Introduction
Background
1. The background is largely uncontested. On 25th July 2023 the present Applicant, then acting as advocate, moved the High Court by Notice of Motion seeking, in substance, that the respondent/client be ordered to settle alleged legal fees arising from representation in Homa Bay CMC ELC No. 5 of 2018 and that the annexed bill be taxed and thereafter deemed to be a decree of the Court.
2. That application was opposed by the present Respondent, who filed a replying affidavit and written submissions contending, among other things, that the High Court lacked original jurisdiction to tax an advocate-client bill and that such jurisdiction lies, in the first instance, with the taxing officer under rule 10 of the Advocates (Remuneration) Order.
3. In a ruling delivered on 14th December 2023, Kiarie J struck out the application, holding that the issue before the Court was taxation of costs; that taxation is a special jurisdiction reserved to the taxing officer; and that the Court’s intervention only arises by way of reference after taxation. The learned Judge cited, among other authorities, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and held that the Court lacked jurisdiction. Costs were awarded against the applicant in that motion.
4. . Following that ruling, the present Respondent filed a party and party bill of costs dated 3rd March 2025. Under item 1, he claimed Kshs. 75,000/= as instruction fees, stating that he had received instructions to defend an application amounting to Kshs. 179,060/= which was later struck out with costs.
5. The Applicant herein responded to the bill and proposed that item 1 be taxed at Kshs. 3,000/= “under appeals-viii,” while substantially reducing the remaining items as well.
6. In the taxation ruling delivered on 30th June 2025, the Taxing Officer expressly held that the applicable schedule was Schedule 6 of the Advocates Remuneration Order, taxed item 1 at Kshs. 5,000/= “as the application was defended,” and taxed the entire bill at Kshs. 18,400/=.
7. A notice of objection dated 8th July 2025 was thereafter lodged, limited to item 1 on instruction fees. The objector requested reasons, contending that Kshs. 5,000/= was manifestly low and that the matter had a value of Kshs. 179,060/= and was heard to conclusion.
8. By the court document dated 12th August 2025, the Taxing Officer furnished reasons. She stated that she had considered the High Court proceedings; that the impugned application first came up on 15th August 2023 and thereafter on 11th October 2023 and 2nd November 2023 before the ruling of 14th December 2023; that she was satisfied the application was “a very simple application”; and that instruction fees fell under Schedule 6 rule 1(viii), which provides for an opposed application at such sum as may be reasonable but not less than Kshs. 5,000/=. She therefore considered the minimum of Kshs. 5,000/= sufficient and reasonable.
. Issue for Determination
9. The single issue for determination is whether the Applicant has demonstrated any error of principle in the Taxing Officer’s taxation of item 1 so as to warrant interference by this Court on reference.
Applicable Principles
10. The principles governing interference with taxation are settled. A Judge will not interfere with the exercise of discretion by a taxing officer merely because the Judge would have arrived at a different figure. Interference is justified only where it is shown that the taxing officer acted on a wrong principle, took into account irrelevant considerations, failed to consider relevant ones, or awarded an amount so manifestly high or low as to justify an inference of error in principle. That position is reflected in the authorities relied on by the parties, including Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR and KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR.
11. It is equally settled that where the taxing officer gives reasons showing the path by which discretion was exercised, the Court’s task is not to substitute its own opinion on quantum, but to determine whether the discretion was judicially exercised.
Analysis and Determination
12. I begin with the nature of the proceedings from which the bill of costs arose. The motion dated 25th July 2023 was not a substantive suit for recovery of fees. Nor was it an appeal. It was an application in a miscellaneous cause by which the advocate asked the High Court, in the first instance, to order the client to settle alleged fees and to tax an annexed bill and deem it a decree of the Court. That application was struck out purely on jurisdictional grounds, the Court holding that taxation of an advocate-client bill is a special jurisdiction reserved to the taxing officer and that the High Court can only intervene by way of reference after taxation.
13. That background is important because the Applicant’s entire reference rests on the proposition that the application ought to have been treated as though it were “a suit or defence struck out after commencement” under Schedule 6 paragraph 1(b). I am unable to agree.
