court directed that the parties should first attempt to agree on costs; failing which, the Bill of Costs would be taxed on the lower scale, with only one-half of the taxed costs payable.
3) The parties failed to agree on costs, prompting the 1 st , 2 nd, and 3 rd Respondents to file a Party-and-Party Bill of Costs dated 31 st October 2025. Following taxation, the Deputy Registrar delivered a ruling on 15 th January 2026, taxing the Bill at Kshs. 163,030 and subsequently issued a Certificate of Costs in favour of the Respondents. Dissatisfied with that decision, the Applicant lodged a Notice of Objection dated 26 th January 2026 and thereafter instituted the present reference, contending that the Taxing Master failed to apply the correct principles governing taxation, disregarded the Court's earlier directions requiring taxation at the lower scale, and awarded excessive instruction fees and other items unsupported by the Advocates' Remuneration Order.
4) The Respondents oppose the reference, maintaining that the taxation was conducted lawfully, that the Taxing Master properly exercised her discretion in accordance with the Advocates Remuneration Order, and that no error of principle has been demonstrated to warrant interference by this Court. They further contend that the Applicant failed to comply with the mandatory procedure prescribed under Rule 11 of the Advocates Remuneration Order before filing the present reference and that the application is therefore procedurally incompetent.
5) It is against that factual and procedural background that this Court is called upon to determine whether the present reference is competently before it and, if so, whether the taxation delivered on 15th January 2026 disclosed any error of principle justifying interference with the Taxing Master's exercise of discretion.
B. PLEADINGS
i. Chamber Summons
6) The Appellant/Applicant, by a Chamber Summons dated 29 th January 2026, brought a reference under Rule 11(1) and (2) of the Advocates Remuneration Order, Sections 1A, 1B and 3A of the Civil Procedure Act, and Articles 159 and 165 of the Constitution, seeking the intervention of the High Court against the taxation decision delivered by the Taxing Master on 15 th January 2026. The Applicant prayed that the Court review, revise, vary, or set aside the taxation, particularly in respect of item 1 and the items identified in the Notice of Objection dated 26 th January 2026. The Applicant further sought the review and reduction of the costs awarded to the Respondents, contending that the taxation failed to comply with the provisions of the Advocates Remuneration Order, 2014, and the directions previously issued by the High Court on 5 th June 2025. Consequently, the Applicant asked the Court to substitute the Certificate of Costs issued pursuant to the impugned taxation with a fresh certificate reflecting what was described as the correct amount payable, together with costs of the application and such further orders as the Court deemed fit.
ii. Supporting Affidavit
7) The application was supported by the affidavit of Leteipa Tuyia, Advocate for the Appellant/Applicant, sworn on 29 th January 2026. The deponent deposed that the Applicant had filed the appeal on 31 st December 2024, challenging the judgment concerning Land Parcel No. Transmara/Poroko/70, but before the appeal could be heard, the parties engaged in discussions with the assistance of area elders and opted to pursue an out-of-court settlement. Consequently, the Applicant filed a Notice of Withdrawal dated 2 nd May 2025, which the Court confirmed on 5 th June 2025. Counsel stated that although the appeal was withdrawn, the Respondents sought costs, and the Court directed that the parties attempt to agree on costs, failing which the costs would be taxed at the lower scale, with only half of the taxed costs being payable.
8) The deponent further averred that the Respondents subsequently filed a Party-and-Party Bill of Costs dated 31 st October 2025, which the Taxing Master taxed on 15 th January 2026 at Kshs. 163,030, following which a Certificate of Costs was issued in favour of the Respondents. It was contended that the taxation was inconsistent with the Court's earlier directions and the Advocates' Remuneration Order because the Taxing Master awarded instruction fees on an excessively large scale instead of applying the lower scale as directed by the Court. According to the Applicant, the Taxing Master misapprehended the principles governing the assessment of instruction fees, thereby committing errors of principle that rendered the taxation erroneous.
9) The deponent further stated that the Applicant promptly lodged a Notice of Objection to the taxation on 26 th January 2026, within the statutory fourteen-day period prescribed under Rule 11 of the Advocates Remuneration Order. It was maintained that the impugned Certificate of Costs was founded upon an erroneous taxation and ought to be revised or adjusted by the Court. The Applicant therefore urged the Court to exercise its supervisory jurisdiction by setting aside or varying the taxation, reassessing the costs in accordance with the applicable law and the Court's earlier directions, and issuing a fresh Certificate of Costs reflecting the correct amount payable. It was further asserted that no prejudice would be occasioned to the Respondents if the reference were allowed and that the interests of justice favoured the grant of the orders sought.
iii. Replying Affidavit
10) The Respondents opposed the Chamber Summons through a Replying Affidavit sworn on 5 th March 2026 by the 1 st Respondent, David Konoi Tele, who deposed on his own behalf and on behalf of the 2 nd and 3 rd Respondents. He stated that he had read the Chamber Summons dated 29 th January 2026 together with the supporting affidavit and, save for matters of law or those expressly admitted, denied their contents in their entirety.
11) The deponent confirmed that the Taxing Master delivered a ruling on 15 th January 2026, taxing the Respondents’ Party-and-Party Bill of Costs at Kshs. 163,030, after which a Certificate of Costs was duly issued in their favour. He maintained that the taxation proceedings were conducted lawfully, fairly, and strictly in accordance with the Advocates Remuneration Order, and that the Taxing Officer properly exercised his discretion in assessing each item in the Bill of Costs. He therefore contended that the Applicant’s challenge to the taxation was misconceived, incompetent, and an abuse of the court process.
