(A Reference from the Ruling of Hon. C.L Adisa, delivered on 30th October, 2024)
1. Before me is a Chamber Summons application dated 15th November 2024 filed by the client/applicant pursuant to the provisions of Paragraph 11(2) of the Advocates (Remuneration) Order, 2014, seeking orders that this Honourable Court sets aside the Ruling and Order of the Taxing Officer, Hon. C.L. Adisa, delivered on 30th October 2024, which taxed the Advocate’s Advocate-client Bill of Costs dated 18th January 2023 at Kshs.11,643,583.50 and that the said Bill of Costs be taxed afresh. The applicant also seeks an order that the said Advocate’s Advocate-client Bill of Costs dated 18th January 2023, be taxed afresh by a different Taxing Officer other than Hon. C.L. Adisa.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. John Maiyani Tuya, the applicant’s County Secretary. Mr. Tuya averred that the Advocate filed its Advocate-client Bill of Costs dated 18th January 2023 seeking a total of Kshs.18,631,075.50. That on 30th October 2024, Hon. C.L. Adisa taxed the said Bill of Costs at Kshs.11,643,583.50 and being aggrieved by the taxation Ruling, the applicant requested for a certified true copy of the Ruling and the Taxing Officer’s reasons under Paragraph 11(2) of the Advocates Remuneration Order, but to date, the reasons have not been given. He stated that the Court supplied them with a certified copy of the Ruling dated 15th November 2024.
3. Mr. Tuya deposed that the Taxing Officer misapplied the provisions of Schedule 6 of the Advocates Remuneration Order, resulting in amounts that were excessively high, disregarded the applicant’s submissions, and failed to properly consider the issues raised. He contended that these errors jeopardize their rights and may occasion an injustice if the said Ruling is allowed to stand.
4. In opposition to this Reference, the Advocate filed a replying affidavit sworn on 24th March 2025 by Mr. Julius K. Kemboy, an Advocate of the High Court of Kenya and learned Counsel for the Advocate law firm. Mr. Kemboy averred that the applicant’s objections including alleged misapplication of Schedule 6 of the Advocates Remuneration Order, excessive fees, and disregard of submissions are unfounded, noting that the instruction fees of Kshs.6,000,000/= was fairly determined based on verifiable figures from the pleadings and prior Court Rulings, and it is only slightly lower than the applicant had submitted.
5. Counsel emphasized that their law firm diligently represented the applicant’s interests for over four (4) years, including all necessary preparatory work, attending proceedings, and managing the brief, thus getting-up fees and instruction fees were properly calculated according to Schedule 6 of the Advocates Remuneration Order and increased by 50% as required by law. Mr. Kemboy stated that objection regarding items for drawing pleadings, making copies, and attendances are unjustified, as all charges were drawn to scale and supported by documentation.
6. The instant application was canvassed by way of written submissions. The applicant’s submissions were filed on 16th July 2025 by the law firm of Maina Ngaruiya & Company Advocates, whereas the respondent’s submissions were filed by the law firm of Kemboy Law Advocates on 1st October 2025.
7. Mr. Maina Ngaruiya, learned Counsel for the applicant relied on the cases of Joreth Limited v Kigano & Associates [2002] 1 EA 92 and Kyalo Mbobu T/A Kyalo & Associates Advocates v Jacob Juma [2015] KEHC 4756 (KLR), and submitted that the Taxing Officer misdirected herself by taxing instruction fees at Kshs.6,000,000/= based on a subject matter value of Kshs.64,168,722.70, allegedly derived from a prior Ruling. He argued that the Taxing Officer failed to provide specific justification for enhancing the instruction fees and instead generalized the factors, resulting in excessive and unreasonable instruction and getting-up fees.
8. Counsel further submitted that if properly calculated under Schedule 6 of the Advocates Remuneration Order, the instruction fees ought to have been Kshs.1,552,530.84.00. Mr. Ngaruiya cited the cases of Nyangito & Co Advocates v Doinyo Lessos Creameries Ltd [2014] KEHC 5481 (KLR) and Tom Ojienda & Associates Advocates v County Government of Narok [2021] KEHC 452 (KLR), and contended that the Taxing Officer erred in law by increasing the instruction fees by 50% under Part B of Schedule 6, in an Advocate - client Bill of Costs without prior taxation of Party and Party costs.
