1. Julia Mumbi Kariuki, 2nd Administrator/Applicant, approached this court through an application dated 04/02/2025 seeking orders as follows;
a) Spent.
b) That there be a stay of any intended execution in recovery of taxed costs arising from the certificate of costs issued on 31/1/2025 pending the hearing and determination of this application.
c) That the decision of the honorable taxing office delivered on 22/1/2025 as far as the same relates to the party to party Bill of Costs dated 30/1/2024.
d) That the party to party Bill of costs dated 30/1/2024 be remitted back to the taxing officer for re-taxation under schedule 10 of the Advocates (Remuneration)(Amendment) Order 2014.
2. The application is premised on grounds that the Respondent (2nd Administrator/2nd Respondent) filed a party to party Bill of costs dated 30/1/2024 which was fixed by Hon. Lesantos Larabi (Deputy Registrar) who delivered a ruling on 22/1/2025 taxing the Bill at Kshs 41,765, a decision that was erroneous and cannot be sustained in law. That the Respondent has sent out a demand note to have the taxed costs paid within 7 days, which is not a formal way of execution indicating the intention to execute and a certificate of costs has been obtained.
3. In the affidavit deponed by the 2nd Administrator, she avers that her advocate reviewed the ruling and found that the taxing master didn’t specify under what schedule he taxed the Bill; he did not give reasons for awarding instruction’s fees of Kshs 20,000. He taxed costs on items that were not provided for under schedule 10 which should have guided him and he disregarded that the costs leading to the Bill arose out of an application dated 18/8/2020 that the 1st Administrator/Respondent had not opposed.
4. That the decision of the taxing master which cannot be sustained in law requires being retaxed afresh by another taxing master.
5. The 1st administrator/respondent filed grounds of opposition calling for striking out the application with costs. That the application does not disclose any cause of action; the applicant has not filed nor sought leave to file a taxation reference to the court against the ruling of the taxing master on 22/11/2025 for consideration by the court.
6. That the application is misconceived to the extent that from the prayers (prayer 3) of the chamber summons is not clear on orders being sought whereas parties are bound by their pleadings.
7. The application was disposed through written submissions. It is urged by the Applicant (2nd Administrator) that the taxing master erred in law by relying on the wrong schedule of the Advocates (Remuneration) Amendment Order, 2014 (ARO), and the schedule relied upon was not applicable. That schedule 10 of the Advocates (Remuneration) Order is applicable in taxation of the Bill of Costs. That the ruling of the taxing master was delivered on 22/1/2025 and its reading does not indicate under what schedule the taxing master taxed costs.
8. That the 1st administrator did not oppose the application dated 18.8.2021 hence he is not entitled to costs. That having deponed that he was not opposed he is estopped from claiming the costs.
9. Calling upon the court to find that failure to indicate the schedule relied upon, the court could only conjecture on the schedule the taxation was based on. That the position was espoused in Keti Vs W.K Ngendi & Co Advocates [2023] KBHC 25710 (KLR). Reference is also made to paragraph 51C of the Advocates (Remuneration) Order on taxation of probate matters.
10. That the application does not disclose any cause of action and is meant to delay the recovery of costs. That failure to refer to the schedule the Bill was taxed is a reason for challenging the decision and that on the argument that there was no leave granted prior to filing the reference; reliance is placed on paragraph 11 of the Advocates (Remuneration) Order that allows for filing of a reference within 14 days. That the instant application was filed within 14 days after delivery of the taxation ruling. That the provision doesn’t require leave to file a reference. That leave required is for filing an application against the reference to the court of Appeal.
11. The 1st Administrator (Respondent) submitted that the Applicant never complied with the mandatory provisions of the law by following the laid down criteria as held in M/S Lubuleliah & Associates v NK Brothers Ltd (Misc Civil Case 52 of 2012) [2014] KEHC 7393 (KLR) Paragraph 29 where the court stated that; “Paragraph 11 of the Advocates (Remuneration) Order provides as follows:-
(1) Should any party object to the decision of the taxing officer he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.” ( Emphasis by the court)
Which makes the current application defective calling for dismissal; That no notice was given by the Applicant to the taxing officer notifying him of the items she may be objecting to, hence the taxing officer may have not known such items; a Notice that should have been given on or before 5th February 2025.
12. That following what is provided in paragraph 11 of the Advocates (Remuneration) Order 2014, the taxing officer would only have given reasons for the decision had the Applicant given notice of items objected to, hence, the application is premature and in violation of paragraph 11 of the Advocates (Remuneration) Order, 2014.
13. That the fee of Kshs 20,000/= under item 3 was justified. Considering the force and labour involved in drafting pleadings in relation to summons dated 18/8/2020 in which the 1st Administrator (Respondent) participated up to logical conclusion hence the application should be dismissed with costs.
