1. The application coming up for ruling is the Client/ Applicants’ Chamber Summons dated 8th July, 2025. The application is brought pursuant to the provisions of Regulation 11 (1) and (2) of the Advocates (Remuneration) Order and sections 1A, 1B and 3A of the Civil Procedure Act. It seeks the following orders: -
a) That this Honourable Court set aside the ruling dated 12th June 2025 on the Advocate/ Respondent’s Party & Party Bill of Costs dated 4th November 2024 award such amount as it deems just.
2. The grounds in support of the application are briefly that the Taxing Master erred in taxing the bill as Kshs. 1,116,999/= and in failing to consider the submissions filed by the Applicant, thus arriving at an erroneous figure of taxation on the Bill of Costs.
3. In the Supporting Affidavit sworn by Michael O. Oloo, an Advocate of the High Court, it was deponed that the Applicant was opposed to the ruling of the Taxing Master. He relied on the Bill of Costs in issue and the submissions dated 11/03/2025 which is in the court’s records. The prayed that he application be allowed.
4. In response, the Replying Affidavit dated 28/05/2025 sworn by Mohamed Faki Khatib Advocate, deponed that the Taxing Master considered the submissions filed and the value of the subject matter was ascertainable. There was therefore no miscarriage of justice in the assessment by the Taxing Master. He prayed that the application be dismissed with costs. was not shown to have erred in principle in assessing the bill, hence no basis for this court to interfere with the said decision.
5. Directions were taken to have the application heard by way of written submissions. Both parties complied by filing their rival submissions.
Analysis
6. I have carefully considered the application, the response, the rival submissions, the authorities cited as well as the law and the only issue for determination is whether application is merited. Corollary to this is the issue of costs.
7. The application is basically a reference on the Taxing Master’s ruling dated 12th June, 2025. The role of this court on a reference is clearly delineated. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held as follows: -
“…On a 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…”
8. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of the Court of Appeal observed as follows: -
“…where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases…”
9. The Applicants complaint is that the Taxing Master failed to consider the submissions dated 7th March 2025 and filed on 11th March 2025. I have overused through the Bill of Costs dated 4th November, 2025. I have also perused the Client/ Respondent submissions on the Bill of Costs dated 7th March, 2025.
10. As ascertained from item 1 of the Bill of Costs, the Plaintiff sought restraining orders against the Defendants over the suit property which has been charged against the loan facility issued to the Plaintiff. In the Bill of Costs, the Applicant/Advocate based the instruction fees on the valuation report of the charged property. The Client on the other hand, in the submissions before the Taxing Master, stated that the value of the property court not be ascertained as the orders being sought were restraining orders.
11. Having perused the ruling of the Taxing Master dated 12th June, 2025, it is clear that the submissions by the Client were not put into consideration. On item I which was taxed at Kshs. 5,000,000/=, no reason has been given as to how the amount was arrived at. The getting up fees was based on the instructions fees. All the other items were taxed as drawn. The Client sought for reasons on the highlighted items in the Notice of Objection to the Decision of the Taxing Officer dated 23rd June, 2025.
12. Even though the Taxing Officer did not give reasons for her ruling as requested, it cannot be said that the ruling was self-explanatory. In the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board Civil Appeal No. 220 of 2004 (2005) eKLR it was held as hereunder;
“ … It is true that the taxing officer did not record the reasons of the decision on the items objected to after the receipt of the respondent’s notice. It seems that the taxing officer decided to rely on the reasons in the ruling of taxation dated 24th February, 2004. That ruling at least indicated the formula that the taxing officer applied to access the instructions fees. Although there was no strict compliance with Rule 11 (2) of the Order, we are nevertheless, satisfied that there was substantial compliance. The adequacy or otherwise of the reasons in the ruling is another matter. Indeed, we are of the view, that if a taxing master totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference”.
13. In addition to the above, in the case of Evans Thiga Gaturu v Kenya Commercial Bank Limited [2012] eKLR, the court stated as hereunder;
“…. In most cases the court is aware that the taxing officers in their decisions on taxation do deliver comprehensive rulings which are self-contained thus obviating the necessity to furnish fresh reasons thereafter. In such circumstances, it would be fool hardy to expect the taxing officer to redraft another “ruling” containing reasons.”
14. In respect to the value of the subject matter, it is a fact that the value could not be discerned from the pleadings. In Joreth Limited v Kigano & Associates [2002] eKLR, the Court of Appeal held as follows: -
“…We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings judgment 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 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…”
15. From the above decisions, and the court having interrogated the Taxing Master’s decision to satisfy itself as to the reasons that made the Taxing Master adopt the figures for purposes of computing instruction fees, this court is at a loss on how the figures were arrived at. It is also difficult to discern how the discretion by the Taxing Master was exercised. I find there was an error of principle warranting this court’s intervention by setting aside the ruling dated 12th June, 2025.
16. The proceedings giving rise to the Bill of Costs are in Mombasa High Court Civil Case No. 68 of 2018. The said file be placed before the Taxing Master for purposes re-taxation of the Bill of Costs.
17. On costs, the same follows the event. However, it must be remembered that award of costs is discretionary and the court reserves the discretion whether to award the same or not. It is hereby directed that each party bears its own costs.
18. The upshot of the foregoing is that the court renders itself as hereunder: -
a) The Chamber Summons application dated 8th July, 2025 has merits and the same is hereby allowed.
b) The ruling of the Taxing Master dated 12th June, 2025 is hereby set aside.
c) That the Bill of Costs and the court file in Mombasa HCCC No. 68 of 2018 be placed before the Taxing Master for purposes of re-taxing.
d) Each party to bear own costs.
It is so ordered.
Dated, signed and delivered at Mombasa this 6th day of August, 2026.
