'1.The applicant filed the Chamber summons dated 14th February 2025 brought under sections 89 of the civil procedure act and schedule 7of the advocates renumeration order 2014 and section 11 of the advocates renumeration order.
2.The applicant prays THAT;
a. SPENT
b. SPENT
c. That the decision of the Learned magistrate dated 12th February 2025 with respect to Services (of demand letter dated 22/8/2022, summons to enter appearance and notice of institution of suit), Attendances (on 21/6/2023 and 21/8/2023), Drawings and filings and Disbursements be set aside and taxed afresh by this Honourable Court.
d. The costs of this application be provided for.
3.The application is supported by an affidavit of Consolata Munji advocate dated 14th February 2025 .
4. He submitted that the issues for determination are;
Whether this Court has Jurisdiction to entertain a reference from an assessment/decision of a Bill of costs by a magistrate court.
5. Paragraph 11 of the Advocate Remuneration Order provides :
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.
It was their submission that From the above it means that the High Court can entertain a reference on assessment of the Bill of costs. We are also guided by the decision of Justice Aburili in Siaya High Court Miscellenous no E34 of 2022 Duke Ongaki Nyaanga & Guardian Bus Company Limited Vs Seldon Obel Kubondo where Justice Aburii stated that the High Court has Jurisdiction to entertain a reference. She quoted the case of Donholm Rahisi Stores (firm) VEA Portland Cement Itd and Vincent Kibiwat Rono V Abraham Kiprotich Chebet (2022) eKLR where it was held that; "Having established that taxation and assessment mean basically the same thing, it is therefore in order that the dispute as to assessment is brought before this court by way of references. In the premises, this court has jurisdiction to entertain this matter."
Whether this Application is proper before this court.
8. The applicant stated that After the Respondent serving them with a certificate of costs they perused the court file and noted the Respondent Bill of costs was assessed ex-parte in the registry despite the Applicant/Defendant putting in a response to the bill via submissions dated 15 April 2024 and that on 15th April 2024 the Respondent wrote to the court requesting for a decree and certificate of costs . The Applicant/Defendant filed application under certificate of urgency seeking to set aside the Exparte certificate costs dated 17th January 2025 The application was allowed and consequently court ordered that the Applicant/Defendant do file response to the plaintiff''s bill of costs dated 9th May 2024, which they did file Replying atfidavit dated 15 January 2025 The lower court proceeded to taxed the bill, however, the court considered the 2nd plaintifi''s bill of costs that was dated 20th January 2025 which was filed five (5) days after the Applicant/Defendant''s response to the plaintiff''s bill of costs was filed. (Annexure CM-1, CM-2, CM-3 and CM-4).
9. .The Ruling on assessment having being delivered on 12th February 2025, notice of objection and reference vide Kisii High Court Miscellaneous Application number E033 of 2025 having being filed on 14th February 2025. This Reference Application was therefore properly file on record.
10. On Whether the lower court taxation should be set aside and the disputed items taxed afresh by this court. The lower court matter was filed in the year 2022 and so Schedule 7 of the Advocates Remuneration order, 2014 applies . The Applicant objected to the assessment are as follows;
Item A. Unopposed.
Item B. Opposed and should be taxed off as it is not provided in Schedule 7 of the Advocates Remuneration Order.
Item C. Items c and v opposed ought to be taxed off as there is no proof in form of receipts tendered to show that the plaintiff incurred the said expenses.
Item D. Items d, e, f, g, I, k, o, p, r and t opposed and should be taxed down to Kshs.
1,400/- as per schedule 7 of the Advocates Remuneration Order 2014 as services were served upon the Defendant in Kisii which is within 3 kilometers of the subordinate court
Item E-Items j, s and u opposed should be taxed down to Kshs. 1,400/= as they were attendances for mentions as per schedule 7 of the Advocates Remuneration Order 2014
Item F-Items l, m, n and q opposed should be taxed down to Kshs. 2,100/= as per schedule 7 of the Advocates Remuneration Order 2014 as the hearings did not last the whole day..