9. Mr. Kere, learned Counsel for the repondent relied on the Court of Appeal cases of Lucy Waithira & 2 others v Edwin Njagi T/A E. K Njagi & Company Advocates [2017] KECA 272 (KLR) and Thomas James Arthur v Nyeri Electricity Undertaking [1961] E.A. 492, and urged this Court not to interfere with the Taxing Officer’s discretion on matters of quantum unless there is an error of principle.
10. On the issue of instruction fees, Counsel submitted that the Taxing Officer properly exercised her discretion in accordance with the principles set out in the case of Premchand Raichand v Quarry Services of East Africa Ltd [1972] EA 162 and the Supreme Court case of Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR).
11. Counsel drew additional guidance from the cases of Jeremiah Muku v Methodist Church in Kenya Trustees Registered & another [2015] KEHC 6345 (KLR) and Truth Justice & Reconciliation Commission v Chief Justice of the Republic of Kenya & another [2014] KEHC 5447 (KLR), emphasizing that taxation involves a balancing of multiple factors including complexity, care, labour and the importance of the matter. Mr. Kere contended that the value of Kshs.64,168,722.70 was ascertainable from the record, and that the taxed instruction fee of Kshs.6,000,000/= was reasonable, especially considering the Advocate’s representation in Nairobi Court of Appeal Civil Appeal No. E0468 of 2022, since 2019. He asserted that the client’s new proposed figure contradicts its earlier position before the Taxing Officer and does not demonstrate any error of principle.
12. He stated that in regard to items 2, 3, 4, 5, 6, 7, 10, 11 & 15, the applicant has neither substantiated its objections nor maintained them in submissions. He contended that the items relating to drawing and copying were taxed strictly in accordance with Schedule 6 of the Advocates Remuneration Order. On the issue of higher scale, reliance was placed on paragraphs 50 and 50A of the Advocates Remuneration Order, permitting higher scale taxation on grounds of complexity, importance or urgency. Mr. Kere cited the case of Showcase Property Limited v Mugambi & Company Advocates [2020] KEHC 3456 (KLR), and submitted that the issue of the 50% increase was not raised before the Taxing Officer thus it cannot be introduced for the first time before this Court.
13. Mr. Kere maintained that the aforesaid increase was proper under Part B of Schedule 6 of the Advocates Remuneration Order in Advocate - client costs, as affirmed in the cases of Dennis KN Magare another v Armajit Singh Gahir & 5 others [2021] KEHC 12931 (KLR) and Havi & Co. Advocates v Purma Holdings Ltd & others [2024] KEHC 3690. On the issue of disbursements, he argued that the issue was neither raised before the Taxing Officer nor pursued in submissions and it is therefore not properly before this Court.
ANALYSIS AND DETERMINATION.
14. I have considered the Reference herein, the grounds on the face of it, the affidavit filed in support thereof, the replying affidavit by the respondent as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the Reference herein is merited.
15. The Court of Appeal in the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR), addressed itself as follows in respect to the issue of References: –
On Reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.
16. The High Court can only interfere with the Taxing Officer’s decision where there has been an error of principle and not solely on questions of quantum as that is an area where the Taxing Officer is more experienced in the job. This position was taken by the Court in the case of Tom Ojienda v County Government of Meru [2021] KEHC 7940 (KLR), as hereunder: –
The general principles governing interference with the exercise of the taxing master’s discretion were authoritatively stated by the South African court in Visser vs Gubb 1981 (3) 753 (C) as follows;
“the court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised his discretion judicially and has exercised it improperly, for example, by disregarding factors which he should properly have considered, or considering matters which it was improper for him to have considered; or he had failed to bring his mind to bear on the question in issue; or he has acted on a wrong principle. The court will also interfere where it is of the opinion that the taxing master was clearly wrong but will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue . . . The court must be of the view that the taxing master was clearly wrong, i.e. its conviction on a review that he was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal.”
