1. Before the Court is the Applicant’s Notice of Motion application dated 30th April 2026 seeking orders that;
a. That this application to be certified urgent and the same to be heard ex-parte in the first instance.
b. That the Honourable Court be pleased to vacate or set aside in its entirety the Ruling of the Honourable Deputy Registrar, J TOLEI, dated and delivered on 17th April, 2026 and the Certificate of Costs issued thereunder.
c. That the Honourable Court be pleased to refer to the Bill of Costs dated 20th December, 2021 for a fresh taxation before an alternate Taxing Master with suitable directions.
d. That in the alternative, this Honourable Court be pleased to exercise its discretion and to tax the Bill of Costs dated 20th December, 2021.
e. Costs of this application be provided for.
2. The application is premised upon the grounds set out on its face and the Supporting Affidavit sworn by Wangalwa Oundo, Advocate, on behalf of the Applicants herein. The main grounds upon which the Application is based are that the decision of the Taxing Master in the ruling on taxation dated and delivered on 17th April, 2026 is erroneous, as it is completely different from the ruling issued by the Hon. Lesootia Saitabau on 16th May, 2023; that the Applicant’s Party and Party Bill of Costs dated 20th December, 2021 was drawn in the sum of Kshs. 58,988,170/=; and that the amount awarded by the Taxing Master is so manifestly low as to constitute an error in principle and to warrant interference by this Honourable Court. The
3. Applicant further argues that each case ought to be determined on its own merits and circumstances, and that the Taxing Master failed to adequately consider crucial factors, including the complexity of the subject matter, the value of the subject matter, its importance to the parties, and the amount of work involved, which factors could have significantly impacted the taxing decision. The Applicant concludes that it is in the interests of justice that the Certificate of Costs be set aside and/or varied.
4. Further grounds appearing on the Supporting Affidavit are that this matter came up for ruling on taxation on 17th April, 2026, when the Taxing Master, J. Tolei, delivered the impugned ruling. It is deponed that the Hon. Lesootia Saitabau, in a ruling dated 16th May, 2023, awarded a sum of Kshs. 40,129,466/= as instruction fees in respect of the same subject matter, whereas in the impugned ruling herein, the Taxing Master taxed the Bill of Costs dated 20th December, 2021 from Kshs. 58,968,170/= to Kshs. 1,560,662.25. It is further argued that the instruction fees in the Party and Party Bill of Costs dated 20th December, 2021 were awarded from the drawn sum of Kshs. 58,510,120/=, and that the Taxing Master consequently made a wide departure from the ruling delivered by the Hon. Lesootia Saitabau on 16th May, 2023 without giving reasons for such departure. Counsel further contended that the Taxing Master failed to consider the factors applicable in the taxation of instruction fees in the main appeal. In particular, it was submitted that the Taxing Master failed to consider the fact that, based on the inventory of assets of the deceased, Mwangi Kimanga, and the previous award of Kshs. 40,129,466/= by the Hon. Lesootia Saitabau, the deceased was a prosperous and well-invested person, and that an award of Kshs. 1,300,000/= as instruction fees was therefore unjustified.
5. Counsel further stated that, although the value of the subject matter of an appeal for purposes of taxation ought to be determined from the pleadings, judgment or settlement, in this particular case the judgment did not ascertain the value of the estate. It was submitted that the Taxing Master nevertheless failed to consider the valuation report that had been relied upon before the High Court. Counsel further argued that the Taxing Master failed to consider that instruction fees are to be determined having regard to other factors, including the complexity of the subject matter, the value of the subject matter, the importance of the matter to the parties, and the amount of work involved. It was further submitted that the Taxing Master failed to consider the principle of fair reimbursement in awarding Kshs. 1,300,000/= as instruction fees, as well as the principle that a successful litigant ought to be fairly reimbursed for the costs incurred in prosecuting the suit. Counsel contended that the Taxing Master failed to give reasons for the wide departure from the award of Kshs. 40,129,466/= made by the Hon. Lesootia Saitabau in the ruling delivered on 16th May, 2023. It was argued that, although the Taxing Master has discretion in taxation matters, such discretion ought to be exercised judicially and not whimsically. Counsel concluded that it is in the interests of justice that the ruling be varied and/or set aside so as to ensure a fair and just outcome.
