1. This is a Reference challenging assessment of costs by the Taxing Officer in this now concluded case. The case was a commercial recovery suit in which the Plaintiff sued the 1 st Defendant and its directors (2 nd and 3 rd Defendants) over a debt claim of Ksh 12,591,088.80 plus costs and interest at 36% per annum from 1/11/1995. In response, the 2 nd Defendant filed a Counterclaim or Set-off claiming, inter alia , an amount of Kshs 26,680,197.05 against the Plaintiff. After full trial, M. Odero J on 4/06/2021 entered Judgment against the 1 st Defendant as prayed but dismissed the claim against the directors (1 st and 2 nd Defendant) with costs. The Counterclaim and/or Set-off filed by the 2 nd Defendant was also dismissed for being time-barred.
2. Thereafter, the 2 nd and 3 rd Defendants, through Messrs Shah & Parekh & Co . Advocates , filed the Bill of Costs dated 19/03/2025 computed at the aggregate sum of Kshs 3,685,058/-, which Bill was then taxed by one of the Deputy Registrars of this Court, Hon. C. Adisa , sitting as the Taxing Officer, and awarded on 11/08/2025 at the sum of Kshs 616,713/-.
3. Dissatisfied with the amount at which the Bill of Costs were taxed, the 1 st and 2 nd Defendants filed this Reference by way of the Notice of Motion dated 25/08/2025 under the provisions of Rule 11 of the Advocates (Remuneration) (Amendment) Order, 2014) . The orders sought are as follows:
i) The Honourable Court be pleased to grant an order that items 1, 2, 38, 51, 132, 153, 154, 155, 181, 269, 295, 359, and 390 of Applicant’s Bill of Costs dated 19 th day of March 2025 be re-taxed by another Deputy Registrar.
ii) In the alternative, this Honourable Court may re-tax the said items to save time.
iii) That the costs of this Application be paid to the Applicants.
4. In his Affidavit filed in support of the Application, Mr. H.M. Parekh , Counsel for the 2 nd and 3 rd Defendants, pointed out that the Plaintiff did not respond to, or challenge the Bill which was then taxed unopposed but also deponed that the Taxing Officer Registrar proceeded to tax the Bill without inviting him to address her on the same. He then faulted the Taxing Officer for failing to take into consideration various factors, including that the value of the subject matter is Kshs 67,819,533.55, and not Kshs 12,591,088.80, and as such, awarded instruction fees under Paragraph 1(a) of the Remuneration Order , and also failed to consider the fall of value of money. He also faulted the Taxing Officer for only taking into account the Judgment sum, and ignoring the interest which the Applicants were successful in getting the rate of interest reduced from 36% to 16.5%. Counsel also deponed that the Taxing Officer for failing to take into consideration, while assessing “getting-up” fees, that the case lasted 25 years and there were many adjournments and each time the case had to be prepared for trial. According to him, the Taxing Officer has the discretion to increase “ getting-up ” fees as the phrase used is the Remuneration Order is “ not less than 1/3 of the instruction fees ”. In the end, he urged that the Taxing Officer failed to take into consideration that the Plaintiff did not attend Court to object to any items in the Bill of Costs hence the Plaintiff is deemed to have agreed that the figures charged were reasonable. Counsel also included in the Affidavit mathematical computations of the amounts he proposed for award for the items in contention.
5. The Application is opposed by the Plaintiff by way of the Grounds of Opposition dated 13/05/2026 filed through its Lawyers, TripleOKLaw Advocates LLP . The grounds preferred are that taxation of costs is a matter falling within the discretion of the Taxing Officer and this Court ought not to interfere with such discretion absent proof of error in principle or manifest excessiveness, which has not beer established herein, and that the Taxing Officer properly directed herself on the applicable principles governing taxation under the Remuneration Order , and exercised her discretion judiciously and within the confines of the law. It was also contended that the value of the subject matter was ascertainable from the pleadings and/or judgment and the Taxing Officer properly relied on the same in assessing instruction fees, that the Applicants’ attempt to introduce figures, valuations, and considerations outside the pleadings and judgment is contrary to settled jurisprudence requiring the value of the subject matter to be derived strictly from the pleadings, judgment, or settlement. It was further asserted that the Applicants have failed to demonstrate that the instruction fees taxed was exaggerated, or was manifestly excessive so as to amount to an error in principle. The case of Joreth Ltd v Kigano & Associates [2002] 1 EA 92 , the case of First American Bank of Kenva v Shah & Others [2002]1 EA 64 , and the case of Peter Muthoka & Another v Ochiens & 3 Others [2019] eKLR , were cited. In respect to disbursements, it was contended that the Taxing Officer properly exercised her discretion under Rules 16, 19, and 74 of the Remuneration Order in allowing only those expenses deemed reasonable, necessary, and properly incurred, and that the Applicants have failed to establish any factual or legal basis warranting interference with the same. Finally, it was asserted that the Reference merely invites this Court to re- evaluate the Bill of Costs and substitute its own discretion for that of the Taxing Officer, which invitation ought to be declined, and that the Applicants have failed to satisfy the legal threshold for setting aside or varying the taxation.