………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of;
Ms. Mohamed Advocate for the Applicant
Mr. Oloo Advocate for the Respondent
Ms. Salwa, Court Assistant
a) That this Honourable Court set aside the ruling dated 12th June 2025 on the Advocate/ Respondent’s Party & Party Bill of Costs dated 4th November 2024 award such amount as it deems just.
2. The grounds in support of the application are briefly that the Taxing Master erred in taxing the bill as Kshs. 1,116,999/= and in failing to consider the submissions filed by the Applicant, thus arriving at an erroneous figure of taxation on the Bill of Costs.
3. In the Supporting Affidavit sworn by Michael O. Oloo, an Advocate of the High Court, it was deponed that the Applicant was opposed to the ruling of the Taxing Master. He relied on the Bill of Costs in issue and the submissions dated 11/03/2025 which is in the court’s records. The prayed that he application be allowed.
4. In response, the Replying Affidavit dated 28/05/2025 sworn by Mohamed Faki Khatib Advocate, deponed that the Taxing Master considered the submissions filed and the value of the subject matter was ascertainable. There was therefore no miscarriage of justice in the assessment by the Taxing Master. He prayed that the application be dismissed with costs. was not shown to have erred in principle in assessing the bill, hence no basis for this court to interfere with the said decision.
5. Directions were taken to have the application heard by way of written submissions. Both parties complied by filing their rival submissions.
Analysis
6. I have carefully considered the application, the response, the rival submissions, the authorities cited as well as the law and the only issue for determination is whether application is merited. Corollary to this is the issue of costs.
7. The application is basically a reference on the Taxing Master’s ruling dated 12th June, 2025. The role of this court on a reference is clearly delineated. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held as follows: -
“…On a 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…”
8. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of the Court of Appeal observed as follows: -
“…where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases…”
9. The Applicants complaint is that the Taxing Master failed to consider the submissions dated 7th March 2025 and filed on 11th March 2025. I have overused through the Bill of Costs dated 4th November, 2025. I have also perused the Client/ Respondent submissions on the Bill of Costs dated 7th March, 2025.
10. As ascertained from item 1 of the Bill of Costs, the Plaintiff sought restraining orders against the Defendants over the suit property which has been charged against the loan facility issued to the Plaintiff. In the Bill of Costs, the Applicant/Advocate based the instruction fees on the valuation report of the charged property. The Client on the other hand, in the submissions before the Taxing Master, stated that the value of the property court not be ascertained as the orders being sought were restraining orders.
11. Having perused the ruling of the Taxing Master dated 12th June, 2025, it is clear that the submissions by the Client were not put into consideration. On item I which was taxed at Kshs. 5,000,000/=, no reason has been given as to how the amount was arrived at. The getting up fees was based on the instructions fees. All the other items were taxed as drawn. The Client sought for reasons on the highlighted items in the Notice of Objection to the Decision of the Taxing Officer dated 23rd June, 2025.
12. Even though the Taxing Officer did not give reasons for her ruling as requested, it cannot be said that the ruling was self-explanatory. In the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board Civil Appeal No. 220 of 2004 (2005) eKLR it was held as hereunder;
“ … It is true that the taxing officer did not record the reasons of the decision on the items objected to after the receipt of the respondent’s notice. It seems that the taxing officer decided to rely on the reasons in the ruling of taxation dated 24th February, 2004. That ruling at least indicated the formula that the taxing officer applied to access the instructions fees. Although there was no strict compliance with Rule 11 (2) of the Order, we are nevertheless, satisfied that there was substantial compliance. The adequacy or otherwise of the reasons in the ruling is another matter. Indeed, we are of the view, that if a taxing master totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference”.
13. In addition to the above, in the case of Evans Thiga Gaturu v Kenya Commercial Bank Limited [2012] eKLR, the court stated as hereunder;
“…. In most cases the court is aware that the taxing officers in their decisions on taxation do deliver comprehensive rulings which are self-contained thus obviating the necessity to furnish fresh reasons thereafter. In such circumstances, it would be fool hardy to expect the taxing officer to redraft another “ruling” containing reasons.”
14. In respect to the value of the subject matter, it is a fact that the value could not be discerned from the pleadings. In Joreth Limited v Kigano & Associates [2002] eKLR, the Court of Appeal held as follows: -
“…We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings judgment 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 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…”
15. From the above decisions, and the court having interrogated the Taxing Master’s decision to satisfy itself as to the reasons that made the Taxing Master adopt the figures for purposes of computing instruction fees, this court is at a loss on how the figures were arrived at. It is also difficult to discern how the discretion by the Taxing Master was exercised. I find there was an error of principle warranting this court’s intervention by setting aside the ruling dated 12th June, 2025.
16. The proceedings giving rise to the Bill of Costs are in Mombasa High Court Civil Case No. 68 of 2018. The said file be placed before the Taxing Master for purposes re-taxation of the Bill of Costs.
17. On costs, the same follows the event. However, it must be remembered that award of costs is discretionary and the court reserves the discretion whether to award the same or not. It is hereby directed that each party bears its own costs.
18. The upshot of the foregoing is that the court renders itself as hereunder: -
a) The Chamber Summons application dated 8th July, 2025 has merits and the same is hereby allowed.
b) The ruling of the Taxing Master dated 12th June, 2025 is hereby set aside.
c) That the Bill of Costs and the court file in Mombasa HCCC No. 68 of 2018 be placed before the Taxing Master for purposes of re-taxing.
d) Each party to bear own costs.
It is so ordered.
Dated, signed and delivered at Mombasa this 6th day of August, 2026.
………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of;
Ms. Mohamed Advocate for the Applicant
Mr. Oloo Advocate for the Respondent
Ms. Salwa, Court Assistant