17. The first item that the applicant complains of, relates to is item 1 on instruction fees. The law on instruction fees is that it is based on the value of the subject matter of the suit. The Court of Appeal in the case of Joreth Limited v Kigano & Associates (supra), held as hereunder in respect to the value of the subject matter for purposes of taxation -
…the value of the subject matter for the purposes of taxation of a Bill of Costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so ascertainable the Taxing Officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.
18. A perusal of the Taxing Officer’s Ruling delivered on 12th August 2024 reveals that the instruction fees was justified based on the value of the subject matter, which was Kshs.64,168,722.70. The pleadings indicate that this value was derived from the Ruling by Hon. Lady Justice M. W. Muigai. Upon examination of the Court record and the Case Tracking System, it is evident that the respondent received instructions from the applicant to represent it in an Appeal arising from that Ruling. The Ruling in question, concerned a Reference challenging the taxation of an Advocate-Client Bill of Costs dated 23rd October 2019, which had been taxed at Kshs.64,168,722.70. This Court is of the considered view that in an Appeal against the dismissal of a Reference, the subject matter for purposes of instruction fees remains the sum originally contested in the taxation.
19. In this case, the sum contested in the taxation was Kshs.64,168,722.70. Accordingly, this Court is satisfied that the Taxing Officer properly exercised her discretion in determining that the value of the subject matter for assessing instruction fees was Kshs.64,168,722.70. The applicant averred that the Taxing Officer misapplied the provisions of Schedule 6 of the Advocates Remuneration Order and failed to provide adequate reasons for increasing the instruction fees from Kshs.4,363,725.50 to Kshs.6,000,000/=, thus the award on instruction fees ought to be set aside.
20. Schedule 6(1)(b) of the Advocates Remuneration Order provides for taxation in Appeals. It states that: -
To sue in any proceedings described in paragraph (a) where a defense or other denial of liability is filed; or to have an issue determined arising out of inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and -
That value exceeds Kshs. But does not exceed Kshs. Kshs.
- 500,000 75,000
500,000 750,000 90,000
750,000 1,000,000 120,000
1,000,000 20,000,000 fees as for Kshs.1,000,000 plus an additional 2%
Over 20,000,000 Fees as for 20,000,000 plus an additional 1.5%.
21. In this instance, the value of the subject matter was correctly determined as Kshs.64,168,722.70. Instruction fees are properly chargeable under Schedule 6 of the Advocates Remuneration Order, as set out above, in respect of presenting or opposing an Appeal where the value of the subject matter can be ascertained from the pleadings, judgment, or settlement, as is the case herein.
22. Under the relevant scale, the fee for the first Kshs.1,000,000/= is Kshs.120,000/=. For the amount between Kshs.1,000,000/= and Kshs.20,000,000/=, being Kshs.19,000,000/=, an additional 2% is chargeable, which amounts to Kshs.380,000/=. The balance over Kshs.20,000,000 is Kshs.44,168,722.70, which is chargeable at 1.5%, yielding Kshs.662,530.84.00. The total instruction fee therefore comes to Kshs.1,162,530.84.
23. A review of the Taxing Officer’s Ruling shows that she did not provide an explanation or a detailed breakdown of how she arrived at the instruction fees of Kshs.6,000,000/=, other than stating that the amount was based on the labour involved and the importance of the matter.
24. In light of the above, this Court finds that in awarding instruction fees of Kshs.6,000,000/=, the learned Taxing Officer failed to properly exercise her discretion and misapplied the provisions of Schedule 6 of the Advocates Remuneration Order. Consequently, the award of instruction fees is unjustified and it is hereby set aside.
25. The applicant’s Reference further challenges the Taxing Officer’s findings on drawings as outlined under items Nos. 2, 4, 6, 10 & 15. On perusal of the Advocates’ Advocate-client Bill of Costs dated 18th January 2023, this Court notes that it provided for drawing of 3 folios Memorandum of Appeal, 2 folios of certificate of compliance, 3002 folios of the Record of Appeal, 5 folios of the appellant’s Advocate – Client Bill of Costs and 1 folio of Certificate of Taxation.