6. The parties then filed written Submissions. The Applicants’ (1 st and 2 nd Defendants’) Submissions is dated 31/03/2026, while the Plaintiff’s is dated 13/05/2026. Both Submissions, save for citing authorities, are basically restatements of the matters already recounted above.
Determination
7. The issue in this matter is basically “ whether this Court should interfere with the taxation of the Applicants’ Bill of Costs and enhance the awards made in respect to the identified items ”
8. The principles that guide the High Court when considering a Reference from the decision of a Taxing Officer are fairly settled. For instance, in the case of Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR the Court of Appeal guided as follows:
“The learned judge like the taxing officer was exercising judicial discretion when he allowed the reference. This Court cannot interfere with the exercise of that discretion unless it is shown that the learned judge acted on the wrong principles of law. The appeal to this Court from the decision of a judge on reference from a taxing officer is akin to a second appeal and should be governed by Section 72 (1) of the Civil Procedure Act . In our view, such an appeal can only be allowed on any of the three grounds specified in Section 72 (1) of the Civil Procedure Act , that is to say, if the decision is contrary to law or some usage having the force of law; or the decision has failed to determine some issue(s) of law or usage having the force of law or where there is a substantial error or defect in the procedure provided by law which may possibly have produced error or defect in the decision on the case upon merits.”
9. Similarly, in the case of Kamunyori & Company Advocates v Development Bank of Kenya Limited (2015) Civil Appeal 206 of 2006 , the Court of Appeal held that:
“Authorities on taxation show that a Judge will normally not interfere with the Taxing Officer’s decision on taxation unless it is based on an error of principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of principle can be inferred. If instructions fee is arrived at on the wrong principles, it will be set aside.”
10. Further, in the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR , the Court of Appeal held as follows:
“It is not lost to us …....... that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them. It is not a wild and unaccountable discretion, however, because it is at its core and by definition a judicial discretion to be exercised, not capriciously at a whim, but on settled principles. When it is shown that there was a misdirection on some matter resulting in a wrong decision, or it is manifest from the case as a whole that the discretion was improperly exercised, resulting in mis-justice, to borrow the holding in MBOGO -vs- SHAH (Supra), then the decision though discretionary, may properly be interfered with. ..............................”
11. Keeping the above principles in mind, I shall now consider and determine each of the items in the Bill of Costs in respect to which awards made by the Taxing Officer the Applicants are aggrieved:
12. Before I proceed however, I notice that although listed or included in the Application as some of items in respect to which awards are challenged, the Applicants have not made any further reference whether in the Supporting Affidavit or Submissions on items 153, 154, 155, 181, 269 , and 359 of the Bill of Costs to enable the Court understand the nature of their grievance thereon. As such, I presume that challenges on those items have been abandoned. I also note that although the Applicants have, both in the Supporting Affidavit and Submissions, made reference to items No. 267 and 389 , these are not among the items listed in the Application as being challenged herein. Under these circumstances, I will also not consider them.
Item No. 1 - Instruction Fees
13. In determining this item, the question is whether in assessing the “ instruction fees ”, the subject matter of the suit was ascertainable, and thus whether the Taxing Officer exercised her discretion correctly.
14. It is evident that the Applicants, in their Bill of Costs dated 19/03/2025 filed before the Taxing Officer sought “ instruction fees ” at the sum of Kshs 1,400,000/-. The Taxing Officer in awarding the much lesser sum of Kshs 228,866/- as “ instruction fees ”, stated as follows:
“The Applicants’ counsel was instructed on 7th March, 1995. The applicant seeks instruction fees of Kshs. 1,400,000/-.
It is settled law that the value of the subject matter for purposes of assessing instruction fees is based on the judgment where the matter is concluded.
The Court of Appeal in Joreth Limited v. Kigano and Associates (2002) 1E. A 92 held as follows;
“We would at this stage point out that the value of the subject matter of a suit for taxation of a bill of costs ought to be determined from the pleadings judgment or settlement (if such be the case) but if the same is not ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances.
