1. The Advocate’s presented its bill of costs dated 4th June, 2025 in which it sought a total of Ksh.28,926,569.44 from the Clients. The bill arose from Kisumu High Court Commercial Case No. E003 of 2022, Prime Bank Limited v Midland Emporium, Jagdish P. Kotecha and Jayesh P. Kotecha.
2. The Advocate claimed Ksh.16,582,731.85 as instructions fees for defending the suit, which it stated concerned the renewal of a lease in respect of a charge of Ksh.33,128,447.42 and USD5,887,595.60, stated to be equivalent to Ksh.765,384,828, together with a further sum of Ksh.623,317.34. The Advocate further claimed an additional 50% of the instructions fees, amounting to Ksh.8,291,365.93
3. The bill also included six attendances in court, each charged at Ksh.2,100, for mentions on 18th June, 2024, 6th August, 2024, 22nd October, 2024, 29th January, 2024 and 12th February, 2025, and for taking a ruling date on 19th February, 2025.
4. Under the miscellaneous items, the Advocate claimed Ksh.50,000.
5. The total claimed before VAT was Ksh.24,936,697.79. VAT at 16% was then claimed at Ksh.3,989,871.65, bringing the grand total of the bill to Ksh.28,926,569.44.
6. In resisting the bill, the Clients submitted that the value of the subject matter and the services rendered by the Advocate could not be ascertained without production of the pleadings filed in Kisumu High Court Civil Case No. E003 of 2022.
7. They contended that it was the Advocate’s duty to exhibit the relevant pleadings upon which the value of the subject matter and the nature of the services rendered could be determined, and that the failure to do so warranted dismissal of the bill of costs dated 4th June, 2025.
8. The Clients further submitted, that the Advocate did not file a defence in the suit but merely filed a notice of change of advocates and attended the three mentions particularized in the bill of costs.
9. In their view, the Advocate was therefore entitled only to a reasonable instruction fee and charges for the three court attendances. They proposed that the instruction fee should not exceed Ksh.200,000.00, together with the charges for the three attendances.
10. The Clients relied on the decision of the Supreme Court in Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] eKLR, which they submitted affirmed the discretion of the Taxing Officer in ascertaining the value of the subject matter of a claim and assessing the appropriate instruction fee. They accordingly urged that the bill be assessed on the foregoing basis.
11. In determining the bill vide the ruling rendered on 6th December, 2025, the Taxing Master considered the parties’ respective positions on the assessment of the instruction fee and the value of the subject matter.
12. The Taxing Master noted the Clients’ contention that the value of the subject matter could not be ascertained because the Advocate had not produced the pleadings in Kisumu High Court Civil Case No. E003 of 2022.
13. The Taxing Master nevertheless found, upon consideration of the pleadings on record, that the subject matter concerned an inhibition on a charge of Ksh.228,500,000.00.
14. Applying Schedule 6(1) of the Advocates (Remuneration) (Amendment) Order, 2014, the Taxing Master assessed the instruction fee at Ksh.122,400.00 and, having regard to the claim for an increase by one-half, allowed a further Ksh.61,200.00, bringing the instruction fee to Ksh.183,600.00.
15. On attendances, the Taxing Master noted the attendances particularized in the bill, namely those on 18th June, 2024, 6th August, 2024, 22nd October, 2024, 29th January, 2024, 12th February, 2025 and 19th February, 2025, and allowed each at Ksh.2,100.00, making a total of Ksh.13,200.00.
16. The claim of Ksh.50,000.00 for miscellaneous expenses was disallowed on the ground that it had neither been proved nor substantiated.
17. The Taxing Master consequently arrived at a total of Ksh.196,800.00 and, in the result, taxed the Advocate-Client bill of costs dated 4th June, 2025 at Ksh.196,800.00.
18. The Advocate has now preferred a reference vide the chamber summons dated 19th December, 2025, presented under Sections 45, 46 & 49 of the Advocates Act and Rule 11(2) and 79 of the Advocate Remuneration Rules and Order 22 Rules 22 of the Civil Procedure Rules Cap and all enabling provisions of the law, through which it seeks the following orders:
a. THAT….
b. THAT, this Honourable Court be pleased to cap the bill of costs herein in accordance with the Advocates Remuneration Rules.
c. THAT this Honorable court be pleased to set aside in its entirety the decision of the Taxing Officer delivered on 16th December, 2025 in respect of the Advocate-Client bill of costs dated 4th June, 2025 on all the items.
d. THAT this Honorable Court be pleased to refer the matter back to the Deputy Registrar with directions on proper manner of taxation or before another Deputy Registrar.
e. THAT in the alternative this Honourable court be pleased to tax the bill of cost afresh.
f. THAT costs of the application be awarded to the Advocate/Applicant.
19. The grounds upon which the application is premised are that the Taxing Master erred in law by failing to award the Advocate the full instruction fee claimed, despite the instruction to act having not been disputed.
20. It is further contended that the Taxing Master erred in law and fact by failing to discern from the pleadings the ascertainable value of the subject matter.
21. The Advocate also faults the Taxing Master for failing to apply and uphold the provisions of the Advocates Remuneration Order.
22. The Advocate further contends that the Taxing Master failed to take into consideration the submissions made on its behalf.
23. It is consequently argued that, having committed errors of principle in the taxation of the bill, the Taxing Master’s ruling is amenable to interference by this Court in exercise of its jurisdiction, in the interests of justice.
24. The application is supported by the affidavit of Anthony Achura, Advocate, sworn on 19th December, 2025 in which he deposes that he is a partner of the Advocate/Applicant and is conversant with the facts of the matter.
25. He states that the Advocate-Client bill of costs which is the subject of the reference was taxed at Ksh.196,800.00 and that, despite having requested for the reasons for the taxation, the Taxing Master had not issued the same. He has annexed a copy of the letter addressed to the Court requesting the reasons, marked “AA-1”.
26. The deponent further deposes that, being dissatisfied with the Taxing Master’s ruling, the Applicant moved to file the present reference. It is his contention that the taxation proceedings were conducted in breach of the law, both substantively and procedurally, and that unless the taxation is corrected by this Court, the same is likely to occasion injustice to the Applicant.