12) The Respondents further deposed that the procedure for challenging a taxation decision is expressly governed by Rule 11(1) and (2) of the Advocates Remuneration Order, which requires an objector to issue a written notice specifying the items objected to within fourteen days, whereupon the Taxing Officer is required to furnish reasons before a reference can properly be filed before a Judge. According to the Respondents, the Applicant failed to demonstrate strict compliance with these mandatory procedural requirements, particularly by failing to establish that a proper Notice of Objection was served upon the Taxing Officer and that reasons for the taxation were sought and obtained before instituting the present application. It was therefore asserted that the application was incompetent for failure to comply with the mandatory procedure prescribed under Rule 11. In support of this contention, the Respondents relied on Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, for the proposition that the High Court's jurisdiction to entertain a reference only arises where the procedural requirements under Rule 11 have been fully complied with.
13) The deponent further averred that the application was procedurally defective because it had been filed by way of a Chamber Summons within the appeal file instead of being instituted as a proper reference contemplated under Rule 11 of the Advocates Remuneration Order. He also pointed out that although the application was dated 29 th January 2026, it was only served upon the Respondents’ advocates on 26 th February 2026, approximately one month after the taxation ruling had been delivered. According to the Respondents, this unexplained delay demonstrated a lack of diligence on the part of the Applicant and was inconsistent with the requirement that a dissatisfied party act promptly within the statutory timelines provided under Rule 11.
14) On the merits, the Respondents denied that the Taxing Officer committed any error of principle. They argued that the Applicant had failed to identify any legal or factual error that would justify interference by the Court with the Taxing Master's exercise of discretion. They emphasized that it is well settled that a Judge will only interfere with a taxation where the Taxing Officer acted on a wrong principle or where the amount awarded is manifestly excessive or manifestly low. In this regard, reliance was placed on First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64, in which the Court held that judicial interference with taxation is only warranted where an error of principle has been demonstrated.
15) The Respondents further contended that the allegation that the Taxing Officer applied the highest scale or acted contrary to the Advocates' Remuneration Order was unsupported by any evidence. They maintained that the Taxing Officer properly considered the nature and complexity of the matter, the pleadings filed, the stage reached by the proceedings, and the applicable provisions of the Advocates Remuneration Order before assessing the costs. In their view, the amount of Kshs. 163,030 could not reasonably be described as excessive, unreasonable, or unlawful.
16) Lastly, the Respondents invoked Section 51(2) of the Advocates Act, arguing that a Certificate of Costs is final as to the amount certified unless and until it is set aside or altered by the Court. They asserted that the present application was frivolous, vexatious, and intended solely to delay them from enjoying the fruits of their lawfully taxed costs. Consequently, they urged the Court to uphold the Taxing Master's ruling and the Certificate of Costs in their entirety and to dismiss the application with costs.
iv. Further Affidavit
17) The Applicant filed a Further Affidavit sworn on 4 th April 2026 by Leteipa Tuyia, Advocate for the Appellant/Applicant, in response to the Replying Affidavit sworn by the 1st Respondent on 5 th March 2026. The deponent stated that the purpose of the further affidavit was to clarify the matters raised by the Respondents and to reaffirm the Applicant’s position that the reference against taxation was properly before the Court.
18) The deponent averred that following the Taxing Master's ruling delivered on 15 th January 2026, the Applicant duly filed and served a Notice of Objection dated 26 th January 2026 and thereafter lodged the present reference on 30 th January 2026, thereby complying with the procedural requirements set out under Rule 11 of the Advocates Remuneration Order. He further deposed that the Notice of Objection specifically identified the errors allegedly committed by the Taxing Master, particularly those relating to the impugned items, and annexed a copy of the Notice of Objection in support of that assertion. According to the Applicant, the Respondents' allegation that the mandatory procedure under Rule 11 had not been complied with was therefore unfounded.
19) The Applicant further explained that upon obtaining a mention date from the Court, the Chamber Summons and accompanying application were served upon the Respondents on 25th February 2026, notifying them of the scheduled court appearance. It was therefore maintained that service was effected after the Court allocated a hearing date and that there had been no procedural impropriety or undue delay on the Applicant's part.
20) The deponent reiterated the substantive complaint that the Taxing Master failed to comply with the express directions previously issued by the High Court when the appeal was withdrawn. He maintained that the Court had directed that the parties first attempt to agree on costs and, failing agreement, that the costs be taxed on the lower scale, with only half of the taxed costs being payable. According to the Applicant, the Party-and-Party Bill of Costs filed by the Respondents on 11 th November 2025 and taxed at Kshs. 163,030 was assessed on a higher scale contrary to those directions. It was therefore contended that the taxation was inconsistent with both the Court's order and the Advocates Remuneration Order, 2014.
21) The Applicant further reiterated that the Notice of Objection had been filed within the prescribed fourteen-day period following taxation and therefore satisfied the requirements of Rule 11 of the Advocates Remuneration Order. It was also maintained that the Taxing Master misconceived the principles governing the assessment of instruction fees and consequently awarded costs contrary to the applicable law and the directions issued by the trial Judge. In support of this contention, the Applicant annexed a copy of the Court's order embodying the directions on taxation.
22) The deponent concluded by reiterating that the Certificate of Costs was founded upon errors of principle and ought to be revised or adjusted by the Court. He accordingly urged the Court to exercise its discretion in favour of the Applicant, allow the reference, and grant the orders sought in the Chamber Summons.
C. Directions of the court.
23) The application was canvassed by way of written submissions.
D. THE PARTIES' SUBMISSIONS
i. The Applicant’s Submissions
24) The Applicant submitted that the present reference arose from the Taxing Master's ruling and Certificate of Costs issued on 15 th January 2026, which, it was argued, was contrary to both the Advocates Remuneration Order, 2014 and the express directions issued by the High Court on 5 th June 2025 when the appeal was withdrawn. Counsel contended that the learned Taxing Master disregarded the Court's order that the Bill of Costs be taxed at the lower scale and that only one-half of the taxed costs would be payable. It was therefore argued that the impugned taxation was founded upon an error of principle and ought to be reviewed, varied or set aside.