14. FirstLY, the impugned proceedings were not an appeal. The reliance on the phrase “charges on appeals” or on Schedule 6 paragraph 1(viii) as if it were tied to the monetary value of an appeal does not assist the Applicant. What the Taxing Officer actually found was that the matter before her was a simple opposed application. The reasons furnished make that plain. She considered the dates on which the application came up, the limited procedural history, and the nature of the motion, and concluded that it fell under the provision for opposed applications with a minimum of Kshs. 5,000/=.
15. Secondly, the figure of Kshs. 179,060/= was not, in my view, the “subject matter” in the sense urged by the Applicant. That figure was itself the amount claimed in the advocate’s un-taxed bill or fee claim which the struck-out application was seeking to enforce or have taxed. It was not a decretal sum. It was not a judgment sum. It was not a settled sum between the parties. It was, at best, a disputed figure embedded in an incompetent application that the Court declined to entertain for want of jurisdiction. The Respondent is therefore right in contending that such a figure could not automatically become the value of the subject matter for purposes of instruction fees in the subsequent party and party bill.
16. Thirdly, the ruling of Hon Justice Kiarie shows that the matter was disposed of at a threshold level on the question of jurisdiction. The Court did not go into the merits of the alleged fees. It did not determine liability for Kshs. 179,060/=. It did not investigate the underlying retainer or the quantum claimed. It simply held that the Court could not exercise original taxation jurisdiction and struck out the motion. In those circumstances, the Taxing Officer properly treated the matter as a straightforward opposed application whose gravamen was jurisdiction.
17. . Fourthly, the Applicant’s own conduct before the taxing officer is not without significance. In the response to the bill of costs, the Applicant himself proposed item 1 at Kshs. 3,000/= and invoked the provision relating to opposed applications, rather than Schedule 6 paragraph 1(b). That does not estopp him from mounting a reference, but it underscores that even at taxation stage the matter was treated as an application rather than as a substantive suit with ascertainable subject matter under paragraph 1(b).
18. . I have also considered the issue that the Taxing Officer failed to record special reasons for not awarding at least Kshs. 75,000/=. That argument presupposes that paragraph 1(b) applied in the first place. Having found that the proceedings did not fall under that paragraph, the contention does not stand .
19. In my view, the Taxing Officer did exactly what paragraph 11 requires of her once objection was taken. She furnished reasons. Those reasons show that she considered the record, identified the nature of the application, considered that it was opposed but simple, and then settled on the minimum sum prescribed as per the scale . Whether another taxing officer might have awarded a somewhat higher figure is beside the point. The question is whether the figure of Kshs. 5,000/= or the approach adopted discloses error of principle. I find that it does not.
20. The authorities cited by the Applicant do not persuade me otherwise. KANU National Elections Board turned on a taxing officer who relied on election petition decisions from the High Court when taxing a tribunal matter, thus applying the wrong scale. Nyangito and Aoro reiterate the familiar principle that interference lies where there is error of principle. I respectfully agree with those statements of law. However, the present case is materially different. Here, I am not satisfied that the Taxing Officer applied the wrong schedule or ignored the true nature of the proceedings.
21. I therefore come to the conclusion that the Applicant has not shown that the decision was based on an error of principle, nor that the amount awarded was so manifestly low as to justify interference by this Court.
F. Disposition
22. In the upshot , I find that :
a. The Chamber Summons dated 22nd August 2025 is without merit.
b The same is hereby dismissed.
c. The taxation of item 1 in the ruling of the Taxing Officer delivered on 30th
June 2025 is upheld.
d. The Respondent / Applicant in the instant application shall bear the costs of the reference.
It is so ordered.
