'INTRODUCTION
This ruling is in respect to the Respondent’s Notice of Motion dated 6th September, 2025 seeking the following orders:
a) Spent.
b) Spent.
c) Spent.
d) THAT the Hon. Court be pleased to set aside the Taxing Officer’s Ruling dated 7/8/2025 on all the items and have the matter referred back for re-taxation by another Taxing Officer.
e) Costs.
The application is based on the grounds on its face and supported by the affidavit sworn by the Respondent on 6th September, 2025.
The Respondent stated that on 7th August, 2025 the Taxing Officer delivered a Ruling on the Applicant’s Bill of Costs. He further stated that on 12th August, 2025 she lodged a Notice of Objection to the said ruling. She went on to state that vide a letter dated 5th September, 2025, the Hon. Taxing Officer gave reasons for the Taxation.
She also stated that the Taxing Officer failed to follow the principles for Taxation in respect of all the items in the Bill of Costs particularly that there was no valuation report in respect of the instruction fees.
She stated that no prejudice would be occasioned to the Applicant if the orders sought are granted. Finally, she urged the court to set aside the said ruling and direct that the Bill of Costs be placed before another Taxing Officer for re-taxation.
RESPONSE
In response to the application, the Applicant filed a replying affidavit sworn on 16th September, 2025 by the advocate Ochieng Gai where he averred that the application was baseless and an abuse of the court process.
He further averred that the Respondent did not point out any error of principal on the part of the taxing master to warrant this court’s intervention. He added that though it was her right to challenge the taxing master’s decision, the right was to be supported by weighty grounds.
He averred that initiating execution through notice to show cause was prejudicial since they had an application to show cause in case they had any issue with taxation.
He also averred that the instant application was a mere attempt to delay the expedient determination of the matter. He added that the application was incompetent since the Respondent has not applied to vary the ruling but instead applied for the same to be taxed a fresh. He went on to aver that the Respondent attempted to delay the taxation of the matter by raising an objection that no documents had been filed alongside the bill of costs. He added that the taxing master rightly put that the parent file was available for perusal.
He averred that the Respondent claimed without any evidence that they had paid the advocate Kshs. 433,185. He added that the only payment made by the Respondent was Kshs. 25,000.
He urged the court to dismiss the application with costs.
SUBMISSIONS
Counsel for the Respondent filed his submissions dated 11th October, 2025. He submits that on instructions fees, the taxing officer acted on wrong principles when she awarded an excessive sum of Kshs. 300,000/= outside schedule VI part B of the Advocates Remuneration Order.
It was his submission that the fees ought to have been calculated at 75% of Kshs. 75,000 to give Kshs. 56,250. He relied on the case of Kenya Airport Authority V Otieno Ragot & Co. Advocates SCOK Petition E011 of 2023 and Riaroh & Another V Owino & another (commercial Misc. Application E004 of 2023) (2024) KEHC 10193 (KLR).
On Value Added Tax (VAT), he submits that the taxing master erred when she based the VAT on the total sum instead of the instructions fees. He further submits that the taxing officer acted on wrong principles of law. He relied on the case of Kipkorir, Tito & Kiara Advocates V Deposit Protection Fund Board (2005) eKLR and Kamunyori & Co. Advocates V Development Bank of Kenya Limited (2015) Civil Appeal 206 of 2006.
In conclusion, he urged the court to allow the application as prayed.
ANALYSIS AND DETERMINATION
This court has considered the application and the main issue for determination is whether the Taxing Officer erred in principle
in assessing the Applicant’s Bill of Costs dated 30th May, 2025.
In the case of Peter Muthoka & Another V Ochieng & 3 Others [2019] eKLR, the court emphasized that matters of taxation fall squarely within the province of the Taxing Master, and that the High Court must be slow to interfere unless the discretion was improperly
exercised, resulting in misdirection or manifest injustice. The Court held that:
“It is not lost to us, as we address that single issue, that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them.”
It is this court’s view that the burden rests squarely upon the Respondent to demonstrate, with particularity, that the Taxing Officer misapplied the law or omitted relevant considerations or applied the wrong schedule or paragraph under the Advocates
(Remuneration) Order. In the instant case, the Respondent
contends that the Taxing Officer failed to apply the correct
principles by awarding an excessively high amount. She particularly contends that there was no valuation report placed before the Taxing Officer in respect of the instruction fees. It is therefore this court’s duty to determine whether the impugned taxation was indeed tainted by error of principle to justify interference.
