'1. This Reference is brought under Paragraph 11 of the Advocates Remuneration Order, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 51 of the Civil Procedure Rules. The Applicant, Joseph Nyambane Mogaka, challenges the decision of the Taxing Officer, Hon. Collins Ombija (SRM), delivered on 22nd October 2025 in Keroka CMCC No. E004 of 2022, Naomi Moraa Onyancha (Minor) suing through next friend and mother, Lisper Kerubo Onyancha, versus Joseph Nyambane Mogaka. The Reference concerns the taxation of the Respondent’s Party and Party Bill of Costs dated 07th July 2025.
2. The Applicant moved this Court by a Certificate of Urgency dated 22nd October 2025, together with a Chamber Summons of the same date. The application is supported by the Supporting Affidavit of Lydia Ongwacho sworn on 22nd October 2025. The deponent avers that judgment in the primary suit apportioned liability at 80% to the Applicant and 20% to the Respondent, and that the Taxing Officer failed to take the apportionment into account by taxing the bill as drawn.
3. The deponent also states that the Applicant filed a response to the bill on 18th September 2025 and thereafter a notice of objection, but these were ignored during the taxation. The deponent adds that several items were exaggerated, unsupported by receipts, duplicated or claimed for dates when the court was not sitting, and that the ruling contains no reasons.
4. The Respondent opposes the Reference through the Replying Affidavit of Charles Ogaro Orayo sworn on 30th October 2025. The deponent avers that the Reference is frivolous and an abuse of process; that the Applicant squandered an opportunity to oppose the bill; that contributory negligence does not affect the quantum of recoverable costs; and that the Taxing Officer exercised his discretion properly.
5. The Applicant filed written submissions dated 06th November 2025, reiterating the grounds in the affidavit. The Respondent did not file any submissions.
6. Two factual matters arising from the record must be addressed at the outset. The Taxing Officer’s ruling is handwritten, brief and concludes that the bill is allowed as drawn.
7. The second matter is whether the bill was opposed. The Supporting Affidavit confirms that the Applicant filed a response to the bill on 18th September 2025 and later a notice of objection. The Respondent does not dispute the filing of those documents but only challenges their sufficiency. The Applicant’s written submissions reinforce that opposition was filed. The record therefore shows that the bill was indeed opposed.
8. From the foregoing the issue that arise for determination is whether the reference is merited.
9. The Court of Appeal in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd (No. 3) [1972] EA 162 held that a Judge may interfere with taxation where the Taxing Officer acted on a wrong principle, failed to take relevant factors into account, took into account irrelevant factors, or reached a manifestly unjust result. In Joreth Ltd v Kigano & Associates (2002) 1 EA 92, the Court held that a Taxing Officer must give reasons for the decisions reached on taxation and that absence of reasons constitutes an error of principle. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court reiterated that failure to exercise discretion judicially invites intervention by the High Court.
10. Applying these principles, it is evident that the Taxing Officer acted on wrong principles. The bill was taxed as drawn and without reasons, contrary to the dictates of Joreth. The Taxing Officer did not address any of the objections raised by the Applicant. There was also no demonstration that the Officer considered whether apportionment of liability had any bearing on the recoverable costs. Although apportionment does not mechanically alter costs, the degree of success is in law a relevant factor in taxation and cannot be ignored.
11. The Respondent’s assertion that the Applicant squandered the opportunity to oppose the bill is not supported by the record, which shows that a response and notice of objection were filed. The Taxing Officer did not reject those documents expressly nor did he consider them. This failure to exercise discretion judicially meets the threshold for intervention as established in the binding Court of Appeal decisions.
12. The Court is therefore satisfied that the Taxing Officer erred in principle and that the Reference has merit. It is therefore hereby ordered that:
1) The Reference dated 22nd October 2025 is allowed.
2) The ruling and taxation delivered on 22nd October 2025 in Keroka CMCC No. E004 of 2022 are set aside.
3) The Respondent’s Party and Party Bill of Costs dated 07th July 2025 is remitted for a fresh taxation.
4) The costs of the Reference shall abide the result of the fresh taxation
5) This being a miscellaneous file, it is closed
'
2. The Applicant moved this Court by a Certificate of Urgency dated 22nd October 2025, together with a Chamber Summons of the same date. The application is supported by the Supporting Affidavit of Lydia Ongwacho sworn on 22nd October 2025. The deponent avers that judgment in the primary suit apportioned liability at 80% to the Applicant and 20% to the Respondent, and that the Taxing Officer failed to take the apportionment into account by taxing the bill as drawn.
3. The deponent also states that the Applicant filed a response to the bill on 18th September 2025 and thereafter a notice of objection, but these were ignored during the taxation. The deponent adds that several items were exaggerated, unsupported by receipts, duplicated or claimed for dates when the court was not sitting, and that the ruling contains no reasons.
4. The Respondent opposes the Reference through the Replying Affidavit of Charles Ogaro Orayo sworn on 30th October 2025. The deponent avers that the Reference is frivolous and an abuse of process; that the Applicant squandered an opportunity to oppose the bill; that contributory negligence does not affect the quantum of recoverable costs; and that the Taxing Officer exercised his discretion properly.
5. The Applicant filed written submissions dated 06th November 2025, reiterating the grounds in the affidavit. The Respondent did not file any submissions.
6. Two factual matters arising from the record must be addressed at the outset. The Taxing Officer’s ruling is handwritten, brief and concludes that the bill is allowed as drawn.
7. The second matter is whether the bill was opposed. The Supporting Affidavit confirms that the Applicant filed a response to the bill on 18th September 2025 and later a notice of objection. The Respondent does not dispute the filing of those documents but only challenges their sufficiency. The Applicant’s written submissions reinforce that opposition was filed. The record therefore shows that the bill was indeed opposed.
8. From the foregoing the issue that arise for determination is whether the reference is merited.
9. The Court of Appeal in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd (No. 3) [1972] EA 162 held that a Judge may interfere with taxation where the Taxing Officer acted on a wrong principle, failed to take relevant factors into account, took into account irrelevant factors, or reached a manifestly unjust result. In Joreth Ltd v Kigano & Associates (2002) 1 EA 92, the Court held that a Taxing Officer must give reasons for the decisions reached on taxation and that absence of reasons constitutes an error of principle. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court reiterated that failure to exercise discretion judicially invites intervention by the High Court.
10. Applying these principles, it is evident that the Taxing Officer acted on wrong principles. The bill was taxed as drawn and without reasons, contrary to the dictates of Joreth. The Taxing Officer did not address any of the objections raised by the Applicant. There was also no demonstration that the Officer considered whether apportionment of liability had any bearing on the recoverable costs. Although apportionment does not mechanically alter costs, the degree of success is in law a relevant factor in taxation and cannot be ignored.
11. The Respondent’s assertion that the Applicant squandered the opportunity to oppose the bill is not supported by the record, which shows that a response and notice of objection were filed. The Taxing Officer did not reject those documents expressly nor did he consider them. This failure to exercise discretion judicially meets the threshold for intervention as established in the binding Court of Appeal decisions.
12. The Court is therefore satisfied that the Taxing Officer erred in principle and that the Reference has merit. It is therefore hereby ordered that:
1) The Reference dated 22nd October 2025 is allowed.
2) The ruling and taxation delivered on 22nd October 2025 in Keroka CMCC No. E004 of 2022 are set aside.
3) The Respondent’s Party and Party Bill of Costs dated 07th July 2025 is remitted for a fresh taxation.
4) The costs of the Reference shall abide the result of the fresh taxation
5) This being a miscellaneous file, it is closed
'