27. In opposition to the application, the Clients filed a replying affidavit sworn on 10th June, 2025 by Ashioya Biko, Advocate, in which he deposes that his clients oppose the application seeking to set aside the Taxing Officer’s ruling in which the Advocate-Client Bill of Costs was taxed at Kshs.196,800.00.
28. The deponent deposes that the Applicant’s complaint is principally that the Taxing Master erred by failing to award the claimed instruction fee despite the same allegedly being undisputed, by failing to appreciate that the value of the subject matter was ascertainable from the pleadings, by failing to uphold the Advocates Remuneration Order and by failing to consider the Applicant’s submissions.
29. He further states that the Applicant’s complaint that the Taxing Master had not supplied reasons was misleading and that the ruling itself sufficiently identified the items in the bill, considered the parties’ submissions and gave reasons for the determination.
30. The deponent contends that the reference was prematurely filed. He points out that the Taxing Master delivered the ruling on 16th December, 2025, the Applicant wrote requesting reasons on 17th December, 2025, and filed the reference on 19th December, 2025, only two days later.
31. In his view, it was not reasonable to expect the Taxing Master, having regard to the workload in the Judiciary, to have furnished reasons within such a short period.
32. He consequently characterizes the request for reasons as merely a procedural step taken to enable the Applicant to file the reference rather than a genuine request awaiting a response.
33. The deponent further relies on the principles in Premchand Raichand Limited & Another v Quarry Services of East Africa Limited & Another [1972] E.A. 162, Arthur v Nyeri Electricity Undertaking [1961] E.A. 492 and Joreth Limited v Kigano and Associates [2002] 1 E.A. 92, which he states establish that the High Court should only interfere with a Taxing Master’s decision where there is an error of principle or where the fee awarded is manifestly excessive or low as to amount to an injustice.
34. He emphasizes that an error of principle may arise where irrelevant matters are taken into account or relevant matters are omitted, and that, where an error of principle is established, the usual course is to remit the matter to the Taxing Master for reassessment. He also contends that the Taxing Master has discretion to increase or reduce instruction fees.
35. Relying further on Republic v Ministry of Agriculture & 2 Others ex parte Muchiri W'njuguna & 6 Others [2006] eKLR, the deponent emphasizes that taxation of costs is not a mathematical exercise but involves an assessment based on experience and judicial discretion.
36. He states that a court should not interfere merely because it considers an award to be high or low, unless the award is so excessive or inadequate as to constitute an injustice.
37. The deponent also emphasizes the need for a Taxing Officer to consider such factors as the nature and importance of the matter, the value of the subject matter, the interests of the parties, the conduct of the proceedings and any directions given by the trial court.
38. On the instruction fee, the deponent disputes the Applicant’s contention that the item was unchallenged. He points out that the Clients had expressly challenged the instruction fee and the ascertainability of the value of the subject matter in their submissions. He therefore maintains that the Taxing Master properly considered that objection and cannot be faulted for taking it into account.
39. The deponent further contends that the Taxing Master did consider the value of the subject matter and, in exercise of her discretion, assessed the instruction fee at Ksh.122,400.00, which, in the Clients’ view, was itself excessive and ought to have been taxed down further.
40. In that regard, the deponent asserts that the Advocate had rendered very limited services in the substantive proceedings, having allegedly filed no pleadings and merely attended mentions in Kisumu HCCOMM/E003/2022. He states that there was no evidence that the Advocate had even filed a notice of appointment or was properly on record in the matter. He consequently argues that there was no basis for the substantial instruction fee claimed.
41. The deponent further denies that the Taxing Master failed to uphold the Advocates Remuneration Order, observing that no evidence had been presented to demonstrate such failure.
42. He also disputes the allegation that the Applicant’s submissions were ignored, pointing out that the Taxing Master expressly referred to the submissions of both parties in the impugned ruling.
43. While acknowledging that this Court has jurisdiction to interfere with a Taxing Master’s decision, the deponent maintains that such jurisdiction is limited to the circumstances recognized in the authorities cited. He therefore contends that the Applicant had neither pleaded nor demonstrated any error of principle sufficient to warrant interference with the taxation.
44. In his oral submissions in support of the application, Mr. Achura contends that the Taxing Master erred in principle by taxing the Advocate-Client Bill of Costs excessively low, particularly in respect of the instruction fee, which was not contested.
45. He submits that although the Taxing Master ascertained the value of the subject matter, she failed to apply that value in assessing the instruction fee and thereby failed to properly apply the relevant provisions of the Advocates Remuneration Order.
46. Counsel further submits that instruction fees are chargeable only once and that the matter proceeded up to the defence stage. He maintains that the matter was complex, involving claims denominated in both United States Dollars and Kenya Shillings, and that the nature and complexity of the matter ought to have been taken into account in assessing the instruction fee.
47. Counsel therefore urges the Court either to tax the bill afresh or to remit it to a different Taxing Master for fresh consideration. He clarifies that the Applicant’s challenge is confined to the instruction fee and that no issue is taken with the other items in the bill.
48. On the issue of reasons, counsel submits that the Applicant requested the Taxing Master to provide reasons for the taxation but the same were not furnished. He contends that, in any event, the reasons for the decision ought to have been contained in the ruling itself.
49. In their written and oral submissions as presented by Mr. Ashioya, the Clients reiterate the contents of the replying affidavit. As this is a court of record, I will restate those submissions, though that may sound repetitive.
50. The Clients contend that the application ought to be dismissed because the Applicant has failed to demonstrate any error of principle warranting interference with the Taxing Master’s decision.
51. They submit that the Court’s jurisdiction on a reference from taxation is limited and that, as established in Premchand Raichand Limited & Another v Quarry Services of East Africa Limited & Another (supra), Arthur v Nyeri Electricity Undertaking (supra) and Joreth Limited v Kigano & Associates (supra), the Court will only interfere where the Taxing Master has committed an error of principle or where the fee awarded is so manifestly excessive or inadequate as to occasion injustice.
