1. The Applicant filed the Chamber Summons dated 9th June 2025 brought under Rule 11(1) and (2) of the Advocates Remuneration Order and all other enabling provisions of the law.
2. The Applicant seeks the following orders:
a. That this Honourable Court be pleased to allow the reference against the decision of the taxing officer delivered on 31st August 2023.
b. That the ruling on taxation delivered on 31st August 2023 be set aside and this Court be pleased to re-assess the instruction fee awarded in item No. 1 of the Respondent’s party-and-party Bill of Costs dated 3rd August 2023.
c. In the alternative, that item No. 1 be remitted back to the taxing officer, or to a different taxing officer, with directions that the same be taxed afresh.
d. That costs of the application be provided for.
3. The application is supported by the affidavit of Engineer Philip Okundi sworn on 9th June 2025. The Applicant’s complaint is that the taxing officer erred in awarding Kshs. 65,000 as instruction fees and Kshs. 5,000 as attendance/hearing fees in respect of proceedings which, according to the Applicant, were commenced by way of a miscellaneous application and were not heard on merit. The Applicant contends that the subordinate court dismissed the matter on the ground that it lacked territorial jurisdiction, and that the taxation ought to have reflected the nature of the proceedings and the limited work involved.
4. The Applicant further contends that the taxing officer applied the wrong principles under Schedule 7 of the Advocates Remuneration Order. It is submitted that the subject matter of the proceedings was not a substantive suit but an application for adoption of orders of the Business Premises Rent Tribunal, and therefore the taxing officer ought not to have treated the matter as a full suit so as to justify the sum of Kshs. 65,000.
5. The Respondent opposed the application through the replying affidavit of Tom Ndege sworn on 23rd June 2025. The Respondent’s position is that the Applicant was served with the party-and-party Bill of Costs and the date for taxation but failed to file a response, submissions, or attend before the taxing officer to raise the objections now being raised in the reference.
6. The Respondent further contends that the application is premature, insufficient, misleading and an afterthought. It is the Respondent’s case that the taxing officer exercised discretion properly and that the Court should not interfere merely because the Applicant is dissatisfied with the amount awarded.
7. The parties filed written submissions. The Applicant submitted that the impugned taxation was excessive and founded on a misapprehension of the applicable provisions of Schedule 7 of the Advocates Remuneration Order. The Applicant relied on, among other authorities, Joreth Limited v Kigano & Associates [2002] 1 EA 92, Peter Muthoka & Another v Ochieng & 3 Others [2019] eKLR, Orion East Africa Limited v Permanent Secretary, Ministry of Agriculture & Another [2013] eKLR, Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR, and Waimiri v Muhoro & 2 Others [2025] KEHC 280 (KLR).
8. The Respondent submitted that taxation is a matter of discretion and that a court will only interfere where there is an error of principle or where the award is so high or so low as to amount to an injustice. The Respondent relied on Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR and Wiseborne Industries (K) Ltd & Another v Fortune Sacco Society Limited & Another [2025] KEHC 13517 (KLR).
9. I have considered the Chamber Summons, the supporting affidavit, the replying affidavit, the rival submissions, the authorities cited and the applicable law. In my view, the issues for determination are:
a. Whether the Court should interfere with the taxing officer’s award on instruction fees;
b. Whether the Court should interfere with the award of Kshs. 5,000 for attendance/hearing; and
c. What orders should issue.
10. The principles upon which a court may interfere with the decision of a taxing officer are settled. In First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64, Ringera J held that the Court will not interfere with a taxing officer’s decision unless it is shown that the decision was based on an error of principle, or that the fee awarded was so manifestly excessive or so manifestly low as to justify an inference that it was based on an error of principle.
11. The same principle was restated in Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR, where Ojwang J, as he then was, observed that taxation of costs is not a mathematical exercise but a judicial function to be conducted regularly on rational criteria. The taxing officer is required to provide reasonable compensation for work done, while avoiding unjust enrichment or an award that makes access to justice oppressive.
