REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELC LOS NO. E011 OF 2025
TOPISTA WESONGA (Suing as the legal representative
of the Estate of ALFRED MAKHANU WANYONYI) ……... APPLICANT
= VERSUS =
BENARD OPIYO ODALINGA ……………..………… 1ST RESPONDENT
TIMOTHY OUMA MUNYEKENE …………………… 2ND RESPONDENT
GLADYS AUMA EGESA …………………………….. 3RD RESPONDENT
RULINGS
1. The Court is called upon to determine a Reference dated 28th March 2026 brought under Paragraph 11 of the Advocates Remuneration Order challenging the decision of the Taxing Officer taxing the 2nd Respondent’s Bill of Costs.
2. The Applicant seeks orders setting aside and/or varying the taxation ruling delivered in respect of the 2nd Respondent’s Bill of Costs dated 20th November 2025, vacating the award of instruction fees and other advocate-related costs in favour of the 2nd Respondent, and directing that the Bill be re-taxed by a different Taxing Officer or struck out to the extent that it claims advocate’s instruction fees.
3. The Reference is founded on the grounds that the 2nd Respondent was never represented by an advocate during the proceedings, yet his Bill of Costs claimed instruction fees amounting to Kshs.75,000 together with other advocate-related charges.
4. The Applicant contends that instruction fees under the Advocates Remuneration Order are only recoverable where an advocate has been instructed and has acted for a party. Consequently, the Applicant argues that the Taxing Officer erred in principle by awarding advocate-related costs to an unrepresented litigant, resulting in an unjustified taxation of Kshs.89,490.
5. The Reference is opposed through the Replying Affidavit sworn by the 2nd Respondent on 18th May 2026. The Respondent deposes that the Application is incurably defective and devoid of merit.
6. He states that the Applicant withdrew the substantive suit and, consequently, costs properly followed the event. He further avers that the Applicant’s advocates were duly served with the Bill of Costs but failed to attend the taxation, leaving the Deputy Registrar to tax the Bill in accordance with the law.
7. The Respondent maintains that the taxation was procedurally conducted, the costs awarded were justified, and the present Reference has been brought in bad faith merely to delay the conclusion of the matter. He therefore urges the Court to dismiss the Application with costs.
8. The parties canvassed the Reference by way of written submissions.
9. The Applicant submits that the central issue is whether an unrepresented litigant is entitled to recover instruction fees and advocate-related costs. It is argued that instruction fees are intended to compensate a party for expenses incurred in retaining an advocate and cannot accrue where a litigant act in person.
10. The Applicant maintains that the 2nd Respondent personally conducted the proceedings and no advocate-client relationship existed to justify the award of instruction fees. Reliance is placed on Job Kipkemoi Kilach v Director of Public Prosecutions & 2 Others [2016] eKLR for the proposition that instruction fees are only recoverable where an advocate has been instructed and has acted.
11. The Applicant further argues that the Taxing Officer acted on an error of principle by awarding instruction fees without proof of legal representation, contrary to the Advocates Act and the Advocates Remuneration Order. It is also submitted that certain attendance charges were improperly allowed or inflated beyond the prescribed scale, thereby rendering the entire taxation unjustified.
12. On his part, the 2nd Respondent submits that the Applicant voluntarily withdrew the substantive suit and that costs therefore properly followed the event. He contends that the Bill of Costs was regularly presented and lawfully taxed by the Deputy Registrar. According to the Respondent, no error of principle has been demonstrated to warrant interference with the Taxing Officer’s discretion, and the Applicant is merely seeking to avoid settling the taxed costs. He therefore urges the Court to dismiss the Reference with costs.
13. Having considered the Reference, the Replying Affidavit and the parties’ rival submissions, the Court is of the view that the following issues arise for determination:
a) Whether the Taxing Officer erred in principle in awarding instruction fees and other advocate-related costs to the 2nd Respondent.
b) Whether the impugned taxation should be interfered with by this Court.
c) Who should bear the costs of the Reference.
On whether the Taxing Officer erred in principle in awarding instruction fees and other advocate –related costs to the 2nd Respondent.
14. It is settled law that a Judge will only interfere with the decision of a Taxing Officer where it is demonstrated that the Taxing Officer acted on an error of principle, misdirected himself on the applicable law, took into account irrelevant considerations, failed to take into account relevant considerations, or where the award is so manifestly excessive or low as to amount to an injustice. This principle was succinctly stated in Republic -v- Ministry of Agriculture & 2 Others Ex Parte Muchiri W’Njuguna & 6 Others [2006] eKLR, and reaffirmed in KANU National Elections Board & 2 Others v Salah Yakub Farah [2018] eKLR.
15. The issue raised by the Applicant is that the Taxing Officer awarded the 2nd Respondent instruction fees of Kshs.75,000 and other advocate-related charges despite the undisputed fact that the 2nd Respondent conducted the proceedings in person and was never represented by an advocate.
16. The Court has carefully examined the record of the proceedings leading to the taxation. It is not disputed that throughout the proceedings, the 2nd Respondent personally drew, signed and filed all pleadings, applications, affidavits and submissions in his own name.