52. The Clients submit that an error of principle arises where the Taxing Master takes into account irrelevant matters or fails to consider relevant ones, and that the factors relevant to taxation include the nature and importance of the matter, the value of the subject matter, the interests of the parties, the general conduct of the proceedings and any directions given by the trial court.
53. They further submit that, where an error of principle is established, the normal course is to remit the matter to the Taxing Master for reassessment, and that the Taxing Master retains discretion to increase or reduce an instruction fee.
54. The Clients contend that the Applicant’s complaint concerning the absence of reasons is misleading and that the reference was prematurely filed. They point out that the Taxing Master delivered the ruling on 16th December, 2025, the Applicant requested reasons on 17th December, 2025 and filed the reference on 19th December 2025, only two days thereafter.
55. In their view, it was unreasonable to expect the Taxing Master to have supplied reasons within such a short period, having regard to the workload of the Judiciary. They consequently contend that the request for reasons was merely a procedural step intended to facilitate the filing of the reference rather than a genuine request awaiting a response.
56. The Clients further submit that the ruling itself sufficiently identified the items in the bill, considered the parties’ respective submissions and gave reasons for the determination.
57. They rely in this regard on Republic v Ministry of Agriculture & 2 Others ex parte Muchiri W'njuguna & 6 Others (supra) for the proposition that taxation is not a mathematical exercise but involves the exercise of judgment and experience by the Taxing Officer.
58. They submit that a court should not interfere merely because it considers an award to be high or low, unless the amount is so high or low as to amount to an injustice, and that the Taxing Officer is required to take into account only such relevant factors as arise in the particular matter.
59. On the allegation that the instruction fee was unchallenged, the Clients submit that the contention is plainly incorrect. They point out that they expressly challenged both the instruction fee and the ascertainability of the value of the subject matter in their submissions.
60. In their view, the Taxing Master was therefore entitled to consider that challenge and cannot be faulted for doing so.
61. The Clients further contend that the Taxing Master did not err in considering the value of the subject matter. They submit that the Taxing Master expressly addressed the issue and assessed the instruction fee at Ksh.122,400.00, which, in their view, was itself excessive and ought to have been taxed down further.
62. They argue that the Advocate’s actual involvement in the substantive proceedings was minimal, asserting that counsel merely attended mentions in Kisumu HCCOMM/E003/2022 and did not file any pleadings. They further contend that there was no evidence that the Advocate had filed even a notice of appointment or that it was properly on record in the matter.
63. The Clients also submit that the Applicant has not demonstrated how the Taxing Master failed to uphold the Advocates Remuneration Order. They similarly reject the allegation that the Taxing Master failed to consider the Applicant’s submissions, pointing out that the ruling expressly made reference to the submissions of both parties. They therefore contend that there is no factual or legal basis for the complaint that the Applicant’s arguments were ignored.
64. The Clients acknowledge that this Court has jurisdiction to interfere with a Taxing Master’s ruling but submit that such jurisdiction must be exercised within the established parameters. They maintain that the Applicant has not demonstrated any error of principle, nor shown that the sum of Ksh.196,800.00 was manifestly low or otherwise so inadequate as to occasion injustice. They consequently urge the Court to uphold the Taxing Master’s exercise of discretion.
65. In conclusion, the Clients submit that taxation is a matter of judicial opinion and experience and that the Court ought not to interfere with the award merely because another figure might be considered appropriate. They maintain that the sum of Ksh.196,800.00 was sufficient and did not occasion any injustice to the Advocate. They accordingly urge the Court to find that the application is without merit and to dismiss it with costs.
66. Having considered the chamber summons dated 19th December, 2025, the supporting affidavit, the replying affidavit, the parties’ written and oral submissions, the ruling of the Taxing Master and the applicable law, I am of the view that the following issues arise for determination:
a. Whether the reference was competent and properly before the Court.
b. Whether the Taxing Master committed an error of principle in the assessment of the instruction fee.
c. Whether the Taxing Master failed to consider the parties’ submissions and to give adequate reasons for her determination.
d. What instruction fee and consequential costs ought properly to be allowed upon the Court’s determination of the reference.
67. The first issue for me to address is whether the reference was competent and properly before the Court.
68. The Clients have raised a preliminary objection to the competence of the reference on the ground that the Advocate requested reasons for the taxation on 17th December, 2025 and filed the present reference on 19th December, 2025, only two days later. It is submitted that the Taxing Master could not reasonably have been expected to furnish reasons within that period and that the reference was consequently premature.
69. I do not find merit in that objection. Rule 11 of the Advocates Remuneration Order contemplates a party who is dissatisfied with a decision of the Taxing Officer requesting the Taxing Officer to state the items of the taxation to which objection is taken and the reasons for the decision.
70. The purpose of the request is to enable the Court, upon a reference, to interrogate the basis upon which the Taxing Officer arrived at the impugned decision.
71. In the present case, the ruling itself contains the Taxing Master’s reasoning on the disputed item. Indeed, the Advocate’s complaint is not that there was literally no ruling, but that the reasons supplied in the ruling did not disclose a proper application of the applicable remuneration scale to the value of the subject matter which the Taxing Master herself had ascertained.
72. The absence of a subsequent response to the letter of 17th December, 2025 therefore does not, in the circumstances of this case, deprive this Court of jurisdiction to determine the reference.
73. I am also unable to accept the proposition that the reference was rendered incompetent merely because it was filed two days after the request for reasons. The Clients’ assertion that the request was made merely to “tick the box” is speculative and is unsupported by evidence.
74. A litigant dissatisfied with a taxation is entitled to move the Court within the prescribed period. The fact that the Taxing Officer may not have had sufficient time to respond to a request for reasons does not, by itself, extinguish the litigant’s right to challenge the taxation where the basis of the taxation is discernible from the ruling itself.
75. I therefore find that the reference is properly before this Court. The objection to its competence on the ground of prematurity is accordingly rejected.
76. The second issue for determination is whether the Taxing Master committed an error of principle in assessing the instruction fee.