12. In Joreth Limited v Kigano & Associates [2002] 1 EA 92, the Court of Appeal stated that the value of the subject matter for purposes of taxation should be determined from the pleadings, judgment or settlement, where ascertainable. Where the value is not ascertainable, the taxing officer is entitled to exercise discretion, taking into account the nature and importance of the cause, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge, and all other relevant circumstances.
13. The Supreme Court in Kenya Airports Authority v Otieno Ragot & Company Advocates [2024] KESC 44 (KLR) also emphasized that the subject matter must first be identified and its value determined where possible. However, where the value is not ascertainable from the pleadings, judgment or settlement, the taxing officer must resort to the applicable schedule and exercise discretion judicially.
14. In the present matter, the underlying proceedings were filed in the subordinate court as a miscellaneous application. From the material placed before this Court, the application sought adoption or enforcement of orders issued by the Business Premises Rent Tribunal. The matter was not heard on its merits. It was dismissed on the ground that the court lacked territorial jurisdiction.
15. The taxing officer awarded Kshs. 65,000 under item No. 1. The Applicant argues that the applicable provision was Schedule 7 Rule 5 of the Advocates Remuneration Order, which provides for fees on an application, notice of motion, chamber summons or execution proceedings. The Respondent argues that the application was an originating process and ought to be treated as a suit or proceeding under Schedule 7, and that the taxing officer was entitled to exercise discretion.
16. I agree with the Respondent to the extent that not every proceeding commenced by miscellaneous application is merely interlocutory. Some miscellaneous applications are originating proceedings and may finally determine rights or obligations. However, that does not mean that every miscellaneous application should automatically attract the fees applicable to a full ordinary suit. The Court must examine the substance of the proceedings, the nature of the relief sought, the work done, the applicable schedule and whether the subject matter had an ascertainable value.
17. The application before the subordinate court was not a claim for recovery of a specific sum of money. No specific value of subject matter was ascertained from pleadings, judgment or settlement. It was also not a matter that proceeded to full trial. It was dismissed at a preliminary stage for want of territorial jurisdiction.
18. The Court must therefore determine whether the award of Kshs. 65,000 was supported by the applicable law and the nature of the proceedings. Under Schedule 7 of the Advocates Remuneration Order, costs in subordinate courts are regulated by the scale set out under that Schedule. Where the matter is an application, Rule 5 provides for taking instructions to proceed or oppose, drawing the application, engrossing and filing. Where the matter is a suit or appeal in which no specific sum is sued for, claimed for, or awarded, the taxing officer has discretion, subject to the limits set by the Schedule.
19. The award of Kshs. 65,000 appears to have been made without sufficient regard to the fact that the matter was not heard on merit, that it was dismissed on a jurisdictional point, and that the subject matter was not ascertained. Even if the matter were to be treated as an originating proceeding rather than a simple interlocutory application, the taxing officer was still required to show the basis upon which the sum of Kshs. 65,000 was justified. The figure ought to bear a reasonable relationship to the nature of the proceedings and the work done.
20. The Court is alive to the principle that a successful litigant should be fairly reimbursed for costs reasonably incurred. However, costs should not be allowed to rise to a level that amounts to a penalty or unjust enrichment. The Court must strike a balance between compensating the successful party and ensuring that taxation remains rational and proportionate.
21. In Wiseborne Industries (K) Ltd & Another v Fortune Sacco Society Limited & Another [2025] KEHC 13517 (KLR), the Court considered a reference arising from an originating miscellaneous application and took the exceptional course of taxing the bill itself rather than remitting it for fresh taxation. The Court observed that where the only dispute is the instruction fee and there is no need to escalate costs by remitting the matter to another taxing officer, the Court may exercise its discretion to bring the matter to finality.