26. Schedule 6(4)(a)(i) of the Advocates Remuneration Order states that -
Concise statement, plaint, written statement of defense, interlocutory application, notice of motion or chamber application, originating summons, affidavit, petition of appeal, interrogatories, agreement for compromise, adjustment or satisfaction of suit, or for Reference to arbitration or any other pleading not otherwise provided for -
i) four folios or less 1,100
ii) in excess of four folios; additional per folio after the first four folios 150
27. The applicant further contended that in taxing items Nos. 2, 4, 6, 10 & 15 as drawn, the Taxing Officer was properly guided by the provisions of Schedule 6 of the Advocates Remuneration Order.
28. This Court is also persuaded that item Nos. 3, 5, 7 & 11, which related to the making of copies which were taxed as drawn were taxed in accordance with the provisions of Schedule 6(5)(a) of the Advocates Remuneration Order, which provides that copies of the plaint, written statement of defence, affidavit, petition of appeal, cross-objection to the petition, interrogatories, replies to interrogatories, agreement in satisfaction of suit or for Reference to arbitration, exhibits, bill of costs and any other document shall be charged at the rate of Kshs.25 per folio. There is therefore no need and/or justification to disturb the awards made under those heads.
29. The applicant also challenges the Taxing Officer’s taxation of disbursements. A review of the replying affidavit filed by the applicant sworn on 21st April 2023 by Mr. John Maiyani Tuya, the applicant’s County Secretary, in opposition to the Advocate’s Advocate-client Bill of Costs dated 18th January 2023, however shows that the applicant did not dispute the disbursement items as listed in the Advocate’s Advocate – client Bill of Costs. Consequently, the Taxing Officer had no reason to question the amounts claimed as disbursements or to require the production of receipts to verify that the expenses were actually incurred. It is now well settled that a Reference is akin to an Appeal and it cannot be used to raise new grounds that were not previously argued at taxation. This Court cannot as such fault the Taxing Officer on matters that were not properly brought before her.
30. The final issue concerns the increase of taxed costs by 50% under Part B of Schedule 6. The provisions that set out when legal fees can be increased by half are provided for under Schedule 6B of the Advocates Remuneration Order, which states that –
As between advocate and client the minimum fee shall be -
a) the fees prescribed in A above, increased by 50%; or
b) the fees ordered by the court, increased by 50%; or
c) the fees agreed by the parties under paragraph 57 of this order increased by 50%; as the case may be, such increase to include all proper attendances on the client and all necessary correspondences.
31. In light of the above provisions, I am satisfied that by increasing the taxed costs by 50%, the Taxing Officer applied the correct legal principles in line with the provisions of Part B of Schedule 6 of the Advocates Remuneration Order. As the award under item No. 1 on instruction fees has been interfered with and set aside, the overall sum of the taxed costs has consequently been affected, thereby vitiating the resultant award.
32. This Court is therefore satisfied that the applicant has demonstrated errors of principle in the taxation of item No. 1 on instruction fees and the consequential application of the 50% increase. These errors substantially affected the quantum awarded and if allowed to stand, they would occasion an injustice to the applicant.
33. In light of the foregoing, this Court finds that the applicant’s Reference dated 15th November 2024 is partly successful, and it is allowed in the following terms:-
i) The Ruling and Order of the Taxing Officer, Hon. C. L. Adisa, delivered on 30th October 2024 in respect to item No. 1 on instruction fees and the consequential application of the 50% increase are hereby set aside;
ii) The Advocate’s Advocate - client Bill of Costs dated 18th January 2023 is hereby remitted for fresh taxation before a different Taxing Officer other than Hon. C. L. Adisa, for taxation of item No. 1 on instruction fees and the consequential application of the 50% increase. That shall be done strictly in accordance with the provisions of Schedule 6 of the Advocates Remuneration Order; and
iii) Since the applicant is partly successful, each party shall bear its own costs.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 10TH day of APRIL 2026. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Kaloki h/b for Mr. Maina Ngaruiya for the client/applicant
Mr. Kere for the Advocate/respondent
Ms Julia – Court Assistant.
