A. BACKGROUND
1. By a judgment delivered on 25 th April, 2024, this Court awarded the Plaintiffs half of the costs of the suit. Pursuant to that award, the Plaintiffs filed a Party and Party Bill of Costs dated 19 th November, 2024 claiming Kshs. 329,017. The Bill was taxed by the Taxing Officer (Hon. Christine Menya, Deputy Registrar) in a Ruling delivered on 3 rd October, 2025, which allowed the Bill at Kshs. 170,164.
2. For clarity, since the Plaintiffs' own submissions describe the Bill as having been “taxed at Kshs. 158,853”, that figure is in fact the amount disallowed, not the amount awarded.
3. Aggrieved by that decision, the Plaintiffs filed a Notice of Objection dated 15 th October, 2025, objecting to the taxation of items 1, 121, 129, 130, 131, 132, 133, 134, 135, 137, 142, 143, 144, 145, 146, 147, 158, 159, 166, 168, 169, 170, 171, 172 and 173, and requesting reasons under paragraph 11(2) of the Advocates (Remuneration) Order, 2009.
4. The Taxing Officer having not responded, the Plaintiffs filed the present Taxation Reference by Chamber Summons dated 31 st October, 2025, seeking that the decision on the listed items be reviewed, varied or set aside; that those items be re-taxed by this Court or, in the alternative, remitted to another Taxing Officer for re-taxation; and costs of the Reference.
5. By consent of the parties recorded on 4 th June, 2026, the Reference was canvassed by way of written submissions. The Plaintiffs filed submissions dated 11 th June, 2026 and in relation to items 168 to 173, a Supplementary Affidavit of Loice Wairimu Kagucia sworn on 20 th January, 2026 exhibiting receipts said to evidence the disbursements claimed under those items.
6. The Defendant filed written submissions dated 19 th June, 2026 opposing the Reference in its entirety.
B. ISSUES FOR DETERMINATION
7. Having considered the parties aforesaid pleadings, the following issues arise for determination;
i. Whether the Reference is competent?
ii. Whether the Plaintiffs have established grounds to warrant this Court's interference with the Taxing Officer's decision on each of the items objected to? and
iii. What orders, including as to costs, should follow?
i)Competence of the Reference
8. Paragraph 11(1) of the Advocates (Remuneration) Order, 2009 provides that a party aggrieved by the decision of a taxing officer “may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.”
9. The Notice of Objection here was filed within time and specified the items objected to with sufficient particularity, and the Chamber Summons founding this Reference was filed after the Taxing Officer did not furnish reasons. No challenge is taken by the Defendant to the competence of the Reference, and the Court is satisfied that it is properly and competently before it.
10. The principles governing a court's review of a taxing officer's decision are well settled and largely identically set out by both parties. A court will not interfere with an exercise of a taxing officer's discretion merely because, left to itself, it might have arrived at a different figure.
11. Interference is warranted only where it is shown that the decision was based on an error of principle, or that 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:
12.An error of principle includes taking into account irrelevant factors or omitting to consider relevant ones, and the Advocates (Remuneration) Order itself identifies the relevant factors as including the nature and importance of the cause, the value of the subject matter, the interest of the parties, the general conduct of the proceedings, and any direction of the trial judge
13. Two further principles bear directly on this Reference. First, where a taxing officer gives no reasons at all for a decision on a given item, that omission is itself capable of amounting to an error of principle, since a decision arrived at without stated reasons reads as an arbitrary determination rather than a judicial exercise of discretion. Second, where the Court does find an error of principle, the ordinarily correct course is not for the Court itself to fix a fresh figure, but to remit the item to the taxing officer for reassessment, since the taxing officer, not the judge, is peculiarly fitted by experience to assess quantum.
ANALYSIS OF THE ITEMS OBJECTED TO;-
(i) Item 1 – Instruction fees
14. It is common ground that the value of the subject matter, being the sum decreed in the judgment was Kshs. 300,000 and that this is the correct basis for assessing instruction fees under the applicable 2009 Order.