They proposed to have the Ruling on assessment by the trial court be set aside and this Honourable court do tax the Bill of costs afresh and it be taxed at Kshs. 66,600/-.The Respondent also sought costs of the reference.
Respondent’s case
11.The respondent in his replying affidavit states that the matter was fixed for taxation and the Taxing Officer. Hon J Nyariki (SRM), correctly applied the provisions of the Advocates Remuneration Order 2014 when assessing the Bill of Costs dated 20th February 2025 and the ruling delivered on 12 February 2025 was just and in accordance with the law contrary to the Applicants allegations, the Bill of Costs was properly taxed and the court followed the proper procedure in taxing the same. He termed the reference as lacking in merit , bad in law and fatally defective on grounds that the Applicant failed to comply with the provisions of paragrapgh 11(1) of The Advocates Remuneration Order h provides that;
"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."
12. He further contends that though the Applicant attached a letter dated 14th February 2025 purportedly served on the taxing officer, the same was actually neither filed in court nor served on them and that the Applicant is misleading the court with half truths. the disputed letter did not lay out the exact misapplication of the principles of taxation the Taxing Master committed while assessing the respondent''s bill of costs. further, failure by the Applicants to comply with the Paragraph 11 of the Advocatesremuneration order is fatal and the court should not entertain this reference . The Applicants'' claims that the costs were excessive, punitive, and without legal basis are misleading and unsupported by any evidence. the above issues notwithstanding, section 74 of the Advocates Act states as follows:-"Subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officer"
The respondent told this court that the Receipts and the Vouchers for all the disbursements were filed in support of the Bill of costs as required in law and that for avoidance of doubt the Applicant disputed the following items:
a) Services rendered, including demand letter dated 22nd August, 2022, summons to enter appearance dated 30 September, 2022 and notice of institution of suit dated 3rd October 2022.
b) Attendances, as per court records from 21 June 2023 when the matter proceeded as per schedule payables Kshs. 5000 which was correctly assessed by court. Attendance on the 21 August 2023 was also correctly assessed as per schedule 7(7) as it took the whole day.
C) Drawings and filings are provided under Schedule 7(11) at Kshs 1.000/=, The Affidavits of service dated 10th February 2023. 3d May 2023, 16th November 2023 and 5th February 2024 were filed in court. The same are payable the affidavits having been drawn and filed.
d) Disbursements were disputed by the Applicant. The receipts for the witness expenses were attached to the Bill of costs and the court was right to grant the same as prayed.
13.Also that the Respondent stands to suffer grave prejudice and financial losses if this application is allowed, as the Respondent incurred legal costs and expenses that are rightfully due. the Applicants have not demonstrated any sufficient cause to warrant setting aside the taxation ruling or staying execution of the assessed costs as the Application herein was filed prematurely. this Honourable Court should dismiss the Applicants application with costs as it is aimed at frustrating the Respondent from enjoying the fruits of the judgement. what is deponed herein above is true to the best of my knowledge. information and believe.
Respondents submissions
14.In the respondent’s written submissions , she contends that ; on whether there has been non-compliance with paragraph 11 of the Advocates Remuneration Order.
15. Also that the Applicant failed to comply with Section 11(1) of the Advocates Remuneration Order, 2014, which provides that :
"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."
Also that the letter dated 14th day of March, 2025 and the application filed on the same day, and that the requirement for reasons was not complied with .
The purported notice of objection (letter dated 14th February 2025) was:
1. Not filed in the lower court (as evidenced by the CTS printout annexed as DG 1).
ii. Not served on the Respondent''s advocates, rendering the Applicants'' allegations misleading.
.