14. I have considered the application, affidavit in support and opposition and rival arguments. The chamber summons application is brought pursuant to Rule 11(2) of the Advocates Remuneration Order, 1962 that enacts as follows;
Objection to decision on taxation and appeal to Court of Appeal
(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.
15. The reference herein was made following the Applicant dissatisfaction with orders granted by the taxing officer, a decision that is considered erroneous and not worthy to pass the test of being sustained in law. Notably, although the Applicant seeks refuge in Rule 11 (2) (supra) she did not notify the taxing officer of the items she objected to so as to get reasons for the decision by the taxing officer. It maybe for that reasons that she was not able to point out which particular items she was dissatisfied with and ended up making a blanket argument. In Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited [2017] KEHC 1032 (KLR) Meoli J. held;
“In my own view the provisions of paragraph 11 of the Remuneration Order serve several purposes. Firstly the requirement that a party seeking reasons gives notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection. Thus the taxing master, adverse party and ultimately the reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages…(Emphasis added)
In this instance the requirements of Paragraph 11 of the Remuneration Order serve a clear purpose and have an important place in taxation disputes as stated above. There is no reason demonstrated as to why the Applicant herein should be exempted from the requirements. To proceed with the Reference without the benefit of considered reasons for the ruling by the taxing master, the parties and indeed the court may have to engage in the unenviable and unnecessary task of guess work and speculation as to the actual reasons behind the taxation decision. That is undesirable and inimical to the administration of justice.”
16. The gravamen is that the schedule under which the Bill was taxed is not specified; no reasons were given for awarding instructions fees of Kshs 20,000/= under item 3. The taxing master was not guided by schedule 10 and that costs leading to the Bill arose out of an application dated 18/8/2020, a fact disregarded.
17. Looking at the impugned ruling dated 22/1/2025 it is in respect of (party and party Bill of costs for the defendant/Respondent).
(Ruling and Reasons for Taxation)
The ruling details each item sought and reasons for disallowing as far as it was appropriate. The ruling was pursuant to the amended party to party bill of costs on the application dated 18/8/2020 which was indeed contested and the particulars of service tendered. It was per schedule 10 of the Advocates Remuneration (Amendment) Order 2014. This was the basis of the challenged ruling. The amount sought as having been charged was Kshs 67,773/= but upon taxation Kshs 27,623 was taxed off leaving the Bill to stand at Kshs 41,765.
18. The Applicant having not requested for reasons pursuant to Rule 11 of the Advocates (Remuneration) Order, the application is improperly before court. In the result, I dismiss it with costs to the Respondent.
19. It is so ordered.
a) Spent.
b) That there be a stay of any intended execution in recovery of taxed costs arising from the certificate of costs issued on 31/1/2025 pending the hearing and determination of this application.
c) That the decision of the honorable taxing office delivered on 22/1/2025 as far as the same relates to the party to party Bill of Costs dated 30/1/2024.
d) That the party to party Bill of costs dated 30/1/2024 be remitted back to the taxing officer for re-taxation under schedule 10 of the Advocates (Remuneration)(Amendment) Order 2014.
2. The application is premised on grounds that the Respondent (2nd Administrator/2nd Respondent) filed a party to party Bill of costs dated 30/1/2024 which was fixed by Hon. Lesantos Larabi (Deputy Registrar) who delivered a ruling on 22/1/2025 taxing the Bill at Kshs 41,765, a decision that was erroneous and cannot be sustained in law. That the Respondent has sent out a demand note to have the taxed costs paid within 7 days, which is not a formal way of execution indicating the intention to execute and a certificate of costs has been obtained.
3. In the affidavit deponed by the 2nd Administrator, she avers that her advocate reviewed the ruling and found that the taxing master didn’t specify under what schedule he taxed the Bill; he did not give reasons for awarding instruction’s fees of Kshs 20,000. He taxed costs on items that were not provided for under schedule 10 which should have guided him and he disregarded that the costs leading to the Bill arose out of an application dated 18/8/2020 that the 1st Administrator/Respondent had not opposed.
4. That the decision of the taxing master which cannot be sustained in law requires being retaxed afresh by another taxing master.
5. The 1st administrator/respondent filed grounds of opposition calling for striking out the application with costs. That the application does not disclose any cause of action; the applicant has not filed nor sought leave to file a taxation reference to the court against the ruling of the taxing master on 22/11/2025 for consideration by the court.
6. That the application is misconceived to the extent that from the prayers (prayer 3) of the chamber summons is not clear on orders being sought whereas parties are bound by their pleadings.
7. The application was disposed through written submissions. It is urged by the Applicant (2nd Administrator) that the taxing master erred in law by relying on the wrong schedule of the Advocates (Remuneration) Amendment Order, 2014 (ARO), and the schedule relied upon was not applicable. That schedule 10 of the Advocates (Remuneration) Order is applicable in taxation of the Bill of Costs. That the ruling of the taxing master was delivered on 22/1/2025 and its reading does not indicate under what schedule the taxing master taxed costs.