17. There is no Notice of Appointment of Advocates, Notice of Change of Advocates, Memorandum of Appearance by an advocate, or any other document demonstrating that the 2nd Respondent instructed an advocate to act on his behalf. Equally, there is no evidence that any advocate appeared in Court for the 2nd Respondent at any stage of the proceedings.
18. Instruction fees under the Advocates Remuneration Order are remuneration payable to an advocate for professional services rendered upon receiving instructions from a client. They compensate a successful litigant for legal expenses incurred in engaging professional legal representation. A litigant acting in person does not incur advocate’s fees and therefore cannot recover instruction fees as though he had retained an advocate.
19. This position finds support in Job Kipkemoi Kilach v Director of Public Prosecutions & 2 Others [2016] eKLR, where the Court emphasized that instruction fees become payable only where an advocate has been instructed and has acted for a party in the proceedings.
20. The Court further notes that the Advocates Act regulates who may recover advocate’s fees. Section 31 of the Act prohibits an unqualified person from acting as an advocate or recovering costs for work reserved for advocates. While the 2nd Respondent was perfectly entitled to represent himself in the proceedings, his right of audience did not entitle him to recover professional fees reserved for advocates.
21. The Respondent has argued that the Applicant withdrew the suit and that costs therefore followed the event. The Court agrees with that proposition. Indeed, the withdrawal of the suit entitled the successful Respondent to an award of costs. However, the entitlement to costs is distinct from the assessment of those costs. Even where a party is entitled to costs, those costs must be taxed strictly in accordance with the Advocates Remuneration Order. The Taxing Officer could not allow items which the law does not recognize merely because the Respondent was entitled to costs.
22. In the Court’s considered view, the absence of any advocate-client relationship was a material and relevant factor that ought to have informed the taxation. By allowing instruction fees and other advocate-related charges without evidence that the 2nd Respondent had instructed an advocate, the Taxing Officer misapprehended the applicable law and thereby fell into an error of principle.
23. The Court therefore finds that the award of instruction fees in the sum of Kshs.75,000 together with any consequential advocate-related charges in favour of the 2nd Respondent was made on a wrong principle and cannot be sustained.
24. Accordingly, the first issue is answered in the affirmative: The Taxing Officer erred in principle by awarding instruction fees and advocate-related costs to the 2nd Respondent, who prosecuted and defended the proceedings in person without legal representation.
On whether the impugned taxation should be interfered with by this Court
25. Having found that the Taxing Officer committed an error of principle by allowing instruction fees and other advocate-related costs to an unrepresented litigant, the next question is whether this Court should interfere with the taxation.
26. The law is settled that a Judge will not lightly interfere with the discretion of a Taxing Officer unless it is demonstrated that the taxation was founded on an error of principle or that the award is manifestly excessive or unjust. Once an error of principle is established, the Court is entitled to set aside the taxation and either re-tax the Bill itself, where appropriate, or remit it for fresh taxation before a different Taxing Officer.
27. In the present case, the instruction fee of Kshs.75,000 formed the substantive component of the taxed Bill. The Taxing Officer’s decision to allow that item was founded on a mistaken application of the law, as the 2nd Respondent was not represented by an advocate and was therefore not entitled to advocate’s remuneration. That error inevitably affected the taxation of the Bill and rendered the resultant award of Kshs.89,490 legally unsustainable.
28. The Court is therefore satisfied that sufficient grounds have been established to warrant interference with the taxation. In the circumstances, the interests of justice would be best served by setting aside the impugned taxation and directing that the Bill of Costs be re-taxed before a different Taxing Officer, excluding any claims for instruction fees and other advocate-related costs not recoverable by a litigant acting in person.
29. Accordingly, the second issue is answered in the affirmative. The impugned taxation cannot be allowed to stand and must be set aside.
On who should bear the costs of the Reference?
30. Costs are at the discretion of the Court under section 27 of the Civil Procedure Act, with the general rule being that costs follow the event.
31. The applicant has successfully demonstrated that the Taxing Officer committed an error of principle. There is no reason to depart from the general rule that the successful party is entitled to costs.
32. Accordingly, the Applicant is awarded the costs of the Reference. The order awarding the 2nd Respondent costs of the withdrawn suit remains intact, but the bill of costs shall be re-taxed in accordance with this ruling.
FINAL DECLARATION AND ORDERS
33. Having considered the reference dated 28th March 2026, the Replying Affidavit, the parties’ written submissions, and the applicable law, the court makes the following findings and orders:
a) A declaration is hereby issued that the Taxing officer erred in principle by awarding instruction fees and other advocate–related costs to the 2nd Respondent, who conducted the proceedings in person without legal representation.
b) The reference dated 28th March 2026 is hereby allowed.
c) The ruling and taxation of the 2nd Respondent’s Party and Party Bill of Costs dated 20th November 2025 are hereby set aside.
d) The Respondent’s Party and Party Bill of Costs shall be re-taxed before a different Taxing Officer, excluding any claim for instruction fees and other advocate–related costs not recoverable by a litigant acting in person.
e) The Applicant shall have the costs of this Reference.
f) It is so ordered.
Ruling dated, signed and delivered in open Court on this 23rd day of July 2026.
C. MUGAMBI
JUDGE
23RD JULY 2026
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