16. It was submitted that the Taxing Officer correctly applied the Advocates Remuneration Order, 2014, and the Applicants have not demonstrated any misapplication of the law or Principles of taxation. The respondent demonstrated the same on the Afidavit By Dorah Gogi advocate dated 20th day of March, 2025. He disputed items in the Bill of Costs were properly assessed
a) Disbursements: Receipts and vouchers were annexed (DG 2, DG 4) as required under Section 74 of the Advocates Act which states as follows
"Subject to paragraph 744, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officer."
b) Attendance Fees were asessed per Schedule 7(7 of the Advocates Remuneration Order. 2014. c) Drawings and filings: Kshs. 1,000 per Schedule 7(11) for drawing and filing
of affidavits of service (DG 3a-d).
Counsel cited the case of First American Bank of Kenya Ltd. v Gulab P. Shah & 2 athen [20071 KUR J A.G. RINGERA upheld taxation where disbursements were duly vouched.
She submitted that the Applicants'' claim of "excessive costs" is unsupported by evidence and contradicts the detailed breakdown provided by the Respondent.
17. It was submitted that the application is a tactic to delay the Respondent''s enjoyment of the lawfully taxed costs . Also that the Applicant failed to:
a) Specify the exact errors of the principles of taxation the taxing master committed while assessing the respondent''s bill of costs.
b) Comply with mandatory procedures Section 11 of the Advocates Remuneration Order, 2014.
Respondent also cited the case of Nyangito & Co Advocates vs Donyo Lessos Creameries ltd (2014) Where Hon Justice Odunga dismissed a similar reference for non-compliance and lack of merit.
13.Also Aoro v Were (Miscellaneous Reference Application E019 of 2022) where J. RE Aburii dismissed a reference for lack of merit.
ISSUES FOR DETERMINATION.
14.I have considered the application before me, the replying affidavit herein , the submissions from both the applicant and the respondent , the annextures herein, the issue for determination is ;
Whether the application meets the threshold for setting aside of the taxation orders .
ANALYSIS AND DETERMINATION .
15.The principles for setting aside taxation by the taxing master were laid down in the case of Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others (Hon Justice Ojwang, (as he then was) held:
“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. 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 interference that it was based on an error of principle. Of course, it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case 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. Needless to state not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment… A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved… Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorising clause in the law, or a particularised justification of the mode of exercise of any discretion provided for…. The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs……’’
16.In the case of First American Bank of Kenya –vs- Shah and others (2002) 1E.A 64. It was held that “…. The high court was not entitled to upset a taxation merely because in its opinion the amount awarded was high and it would not interfere with a taxation officer’s decision unless the decision was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle…. Under the advocates remuneration order, some of the relevant factors to be considered were the nature and importance of the 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….”.
17.It is thus clear from the foregoing that the High Court cannot set aside an award of taxation by a taxing master unless it is satisfied that;
a. The award is too low or too high to amount to injustice to a party.
b. The award took into account irrelevant factors or omitted relevant factors.
`18. I have considered the impugned ruling, the reference , the reply and the submissions . The suit was filed in the year 2022 and thus the application Remuneration order is advocates remuneration order 2014.
19. On whether the reference is properly before this court , The applicant contended that he served a letter dated 14.2.25 seeking reasons from the taxing master but there was no response. The respondent argued that since paragraph 11of the remuneration order was not complied with and so the reference lacks merit and that there is no evidence of service of the alleged letter . I have perused the lower court record and the system but I have not seen such a letter. The reasons were thus not requested for . I have also seen the ruling dated 12.2.25 where the taxing master held that the items were drawn to scale sav e for VAT which he taxed off . If the applicant required further clarification then it was upon him to move the court for the same . Some items in the bill require reasons while others requires reference to the scale . The claim for demand letter and notice of institution of suit @ Ksh. 10,000/= each are taxed off as they are provided for under instruction fees. Attendances are per scale and any objection to the same would require reasons which was not requested for as provided for by the law . As for Disbursements are supported by receipts . I uphold the same .
20. The bill dated 20.1.25 is thus re-taxed at Kshs 166,900/= . The appeal is allowed to that extent .
I award the appellant ¼ costs of the appeal .