In this case, the judgment was delivered on 4th June, 2021, at Kshs. 12,591,088.80/= which I adopt as the value of the subject matter
Schedule VI of the Advocates’ Remuneration Order 1997 provides,
Fees where the value of the subject matter is 1,000,000/- is Kshs. 55, 000/=
Where the value of the subject matter exceeds 1,000,000 fees, as for 1,000,000/- plus an additional 1.5%
Therefore, fees where the value of the subject matter is 12,591,088.80/-
55,000 + (11, 591,088.80 x 1.5%)
= 228,866/=
Kshs, 1,171,134/= is taxed off”
15. In this Reference, Counsel for the Applicants, while agreeing that as this suit was filed in 2006, computation of “ instruction fees ” is to be made under the provisions of Paragraph 1(b) of the 1997 Advocates Renumeration Order , Schedule VI , , however submits that computation of “ instruction fee ” ought to be under the following different formula:
Principal sum claimed in the Plaint
Kshs 12,591,088.80
Interest at 36% per annum from 1/11/1995 (date of filing suit) to 4/06/2021 (date of Judgment) - 25 years and 6 months
Kshs 28,388,938.20
Kshs 115,244,683.46
Basic instruction fees
On the first Kshs 1,000,000/-
Kshs 55,000.00
On the balance of Kshs 115,244,683.46 at 1.5%
Kshs 1,728,670.25
Total basic instruction fees
Kshs 1,783,670.25
16. Counsel then contends that to the above figure, an increase should be added to the 2nd Defendant, who filed a separate defence, and also for complexity of the case and inflation. Counsel does not however explain why after asking for a sum of Kshs 1,400,000/- before the Taxing Officer, he has now changed positions and is now asking for a much higher figure.
17. I also note that in the Supporting Affidavit filed in this Reference, the Applicants proposed yet another different figure of Kshs 2,094,585.70 based on yet another different formula as follows:
Judgment sum
Kshs 12,591,088.80
Interest awarded at the rate of 16.5% per annum instead of 36% per annum
Kshs 55,222,444.75
Total decretal sum
Kshs 67,819,533.50
Instruction fees for 1st Defendant
On 1st Kshs 1,000,000.00 of Kshs 67,819,533.50
Kshs 55,000.00
On balance of Kshs 66,819,533.50 at 1.5%
Kshs 1,002,292.85
Kshs 1,057,292.85
Add instruction fees for 2nd Defendant
On 1st Kshs 1,000,000.00
Kshs 35,000.00
On balance of Kshs 66,819,5323.50 at 1.5%
Kshs 1,002,292.85
Kshs 1,037,292.85
Kshs 2,094,585.70
18. The presentation of conflicting formulae and different figures in respect to computation of “ instruction fees ” by the Applicants at different stages of arguing their Bill of Costs, is evidence that they are unsure of the formula they wish to applied. If the different or conflicting formulae have been deliberately given, then no explanation has been given on this constant “shifting of goal-posts” as regards the formula and figures. This presentation of contradictory and/or inconsistent formulae at different stages of arguing the Bill of Costs in fact offends the rule that parties are bound by their pleadings since it amounts to litigation by ambush considering that the opposing party (the Plaintiff) and also the Court are rendered unable to identify the precise points of disagreement - the ‘issues for determination’ – or the case that is being responded to. Allowing parties to continuously change their positions midway through cases creates chaos, and drags out proceedings. Keeping parties bound to their initial pleadings ensures that the litigation process moves forward predictably and reaches a final, binding conclusion. With the presentation of a new formula at the Reference stage, how is this Court expected to determine whether there was a misdirection on the part of the Taxing Officer resulting in a wrong decision, or whether the Taxing Officer improperly exercised her discretion when the very arguments presented before her and determined as such, have now metamorphosised into a completely different argument? In other words, what exactly is this Court being asked to find the Taxing Officer in fault of when the very arguments she was invited to determine, which she did as invited, have now been changed?