77. The principal complaint in this reference concerns item 1 of the bill, namely the instruction fee.
78. It is important at the outset to restate the limited jurisdiction of the High Court on a reference from taxation. The Court does not sit as an appellate taxing officer merely because it would have awarded a different sum. The Court intervenes where the Taxing Officer has proceeded upon an erroneous principle, taken into account an irrelevant consideration, failed to take into account a relevant consideration, or arrived at a figure so manifestly excessive or inadequate as to demonstrate an error of principle.
79. This principle is firmly established in the authorities relied upon by the Clients, including Premchand Raichand Limited & Another v Quarry Services of East Africa Limited & Another, Arthur v Nyeri Electricity Undertaking and Joreth Limited v Kigano & Associates.
80. The principle has also been restated in subsequent decisions. It is not, therefore, the mere size of the award which permits intervention. Rather, it is the demonstrated failure to exercise the discretion in accordance with the governing principles.
81. The Clients are correct in that regard. However, the principle cuts both ways. A Taxing Officer’s discretion is a judicial discretion and must be exercised within the framework of the Advocates Remuneration Order. It is not a discretion to disregard the prescribed scale altogether.
82. Where the value of the subject matter is ascertainable from the pleadings, judgement or settlement, that value provides the starting point for the assessment under the applicable schedule. Thereafter, the Taxing Officer exercises the discretion conferred by the Order having regard to the relevant circumstances of the matter.
83. In Joreth Limited v Kigano & Associates (supra), the Court of Appeal made it clear that the value of the subject matter for purposes of instruction fees is to be ascertained from the pleadings, judgement or settlement. Where the value is not ascertainable from those sources, the Taxing Officer resorts to discretion, taking into account such matters as the nature and importance of the cause, the interests of the parties, the general conduct of the proceedings and other relevant circumstances.
84. The more recent decision of the Supreme Court in Kenya Airports Authority v Otieno Ragot and Company Advocates (supra) does not depart from that principle. On the contrary, the Supreme Court emphasized that the Taxing Officer must exercise judicial discretion in assessing Advocate-Client instruction fees and rejected a mechanical approach to the addition of 50 per cent.
85. The Court held that Advocate-Client instruction fees are not to be arrived at by simply applying a mathematical formula without an assessment of the circumstances of the case.
86. That authority, however, does not assist the Clients to the extent that it might be understood as authorizing a Taxing Officer to disregard the applicable scale. Kenya Airports Authority v Otieno Ragot and Company Advocates concerned a situation in which the value of the subject matter was not properly ascertainable because the underlying claim had been struck out before trial. The Supreme Court upheld the Taxing Officer’s exercise of discretion in assessing a reasonable instruction fee in those circumstances. It did not hold that, once an ascertainable value exists in the pleadings, the prescribed scale may simply be disregarded.
87. In the present case, there is a particularly significant feature. The Taxing Master expressly found that, upon consideration of the pleadings, the subject matter was an inhibition on a charge of Ksh.228,500,000.00. Having made that finding, the Taxing Master was no longer dealing with a case where the value of the subject matter was incapable of ascertainment. The value had, in her own determination, been ascertained.
88. The next step was therefore to apply the appropriate provision of Schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014 and thereafter exercise the discretion conferred by that Schedule as to whether the prescribed fee should be increased or reduced having regard to the circumstances of the matter.
89. It is at this point that the taxation discloses a clear error of principle. The Taxing Master stated that the value of the subject matter was Ksh.228,500,000.00 and that she was applying Schedule 6(1) of the 2014 Order. Yet she assessed the instruction fee at only Ksh.122,400.00. That figure does not correspond with the prescribed calculation for a defended suit valued at Ksh.228,500,000.00 under Schedule 6 paragraph 1(b) of the 2014 Order.
90. The applicable scale for a defended suit provided for Ksh.120,000.00 for the first Ksh.1,000,000.00; an additional 2% on the amount between Ksh.1,000,000.00 and Ksh.20,000,000.00; and, for the amount above Ksh.20,000,000.00, an additional 1.5%.
91. The figure of Kshs.122,400.00 awarded by the Taxing Master is therefore not merely a low assessment within the permissible range of discretion. It is a figure which does not mathematically correspond to the scale which the Taxing Master expressly stated she was applying. More importantly, there is no explanation in the ruling as to how the sum of Ksh.122,400.00 was derived from a subject matter valued at Ksh.228,500,000.00.
92. The Clients submit that the Court should defer to the discretion of the Taxing Master and that the award of Kshs.122,400.00 was itself excessive. That submission cannot stand against the Taxing Master’s own finding as to the value of the subject matter and the prescribed scale. A discretion to increase or reduce a prescribed fee is not an unfettered discretion to arrive at an unexplained figure wholly disconnected from the applicable scale.
93. The Clients’ reliance on Republic v Ministry of Agriculture & 2 Others ex parte Muchiri W’njuguna & 6 Others (supra) is not inconsistent with this conclusion. The principle that taxation is not a mathematical exercise means that the Taxing Officer must assess the value of the professional work and responsibility involved, taking into account the relevant circumstances. It does not mean that the Taxing Officer may disregard the mathematical starting point prescribed by the Remuneration Order where the subject matter is ascertainable and the applicable scale is clear.
94. I therefore find that the Taxing Master committed an error of principle in assessing the instruction fee at Ksh.122,400.00 after expressly finding that the value of the subject matter was Ksh.228,500,000.00 and purporting to apply Schedule 6 of the 2014 Order.
95. As to whether the Advocate was entitled to the additional 50%, the Advocate argues that it was entitled to the full instruction fee claimed, together with the additional 50%, and submits that the instruction was not disputed. I do not agree with the proposition in that absolute form.
96. The Clients plainly challenged the instruction fee in their submissions. They disputed the ascertainability of the value of the subject matter and, in the alternative, contended that the Advocate had done very little work in the substantive suit. The Taxing Master was therefore entitled, and indeed obliged, to consider the objection.
97. More importantly, the decision of the Supreme Court in Kenya Airports Authority v Otieno Ragot and Company Advocates (supra) makes it clear that the Advocate-Client instruction fee is not to be obtained through a mechanical addition of 50% to the Party-and-Party fee. The Taxing Officer is required to exercise judicial discretion in determining the reasonable Advocate-Client fee, guided by the applicable Schedule and the circumstances of the case.