25) The Applicant identified four items of taxation as objectionable, namely the instruction fees, charges for other services, perusal fees, and court attendance fees. About Item 1, counsel submitted that the Taxing Master erred both in law and principle by awarding Kshs. 150,000 as instruction fees. It was argued that the appeal had been withdrawn before any substantive hearing, no trial had commenced, and no substantive orders had been made. Counsel further maintained that the dispute concerned only a 1.5-acre portion of Land Parcel No. Transmara/Poroko/70, whose value was below Kshs. 500,000, and therefore the applicable instruction fee under Schedule VI of the Advocates Remuneration Order should have been the minimum prescribed amount of Kshs. 22,500. According to the Applicant, there was no factual or legal basis for enhancing the instruction fee to Kshs. 150,000, particularly in light of the Court's earlier direction that the Bill be taxed on the lower scale.
26) Counsel argued that the Taxing Master improperly exercised her discretion by ignoring both the applicable provisions of the Advocates Remuneration Order and the specific directions issued by the trial Judge. It was submitted that a taxing officer is required to base instruction fees on the value of the subject matter disclosed in the pleadings or such value as may be determined by the Court, and should not import extraneous considerations into the assessment of costs. In support of this proposition, reliance was placed on Joreth Ltd v Kigano & Associates [2002] 1 EA 92; [2002] eKLR , where the Court of Appeal held that the value of the subject matter for purposes of taxation should be ascertained from the pleadings, judgment or settlement, and where this is not possible, the taxing officer must exercise discretion judicially having regard to the nature and importance of the matter.
27) The Applicant further submitted that the dispute was neither novel nor complex. Counsel argued that complexity cannot be inferred merely from the Bill of Costs but must be assessed by reference to factors such as the pleadings filed, the volume of documentation, the duration of the proceedings, and the legal issues involved. In this regard, reliance was placed on Mutuli & Apopo Advocates v Jirongo [2010] eKLR , where Koome J. (as she then was) emphasised that enhancement of instruction fees must be justified by objective factors demonstrating the complexity and importance of the matter. It was submitted that the present appeal involved a simple land dispute, which was withdrawn before hearing after the parties agreed to pursue an out-of-court settlement; therefore, there was no justification for increasing the instruction fees beyond the prescribed minimum.
28) The Applicant further argued that the Respondents' advocates were never called upon to undertake substantial work in defending the appeal because the parties had already agreed to resolve the dispute amicably after the appeal had been lodged. Counsel maintained that the Respondents were therefore not entitled to enhanced instruction fees and that, after applying the lower scale and the Court's direction that only half of the taxed costs be paid, the Certificate of Costs ought to be revised accordingly.
29) With respect to Item 2, relating to other services, the Applicant submitted that the Respondents' Preliminary Objection was never canvassed because the appeal was withdrawn before it could be heard. Consequently, it was argued that the item ought to have been taxed only at the prescribed minimum, and the Taxing Master erred by allowing it as drawn.
30) Regarding Items 3 and 4, counsel submitted that the charges for perusal of documents were repetitive and duplicated the same work. The Applicant, therefore, urged the Court to disallow those items entirely as they constituted double charging.
31) As regards Items 5 to 13, which related to court attendance, the Applicant submitted that the amounts allowed were excessive because the attendances were merely mentions convened to confirm administrative matters such as the supply of typed proceedings and the certified judgment. Counsel argued that the delays necessitating the mentions were attributable to the court registry and not to the Applicant, and that the Applicant should not be penalised by being required to bear inflated attendance fees occasioned by administrative delays. It was therefore submitted that, under Paragraph 3 of Schedule VI of the Advocates Remuneration Order, the attendance fees ought to have been taxed at the minimum allowable amount, which counsel proposed should be Kshs—300 per mention, instead of the higher sums awarded by the Taxing Master.
32) In conclusion, the Applicant urged the Court to find that the taxation was inconsistent with both the Advocates' Remuneration Order and the express directions previously issued by the High Court. Counsel invited the Court to review, revise, or vary the taxation, set aside the Certificate of Costs issued on 15 th January 2026, substitute it with a fresh certificate reflecting the proper taxation, and reduce the total taxed costs from Kshs. 163,030 to Kshs. 13,125. The Applicant further prayed that the costs of the reference be awarded in his favour.
ii. The Respondents’ Submissions
33) The 1 st , 2 nd and 3 rd Respondents submitted that the Applicant's Chamber Summons dated 29th January 2026 was devoid of merit and did not disclose any legal or factual basis upon which the Court could interfere with the decision of the Taxing Officer delivered on 15 th January 2026. Counsel recounted that, following the Applicant's voluntary withdrawal of the appeal challenging the decision regarding Land Parcel No. TRANSMARA/POROKO/70, this Court directed that the issue of costs be determined through taxation. Pursuant to those directions, the Taxing Officer taxed the Respondents' Party-and-Party Bill of Costs dated 31 st October 2025 at Kshs. 163,030, after which a Certificate of Costs was issued. It was submitted that the Applicant had failed to establish any proper basis for upsetting that decision.
34) On the first issue, namely whether the Applicant complied with Rule 11 of the Advocates Remuneration Order, the Respondents submitted that the procedure prescribed therein is mandatory and jurisdictional. Counsel argued that although the Applicant lodged a Notice of Objection within the prescribed fourteen-day period, he prematurely filed the present reference before allowing the Taxing Officer an opportunity to record and furnish the reasons for taxation as contemplated under Rule 11(2). According to the Respondents, compliance with every procedural step under Rule 11 is a condition precedent to the High Court's jurisdiction to entertain a taxation reference. In support of this proposition, reliance was placed on Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR , where the Court of Appeal held that a party challenging taxation must strictly comply with the procedure prescribed under Rule 11 before invoking the jurisdiction of the High Court. The Respondents also relied on Machira & Co. Advocates v Arthur K. Magugu & Another [2012] eKLR, in which the Court emphasised that compliance with Rule 11 is mandatory and that a reference filed without adherence to the prescribed procedure is incompetent. Counsel therefore argued that the Applicant's reference was premature and incompetent.