15. It is also common ground that the suit was instituted in 2009, the Defendant filed a defence and actively contested the claim and the matter proceeded to a full trial and judgment delivered in 2024. Against that background, the Taxing Officer allowed instruction fees of Kshs. 28,000.
16. The Ruling of the Taxing Officer dated 3 rd October, 2025, annexed to the Chamber Summons founding this Reference, confirms that the taxing officer was “guided by” paragraph 1(a) of the Sixth Schedule to the Order in arriving at the instruction fee of Kshs. 28,000.
17. The Defendant's in their submissions have not contested that this suit was in fact defended.
18. The Taxing Officer gives no reasons whatsoever for treating a fully defended and contested suit as falling under the undefended scale in paragraph 1(a) rather than the defended scale in paragraph 1(b).
19. The absence of any reasoned basis for selecting paragraph 1(a) over paragraph 1(b), in the face of an undisputed record showing the suit to have been defended is application of the wrong scale altogether, compounded by the same failure to give reasons that vitiates a decision.
20. This Court accordingly finds that the Taxing Officer's Ruling dated 3 rd October, 2025 discloses an error of principle in respect of item 1.
21. Item 1 is therefore remitted to the Taxing Officer for reassessment strictly on the basis of paragraph 1(b) of the Sixth Schedule, having regard to the value of the subject matter (Kshs. 300,000) and the duration and general conduct of the proceedings, with reasons to be given for the figure arrived at.
(ii) Item 121 – Getting up fee
22. Getting up fees under paragraph 2 of the Sixth Schedule are pegged to, and computed as a fraction of not less than one-third of, the instruction fee. The Plaintiffs' challenge to item 121 is not an independent complaint but is expressly hinged on the outcome of the challenge to instruction fees.
23. Item 121 must accordingly abide the reassessment of item 1 and is remitted to the Taxing Officer on the same terms, to be recomputed by reference to whatever instruction fee is confirmed or awarded on reassessment.
(iii) Items 129 to 135 and 137 – court attendances taxed off
24. These items were taxed off for want of proof of coram, the Taxing Officer noting difficulty with an old and partly illegible file, but expressly leaving open the possibility of reassessment should further evidence be availed. That further evidence has now been referred to in the Plaintiffs' submissions in the form of counsel's internal court attendance notes.
25. Those notes have not, however, been placed before this Court on oath; they are said to be attached to the submissions themselves and submissions are not evidence.
26. It would not be proper for this Court to receive and evaluate unsworn attendance notes for the first time on a Reference of this kind, particularly where the Taxing Officer herself indicated a willingness to revisit these items on sight of such material.
27. Items 129 to 135 and 137 are therefore remitted to the Taxing Officer, who shall reassess them upon the Plaintiffs formally exhibiting the attendance notes by affidavit, with liberty to the Defendant to respond to the same.
(iv) Items 142 to 147, 158, 159 and 166 – court attenrfdances awarded a composite sum
28. Unlike the items considered above, these attendances were not disallowed; the Taxing Officer exercised her discretion and allowed a composite award of Kshs. 1,900 in respect of items 142 to 147, and a further Kshs. 1,900 in respect of items 158 and 166.
29. The Plaintiffs' complaint in relation to these items is that the sums awarded do not adequately reflect the actual waiting and attendance time recorded for each appearance, ranging from under an hour to some three hours. This is a pure question of quantum on attendances properly taken into account, not a complaint that an irrelevant factor was considered or a relevant one ignored, and no attempt is made to show what the correct scale fee per attendance under the Order ought to have been or how the sums awarded depart from it. On the deferential standard applicable to quantum challenges, the Plaintiffs have not demonstrated that the Taxing Officer was clearly wrong or that the awards are so low as to found an inference of an error of principle. The objection to items 142 to 147, 158 and 166 is accordingly not sustained, and the taxation of those items stands.
30. Item 159 was listed in the Notice of Objection but was not the subject of any submission, argument, or particulars whatsoever in the Plaintiffs' written submissions.