1. Before me is a Chamber Summons application dated 15th November 2024 filed by the client/applicant pursuant to the provisions of Paragraph 11(2) of the Advocates (Remuneration) Order, 2014, seeking orders that this Honourable Court sets aside the Ruling and Order of the Taxing Officer, Hon. C.L. Adisa, delivered on 30th October 2024, which taxed the Advocate’s Advocate-client Bill of Costs dated 18th January 2023 at Kshs.11,643,583.50 and that the said Bill of Costs be taxed afresh. The applicant also seeks an order that the said Advocate’s Advocate-client Bill of Costs dated 18th January 2023, be taxed afresh by a different Taxing Officer other than Hon. C.L. Adisa.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. John Maiyani Tuya, the applicant’s County Secretary. Mr. Tuya averred that the Advocate filed its Advocate-client Bill of Costs dated 18th January 2023 seeking a total of Kshs.18,631,075.50. That on 30th October 2024, Hon. C.L. Adisa taxed the said Bill of Costs at Kshs.11,643,583.50 and being aggrieved by the taxation Ruling, the applicant requested for a certified true copy of the Ruling and the Taxing Officer’s reasons under Paragraph 11(2) of the Advocates Remuneration Order, but to date, the reasons have not been given. He stated that the Court supplied them with a certified copy of the Ruling dated 15th November 2024.
3. Mr. Tuya deposed that the Taxing Officer misapplied the provisions of Schedule 6 of the Advocates Remuneration Order, resulting in amounts that were excessively high, disregarded the applicant’s submissions, and failed to properly consider the issues raised. He contended that these errors jeopardize their rights and may occasion an injustice if the said Ruling is allowed to stand.
4. In opposition to this Reference, the Advocate filed a replying affidavit sworn on 24th March 2025 by Mr. Julius K. Kemboy, an Advocate of the High Court of Kenya and learned Counsel for the Advocate law firm. Mr. Kemboy averred that the applicant’s objections including alleged misapplication of Schedule 6 of the Advocates Remuneration Order, excessive fees, and disregard of submissions are unfounded, noting that the instruction fees of Kshs.6,000,000/= was fairly determined based on verifiable figures from the pleadings and prior Court Rulings, and it is only slightly lower than the applicant had submitted.
5. Counsel emphasized that their law firm diligently represented the applicant’s interests for over four (4) years, including all necessary preparatory work, attending proceedings, and managing the brief, thus getting-up fees and instruction fees were properly calculated according to Schedule 6 of the Advocates Remuneration Order and increased by 50% as required by law. Mr. Kemboy stated that objection regarding items for drawing pleadings, making copies, and attendances are unjustified, as all charges were drawn to scale and supported by documentation.
6. The instant application was canvassed by way of written submissions. The applicant’s submissions were filed on 16th July 2025 by the law firm of Maina Ngaruiya & Company Advocates, whereas the respondent’s submissions were filed by the law firm of Kemboy Law Advocates on 1st October 2025.
7. Mr. Maina Ngaruiya, learned Counsel for the applicant relied on the cases of Joreth Limited v Kigano & Associates [2002] 1 EA 92 and Kyalo Mbobu T/A Kyalo & Associates Advocates v Jacob Juma [2015] KEHC 4756 (KLR), and submitted that the Taxing Officer misdirected herself by taxing instruction fees at Kshs.6,000,000/= based on a subject matter value of Kshs.64,168,722.70, allegedly derived from a prior Ruling. He argued that the Taxing Officer failed to provide specific justification for enhancing the instruction fees and instead generalized the factors, resulting in excessive and unreasonable instruction and getting-up fees.
8. Counsel further submitted that if properly calculated under Schedule 6 of the Advocates Remuneration Order, the instruction fees ought to have been Kshs.1,552,530.84.00. Mr. Ngaruiya cited the cases of Nyangito & Co Advocates v Doinyo Lessos Creameries Ltd [2014] KEHC 5481 (KLR) and Tom Ojienda & Associates Advocates v County Government of Narok [2021] KEHC 452 (KLR), and contended that the Taxing Officer erred in law by increasing the instruction fees by 50% under Part B of Schedule 6, in an Advocate - client Bill of Costs without prior taxation of Party and Party costs.
