Introduction
1. The 1st Defendant filed Chamber Summons dated 7th April 2025 under Rule 11(2) of the Advocates Remuneration Order. It sought orders that this Court reviews, varies and/or sets aside the assessment of the Taxing Master er on item number 1 of the Bill of Costs dated 20th November 2024; that this Court taxes the said item afresh at such sum as it deems reasonable and just; or, in the alternative, that the Bill of Costs be remitted for taxation afresh before a different Taxing Maser.
2. The application arises from the ruling of the Taxing Officer delivered on 24th March 2025. In that ruling, the Taxing Master taxed the 1st Defendant’s Bill of Costs at Kshs. 388,600/=. On item 1, being instruction fees, the Taxing Officer allowed Kshs. 300,000/= and taxed off Kshs. 3,936,648.65.
3. The 1st Defendant/Applicant was aggrieved by that assessment. Its case is that the Taxing Master erred in principle by holding that the value of the subject matter was not ascertainable from the pleadings. The Applicant contends that the pleadings disclosed the value of the subject matter, namely a loan facility of Kshs. 500,000,000/=, an outstanding balance of Kshs. 363,257,658.87 as at 31st January 2023, and a proclamation amount of Kshs. 352,361,487.07.
4. The Applicant further contends that the Taxing Master erred by applying the scale under “other matters” instead of Schedule 6, item 1(b) of the Advocates Remuneration Order, and by failing to appreciate that the suit was determined summarily without going to full trial.
5. The Plaintiff/Respondent opposed the reference. Its case is that the 1st Defendant’s advocate was instructed only to oppose an application, that no defence was filed, and that no steps were taken towards defending the substantive suit. The Plaintiff/Respondent therefore contends that the Taxing Officer properly limited instruction fees to the work actually undertaken.
Issues for Determination
6. Having considered the application, the affidavits, the rival submissions and the authorities cited, the following issues arise for determination:
a. Whether the Taxing Master committed an error of principle in assessing item 1;
b. Whether the value of the subject matter was ascertainable from the pleadings;
c. Whether this Court should remit the matter for fresh taxation or proceed to re-tax item 1; and
d. What orders should issue.
Applicable Principles
7. The jurisdiction of this Court on references from taxation is settled. The Court does not l interfere with the Taxing Master’s discretion merely because it would have awarded a different figure. It will interfere where the Taxing Master has committed an error of principle, taken into account irrelevant matters, failed to take into account relevant matters, applied the wrong schedule, or where the award is so high or so low as to amount to an injustice.
8. In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others [1972] EA 162, the Court set out the guiding principles on taxation of costs: that costs should not be allowed to rise to such a level as to confine access to justice to the wealthy; that a successful litigant should be fairly reimbursed for costs reasonably incurred; that remuneration should be sufficient to attract advocates to the profession; and that, as far as practicable, there should be consistency in awards.
9. In First American Bank of Kenya v Shah & Others [2002] 1 EA 64, Ringera J. held that the Court will interfere with taxation where the decision is based on an error of principle, or where the fee awarded is so manifestly excessive or so manifestly low as to justify an inference that it was based on an error of principle.
10. In Joreth Limited v Kigano & Associates [2002] eKLR, the Court of Appeal held that the value of the subject matter for purposes of taxation ought to be determined from the pleadings, judgment or settlement. Where the value is not ascertainable from those sources, 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.
11. The Court of Appeal in Peter Muthoka & Another v Ochieng, Onyango, Kibet & Ohaga Advocates [2019] eKLR clarified that where taxation occurs before judgment, the pleadings form the basis for determining the value of the subject matter. Once judgment has been enterered that is the basis of determining the valued of the subject matter. . Where there is a settlement, the settlement becomes the basis. It is only where the value is not discernible or determinable from the applicable source that the Taxing Master’s discretion is triggered.
12. The Supreme Court in Kenya Airports Authority v Otieno Ragot & Company Advocates [2024] KESC 6 (KLR) reaffirmed that the subject matter must first be identified and the value thereof determined. Where the value can be determined from the pleadings, judgment or settlement, that value guides the taxation.
Analysis
13. The central question is whether the Taxing Master was right to hold that the value of the subject matter was not ascertainable. The Applicant’s position is that the pleadings disclosed a loan facility of Kshs. 500,000,000/= and an outstanding balance of Kshs. 363,257,658.87. The Plaintiff/Respondent does not dispute that those figures appeared in the material relied upon by the 1st Defendant. Its answer is that the figures were irrelevant because the 1st Defendant did not file a defence and because the advocate’s work was confined to an interlocutory application.