31. The burden of demonstrating an error of principle or a manifestly unreasonable award rests on the party challenging the taxation and a bare, unparticularised objection cannot discharge that burden. The objection to item 159 is dismissed for want of prosecution on the merits and the taxation of that item stands.
32. Conversely, item 157, though addressed at some length in the Plaintiffs' submissions, was never included in the Notice of Objection dated 15 th October, 2025 nor in the Chamber Summons of 31 st October, 2025 founding this Reference. A Reference is confined to the items properly placed in issue by the Notice of Objection; item 157 is accordingly not properly before the Court and no order is made in respect of it.
(v) Items 168 to 173 – Disbursements
33. It is common ground that the Plaintiffs tendered no proof whatsoever in form of receipts, vouchers, or other supporting material of the disbursements claimed, at any point before or at the taxation hearing that culminated in the Ruling of 3 rd October, 2025.
34. The burden of proving that a disbursement was actually and properly incurred lies squarely on the party claiming it. Where no evidence at all is placed before a taxing officer in support of a disbursement, its disallowance, even if tersely expressed, is not an arbitrary or unreasoned decision; it is the unavoidable and self-explanatory consequence of the claimant's own failure to prove the claim.
35. No error of principle on the part of the Taxing Officer is disclosed merely because she did not elaborate on a self-evident basis for disallowance.
36. The Plaintiffs seek to remedy this gap by producing, for the first time, receipts exhibited in the Supplementary Affidavit of Loice Wairimu Kagucia sworn on 20 th January, 2026 more than three months after the Ruling of 3 rd October, 2025, and indeed after this very Reference had already been filed.
37. A Taxation Reference reviews the taxing officer's exercise of discretion on the material that was in fact placed before her; it is not an occasion for a party to make good, for the first time, a case it never advanced at the taxation hearing. This Court is guided, by analogy, by the caution applicable to additional evidence on appeal.
38. Such evidence is ordinarily admitted only where it could not, with reasonable diligence, have been obtained and placed before the decision-maker in the first instance, and where its late production is properly explained.
39. The receipts now exhibited are dated in 2009 and relate to disbursements the Plaintiffs' own advocates say they incurred; they were at all times within the Plaintiffs' or their advocates' knowledge and possession. No explanation whatsoever is offered for the failure to produce them at the taxation hearing, or indeed at any time before January 2026.
40. To remit these items for reassessment on the strength of that late affidavit, without any such explanation and without the Defendant having had a fair opportunity to test the receipts at the appropriate stage, would reward a want of diligence in prosecuting the Bill of Costs and would undermine the finality that taxation proceedings are meant to have.
41. The objection to items 168 to 173 is accordingly dismissed.
F. DISPOSITION
18. For the reasons given, the Reference succeeds in part. The Court makes the following orders:-
i. Items 1 and 121 of the Bill of Costs dated 19 th November, 2024 are set aside and remitted back to the same Taxing Officer for reassessment on the basis of paragraph 1(b) (and not paragraph 1(a)) of the Sixth Schedule to the Advocates (Remuneration) Order, 2009, with reasons to be given for the figures arrived at.
ii. Items 129, 130, 131, 132, 133, 134, 135 and 137 are set aside and remitted back to the same Taxing Officer for reassessment, conditional upon the Plaintiffs formally exhibiting, by affidavit, the court attendance notes and any other supporting record referred to in their submissions, with liberty to the Defendant to respond.
iii. The objections to items 142, 143, 144, 145, 146, 147, 158, 159 and 166, and to items 168, 169, 170, 171, 172 and 173, are dismissed, and the taxation of those items as made in the Ruling of 3rd October, 2025 stands.
iv. Item 157 was not properly before the Court on this Reference and no order is made in respect of it.
v. Each party shall bear its own costs of this Reference.
It is so ordered.