T.A ODERA
JUDGE
25.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 25TH DAY OF MARCH 2026, IN THE PRESENCE OF MISS ODERA FOR APPLICANT /RESPONDENT & OMONDI FOR RESPONDENT/APLICANT . COURT ASSISTANT ONKUNDI
Background
1. The background is largely uncontested. On 25th July 2023 the present Applicant, then acting as advocate, moved the High Court by Notice of Motion seeking, in substance, that the respondent/client be ordered to settle alleged legal fees arising from representation in Homa Bay CMC ELC No. 5 of 2018 and that the annexed bill be taxed and thereafter deemed to be a decree of the Court.
2. That application was opposed by the present Respondent, who filed a replying affidavit and written submissions contending, among other things, that the High Court lacked original jurisdiction to tax an advocate-client bill and that such jurisdiction lies, in the first instance, with the taxing officer under rule 10 of the Advocates (Remuneration) Order.
3. In a ruling delivered on 14th December 2023, Kiarie J struck out the application, holding that the issue before the Court was taxation of costs; that taxation is a special jurisdiction reserved to the taxing officer; and that the Court’s intervention only arises by way of reference after taxation. The learned Judge cited, among other authorities, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and held that the Court lacked jurisdiction. Costs were awarded against the applicant in that motion.
4. . Following that ruling, the present Respondent filed a party and party bill of costs dated 3rd March 2025. Under item 1, he claimed Kshs. 75,000/= as instruction fees, stating that he had received instructions to defend an application amounting to Kshs. 179,060/= which was later struck out with costs.
5. The Applicant herein responded to the bill and proposed that item 1 be taxed at Kshs. 3,000/= “under appeals-viii,” while substantially reducing the remaining items as well.
6. In the taxation ruling delivered on 30th June 2025, the Taxing Officer expressly held that the applicable schedule was Schedule 6 of the Advocates Remuneration Order, taxed item 1 at Kshs. 5,000/= “as the application was defended,” and taxed the entire bill at Kshs. 18,400/=.
7. A notice of objection dated 8th July 2025 was thereafter lodged, limited to item 1 on instruction fees. The objector requested reasons, contending that Kshs. 5,000/= was manifestly low and that the matter had a value of Kshs. 179,060/= and was heard to conclusion.
8. By the court document dated 12th August 2025, the Taxing Officer furnished reasons. She stated that she had considered the High Court proceedings; that the impugned application first came up on 15th August 2023 and thereafter on 11th October 2023 and 2nd November 2023 before the ruling of 14th December 2023; that she was satisfied the application was “a very simple application”; and that instruction fees fell under Schedule 6 rule 1(viii), which provides for an opposed application at such sum as may be reasonable but not less than Kshs. 5,000/=. She therefore considered the minimum of Kshs. 5,000/= sufficient and reasonable.
. Issue for Determination
9. The single issue for determination is whether the Applicant has demonstrated any error of principle in the Taxing Officer’s taxation of item 1 so as to warrant interference by this Court on reference.
Applicable Principles
10. The principles governing interference with taxation are settled. A Judge will not interfere with the exercise of discretion by a taxing officer merely because the Judge would have arrived at a different figure. Interference is justified only where it is shown that the taxing officer acted on a wrong principle, took into account irrelevant considerations, failed to consider relevant ones, or awarded an amount so manifestly high or low as to justify an inference of error in principle. That position is reflected in the authorities relied on by the parties, including Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR and KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR.
11. It is equally settled that where the taxing officer gives reasons showing the path by which discretion was exercised, the Court’s task is not to substitute its own opinion on quantum, but to determine whether the discretion was judicially exercised.
Analysis and Determination
12. I begin with the nature of the proceedings from which the bill of costs arose. The motion dated 25th July 2023 was not a substantive suit for recovery of fees. Nor was it an appeal. It was an application in a miscellaneous cause by which the advocate asked the High Court, in the first instance, to order the client to settle alleged fees and to tax an annexed bill and deem it a decree of the Court. That application was struck out purely on jurisdictional grounds, the Court holding that taxation of an advocate-client bill is a special jurisdiction reserved to the taxing officer and that the High Court can only intervene by way of reference after taxation.
13. That background is important because the Applicant’s entire reference rests on the proposition that the application ought to have been treated as though it were “a suit or defence struck out after commencement” under Schedule 6 paragraph 1(b). I am unable to agree.