98. I therefore reject the Advocate’s submission that the mere f
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2. The Advocate claimed Ksh.16,582,731.85 as instructions fees for defending the suit, which it stated concerned the renewal of a lease in respect of a charge of Ksh.33,128,447.42 and USD5,887,595.60, stated to be equivalent to Ksh.765,384,828, together with a further sum of Ksh.623,317.34. The Advocate further claimed an additional 50% of the instructions fees, amounting to Ksh.8,291,365.93
3. The bill also included six attendances in court, each charged at Ksh.2,100, for mentions on 18th June, 2024, 6th August, 2024, 22nd October, 2024, 29th January, 2024 and 12th February, 2025, and for taking a ruling date on 19th February, 2025.
4. Under the miscellaneous items, the Advocate claimed Ksh.50,000.
5. The total claimed before VAT was Ksh.24,936,697.79. VAT at 16% was then claimed at Ksh.3,989,871.65, bringing the grand total of the bill to Ksh.28,926,569.44.
6. In resisting the bill, the Clients submitted that the value of the subject matter and the services rendered by the Advocate could not be ascertained without production of the pleadings filed in Kisumu High Court Civil Case No. E003 of 2022.
7. They contended that it was the Advocate’s duty to exhibit the relevant pleadings upon which the value of the subject matter and the nature of the services rendered could be determined, and that the failure to do so warranted dismissal of the bill of costs dated 4th June, 2025.
8. The Clients further submitted, that the Advocate did not file a defence in the suit but merely filed a notice of change of advocates and attended the three mentions particularized in the bill of costs.
9. In their view, the Advocate was therefore entitled only to a reasonable instruction fee and charges for the three court attendances. They proposed that the instruction fee should not exceed Ksh.200,000.00, together with the charges for the three attendances.
10. The Clients relied on the decision of the Supreme Court in Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] eKLR, which they submitted affirmed the discretion of the Taxing Officer in ascertaining the value of the subject matter of a claim and assessing the appropriate instruction fee. They accordingly urged that the bill be assessed on the foregoing basis.
11. In determining the bill vide the ruling rendered on 6th December, 2025, the Taxing Master considered the parties’ respective positions on the assessment of the instruction fee and the value of the subject matter.
12. The Taxing Master noted the Clients’ contention that the value of the subject matter could not be ascertained because the Advocate had not produced the pleadings in Kisumu High Court Civil Case No. E003 of 2022.
13. The Taxing Master nevertheless found, upon consideration of the pleadings on record, that the subject matter concerned an inhibition on a charge of Ksh.228,500,000.00.
14. Applying Schedule 6(1) of the Advocates (Remuneration) (Amendment) Order, 2014, the Taxing Master assessed the instruction fee at Ksh.122,400.00 and, having regard to the claim for an increase by one-half, allowed a further Ksh.61,200.00, bringing the instruction fee to Ksh.183,600.00.
15. On attendances, the Taxing Master noted the attendances particularized in the bill, namely those on 18th June, 2024, 6th August, 2024, 22nd October, 2024, 29th January, 2024, 12th February, 2025 and 19th February, 2025, and allowed each at Ksh.2,100.00, making a total of Ksh.13,200.00.
16. The claim of Ksh.50,000.00 for miscellaneous expenses was disallowed on the ground that it had neither been proved nor substantiated.
17. The Taxing Master consequently arrived at a total of Ksh.196,800.00 and, in the result, taxed the Advocate-Client bill of costs dated 4th June, 2025 at Ksh.196,800.00.
18. The Advocate has now preferred a reference vide the chamber summons dated 19th December, 2025, presented under Sections 45, 46 & 49 of the Advocates Act and Rule 11(2) and 79 of the Advocate Remuneration Rules and Order 22 Rules 22 of the Civil Procedure Rules Cap and all enabling provisions of the law, through which it seeks the following orders:
a. THAT….
b. THAT, this Honourable Court be pleased to cap the bill of costs herein in accordance with the Advocates Remuneration Rules.
c. THAT this Honorable court be pleased to set aside in its entirety the decision of the Taxing Officer delivered on 16th December, 2025 in respect of the Advocate-Client bill of costs dated 4th June, 2025 on all the items.
d. THAT this Honorable Court be pleased to refer the matter back to the Deputy Registrar with directions on proper manner of taxation or before another Deputy Registrar.
e. THAT in the alternative this Honourable court be pleased to tax the bill of cost afresh.
f. THAT costs of the application be awarded to the Advocate/Applicant.
19. The grounds upon which the application is premised are that the Taxing Master erred in law by failing to award the Advocate the full instruction fee claimed, despite the instruction to act having not been disputed.
20. It is further contended that the Taxing Master erred in law and fact by failing to discern from the pleadings the ascertainable value of the subject matter.
21. The Advocate also faults the Taxing Master for failing to apply and uphold the provisions of the Advocates Remuneration Order.
22. The Advocate further contends that the Taxing Master failed to take into consideration the submissions made on its behalf.
23. It is consequently argued that, having committed errors of principle in the taxation of the bill, the Taxing Master’s ruling is amenable to interference by this Court in exercise of its jurisdiction, in the interests of justice.
24. The application is supported by the affidavit of Anthony Achura, Advocate, sworn on 19th December, 2025 in which he deposes that he is a partner of the Advocate/Applicant and is conversant with the facts of the matter.
25. He states that the Advocate-Client bill of costs which is the subject of the reference was taxed at Ksh.196,800.00 and that, despite having requested for the reasons for the taxation, the Taxing Master had not issued the same. He has annexed a copy of the letter addressed to the Court requesting the reasons, marked “AA-1”.
26. The deponent further deposes that, being dissatisfied with the Taxing Master’s ruling, the Applicant moved to file the present reference. It is his contention that the taxation proceedings were conducted in breach of the law, both substantively and procedurally, and that unless the taxation is corrected by this Court, the same is likely to occasion injustice to the Applicant.