Dated and delivered at Nakuru this 17 th day of September, 2026
J. K. SERGON
JUDGE
In the presence of :
Jamleck C/A
Miss Njambi for the Plaintiff
Alusa for Respondent/Defendant
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1. By a judgment delivered on 25 th April, 2024, this Court awarded the Plaintiffs half of the costs of the suit. Pursuant to that award, the Plaintiffs filed a Party and Party Bill of Costs dated 19 th November, 2024 claiming Kshs. 329,017. The Bill was taxed by the Taxing Officer (Hon. Christine Menya, Deputy Registrar) in a Ruling delivered on 3 rd October, 2025, which allowed the Bill at Kshs. 170,164.
2. For clarity, since the Plaintiffs' own submissions describe the Bill as having been “taxed at Kshs. 158,853”, that figure is in fact the amount disallowed, not the amount awarded.
3. Aggrieved by that decision, the Plaintiffs filed a Notice of Objection dated 15 th October, 2025, objecting to the taxation of items 1, 121, 129, 130, 131, 132, 133, 134, 135, 137, 142, 143, 144, 145, 146, 147, 158, 159, 166, 168, 169, 170, 171, 172 and 173, and requesting reasons under paragraph 11(2) of the Advocates (Remuneration) Order, 2009.
4. The Taxing Officer having not responded, the Plaintiffs filed the present Taxation Reference by Chamber Summons dated 31 st October, 2025, seeking that the decision on the listed items be reviewed, varied or set aside; that those items be re-taxed by this Court or, in the alternative, remitted to another Taxing Officer for re-taxation; and costs of the Reference.
5. By consent of the parties recorded on 4 th June, 2026, the Reference was canvassed by way of written submissions. The Plaintiffs filed submissions dated 11 th June, 2026 and in relation to items 168 to 173, a Supplementary Affidavit of Loice Wairimu Kagucia sworn on 20 th January, 2026 exhibiting receipts said to evidence the disbursements claimed under those items.
6. The Defendant filed written submissions dated 19 th June, 2026 opposing the Reference in its entirety.
B. ISSUES FOR DETERMINATION
7. Having considered the parties aforesaid pleadings, the following issues arise for determination;
i. Whether the Reference is competent?
ii. Whether the Plaintiffs have established grounds to warrant this Court's interference with the Taxing Officer's decision on each of the items objected to? and
iii. What orders, including as to costs, should follow?
i)Competence of the Reference
8. Paragraph 11(1) of the Advocates (Remuneration) Order, 2009 provides that a party aggrieved by the decision of a taxing officer “may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.”
9. The Notice of Objection here was filed within time and specified the items objected to with sufficient particularity, and the Chamber Summons founding this Reference was filed after the Taxing Officer did not furnish reasons. No challenge is taken by the Defendant to the competence of the Reference, and the Court is satisfied that it is properly and competently before it.
10. The principles governing a court's review of a taxing officer's decision are well settled and largely identically set out by both parties. A court will not interfere with an exercise of a taxing officer's discretion merely because, left to itself, it might have arrived at a different figure.
11. Interference is warranted only where it is shown that the decision was based on an error of principle, or that 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:
12.An error of principle includes taking into account irrelevant factors or omitting to consider relevant ones, and the Advocates (Remuneration) Order itself identifies the relevant factors as including the nature and importance of the cause, the value of the subject matter, the interest of the parties, the general conduct of the proceedings, and any direction of the trial judge
13. Two further principles bear directly on this Reference. First, where a taxing officer gives no reasons at all for a decision on a given item, that omission is itself capable of amounting to an error of principle, since a decision arrived at without stated reasons reads as an arbitrary determination rather than a judicial exercise of discretion. Second, where the Court does find an error of principle, the ordinarily correct course is not for the Court itself to fix a fresh figure, but to remit the item to the taxing officer for reassessment, since the taxing officer, not the judge, is peculiarly fitted by experience to assess quantum.
ANALYSIS OF THE ITEMS OBJECTED TO;-
(i) Item 1 – Instruction fees
14. It is common ground that the value of the subject matter, being the sum decreed in the judgment was Kshs. 300,000 and that this is the correct basis for assessing instruction fees under the applicable 2009 Order.