35) On the second issue, the Respondents submitted that the Applicant had failed to demonstrate any error of principle that would justify judicial interference with the Taxing Officer's exercise of discretion. It was argued that the law is settled that a Judge will only interfere with taxation where the Taxing Officer acted on a wrong principle, failed to consider relevant matters, considered irrelevant matters, or where the amount awarded is so manifestly excessive or so low as to amount to an error in principle. In support of that submission, reliance was placed on First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64 , in which Ringera J. held that interference with taxation is warranted only where an error of principle has been demonstrated. Counsel further cited Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another [1972] EA 162, where the Court of Appeal observed that the discretion of a taxing officer should not be interfered with lightly and that taxation should produce a fair and reasonable award. The Respondents also relied on Joreth Ltd v Kigano & Associates [2002] 1 EA 92; [2002] eKLR , for the proposition that where the value of the subject matter cannot readily be ascertained from the pleadings or judgment, the Taxing Officer is entitled to exercise discretion in determining the appropriate instruction fees, taking into account the nature, importance, and circumstances of the matter.
36) Applying those principles, the Respondents argued that the Taxing Officer properly exercised her discretion in assessing the instruction fees. Counsel submitted that the appeal concerned proprietary interests over Land Parcel No. TRANSMARA/POROKO/70, a matter of considerable importance to the parties, thereby justifying the exercise of discretion in determining instruction fees. It was contended that the Applicant had merely expressed dissatisfaction with the amount awarded without identifying any specific misdirection or legal error committed by the Taxing Officer. According to the Respondents, no evidence had been placed before the Court to demonstrate that the taxed amount was manifestly excessive or contrary to the provisions of Schedule VI of the Advocates Remuneration Order.
37) The Respondents further submitted that the application was procedurally defective for several reasons. Firstly, although the taxation ruling was delivered on 15 th January 2026, the Applicant only served the Respondents with the application on 25 th February 2026, approximately one month later, without offering any explanation for the delay. Secondly, while the Applicant issued a Notice of Objection within the statutory period, he failed to await the Taxing Officer's reasons before filing the reference, thereby rendering the application premature under Rule 11(2). Thirdly, counsel argued that the Applicant improperly filed the Chamber Summons within the appeal proceedings instead of instituting a proper reference in accordance with the Advocates Remuneration Order. In support of the argument that statutory procedures must be strictly followed, reliance was placed on Speaker of the National Assembly v Karume [1992] KLR 21 , in which the Court of Appeal held that when the law prescribes a specific procedure for redress, that procedure must be strictly adhered to.
38) Lastly, the Respondents submitted that the Applicant had failed to establish sufficient grounds for the Court to exercise its discretion in his favour. Counsel maintained that taxation of costs is a judicial function entrusted to the Taxing Officer, whose discretion should not be disturbed in the absence of a demonstrated error of principle. Reiterating the principles enunciated in First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64 , the Respondents argued that the Applicant had neither shown any misapplication of Schedule VI of the Advocates Remuneration Order nor demonstrated that the Taxing Officer considered irrelevant matters or ignored relevant considerations. They further contended that the application was merely an attempt to delay the Respondents from enjoying the fruits of a lawful taxation and the Certificate of Costs duly issued in their favour. According to counsel, the Applicant had failed to discharge the burden necessary to warrant interference with the taxation and had advanced only general allegations unsupported by evidence or law.
39) The Respondents therefore urged the Court to find that the Chamber Summons was misconceived, procedurally defective, and devoid of merit. They prayed that the application be dismissed with costs, that the taxation ruling delivered on 15 th January 2026 and the resultant Certificate of Costs be upheld, and that the costs of the reference be awarded to the 1 st , 2 nd, and 3 rd Respondents.
E. ISSUES FOR DETERMINATION
40) Having carefully considered the pleadings, affidavits, the rival written submissions, and the applicable law, the issues falling for determination are:
i. Whether the present reference is competently before the Court under Rule 11 of the Advocates Remuneration Order.
ii. Whether the Taxing Master committed an error of principle in taxing the Respondents' Party-and-Party Bill of Costs dated 31 st October 2025, thereby warranting interference by this Court.
iii. What orders should issue as to costs?
F. ANALYSIS AND DETERMINATION
i. Whether the present reference is competently before the Court under Rule 11 of the Advocates Remuneration Order
41) The Respondents have raised a preliminary objection to the competence of the present reference. They contend that although the Applicant filed a Notice of Objection within time, he failed to comply with the mandatory requirements of Rule 11(2) of the Advocates Remuneration Order by seeking and obtaining the Taxing Master's reasons before filing the reference. They further argue that the reference was improperl
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IN THE HIGH COURT OF KENYA AT KILGORIS
CIVIL APPEAL NO. E018 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
(Being an application for review of the ruling of the bill of costs of Hon. W.C.Waswa(Deputy Registrar, High Court) delivered on 15 th January, 2026)
EMMANUEL MEITEKINI KISARU…………………………………………..APPELLANT
Versus
DAVID KONOI TELE..……………………………………………………1 ST RESPONDENT
ALEX SHAKEI…………………………………………….……………..2 ND RESPONDENT
GABRIEL PAYIANI TELE……………………………………………….3 RD RESPONDENT
WILSON LIAULO OLOLTELE……………….......………..…………..4 TH RESPONDENT
RULING
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) Before this Court is a reference arising from the decision of the Taxing Master, Hon. W. C. Waswa (Deputy Registrar), delivered on 15 th January 2026 in respect of the Respondents' Party-and-Party Bill of Costs following the withdrawal of this appeal. The Appellant/Applicant challenges the taxation through a Chamber Summons dated 29 th January 2026 brought under Rule 11(1) and (2) of the Advocates Remuneration Order, Sections 1A, 1B, and 3A of the Civil Procedure Act, and Articles 159 and 165 of the Constitution. The Applicant principally seeks the review, revision, and variation of the taxation on the ground that the Taxing Master misdirected herself in assessing the Bill of Costs, particularly the instruction fees and other impugned items, contrary to the Advocates' Remuneration Order and the express directions previously issued by this Court.