I have carefully perused the ruling and it is not in dispute that the Taxing Officer under paragraph 3 found that the value of the subject matter was not disclosed in the pleadings and judgment. It is also not in dispute that she did not base the instruction fees on any valuation report as alleged by the Respondent. It is therefore this court’s view that the issue of a valuation report was never a basis for the Taxing Officer’s taxation of the instruction fees.
In the circumstance, it is this court’s view that the Taxing Officer took into account the relevant considerations in the taxation of instruction fees while also giving her reasons. It is my finding that the taxing of instruction fees at Ksh. 300,000/= was not based on any error of principle, neither were the said fees as awarded so excessive as to justify interference by this court.
On the issue of VAT, Section 6(1) of the VAT Act 2015 provides as follows:-
“Tax shall be charged on any supply of goods or services made or provided in Kenya where it is a taxable supply made by a taxable person in the course of or in furtherance of any business carried on by him.”
In the case of Pyramid Motors Limited V Langata Gardens Limited [2015] KEHC 5224 (KLR) the court held that:
“On the final issue of VAT, I hold the simple view that in allowing the same the Master erred under the Value Added Tax, 2013 particularly section 5 thereof. Value Added Tax (VAT) is chargeable in taxable supply made by any registered person. There was no taxable supply of either goods or services made to the Applicant herein by the Respondent herein. The Bills herein concerned Party and Party costs and VAT could then not apply as neither party fetched nor supplied services to the other. True, legal services were rendered but it is not the Advocate who was being compensated herein. The Master could only have awarded VAT if the Bills were Advocate-Client Bills or if there was tendered evidence before the Master that the Plaintiff had paid VAT and was consequently entitled to indemnity.”
This court is of the view that VAT is only chargeable upon legal professional services rendered and not disbursements. As cited in the above decision, I find that the services that had been rendered by the Applicant to the Respondent was actually a supply of legal services. It is my view that the Taxing Officer did not err in failing to award VAT to the Applicant. Notably, the Respondent generalized the other items in the Bill of Costs as taxed but failed to substantiate them so as to warrant this court’s interference. The upshot of the above is that the application dated 6th September, 2025 lacks merit and it is hereby dismissed with costs to the Respondent. Orders accordingly.
'
This ruling is in respect to the Respondent’s Notice of Motion dated 6th September, 2025 seeking the following orders:
a) Spent.
b) Spent.
c) Spent.
d) THAT the Hon. Court be pleased to set aside the Taxing Officer’s Ruling dated 7/8/2025 on all the items and have the matter referred back for re-taxation by another Taxing Officer.
e) Costs.
The application is based on the grounds on its face and supported by the affidavit sworn by the Respondent on 6th September, 2025.
The Respondent stated that on 7th August, 2025 the Taxing Officer delivered a Ruling on the Applicant’s Bill of Costs. He further stated that on 12th August, 2025 she lodged a Notice of Objection to the said ruling. She went on to state that vide a letter dated 5th September, 2025, the Hon. Taxing Officer gave reasons for the Taxation.
She also stated that the Taxing Officer failed to follow the principles for Taxation in respect of all the items in the Bill of Costs particularly that there was no valuation report in respect of the instruction fees.
She stated that no prejudice would be occasioned to the Applicant if the orders sought are granted. Finally, she urged the court to set aside the said ruling and direct that the Bill of Costs be placed before another Taxing Officer for re-taxation.
RESPONSE
In response to the application, the Applicant filed a replying affidavit sworn on 16th September, 2025 by the advocate Ochieng Gai where he averred that the application was baseless and an abuse of the court process.
He further averred that the Respondent did not point out any error of principal on the part of the taxing master to warrant this court’s intervention. He added that though it was her right to challenge the taxing master’s decision, the right was to be supported by weighty grounds.
He averred that initiating execution through notice to show cause was prejudicial since they had an application to show cause in case they had any issue with taxation.
He also averred that the instant application was a mere attempt to delay the expedient determination of the matter. He added that the application was incompetent since the Respondent has not applied to vary the ruling but instead applied for the same to be taxed a fresh. He went on to aver that the Respondent attempted to delay the taxation of the matter by raising an objection that no documents had been filed alongside the bill of costs. He added that the taxing master rightly put that the parent file was available for perusal.
He averred that the Respondent claimed without any evidence that they had paid the advocate Kshs. 433,185. He added that the only payment made by the Respondent was Kshs. 25,000.