22. Part A Paragraph 2, of the Advocates Remuneration Order applies herein on the issue of instruction fees . The same provides that ‘’ ‘In any suit or appeal by the nature of which no specific sum is sued for, claimed for, or awarded in the judgment (other than proceedings falling under paragraph 3 below); such costs as the court in its discretion but not less than Kshs. 20,000 if undefended or unopposed and (subject to any special order for good reason connected with the nature and importance or the difficulty or the urgency of the matter) not to exceed Kshs. 50,000.’’I am persuaded that this is a proper case for the Court to intervene. The amount of Kshs. 65,000 awarded as instruction fees was excessive in the circumstances of the matter and was not supported by sufficient reasons. The taxing officer therefore erred in principle.
23. Having regard to the nature of the application before the subordinate court, the fact that the Respondent successfully opposed it, the fact that it was summarily dismissed on jurisdictional grounds and not after a full hearing, and the need to provide for reasonable costs. I find that an instruction fee of Kshs. 30,000 is fair and reasonable in the circumstances.
24. I now turn to the complaint regarding the award of Kshs. 5,000 for attendance/hearing of the application. Paragraph 6 of the said part A provides that ‘’ On any necessary application to or attendance on Magistrate in court or chambers Kshs 1,400 ‘’ . The Applicant contends that the application was canvassed by way of written submissions and that no viva voce evidence was tendered. The Respondent argues that the fact that the matter was canvassed by written submissions does not mean that there was no hearing.
25. It is true that a hearing may take different forms, including oral submissions or written submissions. However, where the taxing master awards a fee meant for attendance at hearing, the taxing master must be guided by the applicable provision and the nature of the attendance. The record before this Court does not show that the hearing lasted more than one full day so as to justify the award of Kshs. 5,000 under the head invoked by the taxing master.
26. In the circumstances, I find that the sum of Kshs. 5,000 was not justified. The appropriate amount for the attendance, in the circumstances of the matter as presented before this Court, is Kshs. 1,400.
27. The Applicant also raised the issue of service of the bill of costs and notice of taxation. The Respondent maintains that the Applicant was served but failed to participate in the taxation. Having considered the material before me, I note that the present reference can be determined on the basis of error of principle and proportionality of the award. Since this Court has elected to re-assess the contested items rather than remit the bill for fresh taxation, it is unnecessary to set aside the entire taxation on the ground of service.
28. The Applicant has partially succeeded. The award on instruction fees under item No. 1 is reduced from Kshs. 65,000 to Kshs. 30,000. The award of Kshs. 5,000 for attendance/hearing is reduced to Kshs. 1,400.
29. The total taxed costs shall therefore be adjusted accordingly. The certificate of costs for Kshs. 76,700 shall be reduced by Kshs. 35,000, being Kshs. 30,000/= instruction fees and Kshs. 3,600 deducted from the attendance/hearing item. The revised taxed costs shall therefore be Kshs. 31,400.
30. In the result, I make the following orders:
a. The Chamber Summons dated 9th June 2025 is partially allowed.
b. The taxing master’s award of Kshs. 65,000 under item No. 1 is hereby set aside and substituted with an award of Kshs. 30,000.
c. The taxing masters’s award of Kshs. 5,000 for attendance/hearing is hereby set aside and substituted with an award of Kshs. 1,400.
d. I proceed to tax off Kshs 35,600/= for the certificate of costs The certificate of costs issued in the sum of Kshs. 76,700 is hereby varied and substituted with a certificate of costs in the sum of Kshs. 41,400.
e. costs to the applicant.
31. Orders accordingly.
T. A. ODERA
JUDGE
3.6.26
DELIVERED VIRTUALLY ON THIS 3RD MAY JUNE 2026 IN THE PRESENCE OF MISS MUTHEE HOLDING BRIEF FOR MR KABIRU FOR APPLICANT MISS OCHIENG HOLDING BRIEF FOR MR OBACH FOR RESPONDENT . CA BUSIENEI
Ochieng : We seek 30days stay of execution to pay .