19. More importantly, the 3 different but conflicting formulae presented by the Applicant expose some glaring misconceptions or ignoring of some basic principals of taxation of Bill of costs. For instance, by asking for “ instruction fees ” on the Counterclaim, the Applicants overlook the fact that the Counterclaim, their very own, was dismissed in its entirety, and no order given thereon on costs. In other instances, the Applicants, instead of computing “ instruction fees ” on the principal judgment amount only, have wrongly added accrued interest onto the principal sum and lumped the aggregate decretal figure as one composite amount for purposes of computing “ instruction fees ”. This is obviously erroneous as it unjustifiably inflates the figure upon which “ instructions fees ” is to be correctly computed. The Supreme Court, in the case of Kenya Airports Authority v Otieno Ragot & Co. Advocates SCoK Petition E011 of 2023 , guided that costs should be reasonable to a level where the charges should not impede access to justice by litigants. As appreciated by Aburili J in the case of Riaroh & another v Owino & another (Commercial Miscellaneous Application E004 of 2023) [2024] KEHC 10193 (KLR) (15 August 2024) Ruling , the said Supreme Court decision “ is significant as it underscores the constitutional safeguard of the right of access to justice and the principle that costs should be kept to a reasonable level so that justice is not put beyond the reach of poor litigants ”. Lumping of the principal judgment amount with interest accrued thereon into one aggregate sum for purposes of computing instruction fees as proposed by the Applicants herein unjustifiably inflates the value of the subject matter, and clearly offends the spirit of the Supreme Court gidance above. An award of interest is simply a mechanism to compensate a successful party for the loss or non-payment of money over time, or to restore his pecuniary interest due to a breach of contract. It is not meant to serve as a basis for computing “ instruction fees ” for purposes of taxing costs.
20. For the above reasons, I have no material to fault the Taxing Officer for upholding the accepted principle that the basis for determining the subject matter value for purposes of “ instruction fees ” is wholly dependent on the stage at which the fee is being taxed. As such, once judgment has been entered, recourse will no longer be had to the pleadings since the judgment does determine conclusively the value of the subject matter. This is because a claim, no matter how pleaded, gets its true value as adjudged by the Court ( see the case of Peter Muthoka (supra)) . It is thus only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, that the Taxing Officer is permitted to use his/her discretion to assess “ instructions fees ” in accordance with what he considers just, bearing in mind the various recognized elements. As further observed in the Peter Muthoka case (supra)) , the Taxing Officer does have discretion as to what he considers just “ but that discretion kicks in only after he/she has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement. He/she has no leeway to disregard the statutorily commanded starting point ”.
21. What I however find merited in this Reference is the Applicants’ protest that the Taxing Officer failed to exercise her discretion to reasonably increase the “ instruction fees ”. Indeed, the Remuneration Order permits the Taxing Officer to increase “ instruction fees ” at his/her discretion when the unique circumstances of the case present exceptional demands that make the standard statutory minimum or scale fees inadequate to fairly compensate the Advocate. As established in judicial principles such as in the landmark case of Joreth Ltd v Kigano & Associates [2002] 1 EA 92 (Civil Appeal No. 66 of 1999 [2002] eKLR ) , this discretion must be exercised logically, and the Taxing Officer must explicitly state the specific reasons justifying the increase. The circumstances that justify an upward variation of instruction fees include instances such as where the case involves intricate, untested, or novel points of law that require extensive, deep-dive research, and exceptional legal acumen, instances where the case involved is a highly specialized or technically demanding dispute, and instances where the case involved sheer bulk, magnitude, and complexity of pleadings, expert reports, and exhibits that require intensive analysis. Other instances include where the case involved exceptionally high pecuniary value, high property worth, or high financial stakes, in cases that carry immense public importance or important constitutional or judicial interpretations with far-reaching implications, cases that have spanned over an excessive time span requiring sustained active management over many years, and also where the trial Judge directs or recommends that the successful party should be granted enhanced higher costs due to the nature of the case. The Taxing Officer is, in fact, enjoined to take into account the amount of work done by an Advocate, the interest of the parties, the general conduct of the proceedings including the time taken, and all other relevant considerations. As observed in the Supreme Court case of Outa v Odoto & 3 others (Petition 6 of 2014) [2023] KESC 75 (KLR) (22 September 2023) (Ruling) , the essence of costs and the discretion to allow a reasonable increase over and above the minimum charge, is to ensure that a successful litigant/party receives a fair reimbursement/recompense for the costs/expenses he has had to incur on account of a suit.
22. In this case, the Taxing Officer did not give any increase, and did not at all address the issue. Looking at the case in general, I agree with Counsel for the Applicants that the litigation was marginally complex considering that the Defendants, in challenging the loan recovery claim, raised, inter alia , the difficult argument that the interest of 36% levied by the Plaintiff on the demanded loan was unconscionable and illegal, which argument, although highly contested, the Court eventually upheld and reduced the interest rate to 16.5%. The case also involved determinations on the not so easy issue of whether the guarantees invoked were void. It was clearly therefore not an “everyday run of the mill” case. The suit was also in Court for a whole 16 years before it was determined, and no doubt, required continuous, sustained and active management by the Advocates for all those years. Inflation ought to have also been factored noting that the case was filed under the regime of the 1997 Remuneration Order but was eventually determined during the regime of the 2014 Remuneration Order yet the law tied the Applicants Advocates to “ instruction fees ” computed under the obsolete and repealed 1997 Remuneration Order . In failing to address the matter of increase, which was ‘glaring at her in the eye” even as she assessed “ instruction fees ”, the Taxing Officer failed to determine an important issue of law or practice having the force of law and as such, fell into an error of principle and a misdirection.