6. The application is opposed by the Replying Affidavit sworn by Stephen Maina Kiamanga, the 2nd Respondent, dated 15th June, 2026, in which he depones that the Applicant’s application is frivolous and constitutes a grave illegality. He contends that there are no cogent reasons for setting aside the ruling delivered by the Hon. Tolei, which was a re-taxation undertaken pursuant to the orders of the Hon. Justice Chemitei. He states that the High Court arrived at a figure of Kshs. 40,129,466/= in the ruling dated 16th May, 2023, but that, on appeal, the same Bill was re-taxed at Kshs. 1,560,662.25. He relies on Section 10 of the Advocates Act and contends that the Applicant came on record for purposes of lodging an objection to the grant, and consequently, the Applicant’s costs ought to be pegged on the said application and nothing else. He further states that the Applicant has not advanced any sufficient reason for setting aside the ruling, that the Applicant is a stranger to the proceedings, and urges that the instant application be dismissed with costs.
Analysis and Determination
7. I have read and considered the application, replying affidavit and rival submissions. The main issue for determination is whether the Applicant has made out his application to warrant setting aside of the costs as taxed by this court’s deputy registrar Hon. Tolei. It is not in dispute that the Hon Lesootia Saitabau had taxed the bill herein at Kshs.40,129,466/=. The same was re-taxed on appeal and reduced to Kshs. 1,560,622/25/-. Clearly, there is a great discrepancy between the initial taxed amount and the impugned taxed amount herein of kshs. 38,568,843/-.
8. In the case of First American Bank of Kenya vs Shah and others [2002] 1 EA 64., the court elucidated the Circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion as; -
a. that the court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle;
b. It would be an error of principle to consider irrelevant factors or to omit to consider relevant factors and, according to the order itself, some of the relevant factors to be considered include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge;
c. .........”
9. In the instant suit, the Court found the taxed amount of Kshs. 40,129,466/= to be inordinately high and consequently ordered that the same be reviewed and re-taxed by the 2nd Taxing Master, who subsequently taxed the Bill at Kshs. 1,560,622.25.
10. I have considered the significant disparity between the amounts arrived at by the 1st and 2nd Taxing Masters. The difference is so substantial that this Court cannot simply turn a blind eye to it or prefer one assessment over the other without interrogating the basis upon which the respective figures were arrived at. While a Taxing Master exercises a discretion in the taxation of a Bill of Costs, that discretion must be exercised judicially and the resulting award must be capable of being justified by reference to the applicable principles and the circumstances of the matter. In the circumstances, the wide variance between the two awards calls for verification and a clear justification of the factors and reasoning that informed the respective assessments, particularly where the disparity is not readily explained from the record.
11. It is therefore necessary for this Court to closely interrogate the impugned taxation and satisfy itself that the discretion vested in the Taxing Master was properly and judicially exercised. While litigation must, at some point, come to an end, the need for finality cannot override the interests of justice or justify an assessment of costs that is not adequately supported by the applicable principles. In the circumstances, and having regard to the substantial disparity between the respective taxations, this Court finds it necessary that the Bill of Costs be re-taxed by a different Taxing Master, who shall undertake the taxation afresh and provide clear reasons for the assessment arrived at and ensure that the process is undertaken fairly, judiciously and in accordance with the interests of justice, thereby bringing the matter to a just and proper conclusion.
12. For the aforesaid reasons, the Applicant’s Notice of Motion dated 30th April, 2026 is merited and the same is hereby allowed in terms of Prayer (b). This matter shall consequently be mentioned before Hon. D Aswani on a date to be given herein, to take further directions on taxation of the bill of costs herein.
Orders accordingly.
Right of appeal 28 days.