9. Mr. Kere, learned Counsel for the repondent relied on the Court of Appeal cases of Lucy Waithira & 2 others v Edwin Njagi T/A E. K Njagi & Company Advocates [2017] KECA 272 (KLR) and Thomas James Arthur v Nyeri Electricity Undertaking [1961] E.A. 492, and urged this Court not to interfere with the Taxing Officer’s discretion on matters of quantum unless there is an error of principle.
10. On the issue of instruction fees, Counsel submitted that the Taxing Officer properly exercised her discretion in accordance with the principles set out in the case of Premchand Raichand v Quarry Services of East Africa Ltd [1972] EA 162 and the Supreme Court case of Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR).
11. Counsel drew additional guidance from the cases of Jeremiah Muku v Methodist Church in Kenya Trustees Registered & another [2015] KEHC 6345 (KLR) and Truth Justice & Reconciliation Commission v Chief Justice of the Republic of Kenya & another [2014] KEHC 5447 (KLR), emphasizing that taxation involves a balancing of multiple factors including complexity, care, labour and the importance of the matter. Mr. Kere contended that the value of Kshs.64,168,722.70 was ascertainable from the record, and that the taxed instruction fee of Kshs.6,000,000/= was reasonable, especially considering the Advocate’s representation in Nairobi Court of Appeal Civil Appeal No. E0468 of 2022, since 2019. He asserted that the client’s new proposed figure contradicts its earlier position before the Taxing Officer and does not demonstrate any error of principle.
12. He stated that in regard to items 2, 3, 4, 5, 6, 7, 10, 11 & 15, the applicant has neither substantiated its objections nor maintained them in submissions. He contended that the items relating to drawing and copying were taxed strictly in accordance with Schedule 6 of the Advocates Remuneration Order. On the issue of higher scale, reliance was placed on paragraphs 50 and 50A of the Advocates Remuneration Order, permitting higher scale taxation on grounds of complexity, importance or urgency. Mr. Kere cited the case of Showcase Property Limited v Mugambi & Company Advocates [2020] KEHC 3456 (KLR), and submitted that the issue of the 50% increase was not raised before the Taxing Officer thus it cannot be introduced for the first time before this Court.
13. Mr. Kere maintained that the aforesaid increase was proper under Part B of Schedule 6 of the Advocates Remuneration Order in Advocate - client costs, as affirmed in the cases of Dennis KN Magare another v Armajit Singh Gahir & 5 others [2021] KEHC 12931 (KLR) and Havi & Co. Advocates v Purma Holdings Ltd & others [2024] KEHC 3690. On the issue of disbursements, he argued that the issue was neither raised before the Taxing Officer nor pursued in submissions and it is therefore not properly before this Court.
ANALYSIS AND DETERMINATION.
14. I have considered the Reference herein, the grounds on the face of it, the affidavit filed in support thereof, the replying affidavit by the respondent as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the Reference herein is merited.
15. The Court of Appeal in the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR), addressed itself as follows in respect to the issue of References: –
On Reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.
16. The High Court can only interfere with the Taxing Officer’s decision where there has been an error of principle and not solely on questions of quantum as that is an area where the Taxing Officer is more experienced in the job. This position was taken by the Court in the case of Tom Ojienda v County Government of Meru [2021] KEHC 7940 (KLR), as hereunder: –
The general principles governing interference with the exercise of the taxing master’s discretion were authoritatively stated by the South African court in Visser vs Gubb 1981 (3) 753 (C) as follows;
“the court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised his discretion judicially and has exercised it improperly, for example, by disregarding factors which he should properly have considered, or considering matters which it was improper for him to have considered; or he had failed to bring his mind to bear on the question in issue; or he has acted on a wrong principle. The court will also interfere where it is of the opinion that the taxing master was clearly wrong but will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue . . . The court must be of the view that the taxing master was clearly wrong, i.e. its conviction on a review that he was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal.”