27. In opposition to the application, the Clients filed a replying affidavit sworn on 10th June, 2025 by Ashioya Biko, Advocate, in which he deposes that his clients oppose the application seeking to set aside the Taxing Officer’s ruling in which the Advocate-Client Bill of Costs was taxed at Kshs.196,800.00.
28. The deponent deposes that the Applicant’s complaint is principally that the Taxing Master erred by failing to award the claimed instruction fee despite the same allegedly being undisputed, by failing to appreciate that the value of the subject matter was ascertainable from the pleadings, by failing to uphold the Advocates Remuneration Order and by failing to consider the Applicant’s submissions.
29. He further states that the Applicant’s complaint that the Taxing Master had not supplied reasons was misleading and that the ruling itself sufficiently identified the items in the bill, considered the parties’ submissions and gave reasons for the determination.
30. The deponent contends that the reference was prematurely filed. He points out that the Taxing Master delivered the ruling on 16th December, 2025, the Applicant wrote requesting reasons on 17th December, 2025, and filed the reference on 19th December, 2025, only two days later.
31. In his view, it was not reasonable to expect the Taxing Master, having regard to the workload in the Judiciary, to have furnished reasons within such a short period.
32. He consequently characterizes the request for reasons as merely a procedural step taken to enable the Applicant to file the reference rather than a genuine request awaiting a response.
33. The deponent further relies on the principles in Premchand Raichand Limited & Another v Quarry Services of East Africa Limited & Another [1972] E.A. 162, Arthur v Nyeri Electricity Undertaking [1961] E.A. 492 and Joreth Limited v Kigano and Associates [2002] 1 E.A. 92, which he states establish that the High Court should only interfere with a Taxing Master’s decision where there is an error of principle or where the fee awarded is manifestly excessive or low as to amount to an injustice.
34. He emphasizes that an error of principle may arise where irrelevant matters are taken into account or relevant matters are omitted, and that, where an error of principle is established, the usual course is to remit the matter to the Taxing Master for reassessment. He also contends that the Taxing Master has discretion to increase or reduce instruction fees.
35. Relying further on Republic v Ministry of Agriculture & 2 Others ex parte Muchiri W'njuguna & 6 Others [2006] eKLR, the deponent emphasizes that taxation of costs is not a mathematical exercise but involves an assessment based on experience and judicial discretion.
36. He states that a court should not interfere merely because it considers an award to be high or low, unless the award is so excessive or inadequate as to constitute an injustice.
37. The deponent also emphasizes the need for a Taxing Officer to consider such factors as the nature and importance of the matter, the value of the subject matter, the interests of the parties, the conduct of the proceedings and any directions given by the trial court.
38. On the instruction fee, the deponent disputes the Applicant’s contention that the item was unchallenged. He points out that the Clients had expressly challenged the instruction fee and the ascertainability of the value of the subject matter in their submissions. He therefore maintains that the Taxing Master properly considered that objection and cannot be faulted for taking it into account.
39. The deponent further contends that the Taxing Master did consider the value of the subject matter and, in exercise of her discretion, assessed the instruction fee at Ksh.122,400.00, which, in the Clients’ view, was itself excessive and ought to have been taxed down further.
40. In that regard, the deponent asserts that the Advocate had rendered very limited services in the substantive proceedings, having allegedly filed no pleadings and merely attended mentions in Kisumu HCCOMM/E003/2022. He states that there was no evidence that the Advocate had even filed a notice of appointment or was properly on record in the matter. He consequently argues that there was no basis for the substantial instruction fee claimed.
41. The deponent further denies that the Taxing Master failed to uphold the Advocates Remuneration Order, observing that no evidence had been presented to demonstrate such failure.
42. He also disputes the allegation that the Applicant’s submissions were ignored, pointing out that the Taxing Master expressly referred to the submissions of both parties in the impugned ruling.
43. While acknowledging that this Court has jurisdiction to interfere with a Taxing Master’s decision, the deponent maintains that such jurisdiction is limited to the circumstances recognized in the authorities cited. He therefore contends that the Applicant had neither pleaded nor demonstrated any error of principle sufficient to warrant interference with the taxation.
44. In his oral submissions in support of the application, Mr. Achura contends that the Taxing Master erred in principle by taxing the Advocate-Client Bill of Costs excessively low, particularly in respect of the instruction fee, which was not contested.
45. He submits that although the Taxing Master ascertained the value of the subject matter, she failed to apply that value in assessing the instruction fee and thereby failed to properly apply the relevant provisions of the Advocates Remuneration Order.
46. Counsel further submits that instruction fees are chargeable only once and that the matter proceeded up to the defence stage. He maintains that the matter was complex, involving claims denominated in both United States Dollars and Kenya Shillings, and that the nature and complexity of the matter ought to have been taken into account in assessing the instruction fee.
47. Counsel therefore urges the Court either to tax the bill afresh or to remit it to a different Taxing Master for fresh consideration. He clarifies that the Applicant’s challenge is confined to the instruction fee and that no issue is taken with the other items in the bill.
48. On the issue of reasons, counsel submits that the Applicant requested the Taxing Master to provide reasons for the taxation but the same were not furnished. He contends that, in any event, the reasons for the decision ought to have been contained in the ruling itself.
49. In their written and oral submissions as presented by Mr. Ashioya, the Clients reiterate the contents of the replying affidavit. As this is a court of record, I will restate those submissions, though that may sound repetitive.
50. The Clients contend that the application ought to be dismissed because the Applicant has failed to demonstrate any error of principle warranting interference with the Taxing Master’s decision.
51. They submit that the Court’s jurisdiction on a reference from taxation is limited and that, as established in Premchand Raichand Limited & Another v Quarry Services of East Africa Limited & Another (supra), Arthur v Nyeri Electricity Undertaking (supra) and Joreth Limited v Kigano & Associates (supra), the Court will only interfere where the Taxing Master has committed an error of principle or where the fee awarded is so manifestly excessive or inadequate as to occasion injustice.
52. The Clients submit that an error of principle arises where the Taxing Master takes into account irrelevant matters or fails to consider relevant ones, and that the factors relevant to taxation include the nature and importance of the matter, the value of the subject matter, the interests of the parties, the general conduct of the proceedings and any directions given by the trial court.