14. I agree with the Plaintiff/Respondent that instruction fees must be tied to work actually instructed and undertaken. An advocate should not be compensated for work never done, and taxation should not be used as an avenue for unjust enrichment. That, however, does not fully answer the issue before the Court.
15. The material is clear that the suit was commenced by plaint and was accompanied by an interlocutory application. The 1st Defendant participated in the proceedings and the plaint was eventually struck out on an application by the 1st Defendant. A party who successfully moves the Court to strike out a plaint cannot be treated in the same manner as a party who merely attended to a routine application having no dispositive effect on the suit.
16. The fact that no defence was filed is relevant, but it is not conclusive. The Advocates Remuneration Order contemplates situations where a suit is determined summarily and without going to full trial. Such a proceeding may occur before the filing of a defence. What matters is the substance of the work undertaken and the effect of the proceedings. In this case, the 1st Defendant’s application brought the suit to an end. That was a summary determination of the suit.
17. In those circumstances, the Taxing Master ought to have considered whether the matter fell under the provisions applicable to a suit determined in a summary manner without going to full trial. By treating the matter as falling under “other matters”, without first engaging with the pleaded value and the effect of the order striking out the plaint, the Taxing Master fell into error.
18. I am also satisfied that the value of the subject matter was ascertainable from the pleadings and the material before the Taxing Master. The more appropriate value for purposes of item 1 is not the entire facility of Kshs. 500,000,000/= but the outstanding balance of Kshs. 363,257,658.87. That amount represented the debt said to be due and was the figure most directly connected to the dispute between the Plaintiff and the 1st Defendant.
19. I am alive to the general practice that where an error of principle is established, the usual course is to remit the item for fresh taxation. That is the practice recognised in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR and other authorities. However, that rule is not inflexible. The Court retains jurisdiction, in a proper case, to re-tax the impugned item, especially where the material is sufficient, the issue is narrow, and remittal would serve no practical purpose.
20. In the present case, to remit the matter to the same Taxing Master , after this Court has found an error of principle in the assessment of item 1, would not be an efficient or proportionate use of judicial time. The question before the Court is also clear. It turns on the proper applicable schedule, the ascertainable value of the subject matter, and the consequence of the suit having been determined summarily without going to full trial.
21. I am therefore satisfied that this is a proper case for the Court to proceed to re-tax item 1.
22. The computation is as follows:
a. Ascertainable value of the subject matter: Kshs. 363,257,658.87;
b. Basic instruction fee computed on that value: Kshs. 5,648,864.88;
c. Applicable percentage for a suit determined summarily without full trial: 75%;
d. 75% of Kshs. 5,648,864.88: Kshs. 4,236,648.65.
25. I accordingly find that item 1 ought to have been allowed at Kshs. 4,236,648.65. The Taxing master’s assessment of Kshs. 300,000/= was based on an error of principle and is hereby set aside.
Disposition
26. In the result, the 1st Defendant’s Chamber Summons dated 7th April 2025 succeeds. I make the following orders:
a. The Taxing Masterr’s assessment of item number 1 in the 1st Defendant’s Bill of Costs dated 20th November 2024 is hereby set aside.
b. This Court hereby re-taxes item number 1, being instruction fees, at Kshs. 4,236,648.65.
c. The amount taxed off from item 1 is accordingly reversed to the extent necessary to give effect to the substituted figure of Kshs. 4,236,648.65.
d. The Bill of Costs shall be re-calculated on the basis that item 1 is allowed at Kshs. 4,236,648.65, with the remaining items as taxed by the Taxing Officer remaining undisturbed.
e. The 1st Defendant/Applicant shall have the costs of the reference.
27. It is so ordered.
.
T. A. ODERA
JUDGE
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 19TH DAY OF MAY 2026 IN THE PRESENCE OF MR ADAN HOLDING BRIEF FOR KIRAGU KIMANI FOR 1ST DEFENDANT, MR ODHIAMBO FOR PLAINITFF RESPONDENT -CA KIPCHIRCHIR
Adan : We seek a copy of the ruling.