T.A ODERA
JUDGE
22.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY OF OCTOBER 2025 IN THE PRESENCE OF MISS GOGI FOR THE RESPODENT /N/A FOR RESPONDENT CA KIPCHIRCHIR
'
2.The applicant prays THAT;
a. SPENT
b. SPENT
c. That the decision of the Learned magistrate dated 12th February 2025 with respect to Services (of demand letter dated 22/8/2022, summons to enter appearance and notice of institution of suit), Attendances (on 21/6/2023 and 21/8/2023), Drawings and filings and Disbursements be set aside and taxed afresh by this Honourable Court.
d. The costs of this application be provided for.
3.The application is supported by an affidavit of Consolata Munji advocate dated 14th February 2025 .
4. He submitted that the issues for determination are;
Whether this Court has Jurisdiction to entertain a reference from an assessment/decision of a Bill of costs by a magistrate court.
5. Paragraph 11 of the Advocate Remuneration Order provides :
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.
It was their submission that From the above it means that the High Court can entertain a reference on assessment of the Bill of costs. We are also guided by the decision of Justice Aburili in Siaya High Court Miscellenous no E34 of 2022 Duke Ongaki Nyaanga & Guardian Bus Company Limited Vs Seldon Obel Kubondo where Justice Aburii stated that the High Court has Jurisdiction to entertain a reference. She quoted the case of Donholm Rahisi Stores (firm) VEA Portland Cement Itd and Vincent Kibiwat Rono V Abraham Kiprotich Chebet (2022) eKLR where it was held that; "Having established that taxation and assessment mean basically the same thing, it is therefore in order that the dispute as to assessment is brought before this court by way of references. In the premises, this court has jurisdiction to entertain this matter."
Whether this Application is proper before this court.
8. The applicant stated that After the Respondent serving them with a certificate of costs they perused the court file and noted the Respondent Bill of costs was assessed ex-parte in the registry despite the Applicant/Defendant putting in a response to the bill via submissions dated 15 April 2024 and that on 15th April 2024 the Respondent wrote to the court requesting for a decree and certificate of costs . The Applicant/Defendant filed application under certificate of urgency seeking to set aside the Exparte certificate costs dated 17th January 2025 The application was allowed and consequently court ordered that the Applicant/Defendant do file response to the plaintiff''s bill of costs dated 9th May 2024, which they did file Replying atfidavit dated 15 January 2025 The lower court proceeded to taxed the bill, however, the court considered the 2nd plaintifi''s bill of costs that was dated 20th January 2025 which was filed five (5) days after the Applicant/Defendant''s response to the plaintiff''s bill of costs was filed. (Annexure CM-1, CM-2, CM-3 and CM-4).
9. .The Ruling on assessment having being delivered on 12th February 2025, notice of objection and reference vide Kisii High Court Miscellaneous Application number E033 of 2025 having being filed on 14th February 2025. This Reference Application was therefore properly file on record.
10. On Whether the lower court taxation should be set aside and the disputed items taxed afresh by this court. The lower court matter was filed in the year 2022 and so Schedule 7 of the Advocates Remuneration order, 2014 applies . The Applicant objected to the assessment are as follows;
Item A. Unopposed.
Item B. Opposed and should be taxed off as it is not provided in Schedule 7 of the Advocates Remuneration Order.
Item C. Items c and v opposed ought to be taxed off as there is no proof in form of receipts tendered to show that the plaintiff incurred the said expenses.
Item D. Items d, e, f, g, I, k, o, p, r and t opposed and should be taxed down to Kshs.
1,400/- as per schedule 7 of the Advocates Remuneration Order 2014 as services were served upon the Defendant in Kisii which is within 3 kilometers of the subordinate court
Item E-Items j, s and u opposed should be taxed down to Kshs. 1,400/= as they were attendances for mentions as per schedule 7 of the Advocates Remuneration Order 2014
Item F-Items l, m, n and q opposed should be taxed down to Kshs. 2,100/= as per schedule 7 of the Advocates Remuneration Order 2014 as the hearings did not last the whole day..