2) The dispute has its genesis in an appeal filed by the Appellant on 31st December 2024, challenging the judgment of the subordinate court concerning Land Parcel No. Transmara/Poroko/70. Before the appeal could be admitted for hearing and determined on its merits, the parties engaged in negotiations with the assistance of area elders and agreed to pursue an amicable settlement. Consequently, the Appellant filed a Notice of Withdrawal dated 2 nd May 2025, and on 5 th June 2025, this Court marked the appeal as withdrawn. Upon the Respondents' application for costs, the Court directed that the parties should first attempt to agree on costs; failing which, the Bill of Costs would be taxed on the lower scale, with only one-half of the taxed costs payable.
3) The parties failed to agree on costs, prompting the 1 st , 2 nd, and 3 rd Respondents to file a Party-and-Party Bill of Costs dated 31 st October 2025. Following taxation, the Deputy Registrar delivered a ruling on 15 th January 2026, taxing the Bill at Kshs. 163,030 and subsequently issued a Certificate of Costs in favour of the Respondents. Dissatisfied with that decision, the Applicant lodged a Notice of Objection dated 26 th January 2026 and thereafter instituted the present reference, contending that the Taxing Master failed to apply the correct principles governing taxation, disregarded the Court's earlier directions requiring taxation at the lower scale, and awarded excessive instruction fees and other items unsupported by the Advocates' Remuneration Order.
4) The Respondents oppose the reference, maintaining that the taxation was conducted lawfully, that the Taxing Master properly exercised her discretion in accordance with the Advocates Remuneration Order, and that no error of principle has been demonstrated to warrant interference by this Court. They further contend that the Applicant failed to comply with the mandatory procedure prescribed under Rule 11 of the Advocates Remuneration Order before filing the present reference and that the application is therefore procedurally incompetent.
5) It is against that factual and procedural background that this Court is called upon to determine whether the present reference is competently before it and, if so, whether the taxation delivered on 15th January 2026 disclosed any error of principle justifying interference with the Taxing Master's exercise of discretion.
B. PLEADINGS
i. Chamber Summons
6) The Appellant/Applicant, by a Chamber Summons dated 29 th January 2026, brought a reference under Rule 11(1) and (2) of the Advocates Remuneration Order, Sections 1A, 1B and 3A of the Civil Procedure Act, and Articles 159 and 165 of the Constitution, seeking the intervention of the High Court against the taxation decision delivered by the Taxing Master on 15 th January 2026. The Applicant prayed that the Court review, revise, vary, or set aside the taxation, particularly in respect of item 1 and the items identified in the Notice of Objection dated 26 th January 2026. The Applicant further sought the review and reduction of the costs awarded to the Respondents, contending that the taxation failed to comply with the provisions of the Advocates Remuneration Order, 2014, and the directions previously issued by the High Court on 5 th June 2025. Consequently, the Applicant asked the Court to substitute the Certificate of Costs issued pursuant to the impugned taxation with a fresh certificate reflecting what was described as the correct amount payable, together with costs of the application and such further orders as the Court deemed fit.
ii. Supporting Affidavit
7) The application was supported by the affidavit of Leteipa Tuyia, Advocate for the Appellant/Applicant, sworn on 29 th January 2026. The deponent deposed that the Applicant had filed the appeal on 31 st December 2024, challenging the judgment concerning Land Parcel No. Transmara/Poroko/70, but before the appeal could be heard, the parties engaged in discussions with the assistance of area elders and opted to pursue an out-of-court settlement. Consequently, the Applicant filed a Notice of Withdrawal dated 2 nd May 2025, which the Court confirmed on 5 th June 2025. Counsel stated that although the appeal was withdrawn, the Respondents sought costs, and the Court directed that the parties attempt to agree on costs, failing which the costs would be taxed at the lower scale, with only half of the taxed costs being payable.
8) The deponent further averred that the Respondents subsequently filed a Party-and-Party Bill of Costs dated 31 st October 2025, which the Taxing Master taxed on 15 th January 2026 at Kshs. 163,030, following which a Certificate of Costs was issued in favour of the Respondents. It was contended that the taxation was inconsistent with the Court's earlier directions and the Advocates' Remuneration Order because the Taxing Master awarded instruction fees on an excessively large scale instead of applying the lower scale as directed by the Court. According to the Applicant, the Taxing Master misapprehended the principles governing the assessment of instruction fees, thereby committing errors of principle that rendered the taxation erroneous.
9) The deponent further stated that the Applicant promptly lodged a Notice of Objection to the taxation on 26 th January 2026, within the statutory fourteen-day period prescribed under Rule 11 of the Advocates Remuneration Order. It was maintained that the impugned Certificate of Costs was founded upon an erroneous taxation and ought to be revised or adjusted by the Court. The Applicant therefore urged the Court to exercise its supervisory jurisdiction by setting aside or varying the taxation, reassessing the costs in accordance with the applicable law and the Court's earlier directions, and issuing a fresh Certificate of Costs reflecting the correct amount payable. It was further asserted that no prejudice would be occasioned to the Respondents if the reference were allowed and that the interests of justice favoured the grant of the orders sought.
iii. Replying Affidavit
10) The Respondents opposed the Chamber Summons through a Replying Affidavit sworn on 5 th March 2026 by the 1 st Respondent, David Konoi Tele, who deposed on his own behalf and on behalf of the 2 nd and 3 rd Respondents. He stated that he had read the Chamber Summons dated 29 th January 2026 together with the supporting affidavit and, save for matters of law or those expressly admitted, denied their contents in their entirety.