53. They further submit that, where an error of principle is established, the normal course is to remit the matter to the Taxing Master for reassessment, and that the Taxing Master retains discretion to increase or reduce an instruction fee.
54. The Clients contend that the Applicant’s complaint concerning the absence of reasons is misleading and that the reference was prematurely filed. They point out that the Taxing Master delivered the ruling on 16th December, 2025, the Applicant requested reasons on 17th December, 2025 and filed the reference on 19th December 2025, only two days thereafter.
55. In their view, it was unreasonable to expect the Taxing Master to have supplied reasons within such a short period, having regard to the workload of the Judiciary. They consequently contend that the request for reasons was merely a procedural step intended to facilitate the filing of the reference rather than a genuine request awaiting a response.
56. The Clients further submit that the ruling itself sufficiently identified the items in the bill, considered the parties’ respective submissions and gave reasons for the determination.
57. They rely in this regard on Republic v Ministry of Agriculture & 2 Others ex parte Muchiri W'njuguna & 6 Others (supra) for the proposition that taxation is not a mathematical exercise but involves the exercise of judgment and experience by the Taxing Officer.
58. They submit that a court should not interfere merely because it considers an award to be high or low, unless the amount is so high or low as to amount to an injustice, and that the Taxing Officer is required to take into account only such relevant factors as arise in the particular matter.
59. On the allegation that the instruction fee was unchallenged, the Clients submit that the contention is plainly incorrect. They point out that they expressly challenged both the instruction fee and the ascertainability of the value of the subject matter in their submissions.
60. In their view, the Taxing Master was therefore entitled to consider that challenge and cannot be faulted for doing so.
61. The Clients further contend that the Taxing Master did not err in considering the value of the subject matter. They submit that the Taxing Master expressly addressed the issue and assessed the instruction fee at Ksh.122,400.00, which, in their view, was itself excessive and ought to have been taxed down further.
62. They argue that the Advocate’s actual involvement in the substantive proceedings was minimal, asserting that counsel merely attended mentions in Kisumu HCCOMM/E003/2022 and did not file any pleadings. They further contend that there was no evidence that the Advocate had filed even a notice of appointment or that it was properly on record in the matter.
63. The Clients also submit that the Applicant has not demonstrated how the Taxing Master failed to uphold the Advocates Remuneration Order. They similarly reject the allegation that the Taxing Master failed to consider the Applicant’s submissions, pointing out that the ruling expressly made reference to the submissions of both parties. They therefore contend that there is no factual or legal basis for the complaint that the Applicant’s arguments were ignored.
64. The Clients acknowledge that this Court has jurisdiction to interfere with a Taxing Master’s ruling but submit that such jurisdiction must be exercised within the established parameters. They maintain that the Applicant has not demonstrated any error of principle, nor shown that the sum of Ksh.196,800.00 was manifestly low or otherwise so inadequate as to occasion injustice. They consequently urge the Court to uphold the Taxing Master’s exercise of discretion.
65. In conclusion, the Clients submit that taxation is a matter of judicial opinion and experience and that the Court ought not to interfere with the award merely because another figure might be considered appropriate. They maintain that the sum of Ksh.196,800.00 was sufficient and did not occasion any injustice to the Advocate. They accordingly urge the Court to find that the application is without merit and to dismiss it with costs.
66. Having considered the chamber summons dated 19th December, 2025, the supporting affidavit, the replying affidavit, the parties’ written and oral submissions, the ruling of the Taxing Master and the applicable law, I am of the view that the following issues arise for determination:
a. Whether the reference was competent and properly before the Court.
b. Whether the Taxing Master committed an error of principle in the assessment of the instruction fee.
c. Whether the Taxing Master failed to consider the parties’ submissions and to give adequate reasons for her determination.
d. What instruction fee and consequential costs ought properly to be allowed upon the Court’s determination of the reference.
67. The first issue for me to address is whether the reference was competent and properly before the Court.
68. The Clients have raised a preliminary objection to the competence of the reference on the ground that the Advocate requested reasons for the taxation on 17th December, 2025 and filed the present reference on 19th December, 2025, only two days later. It is submitted that the Taxing Master could not reasonably have been expected to furnish reasons within that period and that the reference was consequently premature.
69. I do not find merit in that objection. Rule 11 of the Advocates Remuneration Order contemplates a party who is dissatisfied with a decision of the Taxing Officer requesting the Taxing Officer to state the items of the taxation to which objection is taken and the reasons for the decision.
70. The purpose of the request is to enable the Court, upon a reference, to interrogate the basis upon which the Taxing Officer arrived at the impugned decision.
71. In the present case, the ruling itself contains the Taxing Master’s reasoning on the disputed item. Indeed, the Advocate’s complaint is not that there was literally no ruling, but that the reasons supplied in the ruling did not disclose a proper application of the applicable remuneration scale to the value of the subject matter which the Taxing Master herself had ascertained.
72. The absence of a subsequent response to the letter of 17th December, 2025 therefore does not, in the circumstances of this case, deprive this Court of jurisdiction to determine the reference.
73. I am also unable to accept the proposition that the reference was rendered incompetent merely because it was filed two days after the request for reasons. The Clients’ assertion that the request was made merely to “tick the box” is speculative and is unsupported by evidence.
74. A litigant dissatisfied with a taxation is entitled to move the Court within the prescribed period. The fact that the Taxing Officer may not have had sufficient time to respond to a request for reasons does not, by itself, extinguish the litigant’s right to challenge the taxation where the basis of the taxation is discernible from the ruling itself.
75. I therefore find that the reference is properly before this Court. The objection to its competence on the ground of prematurity is accordingly rejected.
76. The second issue for determination is whether the Taxing Master committed an error of principle in assessing the instruction fee.
77. The principal complaint in this reference concerns item 1 of the bill, namely the instruction fee.
78. It is important at the outset to restate the limited jurisdiction of the High Court on a reference from taxation. The Court does not sit as an appellate taxing officer merely because it would have awarded a different sum. The Court intervenes where the Taxing Officer has proceeded upon an erroneous principle, taken into account an irrelevant consideration, failed to take into account a relevant consideration, or arrived at a figure so manifestly excessive or inadequate as to demonstrate an error of principle.