23. As such, I increase and/or enhance the “ instruction fees ” (Item No. 1) from the sum of Kshs 228,866/-awarded to the Applicants, which I find to have been too low in the circumstances, to a sum of Kshs 500,000/-, which I find reasonable and fair.
Item No. 2 – Getting-Up Fee
24. A “ getting-up fee ” is basically a legal cost allowed by a taxing officer in a bill of costs to compensate an Advocate for extra preparation and difficult work done for getting ready for a trial. Under Paragraph 2 of Schedule 6 of the Renumeration Order , it is pegged as a fraction, namely, “ not less than one-third ” of the “ instruction fee ”. In this case, no reason has been given why the Court should give an award over and above the one-third starting point noting that I have already increased the “ instruction fees ” with the result that the final figure computed under this item shall also increase. In the circumstances, having enhanced the “ instruction fee ” to Kshs 500,000/-, applying the one-third formula, “ getting-up fee ” shall now be Kshs 166,667/-.
Item No. 38 and 51 – Instruction Fee to Draw Notices of Motion
25. The Taxing Officer disallowed both these items claimed at Kshs 10,000/- each on the ground that they were “ not drawn to scale ”. I agree with Applicant’s Counsel that this ground used to disallow the two items is unknown in law. Under Paragraph 1(o)(viii) of Schedule VI of the 1997 Renumeration Order , the amount provided “ where the Application is opposed , such sum as may be reasonable but not less than Kshs 2,500” , I award a sum of Kshs 5,000/- for each of the two items.
Item No. 132 – Instruction Fee on Notice of Motion
26. This item claimed at Kshs 5,000/- was taxed off in its entirety without any reasons being given. As such, I restore and award it as prayed at Kshs 5,000/-.
Item No. 295 – Making 3 copies of Pleadings and Documents of Approx. 40 Folios
27. For this item claimed at Kshs 30,000/-, a sum of Kshs 10,000/- was taxed off. The Taxing Officer is presumed to have perused the Court file, and satisfied herself on taxing-off of the Kshs 10,000/-. I will not therefore interfere.
Item No. 390 – Witness Allowance Paid to Expert Witness
28. This item, claimed as a disbursement at Kshs 200,000/-, was disallowed for not being “ supported by any vouchers ”. As the Applicants do not deny that indeed they did not attach any form of document to support the item, I decline to interfere with the Taxing Officer’s decision. For an amount claimed under Rule 16, 19 of the Remuneration Order as a disbursement for payment made to an expert witness, like special damages, it is not always a question of awarding a reasonable sum. Such nature of disbursement, unless it can be satisfactorily explained why supporting documents such as a receipt cannot be produced or are not necessary, ought to be backed up by evidence of the payment. Indeed, Rule 74 provides that “ subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officer .”
Final Order
29. For the foregoing reasons, the 2 nd and 3 rd Defendant’s (Applicants) dated 25/087/2025 only partially succeeds, only to the following extent:
The Ruling of the Deputy Registrar, sitting as Taxing Officer, rendered in this matter on 11/08/2025 is set aside and substituted only to the extent of the amounts increased in respect to the following five items:
Item No. in Bill of Costs
Sum awarded by Taxing Officer
Sum now enhanced to
Item No. 1
Kshs 228,866/-
Kshs 500,000.00
Item No. 2
Kshs 76,289/-
Kshs 166,667.00
Item No. 38
Nil
Kshs 5,000.00
Item No. 51
Nil
Kshs 5,000.00
Item No. 132
Nil
Kshs 5,000.00
30. The Deputy Registrar of this Court shall therefore issue a Certificate of Costs in accordance with the above substitution.
31. As the Reference has only partially succeeded, each party shall bear his/its own costs of the Reference.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14 TH DAY OF AUGUST 2026
……………..……..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Mr. Okiring Papaa for the Plaintiff
Mr. Mwaura – Court Assistant at Shah & Parekh Advocates for the Defendants
Court Assistant: Amos Boso
Milimani High Court Commercial Court Case No. 91 of 2005
2. Thereafter, the 2 nd and 3 rd Defendants, through Messrs Shah & Parekh & Co . Advocates , filed the Bill of Costs dated 19/03/2025 computed at the aggregate sum of Kshs 3,685,058/-, which Bill was then taxed by one of the Deputy Registrars of this Court, Hon. C. Adisa , sitting as the Taxing Officer, and awarded on 11/08/2025 at the sum of Kshs 616,713/-.