11) The deponent confirmed that the Taxing Master delivered a ruling on 15 th January 2026, taxing the Respondents’ Party-and-Party Bill of Costs at Kshs. 163,030, after which a Certificate of Costs was duly issued in their favour. He maintained that the taxation proceedings were conducted lawfully, fairly, and strictly in accordance with the Advocates Remuneration Order, and that the Taxing Officer properly exercised his discretion in assessing each item in the Bill of Costs. He therefore contended that the Applicant’s challenge to the taxation was misconceived, incompetent, and an abuse of the court process.
12) The Respondents further deposed that the procedure for challenging a taxation decision is expressly governed by Rule 11(1) and (2) of the Advocates Remuneration Order, which requires an objector to issue a written notice specifying the items objected to within fourteen days, whereupon the Taxing Officer is required to furnish reasons before a reference can properly be filed before a Judge. According to the Respondents, the Applicant failed to demonstrate strict compliance with these mandatory procedural requirements, particularly by failing to establish that a proper Notice of Objection was served upon the Taxing Officer and that reasons for the taxation were sought and obtained before instituting the present application. It was therefore asserted that the application was incompetent for failure to comply with the mandatory procedure prescribed under Rule 11. In support of this contention, the Respondents relied on Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, for the proposition that the High Court's jurisdiction to entertain a reference only arises where the procedural requirements under Rule 11 have been fully complied with.
13) The deponent further averred that the application was procedurally defective because it had been filed by way of a Chamber Summons within the appeal file instead of being instituted as a proper reference contemplated under Rule 11 of the Advocates Remuneration Order. He also pointed out that although the application was dated 29 th January 2026, it was only served upon the Respondents’ advocates on 26 th February 2026, approximately one month after the taxation ruling had been delivered. According to the Respondents, this unexplained delay demonstrated a lack of diligence on the part of the Applicant and was inconsistent with the requirement that a dissatisfied party act promptly within the statutory timelines provided under Rule 11.
14) On the merits, the Respondents denied that the Taxing Officer committed any error of principle. They argued that the Applicant had failed to identify any legal or factual error that would justify interference by the Court with the Taxing Master's exercise of discretion. They emphasized that it is well settled that a Judge will only interfere with a taxation where the Taxing Officer acted on a wrong principle or where the amount awarded is manifestly excessive or manifestly low. In this regard, reliance was placed on First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64, in which the Court held that judicial interference with taxation is only warranted where an error of principle has been demonstrated.
15) The Respondents further contended that the allegation that the Taxing Officer applied the highest scale or acted contrary to the Advocates' Remuneration Order was unsupported by any evidence. They maintained that the Taxing Officer properly considered the nature and complexity of the matter, the pleadings filed, the stage reached by the proceedings, and the applicable provisions of the Advocates Remuneration Order before assessing the costs. In their view, the amount of Kshs. 163,030 could not reasonably be described as excessive, unreasonable, or unlawful.
16) Lastly, the Respondents invoked Section 51(2) of the Advocates Act, arguing that a Certificate of Costs is final as to the amount certified unless and until it is set aside or altered by the Court. They asserted that the present application was frivolous, vexatious, and intended solely to delay them from enjoying the fruits of their lawfully taxed costs. Consequently, they urged the Court to uphold the Taxing Master's ruling and the Certificate of Costs in their entirety and to dismiss the application with costs.
iv. Further Affidavit
17) The Applicant filed a Further Affidavit sworn on 4 th April 2026 by Leteipa Tuyia, Advocate for the Appellant/Applicant, in response to the Replying Affidavit sworn by the 1st Respondent on 5 th March 2026. The deponent stated that the purpose of the further affidavit was to clarify the matters raised by the Respondents and to reaffirm the Applicant’s position that the reference against taxation was properly before the Court.
18) The deponent averred that following the Taxing Master's ruling delivered on 15 th January 2026, the Applicant duly filed and served a Notice of Objection dated 26 th January 2026 and thereafter lodged the present reference on 30 th January 2026, thereby complying with the procedural requirements set out under Rule 11 of the Advocates Remuneration Order. He further deposed that the Notice of Objection specifically identified the errors allegedly committed by the Taxing Master, particularly those relating to the impugned items, and annexed a copy of the Notice of Objection in support of that assertion. According to the Applicant, the Respondents' allegation that the mandatory procedure under Rule 11 had not been complied with was therefore unfounded.
19) The Applicant further explained that upon obtaining a mention date from the Court, the Chamber Summons and accompanying application were served upon the Respondents on 25th February 2026, notifying them of the scheduled court appearance. It was therefore maintained that service was effected after the Court allocated a hearing date and that there had been no procedural impropriety or undue delay on the Applicant's part.
20) The deponent reiterated the substantive complaint that the Taxing Master failed to comply with the express directions previously issued by the High Court when the appeal was withdrawn. He maintained that the Court had directed that the parties first attempt to agree on costs and, failing agreement, that the costs be taxed on the lower scale, with only half of the taxed costs being payable. According to the Applicant, the Party-and-Party Bill of Costs filed by the Respondents on 11 th November 2025 and taxed at Kshs. 163,030 was assessed on a higher scale contrary to those directions. It was therefore contended that the taxation was inconsistent with both the Court's order and the Advocates Remuneration Order, 2014.
21) The Applicant further reiterated that the Notice of Objection had been filed within the prescribed fourteen-day period following taxation and therefore satisfied the requirements of Rule 11 of the Advocates Remuneration Order. It was also maintained that the Taxing Master misconceived the principles governing the assessment of instruction fees and consequently awarded costs contrary to the applicable law and the directions issued by the trial Judge. In support of this contention, the Applicant annexed a copy of the Court's order embodying the directions on taxation.