17. The first item that the applicant complains of, relates to is item 1 on instruction fees. The law on instruction fees is that it is based on the value of the subject matter of the suit. The Court of Appeal in the case of Joreth Limited v Kigano & Associates (supra), held as hereunder in respect to the value of the subject matter for purposes of taxation -
…the value of the subject matter for the purposes of taxation of a Bill of Costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so ascertainable the Taxing Officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.
18. A perusal of the Taxing Officer’s Ruling delivered on 12th August 2024 reveals that the instruction fees was justified based on the value of the subject matter, which was Kshs.64,168,722.70. The pleadings indicate that this value was derived from the Ruling by Hon. Lady Justice M. W. Muigai. Upon examination of the Court record and the Case Tracking System, it is evident that the respondent received instructions from the applicant to represent it in an Appeal arising from that Ruling. The Ruling in question, concerned a Reference challenging the taxation of an Advocate-Client Bill of Costs dated 23rd October 2019, which had been taxed at Kshs.64,168,722.70. This Court is of the considered view that in an Appeal against the dismissal of a Reference, the subject matter for purposes of instruction fees remains the sum originally contested in the taxation.
19. In this case, the sum contested in the taxation was Kshs.64,168,722.70. Accordingly, this Court is satisfied that the Taxing Officer properly exercised her discretion in determining that the value of the subject matter for assessing instruction fees was Kshs.64,168,722.70. The applicant averred that the Taxing Officer misapplied the provisions of Schedule 6 of the Advocates Remuneration Order and failed to provide adequate reasons for increasing the instruction fees from Kshs.4,363,725.50 to Kshs.6,000,000/=, thus the award on instruction fees ought to be set aside.
20. Schedule 6(1)(b) of the Advocates Remuneration Order provides for taxation in Appeals. It states that: -
To sue in any proceedings described in paragraph (a) where a defense or other denial of liability is filed; or to have an issue determined arising out of inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and -
That value exceeds Kshs. But does not exceed Kshs. Kshs.
- 500,000 75,000
500,000 750,000 90,000
750,000 1,000,000 120,000
1,000,000 20,000,000 fees as for Kshs.1,000,000 plus an additional 2%
Over 20,000,000 Fees as for 20,000,000 plus an additional 1.5%.
21. In this instance, the value of the subject matter was correctly determined as Kshs.64,168,722.70. Instruction fees are properly chargeable under Schedule 6 of the Advocates Remuneration Order, as set out above, in respect of presenting or opposing an Appeal where the value of the subject matter can be ascertained from the pleadings, judgment, or settlement, as is the case herein.
22. Under the relevant scale, the fee for the first Kshs.1,000,000/= is Kshs.120,000/=. For the amount between Kshs.1,000,000/= and Kshs.20,000,000/=, being Kshs.19,000,000/=, an additional 2% is chargeable, which amounts to Kshs.380,000/=. The balance over Kshs.20,000,000 is Kshs.44,168,722.70, which is chargeable at 1.5%, yielding Kshs.662,530.84.00. The total instruction fee therefore comes to Kshs.1,162,530.84.
23. A review of the Taxing Officer’s Ruling shows that she did not provide an explanation or a detailed breakdown of how she arrived at the instruction fees of Kshs.6,000,000/=, other than stating that the amount was based on the labour involved and the importance of the matter.
24. In light of the above, this Court finds that in awarding instruction fees of Kshs.6,000,000/=, the learned Taxing Officer failed to properly exercise her discretion and misapplied the provisions of Schedule 6 of the Advocates Remuneration Order. Consequently, the award of instruction fees is unjustified and it is hereby set aside.
25. The applicant’s Reference further challenges the Taxing Officer’s findings on drawings as outlined under items Nos. 2, 4, 6, 10 & 15. On perusal of the Advocates’ Advocate-client Bill of Costs dated 18th January 2023, this Court notes that it provided for drawing of 3 folios Memorandum of Appeal, 2 folios of certificate of compliance, 3002 folios of the Record of Appeal, 5 folios of the appellant’s Advocate – Client Bill of Costs and 1 folio of Certificate of Taxation.