Dated, Signed and Delivered via TEAMS at Nairobi this 18th day of September 2026
In the presence of:
Mr. Wangalwa ..........................................…………………………………… for the petitioner/ Applicant
Mr. Omangi.........................………………………………………………… for the Objector/ Respondents
E, Sana….………………………………………….……. Court Assistant
a. That this application to be certified urgent and the same to be heard ex-parte in the first instance.
b. That the Honourable Court be pleased to vacate or set aside in its entirety the Ruling of the Honourable Deputy Registrar, J TOLEI, dated and delivered on 17th April, 2026 and the Certificate of Costs issued thereunder.
c. That the Honourable Court be pleased to refer to the Bill of Costs dated 20th December, 2021 for a fresh taxation before an alternate Taxing Master with suitable directions.
d. That in the alternative, this Honourable Court be pleased to exercise its discretion and to tax the Bill of Costs dated 20th December, 2021.
e. Costs of this application be provided for.
2. The application is premised upon the grounds set out on its face and the Supporting Affidavit sworn by Wangalwa Oundo, Advocate, on behalf of the Applicants herein. The main grounds upon which the Application is based are that the decision of the Taxing Master in the ruling on taxation dated and delivered on 17th April, 2026 is erroneous, as it is completely different from the ruling issued by the Hon. Lesootia Saitabau on 16th May, 2023; that the Applicant’s Party and Party Bill of Costs dated 20th December, 2021 was drawn in the sum of Kshs. 58,988,170/=; and that the amount awarded by the Taxing Master is so manifestly low as to constitute an error in principle and to warrant interference by this Honourable Court. The
3. Applicant further argues that each case ought to be determined on its own merits and circumstances, and that the Taxing Master failed to adequately consider crucial factors, including the complexity of the subject matter, the value of the subject matter, its importance to the parties, and the amount of work involved, which factors could have significantly impacted the taxing decision. The Applicant concludes that it is in the interests of justice that the Certificate of Costs be set aside and/or varied.
4. Further grounds appearing on the Supporting Affidavit are that this matter came up for ruling on taxation on 17th April, 2026, when the Taxing Master, J. Tolei, delivered the impugned ruling. It is deponed that the Hon. Lesootia Saitabau, in a ruling dated 16th May, 2023, awarded a sum of Kshs. 40,129,466/= as instruction fees in respect of the same subject matter, whereas in the impugned ruling herein, the Taxing Master taxed the Bill of Costs dated 20th December, 2021 from Kshs. 58,968,170/= to Kshs. 1,560,662.25. It is further argued that the instruction fees in the Party and Party Bill of Costs dated 20th December, 2021 were awarded from the drawn sum of Kshs. 58,510,120/=, and that the Taxing Master consequently made a wide departure from the ruling delivered by the Hon. Lesootia Saitabau on 16th May, 2023 without giving reasons for such departure. Counsel further contended that the Taxing Master failed to consider the factors applicable in the taxation of instruction fees in the main appeal. In particular, it was submitted that the Taxing Master failed to consider the fact that, based on the inventory of assets of the deceased, Mwangi Kimanga, and the previous award of Kshs. 40,129,466/= by the Hon. Lesootia Saitabau, the deceased was a prosperous and well-invested person, and that an award of Kshs. 1,300,000/= as instruction fees was therefore unjustified.
5. Counsel further stated that, although the value of the subject matter of an appeal for purposes of taxation ought to be determined from the pleadings, judgment or settlement, in this particular case the judgment did not ascertain the value of the estate. It was submitted that the Taxing Master nevertheless failed to consider the valuation report that had been relied upon before the High Court. Counsel further argued that the Taxing Master failed to consider that instruction fees are to be determined having regard to other factors, including the complexity of the subject matter, the value of the subject matter, the importance of the matter to the parties, and the amount of work involved. It was further submitted that the Taxing Master failed to consider the principle of fair reimbursement in awarding Kshs. 1,300,000/= as instruction fees, as well as the principle that a successful litigant ought to be fairly reimbursed for the costs incurred in prosecuting the suit. Counsel contended that the Taxing Master failed to give reasons for the wide departure from the award of Kshs. 40,129,466/= made by the Hon. Lesootia Saitabau in the ruling delivered on 16th May, 2023. It was argued that, although the Taxing Master has discretion in taxation matters, such discretion ought to be exercised judicially and not whimsically. Counsel concluded that it is in the interests of justice that the ruling be varied and/or set aside so as to ensure a fair and just outcome.