Order : Granted
T.A ODERA
JUDGE
19.5.26
1. The 1st Defendant filed Chamber Summons dated 7th April 2025 under Rule 11(2) of the Advocates Remuneration Order. It sought orders that this Court reviews, varies and/or sets aside the assessment of the Taxing Master er on item number 1 of the Bill of Costs dated 20th November 2024; that this Court taxes the said item afresh at such sum as it deems reasonable and just; or, in the alternative, that the Bill of Costs be remitted for taxation afresh before a different Taxing Maser.
2. The application arises from the ruling of the Taxing Officer delivered on 24th March 2025. In that ruling, the Taxing Master taxed the 1st Defendant’s Bill of Costs at Kshs. 388,600/=. On item 1, being instruction fees, the Taxing Officer allowed Kshs. 300,000/= and taxed off Kshs. 3,936,648.65.
3. The 1st Defendant/Applicant was aggrieved by that assessment. Its case is that the Taxing Master erred in principle by holding that the value of the subject matter was not ascertainable from the pleadings. The Applicant contends that the pleadings disclosed the value of the subject matter, namely a loan facility of Kshs. 500,000,000/=, an outstanding balance of Kshs. 363,257,658.87 as at 31st January 2023, and a proclamation amount of Kshs. 352,361,487.07.
4. The Applicant further contends that the Taxing Master erred by applying the scale under “other matters” instead of Schedule 6, item 1(b) of the Advocates Remuneration Order, and by failing to appreciate that the suit was determined summarily without going to full trial.
5. The Plaintiff/Respondent opposed the reference. Its case is that the 1st Defendant’s advocate was instructed only to oppose an application, that no defence was filed, and that no steps were taken towards defending the substantive suit. The Plaintiff/Respondent therefore contends that the Taxing Officer properly limited instruction fees to the work actually undertaken.
Issues for Determination
6. Having considered the application, the affidavits, the rival submissions and the authorities cited, the following issues arise for determination:
a. Whether the Taxing Master committed an error of principle in assessing item 1;
b. Whether the value of the subject matter was ascertainable from the pleadings;
c. Whether this Court should remit the matter for fresh taxation or proceed to re-tax item 1; and
d. What orders should issue.
Applicable Principles
7. The jurisdiction of this Court on references from taxation is settled. The Court does not l interfere with the Taxing Master’s discretion merely because it would have awarded a different figure. It will interfere where the Taxing Master has committed an error of principle, taken into account irrelevant matters, failed to take into account relevant matters, applied the wrong schedule, or where the award is so high or so low as to amount to an injustice.
8. In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others [1972] EA 162, the Court set out the guiding principles on taxation of costs: that costs should not be allowed to rise to such a level as to confine access to justice to the wealthy; that a successful litigant should be fairly reimbursed for costs reasonably incurred; that remuneration should be sufficient to attract advocates to the profession; and that, as far as practicable, there should be consistency in awards.
9. In First American Bank of Kenya v Shah & Others [2002] 1 EA 64, Ringera J. held that the Court will interfere with taxation where the decision is based on an error of principle, or where the fee awarded is so manifestly excessive or so manifestly low as to justify an inference that it was based on an error of principle.
10. In Joreth Limited v Kigano & Associates [2002] eKLR, the Court of Appeal held that the value of the subject matter for purposes of taxation ought to be determined from the pleadings, judgment or settlement. Where the value is not ascertainable from those sources, 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.
11. The Court of Appeal in Peter Muthoka & Another v Ochieng, Onyango, Kibet & Ohaga Advocates [2019] eKLR clarified that where taxation occurs before judgment, the pleadings form the basis for determining the value of the subject matter. Once judgment has been enterered that is the basis of determining the valued of the subject matter. . Where there is a settlement, the settlement becomes the basis. It is only where the value is not discernible or determinable from the applicable source that the Taxing Master’s discretion is triggered.
12. The Supreme Court in Kenya Airports Authority v Otieno Ragot & Company Advocates [2024] KESC 6 (KLR) reaffirmed that the subject matter must first be identified and the value thereof determined. Where the value can be determined from the pleadings, judgment or settlement, that value guides the taxation.
Analysis
13. The central question is whether the Taxing Master was right to hold that the value of the subject matter was not ascertainable. The Applicant’s position is that the pleadings disclosed a loan facility of Kshs. 500,000,000/= and an outstanding balance of Kshs. 363,257,658.87. The Plaintiff/Respondent does not dispute that those figures appeared in the material relied upon by the 1st Defendant. Its answer is that the figures were irrelevant because the 1st Defendant did not file a defence and because the advocate’s work was confined to an interlocutory application.