79. This principle is firmly established in the authorities relied upon by the Clients, including Premchand Raichand Limited & Another v Quarry Services of East Africa Limited & Another, Arthur v Nyeri Electricity Undertaking and Joreth Limited v Kigano & Associates.
80. The principle has also been restated in subsequent decisions. It is not, therefore, the mere size of the award which permits intervention. Rather, it is the demonstrated failure to exercise the discretion in accordance with the governing principles.
81. The Clients are correct in that regard. However, the principle cuts both ways. A Taxing Officer’s discretion is a judicial discretion and must be exercised within the framework of the Advocates Remuneration Order. It is not a discretion to disregard the prescribed scale altogether.
82. Where the value of the subject matter is ascertainable from the pleadings, judgement or settlement, that value provides the starting point for the assessment under the applicable schedule. Thereafter, the Taxing Officer exercises the discretion conferred by the Order having regard to the relevant circumstances of the matter.
83. In Joreth Limited v Kigano & Associates (supra), the Court of Appeal made it clear that the value of the subject matter for purposes of instruction fees is to be ascertained from the pleadings, judgement or settlement. Where the value is not ascertainable from those sources, the Taxing Officer resorts to discretion, taking into account such matters as the nature and importance of the cause, the interests of the parties, the general conduct of the proceedings and other relevant circumstances.
84. The more recent decision of the Supreme Court in Kenya Airports Authority v Otieno Ragot and Company Advocates (supra) does not depart from that principle. On the contrary, the Supreme Court emphasized that the Taxing Officer must exercise judicial discretion in assessing Advocate-Client instruction fees and rejected a mechanical approach to the addition of 50 per cent.
85. The Court held that Advocate-Client instruction fees are not to be arrived at by simply applying a mathematical formula without an assessment of the circumstances of the case.
86. That authority, however, does not assist the Clients to the extent that it might be understood as authorizing a Taxing Officer to disregard the applicable scale. Kenya Airports Authority v Otieno Ragot and Company Advocates concerned a situation in which the value of the subject matter was not properly ascertainable because the underlying claim had been struck out before trial. The Supreme Court upheld the Taxing Officer’s exercise of discretion in assessing a reasonable instruction fee in those circumstances. It did not hold that, once an ascertainable value exists in the pleadings, the prescribed scale may simply be disregarded.
87. In the present case, there is a particularly significant feature. The Taxing Master expressly found that, upon consideration of the pleadings, the subject matter was an inhibition on a charge of Ksh.228,500,000.00. Having made that finding, the Taxing Master was no longer dealing with a case where the value of the subject matter was incapable of ascertainment. The value had, in her own determination, been ascertained.
88. The next step was therefore to apply the appropriate provision of Schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014 and thereafter exercise the discretion conferred by that Schedule as to whether the prescribed fee should be increased or reduced having regard to the circumstances of the matter.
89. It is at this point that the taxation discloses a clear error of principle. The Taxing Master stated that the value of the subject matter was Ksh.228,500,000.00 and that she was applying Schedule 6(1) of the 2014 Order. Yet she assessed the instruction fee at only Ksh.122,400.00. That figure does not correspond with the prescribed calculation for a defended suit valued at Ksh.228,500,000.00 under Schedule 6 paragraph 1(b) of the 2014 Order.
90. The applicable scale for a defended suit provided for Ksh.120,000.00 for the first Ksh.1,000,000.00; an additional 2% on the amount between Ksh.1,000,000.00 and Ksh.20,000,000.00; and, for the amount above Ksh.20,000,000.00, an additional 1.5%.
91. The figure of Kshs.122,400.00 awarded by the Taxing Master is therefore not merely a low assessment within the permissible range of discretion. It is a figure which does not mathematically correspond to the scale which the Taxing Master expressly stated she was applying. More importantly, there is no explanation in the ruling as to how the sum of Ksh.122,400.00 was derived from a subject matter valued at Ksh.228,500,000.00.
92. The Clients submit that the Court should defer to the discretion of the Taxing Master and that the award of Kshs.122,400.00 was itself excessive. That submission cannot stand against the Taxing Master’s own finding as to the value of the subject matter and the prescribed scale. A discretion to increase or reduce a prescribed fee is not an unfettered discretion to arrive at an unexplained figure wholly disconnected from the applicable scale.
93. The Clients’ reliance on Republic v Ministry of Agriculture & 2 Others ex parte Muchiri W’njuguna & 6 Others (supra) is not inconsistent with this conclusion. The principle that taxation is not a mathematical exercise means that the Taxing Officer must assess the value of the professional work and responsibility involved, taking into account the relevant circumstances. It does not mean that the Taxing Officer may disregard the mathematical starting point prescribed by the Remuneration Order where the subject matter is ascertainable and the applicable scale is clear.
94. I therefore find that the Taxing Master committed an error of principle in assessing the instruction fee at Ksh.122,400.00 after expressly finding that the value of the subject matter was Ksh.228,500,000.00 and purporting to apply Schedule 6 of the 2014 Order.
95. As to whether the Advocate was entitled to the additional 50%, the Advocate argues that it was entitled to the full instruction fee claimed, together with the additional 50%, and submits that the instruction was not disputed. I do not agree with the proposition in that absolute form.
96. The Clients plainly challenged the instruction fee in their submissions. They disputed the ascertainability of the value of the subject matter and, in the alternative, contended that the Advocate had done very little work in the substantive suit. The Taxing Master was therefore entitled, and indeed obliged, to consider the objection.
97. More importantly, the decision of the Supreme Court in Kenya Airports Authority v Otieno Ragot and Company Advocates (supra) makes it clear that the Advocate-Client instruction fee is not to be obtained through a mechanical addition of 50% to the Party-and-Party fee. The Taxing Officer is required to exercise judicial discretion in determining the reasonable Advocate-Client fee, guided by the applicable Schedule and the circumstances of the case.
98. I therefore reject the Advocate’s submission that the mere f
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