Muthee: no objection
Order : 30 days stay of execution is granted .
T.A ODERA
JUDGE
3.6.25
2. The Applicant seeks the following orders:
a. That this Honourable Court be pleased to allow the reference against the decision of the taxing officer delivered on 31st August 2023.
b. That the ruling on taxation delivered on 31st August 2023 be set aside and this Court be pleased to re-assess the instruction fee awarded in item No. 1 of the Respondent’s party-and-party Bill of Costs dated 3rd August 2023.
c. In the alternative, that item No. 1 be remitted back to the taxing officer, or to a different taxing officer, with directions that the same be taxed afresh.
d. That costs of the application be provided for.
3. The application is supported by the affidavit of Engineer Philip Okundi sworn on 9th June 2025. The Applicant’s complaint is that the taxing officer erred in awarding Kshs. 65,000 as instruction fees and Kshs. 5,000 as attendance/hearing fees in respect of proceedings which, according to the Applicant, were commenced by way of a miscellaneous application and were not heard on merit. The Applicant contends that the subordinate court dismissed the matter on the ground that it lacked territorial jurisdiction, and that the taxation ought to have reflected the nature of the proceedings and the limited work involved.
4. The Applicant further contends that the taxing officer applied the wrong principles under Schedule 7 of the Advocates Remuneration Order. It is submitted that the subject matter of the proceedings was not a substantive suit but an application for adoption of orders of the Business Premises Rent Tribunal, and therefore the taxing officer ought not to have treated the matter as a full suit so as to justify the sum of Kshs. 65,000.
5. The Respondent opposed the application through the replying affidavit of Tom Ndege sworn on 23rd June 2025. The Respondent’s position is that the Applicant was served with the party-and-party Bill of Costs and the date for taxation but failed to file a response, submissions, or attend before the taxing officer to raise the objections now being raised in the reference.
6. The Respondent further contends that the application is premature, insufficient, misleading and an afterthought. It is the Respondent’s case that the taxing officer exercised discretion properly and that the Court should not interfere merely because the Applicant is dissatisfied with the amount awarded.
7. The parties filed written submissions. The Applicant submitted that the impugned taxation was excessive and founded on a misapprehension of the applicable provisions of Schedule 7 of the Advocates Remuneration Order. The Applicant relied on, among other authorities, Joreth Limited v Kigano & Associates [2002] 1 EA 92, Peter Muthoka & Another v Ochieng & 3 Others [2019] eKLR, Orion East Africa Limited v Permanent Secretary, Ministry of Agriculture & Another [2013] eKLR, Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR, and Waimiri v Muhoro & 2 Others [2025] KEHC 280 (KLR).
8. The Respondent submitted that taxation is a matter of discretion and that a court will only interfere where there is an error of principle or where the award is so high or so low as to amount to an injustice. The Respondent relied on Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR and Wiseborne Industries (K) Ltd & Another v Fortune Sacco Society Limited & Another [2025] KEHC 13517 (KLR).
9. I have considered the Chamber Summons, the supporting affidavit, the replying affidavit, the rival submissions, the authorities cited and the applicable law. In my view, the issues for determination are:
a. Whether the Court should interfere with the taxing officer’s award on instruction fees;
b. Whether the Court should interfere with the award of Kshs. 5,000 for attendance/hearing; and
c. What orders should issue.
10. The principles upon which a court may interfere with the decision of a taxing officer are settled. In First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64, Ringera J held that the Court will not interfere with a taxing officer’s decision unless it is shown that the decision was based on an error of principle, or that the fee awarded was so manifestly excessive or so manifestly low as to justify an inference that it was based on an error of principle.
11. The same principle was restated in Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR, where Ojwang J, as he then was, observed that taxation of costs is not a mathematical exercise but a judicial function to be conducted regularly on rational criteria. The taxing officer is required to provide reasonable compensation for work done, while avoiding unjust enrichment or an award that makes access to justice oppressive.