8. That the 1st administrator did not oppose the application dated 18.8.2021 hence he is not entitled to costs. That having deponed that he was not opposed he is estopped from claiming the costs.
9. Calling upon the court to find that failure to indicate the schedule relied upon, the court could only conjecture on the schedule the taxation was based on. That the position was espoused in Keti Vs W.K Ngendi & Co Advocates [2023] KBHC 25710 (KLR). Reference is also made to paragraph 51C of the Advocates (Remuneration) Order on taxation of probate matters.
10. That the application does not disclose any cause of action and is meant to delay the recovery of costs. That failure to refer to the schedule the Bill was taxed is a reason for challenging the decision and that on the argument that there was no leave granted prior to filing the reference; reliance is placed on paragraph 11 of the Advocates (Remuneration) Order that allows for filing of a reference within 14 days. That the instant application was filed within 14 days after delivery of the taxation ruling. That the provision doesn’t require leave to file a reference. That leave required is for filing an application against the reference to the court of Appeal.
11. The 1st Administrator (Respondent) submitted that the Applicant never complied with the mandatory provisions of the law by following the laid down criteria as held in M/S Lubuleliah & Associates v NK Brothers Ltd (Misc Civil Case 52 of 2012) [2014] KEHC 7393 (KLR) Paragraph 29 where the court stated that; “Paragraph 11 of the Advocates (Remuneration) Order provides as follows:-
(1) Should any party object to the decision of the taxing officer he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.” ( Emphasis by the court)
Which makes the current application defective calling for dismissal; That no notice was given by the Applicant to the taxing officer notifying him of the items she may be objecting to, hence the taxing officer may have not known such items; a Notice that should have been given on or before 5th February 2025.
12. That following what is provided in paragraph 11 of the Advocates (Remuneration) Order 2014, the taxing officer would only have given reasons for the decision had the Applicant given notice of items objected to, hence, the application is premature and in violation of paragraph 11 of the Advocates (Remuneration) Order, 2014.
13. That the fee of Kshs 20,000/= under item 3 was justified. Considering the force and labour involved in drafting pleadings in relation to summons dated 18/8/2020 in which the 1st Administrator (Respondent) participated up to logical conclusion hence the application should be dismissed with costs.
14. I have considered the application, affidavit in support and opposition and rival arguments. The chamber summons application is brought pursuant to Rule 11(2) of the Advocates Remuneration Order, 1962 that enacts as follows;
Objection to decision on taxation and appeal to Court of Appeal
(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.
15. The reference herein was made following the Applicant dissatisfaction with orders granted by the taxing officer, a decision that is considered erroneous and not worthy to pass the test of being sustained in law. Notably, although the Applicant seeks refuge in Rule 11 (2) (supra) she did not notify the taxing officer of the items she objected to so as to get reasons for the decision by the taxing officer. It maybe for that reasons that she was not able to point out which particular items she was dissatisfied with and ended up making a blanket argument. In Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited [2017] KEHC 1032 (KLR) Meoli J. held;
“In my own view the provisions of paragraph 11 of the Remuneration Order serve several purposes. Firstly the requirement that a party seeking reasons gives notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection. Thus the taxing master, adverse party and ultimately the reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages…(Emphasis added)
In this instance the requirements of Paragraph 11 of the Remuneration Order serve a clear purpose and have an important place in taxation disputes as stated above. There is no reason demonstrated as to why the Applicant herein should be exempted from the requirements. To proceed with the Reference without the benefit of considered reasons for the ruling by the taxing master, the parties and indeed the court may have to engage in the unenviable and unnecessary task of guess work and speculation as to the actual reasons behind the taxation decision. That is undesirable and inimical to the administration of justice.”
16. The gravamen is that the schedule under which the Bill was taxed is not specified; no reasons were given for awarding instructions fees of Kshs 20,000/= under item 3. The taxing master was not guided by schedule 10 and that costs leading to the Bill arose out of an application dated 18/8/2020, a fact disregarded.
17. Looking at the impugned ruling dated 22/1/2025 it is in respect of (party and party Bill of costs for the defendant/Respondent).
(Ruling and Reasons for Taxation)
The ruling details each item sought and reasons for disallowing as far as it was appropriate. The ruling was pursuant to the amended party to party bill of costs on the application dated 18/8/2020 which was indeed contested and the particulars of service tendered. It was per schedule 10 of the Advocates Remuneration (Amendment) Order 2014. This was the basis of the challenged ruling. The amount sought as having been charged was Kshs 67,773/= but upon taxation Kshs 27,623 was taxed off leaving the Bill to stand at Kshs 41,765.
18. The Applicant having not requested for reasons pursuant to Rule 11 of the Advocates (Remuneration) Order, the application is improperly before court. In the result, I dismiss it with costs to the Respondent.
19. It is so ordered.