22) The deponent concluded by reiterating that the Certificate of Costs was founded upon errors of principle and ought to be revised or adjusted by the Court. He accordingly urged the Court to exercise its discretion in favour of the Applicant, allow the reference, and grant the orders sought in the Chamber Summons.
C. Directions of the court.
23) The application was canvassed by way of written submissions.
D. THE PARTIES' SUBMISSIONS
i. The Applicant’s Submissions
24) The Applicant submitted that the present reference arose from the Taxing Master's ruling and Certificate of Costs issued on 15 th January 2026, which, it was argued, was contrary to both the Advocates Remuneration Order, 2014 and the express directions issued by the High Court on 5 th June 2025 when the appeal was withdrawn. Counsel contended that the learned Taxing Master disregarded the Court's order that the Bill of Costs be taxed at the lower scale and that only one-half of the taxed costs would be payable. It was therefore argued that the impugned taxation was founded upon an error of principle and ought to be reviewed, varied or set aside.
25) The Applicant identified four items of taxation as objectionable, namely the instruction fees, charges for other services, perusal fees, and court attendance fees. About Item 1, counsel submitted that the Taxing Master erred both in law and principle by awarding Kshs. 150,000 as instruction fees. It was argued that the appeal had been withdrawn before any substantive hearing, no trial had commenced, and no substantive orders had been made. Counsel further maintained that the dispute concerned only a 1.5-acre portion of Land Parcel No. Transmara/Poroko/70, whose value was below Kshs. 500,000, and therefore the applicable instruction fee under Schedule VI of the Advocates Remuneration Order should have been the minimum prescribed amount of Kshs. 22,500. According to the Applicant, there was no factual or legal basis for enhancing the instruction fee to Kshs. 150,000, particularly in light of the Court's earlier direction that the Bill be taxed on the lower scale.
26) Counsel argued that the Taxing Master improperly exercised her discretion by ignoring both the applicable provisions of the Advocates Remuneration Order and the specific directions issued by the trial Judge. It was submitted that a taxing officer is required to base instruction fees on the value of the subject matter disclosed in the pleadings or such value as may be determined by the Court, and should not import extraneous considerations into the assessment of costs. In support of this proposition, reliance was placed on Joreth Ltd v Kigano & Associates [2002] 1 EA 92; [2002] eKLR , where the Court of Appeal held that the value of the subject matter for purposes of taxation should be ascertained from the pleadings, judgment or settlement, and where this is not possible, the taxing officer must exercise discretion judicially having regard to the nature and importance of the matter.
27) The Applicant further submitted that the dispute was neither novel nor complex. Counsel argued that complexity cannot be inferred merely from the Bill of Costs but must be assessed by reference to factors such as the pleadings filed, the volume of documentation, the duration of the proceedings, and the legal issues involved. In this regard, reliance was placed on Mutuli & Apopo Advocates v Jirongo [2010] eKLR , where Koome J. (as she then was) emphasised that enhancement of instruction fees must be justified by objective factors demonstrating the complexity and importance of the matter. It was submitted that the present appeal involved a simple land dispute, which was withdrawn before hearing after the parties agreed to pursue an out-of-court settlement; therefore, there was no justification for increasing the instruction fees beyond the prescribed minimum.
28) The Applicant further argued that the Respondents' advocates were never called upon to undertake substantial work in defending the appeal because the parties had already agreed to resolve the dispute amicably after the appeal had been lodged. Counsel maintained that the Respondents were therefore not entitled to enhanced instruction fees and that, after applying the lower scale and the Court's direction that only half of the taxed costs be paid, the Certificate of Costs ought to be revised accordingly.
29) With respect to Item 2, relating to other services, the Applicant submitted that the Respondents' Preliminary Objection was never canvassed because the appeal was withdrawn before it could be heard. Consequently, it was argued that the item ought to have been taxed only at the prescribed minimum, and the Taxing Master erred by allowing it as drawn.
30) Regarding Items 3 and 4, counsel submitted that the charges for perusal of documents were repetitive and duplicated the same work. The Applicant, therefore, urged the Court to disallow those items entirely as they constituted double charging.
31) As regards Items 5 to 13, which related to court attendance, the Applicant submitted that the amounts allowed were excessive because the attendances were merely mentions convened to confirm administrative matters such as the supply of typed proceedings and the certified judgment. Counsel argued that the delays necessitating the mentions were attributable to the court registry and not to the Applicant, and that the Applicant should not be penalised by being required to bear inflated attendance fees occasioned by administrative delays. It was therefore submitted that, under Paragraph 3 of Schedule VI of the Advocates Remuneration Order, the attendance fees ought to have been taxed at the minimum allowable amount, which counsel proposed should be Kshs—300 per mention, instead of the higher sums awarded by the Taxing Master.
32) In conclusion, the Applicant urged the Court to find that the taxation was inconsistent with both the Advocates' Remuneration Order and the express directions previously issued by the High Court. Counsel invited the Court to review, revise, or vary the taxation, set aside the Certificate of Costs issued on 15 th January 2026, substitute it with a fresh certificate reflecting the proper taxation, and reduce the total taxed costs from Kshs. 163,030 to Kshs. 13,125. The Applicant further prayed that the costs of the reference be awarded in his favour.
ii. The Respondents’ Submissions
33) The 1 st , 2 nd and 3 rd Respondents submitted that the Applicant's Chamber Summons dated 29th January 2026 was devoid of merit and did not disclose any legal or factual basis upon which the Court could interfere with the decision of the Taxing Officer delivered on 15 th January 2026. Counsel recounted that, following the Applicant's voluntary withdrawal of the appeal challenging the decision regarding Land Parcel No. TRANSMARA/POROKO/70, this Court directed that the issue of costs be determined through taxation. Pursuant to those directions, the Taxing Officer taxed the Respondents' Party-and-Party Bill of Costs dated 31 st October 2025 at Kshs. 163,030, after which a Certificate of Costs was issued. It was submitted that the Applicant had failed to establish any proper basis for upsetting that decision.