12. In Joreth Limited v Kigano & Associates [2002] 1 EA 92, the Court of Appeal stated that the value of the subject matter for purposes of taxation should be determined from the pleadings, judgment or settlement, where ascertainable. Where the value is not ascertainable, the taxing officer is entitled to exercise discretion, taking into account the nature and importance of the cause, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge, and all other relevant circumstances.
13. The Supreme Court in Kenya Airports Authority v Otieno Ragot & Company Advocates [2024] KESC 44 (KLR) also emphasized that the subject matter must first be identified and its value determined where possible. However, where the value is not ascertainable from the pleadings, judgment or settlement, the taxing officer must resort to the applicable schedule and exercise discretion judicially.
14. In the present matter, the underlying proceedings were filed in the subordinate court as a miscellaneous application. From the material placed before this Court, the application sought adoption or enforcement of orders issued by the Business Premises Rent Tribunal. The matter was not heard on its merits. It was dismissed on the ground that the court lacked territorial jurisdiction.
15. The taxing officer awarded Kshs. 65,000 under item No. 1. The Applicant argues that the applicable provision was Schedule 7 Rule 5 of the Advocates Remuneration Order, which provides for fees on an application, notice of motion, chamber summons or execution proceedings. The Respondent argues that the application was an originating process and ought to be treated as a suit or proceeding under Schedule 7, and that the taxing officer was entitled to exercise discretion.
16. I agree with the Respondent to the extent that not every proceeding commenced by miscellaneous application is merely interlocutory. Some miscellaneous applications are originating proceedings and may finally determine rights or obligations. However, that does not mean that every miscellaneous application should automatically attract the fees applicable to a full ordinary suit. The Court must examine the substance of the proceedings, the nature of the relief sought, the work done, the applicable schedule and whether the subject matter had an ascertainable value.
17. The application before the subordinate court was not a claim for recovery of a specific sum of money. No specific value of subject matter was ascertained from pleadings, judgment or settlement. It was also not a matter that proceeded to full trial. It was dismissed at a preliminary stage for want of territorial jurisdiction.
18. The Court must therefore determine whether the award of Kshs. 65,000 was supported by the applicable law and the nature of the proceedings. Under Schedule 7 of the Advocates Remuneration Order, costs in subordinate courts are regulated by the scale set out under that Schedule. Where the matter is an application, Rule 5 provides for taking instructions to proceed or oppose, drawing the application, engrossing and filing. Where the matter is a suit or appeal in which no specific sum is sued for, claimed for, or awarded, the taxing officer has discretion, subject to the limits set by the Schedule.
19. The award of Kshs. 65,000 appears to have been made without sufficient regard to the fact that the matter was not heard on merit, that it was dismissed on a jurisdictional point, and that the subject matter was not ascertained. Even if the matter were to be treated as an originating proceeding rather than a simple interlocutory application, the taxing officer was still required to show the basis upon which the sum of Kshs. 65,000 was justified. The figure ought to bear a reasonable relationship to the nature of the proceedings and the work done.
20. The Court is alive to the principle that a successful litigant should be fairly reimbursed for costs reasonably incurred. However, costs should not be allowed to rise to a level that amounts to a penalty or unjust enrichment. The Court must strike a balance between compensating the successful party and ensuring that taxation remains rational and proportionate.
21. In Wiseborne Industries (K) Ltd & Another v Fortune Sacco Society Limited & Another [2025] KEHC 13517 (KLR), the Court considered a reference arising from an originating miscellaneous application and took the exceptional course of taxing the bill itself rather than remitting it for fresh taxation. The Court observed that where the only dispute is the instruction fee and there is no need to escalate costs by remitting the matter to another taxing officer, the Court may exercise its discretion to bring the matter to finality.