15. It is also common ground that the suit was instituted in 2009, the Defendant filed a defence and actively contested the claim and the matter proceeded to a full trial and judgment delivered in 2024. Against that background, the Taxing Officer allowed instruction fees of Kshs. 28,000.
16. The Ruling of the Taxing Officer dated 3 rd October, 2025, annexed to the Chamber Summons founding this Reference, confirms that the taxing officer was “guided by” paragraph 1(a) of the Sixth Schedule to the Order in arriving at the instruction fee of Kshs. 28,000.
17. The Defendant's in their submissions have not contested that this suit was in fact defended.
18. The Taxing Officer gives no reasons whatsoever for treating a fully defended and contested suit as falling under the undefended scale in paragraph 1(a) rather than the defended scale in paragraph 1(b).
19. The absence of any reasoned basis for selecting paragraph 1(a) over paragraph 1(b), in the face of an undisputed record showing the suit to have been defended is application of the wrong scale altogether, compounded by the same failure to give reasons that vitiates a decision.
20. This Court accordingly finds that the Taxing Officer's Ruling dated 3 rd October, 2025 discloses an error of principle in respect of item 1.
21. Item 1 is therefore remitted to the Taxing Officer for reassessment strictly on the basis of paragraph 1(b) of the Sixth Schedule, having regard to the value of the subject matter (Kshs. 300,000) and the duration and general conduct of the proceedings, with reasons to be given for the figure arrived at.
(ii) Item 121 – Getting up fee
22. Getting up fees under paragraph 2 of the Sixth Schedule are pegged to, and computed as a fraction of not less than one-third of, the instruction fee. The Plaintiffs' challenge to item 121 is not an independent complaint but is expressly hinged on the outcome of the challenge to instruction fees.
23. Item 121 must accordingly abide the reassessment of item 1 and is remitted to the Taxing Officer on the same terms, to be recomputed by reference to whatever instruction fee is confirmed or awarded on reassessment.
(iii) Items 129 to 135 and 137 – court attendances taxed off
24. These items were taxed off for want of proof of coram, the Taxing Officer noting difficulty with an old and partly illegible file, but expressly leaving open the possibility of reassessment should further evidence be availed. That further evidence has now been referred to in the Plaintiffs' submissions in the form of counsel's internal court attendance notes.
25. Those notes have not, however, been placed before this Court on oath; they are said to be attached to the submissions themselves and submissions are not evidence.
26. It would not be proper for this Court to receive and evaluate unsworn attendance notes for the first time on a Reference of this kind, particularly where the Taxing Officer herself indicated a willingness to revisit these items on sight of such material.
27. Items 129 to 135 and 137 are therefore remitted to the Taxing Officer, who shall reassess them upon the Plaintiffs formally exhibiting the attendance notes by affidavit, with liberty to the Defendant to respond to the same.
(iv) Items 142 to 147, 158, 159 and 166 – court attenrfdances awarded a composite sum
28. Unlike the items considered above, these attendances were not disallowed; the Taxing Officer exercised her discretion and allowed a composite award of Kshs. 1,900 in respect of items 142 to 147, and a further Kshs. 1,900 in respect of items 158 and 166.
29. The Plaintiffs' complaint in relation to these items is that the sums awarded do not adequately reflect the actual waiting and attendance time recorded for each appearance, ranging from under an hour to some three hours. This is a pure question of quantum on attendances properly taken into account, not a complaint that an irrelevant factor was considered or a relevant one ignored, and no attempt is made to show what the correct scale fee per attendance under the Order ought to have been or how the sums awarded depart from it. On the deferential standard applicable to quantum challenges, the Plaintiffs have not demonstrated that the Taxing Officer was clearly wrong or that the awards are so low as to found an inference of an error of principle. The objection to items 142 to 147, 158 and 166 is accordingly not sustained, and the taxation of those items stands.
30. Item 159 was listed in the Notice of Objection but was not the subject of any submission, argument, or particulars whatsoever in the Plaintiffs' written submissions.