6. The application is opposed by the Replying Affidavit sworn by Stephen Maina Kiamanga, the 2nd Respondent, dated 15th June, 2026, in which he depones that the Applicant’s application is frivolous and constitutes a grave illegality. He contends that there are no cogent reasons for setting aside the ruling delivered by the Hon. Tolei, which was a re-taxation undertaken pursuant to the orders of the Hon. Justice Chemitei. He states that the High Court arrived at a figure of Kshs. 40,129,466/= in the ruling dated 16th May, 2023, but that, on appeal, the same Bill was re-taxed at Kshs. 1,560,662.25. He relies on Section 10 of the Advocates Act and contends that the Applicant came on record for purposes of lodging an objection to the grant, and consequently, the Applicant’s costs ought to be pegged on the said application and nothing else. He further states that the Applicant has not advanced any sufficient reason for setting aside the ruling, that the Applicant is a stranger to the proceedings, and urges that the instant application be dismissed with costs.
Analysis and Determination
7. I have read and considered the application, replying affidavit and rival submissions. The main issue for determination is whether the Applicant has made out his application to warrant setting aside of the costs as taxed by this court’s deputy registrar Hon. Tolei. It is not in dispute that the Hon Lesootia Saitabau had taxed the bill herein at Kshs.40,129,466/=. The same was re-taxed on appeal and reduced to Kshs. 1,560,622/25/-. Clearly, there is a great discrepancy between the initial taxed amount and the impugned taxed amount herein of kshs. 38,568,843/-.
8. In the case of First American Bank of Kenya vs Shah and others [2002] 1 EA 64., the court elucidated the Circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion as; -
a. that the court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle;
b. It would be an error of principle to consider irrelevant factors or to omit to consider relevant factors and, according to the order itself, some of the relevant factors to be considered include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge;
c. .........”
9. In the instant suit, the Court found the taxed amount of Kshs. 40,129,466/= to be inordinately high and consequently ordered that the same be reviewed and re-taxed by the 2nd Taxing Master, who subsequently taxed the Bill at Kshs. 1,560,622.25.
10. I have considered the significant disparity between the amounts arrived at by the 1st and 2nd Taxing Masters. The difference is so substantial that this Court cannot simply turn a blind eye to it or prefer one assessment over the other without interrogating the basis upon which the respective figures were arrived at. While a Taxing Master exercises a discretion in the taxation of a Bill of Costs, that discretion must be exercised judicially and the resulting award must be capable of being justified by reference to the applicable principles and the circumstances of the matter. In the circumstances, the wide variance between the two awards calls for verification and a clear justification of the factors and reasoning that informed the respective assessments, particularly where the disparity is not readily explained from the record.
11. It is therefore necessary for this Court to closely interrogate the impugned taxation and satisfy itself that the discretion vested in the Taxing Master was properly and judicially exercised. While litigation must, at some point, come to an end, the need for finality cannot override the interests of justice or justify an assessment of costs that is not adequately supported by the applicable principles. In the circumstances, and having regard to the substantial disparity between the respective taxations, this Court finds it necessary that the Bill of Costs be re-taxed by a different Taxing Master, who shall undertake the taxation afresh and provide clear reasons for the assessment arrived at and ensure that the process is undertaken fairly, judiciously and in accordance with the interests of justice, thereby bringing the matter to a just and proper conclusion.
12. For the aforesaid reasons, the Applicant’s Notice of Motion dated 30th April, 2026 is merited and the same is hereby allowed in terms of Prayer (b). This matter shall consequently be mentioned before Hon. D Aswani on a date to be given herein, to take further directions on taxation of the bill of costs herein.
Orders accordingly.
Right of appeal 28 days.
Dated, Signed and Delivered via TEAMS at Nairobi this 18th day of September 2026
In the presence of:
Mr. Wangalwa ..........................................…………………………………… for the petitioner/ Applicant
Mr. Omangi.........................………………………………………………… for the Objector/ Respondents
E, Sana….………………………………………….……. Court Assistant