22. Part A Paragraph 2, of the Advocates Remuneration Order applies herein on the issue of instruction fees . The same provides that ‘’ ‘In any suit or appeal by the nature of which no specific sum is sued for, claimed for, or awarded in the judgment (other than proceedings falling under paragraph 3 below); such costs as the court in its discretion but not less than Kshs. 20,000 if undefended or unopposed and (subject to any special order for good reason connected with the nature and importance or the difficulty or the urgency of the matter) not to exceed Kshs. 50,000.’’I am persuaded that this is a proper case for the Court to intervene. The amount of Kshs. 65,000 awarded as instruction fees was excessive in the circumstances of the matter and was not supported by sufficient reasons. The taxing officer therefore erred in principle.
23. Having regard to the nature of the application before the subordinate court, the fact that the Respondent successfully opposed it, the fact that it was summarily dismissed on jurisdictional grounds and not after a full hearing, and the need to provide for reasonable costs. I find that an instruction fee of Kshs. 30,000 is fair and reasonable in the circumstances.
24. I now turn to the complaint regarding the award of Kshs. 5,000 for attendance/hearing of the application. Paragraph 6 of the said part A provides that ‘’ On any necessary application to or attendance on Magistrate in court or chambers Kshs 1,400 ‘’ . The Applicant contends that the application was canvassed by way of written submissions and that no viva voce evidence was tendered. The Respondent argues that the fact that the matter was canvassed by written submissions does not mean that there was no hearing.
25. It is true that a hearing may take different forms, including oral submissions or written submissions. However, where the taxing master awards a fee meant for attendance at hearing, the taxing master must be guided by the applicable provision and the nature of the attendance. The record before this Court does not show that the hearing lasted more than one full day so as to justify the award of Kshs. 5,000 under the head invoked by the taxing master.
26. In the circumstances, I find that the sum of Kshs. 5,000 was not justified. The appropriate amount for the attendance, in the circumstances of the matter as presented before this Court, is Kshs. 1,400.
27. The Applicant also raised the issue of service of the bill of costs and notice of taxation. The Respondent maintains that the Applicant was served but failed to participate in the taxation. Having considered the material before me, I note that the present reference can be determined on the basis of error of principle and proportionality of the award. Since this Court has elected to re-assess the contested items rather than remit the bill for fresh taxation, it is unnecessary to set aside the entire taxation on the ground of service.
28. The Applicant has partially succeeded. The award on instruction fees under item No. 1 is reduced from Kshs. 65,000 to Kshs. 30,000. The award of Kshs. 5,000 for attendance/hearing is reduced to Kshs. 1,400.
29. The total taxed costs shall therefore be adjusted accordingly. The certificate of costs for Kshs. 76,700 shall be reduced by Kshs. 35,000, being Kshs. 30,000/= instruction fees and Kshs. 3,600 deducted from the attendance/hearing item. The revised taxed costs shall therefore be Kshs. 31,400.
30. In the result, I make the following orders:
a. The Chamber Summons dated 9th June 2025 is partially allowed.
b. The taxing master’s award of Kshs. 65,000 under item No. 1 is hereby set aside and substituted with an award of Kshs. 30,000.
c. The taxing masters’s award of Kshs. 5,000 for attendance/hearing is hereby set aside and substituted with an award of Kshs. 1,400.
d. I proceed to tax off Kshs 35,600/= for the certificate of costs The certificate of costs issued in the sum of Kshs. 76,700 is hereby varied and substituted with a certificate of costs in the sum of Kshs. 41,400.
e. costs to the applicant.
31. Orders accordingly.
T. A. ODERA
JUDGE
3.6.26
DELIVERED VIRTUALLY ON THIS 3RD MAY JUNE 2026 IN THE PRESENCE OF MISS MUTHEE HOLDING BRIEF FOR MR KABIRU FOR APPLICANT MISS OCHIENG HOLDING BRIEF FOR MR OBACH FOR RESPONDENT . CA BUSIENEI
Ochieng : We seek 30days stay of execution to pay .
Muthee: no objection
Order : 30 days stay of execution is granted .
T.A ODERA
JUDGE
3.6.25