3. Dissatisfied with the amount at which the Bill of Costs were taxed, the 1 st and 2 nd Defendants filed this Reference by way of the Notice of Motion dated 25/08/2025 under the provisions of Rule 11 of the Advocates (Remuneration) (Amendment) Order, 2014) . The orders sought are as follows:
i) The Honourable Court be pleased to grant an order that items 1, 2, 38, 51, 132, 153, 154, 155, 181, 269, 295, 359, and 390 of Applicant’s Bill of Costs dated 19 th day of March 2025 be re-taxed by another Deputy Registrar.
ii) In the alternative, this Honourable Court may re-tax the said items to save time.
iii) That the costs of this Application be paid to the Applicants.
4. In his Affidavit filed in support of the Application, Mr. H.M. Parekh , Counsel for the 2 nd and 3 rd Defendants, pointed out that the Plaintiff did not respond to, or challenge the Bill which was then taxed unopposed but also deponed that the Taxing Officer Registrar proceeded to tax the Bill without inviting him to address her on the same. He then faulted the Taxing Officer for failing to take into consideration various factors, including that the value of the subject matter is Kshs 67,819,533.55, and not Kshs 12,591,088.80, and as such, awarded instruction fees under Paragraph 1(a) of the Remuneration Order , and also failed to consider the fall of value of money. He also faulted the Taxing Officer for only taking into account the Judgment sum, and ignoring the interest which the Applicants were successful in getting the rate of interest reduced from 36% to 16.5%. Counsel also deponed that the Taxing Officer for failing to take into consideration, while assessing “getting-up” fees, that the case lasted 25 years and there were many adjournments and each time the case had to be prepared for trial. According to him, the Taxing Officer has the discretion to increase “ getting-up ” fees as the phrase used is the Remuneration Order is “ not less than 1/3 of the instruction fees ”. In the end, he urged that the Taxing Officer failed to take into consideration that the Plaintiff did not attend Court to object to any items in the Bill of Costs hence the Plaintiff is deemed to have agreed that the figures charged were reasonable. Counsel also included in the Affidavit mathematical computations of the amounts he proposed for award for the items in contention.
5. The Application is opposed by the Plaintiff by way of the Grounds of Opposition dated 13/05/2026 filed through its Lawyers, TripleOKLaw Advocates LLP . The grounds preferred are that taxation of costs is a matter falling within the discretion of the Taxing Officer and this Court ought not to interfere with such discretion absent proof of error in principle or manifest excessiveness, which has not beer established herein, and that the Taxing Officer properly directed herself on the applicable principles governing taxation under the Remuneration Order , and exercised her discretion judiciously and within the confines of the law. It was also contended that the value of the subject matter was ascertainable from the pleadings and/or judgment and the Taxing Officer properly relied on the same in assessing instruction fees, that the Applicants’ attempt to introduce figures, valuations, and considerations outside the pleadings and judgment is contrary to settled jurisprudence requiring the value of the subject matter to be derived strictly from the pleadings, judgment, or settlement. It was further asserted that the Applicants have failed to demonstrate that the instruction fees taxed was exaggerated, or was manifestly excessive so as to amount to an error in principle. The case of Joreth Ltd v Kigano & Associates [2002] 1 EA 92 , the case of First American Bank of Kenva v Shah & Others [2002]1 EA 64 , and the case of Peter Muthoka & Another v Ochiens & 3 Others [2019] eKLR , were cited. In respect to disbursements, it was contended that the Taxing Officer properly exercised her discretion under Rules 16, 19, and 74 of the Remuneration Order in allowing only those expenses deemed reasonable, necessary, and properly incurred, and that the Applicants have failed to establish any factual or legal basis warranting interference with the same. Finally, it was asserted that the Reference merely invites this Court to re- evaluate the Bill of Costs and substitute its own discretion for that of the Taxing Officer, which invitation ought to be declined, and that the Applicants have failed to satisfy the legal threshold for setting aside or varying the taxation.
6. The parties then filed written Submissions. The Applicants’ (1 st and 2 nd Defendants’) Submissions is dated 31/03/2026, while the Plaintiff’s is dated 13/05/2026. Both Submissions, save for citing authorities, are basically restatements of the matters already recounted above.