They proposed to have the Ruling on assessment by the trial court be set aside and this Honourable court do tax the Bill of costs afresh and it be taxed at Kshs. 66,600/-.The Respondent also sought costs of the reference.
Respondent’s case
11.The respondent in his replying affidavit states that the matter was fixed for taxation and the Taxing Officer. Hon J Nyariki (SRM), correctly applied the provisions of the Advocates Remuneration Order 2014 when assessing the Bill of Costs dated 20th February 2025 and the ruling delivered on 12 February 2025 was just and in accordance with the law contrary to the Applicants allegations, the Bill of Costs was properly taxed and the court followed the proper procedure in taxing the same. He termed the reference as lacking in merit , bad in law and fatally defective on grounds that the Applicant failed to comply with the provisions of paragrapgh 11(1) of The Advocates Remuneration Order h provides that;
"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."
12. He further contends that though the Applicant attached a letter dated 14th February 2025 purportedly served on the taxing officer, the same was actually neither filed in court nor served on them and that the Applicant is misleading the court with half truths. the disputed letter did not lay out the exact misapplication of the principles of taxation the Taxing Master committed while assessing the respondent''s bill of costs. further, failure by the Applicants to comply with the Paragraph 11 of the Advocatesremuneration order is fatal and the court should not entertain this reference . The Applicants'' claims that the costs were excessive, punitive, and without legal basis are misleading and unsupported by any evidence. the above issues notwithstanding, section 74 of the Advocates Act states as follows:-"Subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officer"
The respondent told this court that the Receipts and the Vouchers for all the disbursements were filed in support of the Bill of costs as required in law and that for avoidance of doubt the Applicant disputed the following items:
a) Services rendered, including demand letter dated 22nd August, 2022, summons to enter appearance dated 30 September, 2022 and notice of institution of suit dated 3rd October 2022.
b) Attendances, as per court records from 21 June 2023 when the matter proceeded as per schedule payables Kshs. 5000 which was correctly assessed by court. Attendance on the 21 August 2023 was also correctly assessed as per schedule 7(7) as it took the whole day.
C) Drawings and filings are provided under Schedule 7(11) at Kshs 1.000/=, The Affidavits of service dated 10th February 2023. 3d May 2023, 16th November 2023 and 5th February 2024 were filed in court. The same are payable the affidavits having been drawn and filed.
d) Disbursements were disputed by the Applicant. The receipts for the witness expenses were attached to the Bill of costs and the court was right to grant the same as prayed.
13.Also that the Respondent stands to suffer grave prejudice and financial losses if this application is allowed, as the Respondent incurred legal costs and expenses that are rightfully due. the Applicants have not demonstrated any sufficient cause to warrant setting aside the taxation ruling or staying execution of the assessed costs as the Application herein was filed prematurely. this Honourable Court should dismiss the Applicants application with costs as it is aimed at frustrating the Respondent from enjoying the fruits of the judgement. what is deponed herein above is true to the best of my knowledge. information and believe.
Respondents submissions
14.In the respondent’s written submissions , she contends that ; on whether there has been non-compliance with paragraph 11 of the Advocates Remuneration Order.
15. Also that the Applicant failed to comply with Section 11(1) of the Advocates Remuneration Order, 2014, which provides that :
"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."
Also that the letter dated 14th day of March, 2025 and the application filed on the same day, and that the requirement for reasons was not complied with .
The purported notice of objection (letter dated 14th February 2025) was:
1. Not filed in the lower court (as evidenced by the CTS printout annexed as DG 1).
ii. Not served on the Respondent''s advocates, rendering the Applicants'' allegations misleading.
.
16. It was submitted that the Taxing Officer correctly applied the Advocates Remuneration Order, 2014, and the Applicants have not demonstrated any misapplication of the law or Principles of taxation. The respondent demonstrated the same on the Afidavit By Dorah Gogi advocate dated 20th day of March, 2025. He disputed items in the Bill of Costs were properly assessed
a) Disbursements: Receipts and vouchers were annexed (DG 2, DG 4) as required under Section 74 of the Advocates Act which states as follows
"Subject to paragraph 744, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officer."
b) Attendance Fees were asessed per Schedule 7(7 of the Advocates Remuneration Order. 2014. c) Drawings and filings: Kshs. 1,000 per Schedule 7(11) for drawing and filing
of affidavits of service (DG 3a-d).