14. I agree with the Plaintiff/Respondent that instruction fees must be tied to work actually instructed and undertaken. An advocate should not be compensated for work never done, and taxation should not be used as an avenue for unjust enrichment. That, however, does not fully answer the issue before the Court.
15. The material is clear that the suit was commenced by plaint and was accompanied by an interlocutory application. The 1st Defendant participated in the proceedings and the plaint was eventually struck out on an application by the 1st Defendant. A party who successfully moves the Court to strike out a plaint cannot be treated in the same manner as a party who merely attended to a routine application having no dispositive effect on the suit.
16. The fact that no defence was filed is relevant, but it is not conclusive. The Advocates Remuneration Order contemplates situations where a suit is determined summarily and without going to full trial. Such a proceeding may occur before the filing of a defence. What matters is the substance of the work undertaken and the effect of the proceedings. In this case, the 1st Defendant’s application brought the suit to an end. That was a summary determination of the suit.
17. In those circumstances, the Taxing Master ought to have considered whether the matter fell under the provisions applicable to a suit determined in a summary manner without going to full trial. By treating the matter as falling under “other matters”, without first engaging with the pleaded value and the effect of the order striking out the plaint, the Taxing Master fell into error.
18. I am also satisfied that the value of the subject matter was ascertainable from the pleadings and the material before the Taxing Master. The more appropriate value for purposes of item 1 is not the entire facility of Kshs. 500,000,000/= but the outstanding balance of Kshs. 363,257,658.87. That amount represented the debt said to be due and was the figure most directly connected to the dispute between the Plaintiff and the 1st Defendant.
19. I am alive to the general practice that where an error of principle is established, the usual course is to remit the item for fresh taxation. That is the practice recognised in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR and other authorities. However, that rule is not inflexible. The Court retains jurisdiction, in a proper case, to re-tax the impugned item, especially where the material is sufficient, the issue is narrow, and remittal would serve no practical purpose.
20. In the present case, to remit the matter to the same Taxing Master , after this Court has found an error of principle in the assessment of item 1, would not be an efficient or proportionate use of judicial time. The question before the Court is also clear. It turns on the proper applicable schedule, the ascertainable value of the subject matter, and the consequence of the suit having been determined summarily without going to full trial.
21. I am therefore satisfied that this is a proper case for the Court to proceed to re-tax item 1.
22. The computation is as follows:
a. Ascertainable value of the subject matter: Kshs. 363,257,658.87;
b. Basic instruction fee computed on that value: Kshs. 5,648,864.88;
c. Applicable percentage for a suit determined summarily without full trial: 75%;
d. 75% of Kshs. 5,648,864.88: Kshs. 4,236,648.65.
25. I accordingly find that item 1 ought to have been allowed at Kshs. 4,236,648.65. The Taxing master’s assessment of Kshs. 300,000/= was based on an error of principle and is hereby set aside.
Disposition
26. In the result, the 1st Defendant’s Chamber Summons dated 7th April 2025 succeeds. I make the following orders:
a. The Taxing Masterr’s assessment of item number 1 in the 1st Defendant’s Bill of Costs dated 20th November 2024 is hereby set aside.
b. This Court hereby re-taxes item number 1, being instruction fees, at Kshs. 4,236,648.65.
c. The amount taxed off from item 1 is accordingly reversed to the extent necessary to give effect to the substituted figure of Kshs. 4,236,648.65.
d. The Bill of Costs shall be re-calculated on the basis that item 1 is allowed at Kshs. 4,236,648.65, with the remaining items as taxed by the Taxing Officer remaining undisturbed.
e. The 1st Defendant/Applicant shall have the costs of the reference.
27. It is so ordered.
.
T. A. ODERA
JUDGE
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 19TH DAY OF MAY 2026 IN THE PRESENCE OF MR ADAN HOLDING BRIEF FOR KIRAGU KIMANI FOR 1ST DEFENDANT, MR ODHIAMBO FOR PLAINITFF RESPONDENT -CA KIPCHIRCHIR
Adan : We seek a copy of the ruling.
Order : Granted
T.A ODERA
JUDGE
19.5.26