26. Schedule 6(4)(a)(i) of the Advocates Remuneration Order states that -
Concise statement, plaint, written statement of defense, interlocutory application, notice of motion or chamber application, originating summons, affidavit, petition of appeal, interrogatories, agreement for compromise, adjustment or satisfaction of suit, or for Reference to arbitration or any other pleading not otherwise provided for -
i) four folios or less 1,100
ii) in excess of four folios; additional per folio after the first four folios 150
27. The applicant further contended that in taxing items Nos. 2, 4, 6, 10 & 15 as drawn, the Taxing Officer was properly guided by the provisions of Schedule 6 of the Advocates Remuneration Order.
28. This Court is also persuaded that item Nos. 3, 5, 7 & 11, which related to the making of copies which were taxed as drawn were taxed in accordance with the provisions of Schedule 6(5)(a) of the Advocates Remuneration Order, which provides that copies of the plaint, written statement of defence, affidavit, petition of appeal, cross-objection to the petition, interrogatories, replies to interrogatories, agreement in satisfaction of suit or for Reference to arbitration, exhibits, bill of costs and any other document shall be charged at the rate of Kshs.25 per folio. There is therefore no need and/or justification to disturb the awards made under those heads.
29. The applicant also challenges the Taxing Officer’s taxation of disbursements. A review of the replying affidavit filed by the applicant sworn on 21st April 2023 by Mr. John Maiyani Tuya, the applicant’s County Secretary, in opposition to the Advocate’s Advocate-client Bill of Costs dated 18th January 2023, however shows that the applicant did not dispute the disbursement items as listed in the Advocate’s Advocate – client Bill of Costs. Consequently, the Taxing Officer had no reason to question the amounts claimed as disbursements or to require the production of receipts to verify that the expenses were actually incurred. It is now well settled that a Reference is akin to an Appeal and it cannot be used to raise new grounds that were not previously argued at taxation. This Court cannot as such fault the Taxing Officer on matters that were not properly brought before her.
30. The final issue concerns the increase of taxed costs by 50% under Part B of Schedule 6. The provisions that set out when legal fees can be increased by half are provided for under Schedule 6B of the Advocates Remuneration Order, which states that –
As between advocate and client the minimum fee shall be -
a) the fees prescribed in A above, increased by 50%; or
b) the fees ordered by the court, increased by 50%; or
c) the fees agreed by the parties under paragraph 57 of this order increased by 50%; as the case may be, such increase to include all proper attendances on the client and all necessary correspondences.
31. In light of the above provisions, I am satisfied that by increasing the taxed costs by 50%, the Taxing Officer applied the correct legal principles in line with the provisions of Part B of Schedule 6 of the Advocates Remuneration Order. As the award under item No. 1 on instruction fees has been interfered with and set aside, the overall sum of the taxed costs has consequently been affected, thereby vitiating the resultant award.
32. This Court is therefore satisfied that the applicant has demonstrated errors of principle in the taxation of item No. 1 on instruction fees and the consequential application of the 50% increase. These errors substantially affected the quantum awarded and if allowed to stand, they would occasion an injustice to the applicant.
33. In light of the foregoing, this Court finds that the applicant’s Reference dated 15th November 2024 is partly successful, and it is allowed in the following terms:-
i) The Ruling and Order of the Taxing Officer, Hon. C. L. Adisa, delivered on 30th October 2024 in respect to item No. 1 on instruction fees and the consequential application of the 50% increase are hereby set aside;
ii) The Advocate’s Advocate - client Bill of Costs dated 18th January 2023 is hereby remitted for fresh taxation before a different Taxing Officer other than Hon. C. L. Adisa, for taxation of item No. 1 on instruction fees and the consequential application of the 50% increase. That shall be done strictly in accordance with the provisions of Schedule 6 of the Advocates Remuneration Order; and
iii) Since the applicant is partly successful, each party shall bear its own costs.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 10TH day of APRIL 2026. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Kaloki h/b for Mr. Maina Ngaruiya for the client/applicant
Mr. Kere for the Advocate/respondent
Ms Julia – Court Assistant.