Determination
7. The issue in this matter is basically “ whether this Court should interfere with the taxation of the Applicants’ Bill of Costs and enhance the awards made in respect to the identified items ”
8. The principles that guide the High Court when considering a Reference from the decision of a Taxing Officer are fairly settled. For instance, in the case of Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR the Court of Appeal guided as follows:
“The learned judge like the taxing officer was exercising judicial discretion when he allowed the reference. This Court cannot interfere with the exercise of that discretion unless it is shown that the learned judge acted on the wrong principles of law. The appeal to this Court from the decision of a judge on reference from a taxing officer is akin to a second appeal and should be governed by Section 72 (1) of the Civil Procedure Act . In our view, such an appeal can only be allowed on any of the three grounds specified in Section 72 (1) of the Civil Procedure Act , that is to say, if the decision is contrary to law or some usage having the force of law; or the decision has failed to determine some issue(s) of law or usage having the force of law or where there is a substantial error or defect in the procedure provided by law which may possibly have produced error or defect in the decision on the case upon merits.”
9. Similarly, in the case of Kamunyori & Company Advocates v Development Bank of Kenya Limited (2015) Civil Appeal 206 of 2006 , the Court of Appeal held that:
“Authorities on taxation show that a Judge will normally not interfere with the Taxing Officer’s decision on taxation unless it is based on an error of principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of principle can be inferred. If instructions fee is arrived at on the wrong principles, it will be set aside.”
10. Further, in the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR , the Court of Appeal held as follows:
“It is not lost to us …....... that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them. It is not a wild and unaccountable discretion, however, because it is at its core and by definition a judicial discretion to be exercised, not capriciously at a whim, but on settled principles. When it is shown that there was a misdirection on some matter resulting in a wrong decision, or it is manifest from the case as a whole that the discretion was improperly exercised, resulting in mis-justice, to borrow the holding in MBOGO -vs- SHAH (Supra), then the decision though discretionary, may properly be interfered with. ..............................”
11. Keeping the above principles in mind, I shall now consider and determine each of the items in the Bill of Costs in respect to which awards made by the Taxing Officer the Applicants are aggrieved:
12. Before I proceed however, I notice that although listed or included in the Application as some of items in respect to which awards are challenged, the Applicants have not made any further reference whether in the Supporting Affidavit or Submissions on items 153, 154, 155, 181, 269 , and 359 of the Bill of Costs to enable the Court understand the nature of their grievance thereon. As such, I presume that challenges on those items have been abandoned. I also note that although the Applicants have, both in the Supporting Affidavit and Submissions, made reference to items No. 267 and 389 , these are not among the items listed in the Application as being challenged herein. Under these circumstances, I will also not consider them.
Item No. 1 - Instruction Fees
13. In determining this item, the question is whether in assessing the “ instruction fees ”, the subject matter of the suit was ascertainable, and thus whether the Taxing Officer exercised her discretion correctly.
14. It is evident that the Applicants, in their Bill of Costs dated 19/03/2025 filed before the Taxing Officer sought “ instruction fees ” at the sum of Kshs 1,400,000/-. The Taxing Officer in awarding the much lesser sum of Kshs 228,866/- as “ instruction fees ”, stated as follows:
“The Applicants’ counsel was instructed on 7th March, 1995. The applicant seeks instruction fees of Kshs. 1,400,000/-.
It is settled law that the value of the subject matter for purposes of assessing instruction fees is based on the judgment where the matter is concluded.
The Court of Appeal in Joreth Limited v. Kigano and Associates (2002) 1E. A 92 held as follows;
“We would at this stage point out that the value of the subject matter of a suit for taxation of a bill of costs ought to be determined from the pleadings judgment or settlement (if such be the case) but if the same is not ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances.