14. FirstLY, the impugned proceedings were not an appeal. The reliance on the phrase “charges on appeals” or on Schedule 6 paragraph 1(viii) as if it were tied to the monetary value of an appeal does not assist the Applicant. What the Taxing Officer actually found was that the matter before her was a simple opposed application. The reasons furnished make that plain. She considered the dates on which the application came up, the limited procedural history, and the nature of the motion, and concluded that it fell under the provision for opposed applications with a minimum of Kshs. 5,000/=.
15. Secondly, the figure of Kshs. 179,060/= was not, in my view, the “subject matter” in the sense urged by the Applicant. That figure was itself the amount claimed in the advocate’s un-taxed bill or fee claim which the struck-out application was seeking to enforce or have taxed. It was not a decretal sum. It was not a judgment sum. It was not a settled sum between the parties. It was, at best, a disputed figure embedded in an incompetent application that the Court declined to entertain for want of jurisdiction. The Respondent is therefore right in contending that such a figure could not automatically become the value of the subject matter for purposes of instruction fees in the subsequent party and party bill.
16. Thirdly, the ruling of Hon Justice Kiarie shows that the matter was disposed of at a threshold level on the question of jurisdiction. The Court did not go into the merits of the alleged fees. It did not determine liability for Kshs. 179,060/=. It did not investigate the underlying retainer or the quantum claimed. It simply held that the Court could not exercise original taxation jurisdiction and struck out the motion. In those circumstances, the Taxing Officer properly treated the matter as a straightforward opposed application whose gravamen was jurisdiction.
17. . Fourthly, the Applicant’s own conduct before the taxing officer is not without significance. In the response to the bill of costs, the Applicant himself proposed item 1 at Kshs. 3,000/= and invoked the provision relating to opposed applications, rather than Schedule 6 paragraph 1(b). That does not estopp him from mounting a reference, but it underscores that even at taxation stage the matter was treated as an application rather than as a substantive suit with ascertainable subject matter under paragraph 1(b).
18. . I have also considered the issue that the Taxing Officer failed to record special reasons for not awarding at least Kshs. 75,000/=. That argument presupposes that paragraph 1(b) applied in the first place. Having found that the proceedings did not fall under that paragraph, the contention does not stand .
19. In my view, the Taxing Officer did exactly what paragraph 11 requires of her once objection was taken. She furnished reasons. Those reasons show that she considered the record, identified the nature of the application, considered that it was opposed but simple, and then settled on the minimum sum prescribed as per the scale . Whether another taxing officer might have awarded a somewhat higher figure is beside the point. The question is whether the figure of Kshs. 5,000/= or the approach adopted discloses error of principle. I find that it does not.
20. The authorities cited by the Applicant do not persuade me otherwise. KANU National Elections Board turned on a taxing officer who relied on election petition decisions from the High Court when taxing a tribunal matter, thus applying the wrong scale. Nyangito and Aoro reiterate the familiar principle that interference lies where there is error of principle. I respectfully agree with those statements of law. However, the present case is materially different. Here, I am not satisfied that the Taxing Officer applied the wrong schedule or ignored the true nature of the proceedings.
21. I therefore come to the conclusion that the Applicant has not shown that the decision was based on an error of principle, nor that the amount awarded was so manifestly low as to justify interference by this Court.
F. Disposition
22. In the upshot , I find that :
a. The Chamber Summons dated 22nd August 2025 is without merit.
b The same is hereby dismissed.
c. The taxation of item 1 in the ruling of the Taxing Officer delivered on 30th
June 2025 is upheld.
d. The Respondent / Applicant in the instant application shall bear the costs of the reference.
It is so ordered.
T.A ODERA
JUDGE
25.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 25TH DAY OF MARCH 2026, IN THE PRESENCE OF MISS ODERA FOR APPLICANT /RESPONDENT & OMONDI FOR RESPONDENT/APLICANT . COURT ASSISTANT ONKUNDI