Counsel cited the case of First American Bank of Kenya Ltd. v Gulab P. Shah & 2 athen [20071 KUR J A.G. RINGERA upheld taxation where disbursements were duly vouched.
She submitted that the Applicants'' claim of "excessive costs" is unsupported by evidence and contradicts the detailed breakdown provided by the Respondent.
17. It was submitted that the application is a tactic to delay the Respondent''s enjoyment of the lawfully taxed costs . Also that the Applicant failed to:
a) Specify the exact errors of the principles of taxation the taxing master committed while assessing the respondent''s bill of costs.
b) Comply with mandatory procedures Section 11 of the Advocates Remuneration Order, 2014.
Respondent also cited the case of Nyangito & Co Advocates vs Donyo Lessos Creameries ltd (2014) Where Hon Justice Odunga dismissed a similar reference for non-compliance and lack of merit.
13.Also Aoro v Were (Miscellaneous Reference Application E019 of 2022) where J. RE Aburii dismissed a reference for lack of merit.
ISSUES FOR DETERMINATION.
14.I have considered the application before me, the replying affidavit herein , the submissions from both the applicant and the respondent , the annextures herein, the issue for determination is ;
Whether the application meets the threshold for setting aside of the taxation orders .
ANALYSIS AND DETERMINATION .
15.The principles for setting aside taxation by the taxing master were laid down in the case of Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others (Hon Justice Ojwang, (as he then was) held:
“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. 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 interference that it was based on an error of principle. Of course, it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case 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. Needless to state not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment… A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved… Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorising clause in the law, or a particularised justification of the mode of exercise of any discretion provided for…. The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs……’’
16.In the case of First American Bank of Kenya –vs- Shah and others (2002) 1E.A 64. It was held that “…. The high court was not entitled to upset a taxation merely because in its opinion the amount awarded was high and it would not interfere with a taxation officer’s decision unless the decision was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle…. Under the advocates remuneration order, some of the relevant factors to be considered were the nature and importance of the 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….”.
17.It is thus clear from the foregoing that the High Court cannot set aside an award of taxation by a taxing master unless it is satisfied that;
a. The award is too low or too high to amount to injustice to a party.
b. The award took into account irrelevant factors or omitted relevant factors.
`18. I have considered the impugned ruling, the reference , the reply and the submissions . The suit was filed in the year 2022 and thus the application Remuneration order is advocates remuneration order 2014.
19. On whether the reference is properly before this court , The applicant contended that he served a letter dated 14.2.25 seeking reasons from the taxing master but there was no response. The respondent argued that since paragraph 11of the remuneration order was not complied with and so the reference lacks merit and that there is no evidence of service of the alleged letter . I have perused the lower court record and the system but I have not seen such a letter. The reasons were thus not requested for . I have also seen the ruling dated 12.2.25 where the taxing master held that the items were drawn to scale sav e for VAT which he taxed off . If the applicant required further clarification then it was upon him to move the court for the same . Some items in the bill require reasons while others requires reference to the scale . The claim for demand letter and notice of institution of suit @ Ksh. 10,000/= each are taxed off as they are provided for under instruction fees. Attendances are per scale and any objection to the same would require reasons which was not requested for as provided for by the law . As for Disbursements are supported by receipts . I uphold the same .
20. The bill dated 20.1.25 is thus re-taxed at Kshs 166,900/= . The appeal is allowed to that extent .
I award the appellant ¼ costs of the appeal .
T.A ODERA
JUDGE
22.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY OF OCTOBER 2025 IN THE PRESENCE OF MISS GOGI FOR THE RESPODENT /N/A FOR RESPONDENT CA KIPCHIRCHIR
'