34) On the first issue, namely whether the Applicant complied with Rule 11 of the Advocates Remuneration Order, the Respondents submitted that the procedure prescribed therein is mandatory and jurisdictional. Counsel argued that although the Applicant lodged a Notice of Objection within the prescribed fourteen-day period, he prematurely filed the present reference before allowing the Taxing Officer an opportunity to record and furnish the reasons for taxation as contemplated under Rule 11(2). According to the Respondents, compliance with every procedural step under Rule 11 is a condition precedent to the High Court's jurisdiction to entertain a taxation reference. In support of this proposition, reliance was placed on Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR , where the Court of Appeal held that a party challenging taxation must strictly comply with the procedure prescribed under Rule 11 before invoking the jurisdiction of the High Court. The Respondents also relied on Machira & Co. Advocates v Arthur K. Magugu & Another [2012] eKLR, in which the Court emphasised that compliance with Rule 11 is mandatory and that a reference filed without adherence to the prescribed procedure is incompetent. Counsel therefore argued that the Applicant's reference was premature and incompetent.
35) On the second issue, the Respondents submitted that the Applicant had failed to demonstrate any error of principle that would justify judicial interference with the Taxing Officer's exercise of discretion. It was argued that the law is settled that a Judge will only interfere with taxation where the Taxing Officer acted on a wrong principle, failed to consider relevant matters, considered irrelevant matters, or where the amount awarded is so manifestly excessive or so low as to amount to an error in principle. In support of that submission, reliance was placed on First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64 , in which Ringera J. held that interference with taxation is warranted only where an error of principle has been demonstrated. Counsel further cited Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another [1972] EA 162, where the Court of Appeal observed that the discretion of a taxing officer should not be interfered with lightly and that taxation should produce a fair and reasonable award. The Respondents also relied on Joreth Ltd v Kigano & Associates [2002] 1 EA 92; [2002] eKLR , for the proposition that where the value of the subject matter cannot readily be ascertained from the pleadings or judgment, the Taxing Officer is entitled to exercise discretion in determining the appropriate instruction fees, taking into account the nature, importance, and circumstances of the matter.
36) Applying those principles, the Respondents argued that the Taxing Officer properly exercised her discretion in assessing the instruction fees. Counsel submitted that the appeal concerned proprietary interests over Land Parcel No. TRANSMARA/POROKO/70, a matter of considerable importance to the parties, thereby justifying the exercise of discretion in determining instruction fees. It was contended that the Applicant had merely expressed dissatisfaction with the amount awarded without identifying any specific misdirection or legal error committed by the Taxing Officer. According to the Respondents, no evidence had been placed before the Court to demonstrate that the taxed amount was manifestly excessive or contrary to the provisions of Schedule VI of the Advocates Remuneration Order.
37) The Respondents further submitted that the application was procedurally defective for several reasons. Firstly, although the taxation ruling was delivered on 15 th January 2026, the Applicant only served the Respondents with the application on 25 th February 2026, approximately one month later, without offering any explanation for the delay. Secondly, while the Applicant issued a Notice of Objection within the statutory period, he failed to await the Taxing Officer's reasons before filing the reference, thereby rendering the application premature under Rule 11(2). Thirdly, counsel argued that the Applicant improperly filed the Chamber Summons within the appeal proceedings instead of instituting a proper reference in accordance with the Advocates Remuneration Order. In support of the argument that statutory procedures must be strictly followed, reliance was placed on Speaker of the National Assembly v Karume [1992] KLR 21 , in which the Court of Appeal held that when the law prescribes a specific procedure for redress, that procedure must be strictly adhered to.
38) Lastly, the Respondents submitted that the Applicant had failed to establish sufficient grounds for the Court to exercise its discretion in his favour. Counsel maintained that taxation of costs is a judicial function entrusted to the Taxing Officer, whose discretion should not be disturbed in the absence of a demonstrated error of principle. Reiterating the principles enunciated in First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64 , the Respondents argued that the Applicant had neither shown any misapplication of Schedule VI of the Advocates Remuneration Order nor demonstrated that the Taxing Officer considered irrelevant matters or ignored relevant considerations. They further contended that the application was merely an attempt to delay the Respondents from enjoying the fruits of a lawful taxation and the Certificate of Costs duly issued in their favour. According to counsel, the Applicant had failed to discharge the burden necessary to warrant interference with the taxation and had advanced only general allegations unsupported by evidence or law.
39) The Respondents therefore urged the Court to find that the Chamber Summons was misconceived, procedurally defective, and devoid of merit. They prayed that the application be dismissed with costs, that the taxation ruling delivered on 15 th January 2026 and the resultant Certificate of Costs be upheld, and that the costs of the reference be awarded to the 1 st , 2 nd, and 3 rd Respondents.
E. ISSUES FOR DETERMINATION
40) Having carefully considered the pleadings, affidavits, the rival written submissions, and the applicable law, the issues falling for determination are:
i. Whether the present reference is competently before the Court under Rule 11 of the Advocates Remuneration Order.
ii. Whether the Taxing Master committed an error of principle in taxing the Respondents' Party-and-Party Bill of Costs dated 31 st October 2025, thereby warranting interference by this Court.
iii. What orders should issue as to costs?
F. ANALYSIS AND DETERMINATION
i. Whether the present reference is competently before the Court under Rule 11 of the Advocates Remuneration Order
41) The Respondents have raised a preliminary objection to the competence of the present reference. They contend that although the Applicant filed a Notice of Objection within time, he failed to comply with the mandatory requirements of Rule 11(2) of the Advocates Remuneration Order by seeking and obtaining the Taxing Master's reasons before filing the reference. They further argue that the reference was improperl
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