He urged the court to dismiss the application with costs.
SUBMISSIONS
Counsel for the Respondent filed his submissions dated 11th October, 2025. He submits that on instructions fees, the taxing officer acted on wrong principles when she awarded an excessive sum of Kshs. 300,000/= outside schedule VI part B of the Advocates Remuneration Order.
It was his submission that the fees ought to have been calculated at 75% of Kshs. 75,000 to give Kshs. 56,250. He relied on the case of Kenya Airport Authority V Otieno Ragot & Co. Advocates SCOK Petition E011 of 2023 and Riaroh & Another V Owino & another (commercial Misc. Application E004 of 2023) (2024) KEHC 10193 (KLR).
On Value Added Tax (VAT), he submits that the taxing master erred when she based the VAT on the total sum instead of the instructions fees. He further submits that the taxing officer acted on wrong principles of law. He relied on the case of Kipkorir, Tito & Kiara Advocates V Deposit Protection Fund Board (2005) eKLR and Kamunyori & Co. Advocates V Development Bank of Kenya Limited (2015) Civil Appeal 206 of 2006.
In conclusion, he urged the court to allow the application as prayed.
ANALYSIS AND DETERMINATION
This court has considered the application and the main issue for determination is whether the Taxing Officer erred in principle
in assessing the Applicant’s Bill of Costs dated 30th May, 2025.
In the case of Peter Muthoka & Another V Ochieng & 3 Others [2019] eKLR, the court emphasized that matters of taxation fall squarely within the province of the Taxing Master, and that the High Court must be slow to interfere unless the discretion was improperly
exercised, resulting in misdirection or manifest injustice. The Court held that:
“It is not lost to us, as we address that single issue, that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them.”
It is this court’s view that the burden rests squarely upon the Respondent to demonstrate, with particularity, that the Taxing Officer misapplied the law or omitted relevant considerations or applied the wrong schedule or paragraph under the Advocates
(Remuneration) Order. In the instant case, the Respondent
contends that the Taxing Officer failed to apply the correct
principles by awarding an excessively high amount. She particularly contends that there was no valuation report placed before the Taxing Officer in respect of the instruction fees. It is therefore this court’s duty to determine whether the impugned taxation was indeed tainted by error of principle to justify interference.
I have carefully perused the ruling and it is not in dispute that the Taxing Officer under paragraph 3 found that the value of the subject matter was not disclosed in the pleadings and judgment. It is also not in dispute that she did not base the instruction fees on any valuation report as alleged by the Respondent. It is therefore this court’s view that the issue of a valuation report was never a basis for the Taxing Officer’s taxation of the instruction fees.
In the circumstance, it is this court’s view that the Taxing Officer took into account the relevant considerations in the taxation of instruction fees while also giving her reasons. It is my finding that the taxing of instruction fees at Ksh. 300,000/= was not based on any error of principle, neither were the said fees as awarded so excessive as to justify interference by this court.
On the issue of VAT, Section 6(1) of the VAT Act 2015 provides as follows:-
“Tax shall be charged on any supply of goods or services made or provided in Kenya where it is a taxable supply made by a taxable person in the course of or in furtherance of any business carried on by him.”
In the case of Pyramid Motors Limited V Langata Gardens Limited [2015] KEHC 5224 (KLR) the court held that:
“On the final issue of VAT, I hold the simple view that in allowing the same the Master erred under the Value Added Tax, 2013 particularly section 5 thereof. Value Added Tax (VAT) is chargeable in taxable supply made by any registered person. There was no taxable supply of either goods or services made to the Applicant herein by the Respondent herein. The Bills herein concerned Party and Party costs and VAT could then not apply as neither party fetched nor supplied services to the other. True, legal services were rendered but it is not the Advocate who was being compensated herein. The Master could only have awarded VAT if the Bills were Advocate-Client Bills or if there was tendered evidence before the Master that the Plaintiff had paid VAT and was consequently entitled to indemnity.”
This court is of the view that VAT is only chargeable upon legal professional services rendered and not disbursements. As cited in the above decision, I find that the services that had been rendered by the Applicant to the Respondent was actually a supply of legal services. It is my view that the Taxing Officer did not err in failing to award VAT to the Applicant. Notably, the Respondent generalized the other items in the Bill of Costs as taxed but failed to substantiate them so as to warrant this court’s interference. The upshot of the above is that the application dated 6th September, 2025 lacks merit and it is hereby dismissed with costs to the Respondent. Orders accordingly.
'