31. The burden of demonstrating an error of principle or a manifestly unreasonable award rests on the party challenging the taxation and a bare, unparticularised objection cannot discharge that burden. The objection to item 159 is dismissed for want of prosecution on the merits and the taxation of that item stands.
32. Conversely, item 157, though addressed at some length in the Plaintiffs' submissions, was never included in the Notice of Objection dated 15 th October, 2025 nor in the Chamber Summons of 31 st October, 2025 founding this Reference. A Reference is confined to the items properly placed in issue by the Notice of Objection; item 157 is accordingly not properly before the Court and no order is made in respect of it.
(v) Items 168 to 173 – Disbursements
33. It is common ground that the Plaintiffs tendered no proof whatsoever in form of receipts, vouchers, or other supporting material of the disbursements claimed, at any point before or at the taxation hearing that culminated in the Ruling of 3 rd October, 2025.
34. The burden of proving that a disbursement was actually and properly incurred lies squarely on the party claiming it. Where no evidence at all is placed before a taxing officer in support of a disbursement, its disallowance, even if tersely expressed, is not an arbitrary or unreasoned decision; it is the unavoidable and self-explanatory consequence of the claimant's own failure to prove the claim.
35. No error of principle on the part of the Taxing Officer is disclosed merely because she did not elaborate on a self-evident basis for disallowance.
36. The Plaintiffs seek to remedy this gap by producing, for the first time, receipts exhibited in the Supplementary Affidavit of Loice Wairimu Kagucia sworn on 20 th January, 2026 more than three months after the Ruling of 3 rd October, 2025, and indeed after this very Reference had already been filed.
37. A Taxation Reference reviews the taxing officer's exercise of discretion on the material that was in fact placed before her; it is not an occasion for a party to make good, for the first time, a case it never advanced at the taxation hearing. This Court is guided, by analogy, by the caution applicable to additional evidence on appeal.
38. Such evidence is ordinarily admitted only where it could not, with reasonable diligence, have been obtained and placed before the decision-maker in the first instance, and where its late production is properly explained.
39. The receipts now exhibited are dated in 2009 and relate to disbursements the Plaintiffs' own advocates say they incurred; they were at all times within the Plaintiffs' or their advocates' knowledge and possession. No explanation whatsoever is offered for the failure to produce them at the taxation hearing, or indeed at any time before January 2026.
40. To remit these items for reassessment on the strength of that late affidavit, without any such explanation and without the Defendant having had a fair opportunity to test the receipts at the appropriate stage, would reward a want of diligence in prosecuting the Bill of Costs and would undermine the finality that taxation proceedings are meant to have.
41. The objection to items 168 to 173 is accordingly dismissed.
F. DISPOSITION
18. For the reasons given, the Reference succeeds in part. The Court makes the following orders:-
i. Items 1 and 121 of the Bill of Costs dated 19 th November, 2024 are set aside and remitted back to the same Taxing Officer for reassessment on the basis of paragraph 1(b) (and not paragraph 1(a)) of the Sixth Schedule to the Advocates (Remuneration) Order, 2009, with reasons to be given for the figures arrived at.
ii. Items 129, 130, 131, 132, 133, 134, 135 and 137 are set aside and remitted back to the same Taxing Officer for reassessment, conditional upon the Plaintiffs formally exhibiting, by affidavit, the court attendance notes and any other supporting record referred to in their submissions, with liberty to the Defendant to respond.
iii. The objections to items 142, 143, 144, 145, 146, 147, 158, 159 and 166, and to items 168, 169, 170, 171, 172 and 173, are dismissed, and the taxation of those items as made in the Ruling of 3rd October, 2025 stands.
iv. Item 157 was not properly before the Court on this Reference and no order is made in respect of it.
v. Each party shall bear its own costs of this Reference.
It is so ordered.
Dated and delivered at Nakuru this 17 th day of September, 2026
J. K. SERGON
JUDGE
In the presence of :
Jamleck C/A
Miss Njambi for the Plaintiff
Alusa for Respondent/Defendant
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