Vide the Reference brought by way of the Chamber Summons dated 1st October 2025, the plaintiffs herein challenged the Taxation of the 5th defendant’s Party and Party Bill of Costs by the Taxing Officer Hon. Maureen Nyigei (DR) dated 18th September 2025 (hereinafter called the ruling).
The plaintiffs sought for orders that: -
1) the court sets aside the ruling to the extent that it relates to the taxation of items 2 and 3 of the 5th defendant’s Party and Party Bill of Costs dated 25th April, 2025.
2) that the court varies the said decision by substituting the amounts allowed for the said items as follows; -
(a) for item 2 (instructions fees for Counterclaim) the item be taxed off in its entirety,
(b) for item 3 (Getting up Fees), the figure of Kshs 42,000/= be substituted in place of the figure of Kshs 52,500/= as taxed,
3) that in the alternative to prayer 2 above, the honourable court be pleased to order that items 2 and 3, of the 5th defendant’s Party and Party Bill of Costs dated 25h April, 2025 be remitted for fresh taxation before a different Taxing Master with competent jurisdiction.
4) the costs of the reference be provided for.
The grounds upon which the reference was based are that instructions fees on a counterclaim are not allowable, that the Taxing Master exercised her discretion erroneously and in violation of the doctrine of stare decisis and judicial hierarchy which obligates a subordinate court to follow the clear and definitive pronouncements of a superior court, that the award was excessive and results in an injustice to the plaintiffs as it provides the 5th defendant with costs for non-chargeable items and that this offends the core principle of taxation that costs are intended for fair reimbursement, not unjust enrichment. Counsel cited the case of Premchard Raichand Ltd - Vs- Quarry Services of East Africa Ltd, that getting up fees being intrinsically derived from the instructions fees likewise lacks a legal foundation and must fall away following disallowance of the instructions fees for the counterclaim.
The reference was opposed vide the grounds of opposition dated 17th October 2025 filed by the 5th defendant. The case of the 5th defendant was that the application is frivolous, vexatious and lacks merit, that the application is not grounded on known principles of law, that the application is an abuse of the court process, that the application was based on the case of Obora vs – Rift Valley Railways (2025) eKLR which is distinguishable from the case at hand as there was no award of costs on the counterclaim in that case.
The reference was heard orally on 17th December 2025. It was submitted on behalf of the applicant that the reference challenges items 2 and 3 of the 5th Defendants Party and Party Bill of Costs dated 25th April 2025. Relying on the case of KANU National Elections Board & 2 Others –vs- Salah (2018) eKLR, Counsel submitted that the Taxing master’s discretion must be exercised within the principles of taxation.
Counsel relied on the case of Obora vs Rift Valley Railways (2025 )eKLR ( the Obora case) and submitted that the Court of Appeal made a finding that instructions fees on the counterclaim are not to be allowed as if it was an ordinary suit. That, that would be unjust enrichment.
That the correct position would have been that only costs on the suit should have been awardable. Counsel prayed that the award on costs on the counterclaim be struck off.
On behalf for the 5th defendant it was submitted that the Court of Appeal in the case of Obora -vs- Rift Valley Railway, relied on by the applicant, stated that there must be a clear award of costs on the counterclaim. That the costs were awarded herein on the counterclaim and that the Taxing Master was right to tax the same.
That the respondent had raised a counterclaim that succeeded.
I have considered the application, ground of apposition and the oral submissions by Counsel. I have read the decision in the Obora case relied on in the application. In paragraph 17 of the decision, the Court of Appeal held that the principles that apply in taxation of costs in a counterclaim are not the same as those that apply to taxation of costs in main claims that although a counterclaim is a separate and fresh suit, for purposes of taxation, a counterclaim is not to be treated as a plaint and that for one to be liable to pay costs on a counterclaim there ought to be an express order to that effect.
In paragraph 18 of the same decision, the Court held that the decision whether to award costs of the counterclaim is an exercise of discretion of the trial Judge, that a court determining a suit in which a counterclaim is filed should expressly pronounce itself on the costs of the counterclaim. That the role of the taxing master is restricted to taxation of costs.
The applicant herein faults the Taxing Officer for making awards to the respondent in respect of items 2 and 3 of the respondent’s Party and Party Bill of Costs. From the Bill of costs on record, item 2 was instructions fees to file counterclaim for property bought at Kshs 1,300,000/- for which the amount claimed was Kshs, 126,000/=
Item 3 on the Bill of costs was Getting up fees for which the amount claimed was Kshs 84,000/=
A copy of the ruling the subject of the reference is attached to the Supporting Affidavit. It shows that in taxing items 2 and 3 of the Bill of costs, the Taxing Master noted;
“For item 2, it will be noted that the suit and the counterclaim were heard as one suit. To avoid double enrichment, a nominal fee shall therefore be allowed herein and I shall allow a quarter of 126,000/= herein 31,500/=
Subtotal- 157,500/=
Getting up fee- 52,500/=
Subtotal- 210,000/=.”
I have also perused the judgement herein dated 20th March 2025 in which the costs were awarded and noted that the 5th defendant was awarded costs of the suit and of the counterclaim.
From the foregoing, my finding is that there was no holding in the Obora Case that prohibited the awarding of costs on counterclaim. The guidance I draw from the Obora case is that although costs are awardable on a counterclaim, for purposes of taxation, the counterclaim should not be treated as a complete independent suit; that an order warding costs on the counterclaim must be expressly made.
Secondly, I find that as costs on the counter claim were expressly awarded in the Judgement, the role of the taxing master was to simply tax the costs in accordance with the provisions of the Advocates Remuneration Order and the existing principles of taxation of party and party costs.
Finally, I find that the Taxing master did not err or misdirect herself in the manner she taxed the costs awarded on the counter claim. The Taxing Officer had no jurisdiction to fail to tax or to strike out the claim on costs on the counterclaim as the same was awarded in the judgement. If the applicants’ intention was to challenge the award of costs on the counterclaim, the appropriate action would, in my view, have been an appeal or review proceedings.
I find that the reference has not demonstrated sufficient ground for allowing it. The reference is hereby dismissed. Each party to bear own costs of the reference.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered virtually this 12th day of February 2026.
E. ASATI,
JUDGE.
In the presence of:
Maureen/Ajevi--Court Assistant.
Miano for the Applicants.
P. D Onyango for the 5th Defendant.
| ELC (OS) NO. E036 OF 20215 |