In this case, the judgment was delivered on 4th June, 2021, at Kshs. 12,591,088.80/= which I adopt as the value of the subject matter
Schedule VI of the Advocates’ Remuneration Order 1997 provides,
Fees where the value of the subject matter is 1,000,000/- is Kshs. 55, 000/=
Where the value of the subject matter exceeds 1,000,000 fees, as for 1,000,000/- plus an additional 1.5%
Therefore, fees where the value of the subject matter is 12,591,088.80/-
55,000 + (11, 591,088.80 x 1.5%)
= 228,866/=
Kshs, 1,171,134/= is taxed off”
15. In this Reference, Counsel for the Applicants, while agreeing that as this suit was filed in 2006, computation of “ instruction fees ” is to be made under the provisions of Paragraph 1(b) of the 1997 Advocates Renumeration Order , Schedule VI , , however submits that computation of “ instruction fee ” ought to be under the following different formula:
Principal sum claimed in the Plaint
Kshs 12,591,088.80
Interest at 36% per annum from 1/11/1995 (date of filing suit) to 4/06/2021 (date of Judgment) - 25 years and 6 months
Kshs 28,388,938.20
Kshs 115,244,683.46
Basic instruction fees
On the first Kshs 1,000,000/-
Kshs 55,000.00
On the balance of Kshs 115,244,683.46 at 1.5%
Kshs 1,728,670.25
Total basic instruction fees
Kshs 1,783,670.25
16. Counsel then contends that to the above figure, an increase should be added to the 2nd Defendant, who filed a separate defence, and also for complexity of the case and inflation. Counsel does not however explain why after asking for a sum of Kshs 1,400,000/- before the Taxing Officer, he has now changed positions and is now asking for a much higher figure.
17. I also note that in the Supporting Affidavit filed in this Reference, the Applicants proposed yet another different figure of Kshs 2,094,585.70 based on yet another different formula as follows:
Judgment sum
Kshs 12,591,088.80
Interest awarded at the rate of 16.5% per annum instead of 36% per annum
Kshs 55,222,444.75
Total decretal sum
Kshs 67,819,533.50
Instruction fees for 1st Defendant
On 1st Kshs 1,000,000.00 of Kshs 67,819,533.50
Kshs 55,000.00
On balance of Kshs 66,819,533.50 at 1.5%
Kshs 1,002,292.85
Kshs 1,057,292.85
Add instruction fees for 2nd Defendant
On 1st Kshs 1,000,000.00
Kshs 35,000.00
On balance of Kshs 66,819,5323.50 at 1.5%
Kshs 1,002,292.85
Kshs 1,037,292.85
Kshs 2,094,585.70
18. The presentation of conflicting formulae and different figures in respect to computation of “ instruction fees ” by the Applicants at different stages of arguing their Bill of Costs, is evidence that they are unsure of the formula they wish to applied. If the different or conflicting formulae have been deliberately given, then no explanation has been given on this constant “shifting of goal-posts” as regards the formula and figures. This presentation of contradictory and/or inconsistent formulae at different stages of arguing the Bill of Costs in fact offends the rule that parties are bound by their pleadings since it amounts to litigation by ambush considering that the opposing party (the Plaintiff) and also the Court are rendered unable to identify the precise points of disagreement - the ‘issues for determination’ – or the case that is being responded to. Allowing parties to continuously change their positions midway through cases creates chaos, and drags out proceedings. Keeping parties bound to their initial pleadings ensures that the litigation process moves forward predictably and reaches a final, binding conclusion. With the presentation of a new formula at the Reference stage, how is this Court expected to determine whether there was a misdirection on the part of the Taxing Officer resulting in a wrong decision, or whether the Taxing Officer improperly exercised her discretion when the very arguments presented before her and determined as such, have now metamorphosised into a completely different argument? In other words, what exactly is this Court being asked to find the Taxing Officer in fault of when the very arguments she was invited to determine, which she did as invited, have now been changed?
19. More importantly, the 3 different but conflicting formulae presented by the Applicant expose some glaring misconceptions or ignoring of some basic principals of taxation of Bill of costs. For instance, by asking for “ instruction fees ” on the Counterclaim, the Applicants overlook the fact that the Counterclaim, their very own, was dismissed in its entirety, and no order given thereon on costs. In other instances, the Applicants, instead of computing “ instruction fees ” on the principal judgment amount only, have wrongly added accrued interest onto the principal sum and lumped the aggregate decretal figure as one composite amount for purposes of computing “ instruction fees ”. This is obviously erroneous as it unjustifiably inflates the figure upon which “ instructions fees ” is to be correctly computed. The Supreme Court, in the case of Kenya Airports Authority v Otieno Ragot & Co. Advocates SCoK Petition E011 of 2023 , guided that costs should be reasonable to a level where the charges should not impede access to justice by litigants. As appreciated by Aburili J in the case of Riaroh & another v Owino & another (Commercial Miscellaneous Application E004 of 2023) [2024] KEHC 10193 (KLR) (15 August 2024) Ruling , the said Supreme Court decision “ is significant as it underscores the constitutional safeguard of the right of access to justice and the principle that costs should be kept to a reasonable level so that justice is not put beyond the reach of poor litigants ”. Lumping of the principal judgment amount with interest accrued thereon into one aggregate sum for purposes of computing instruction fees as proposed by the Applicants herein unjustifiably inflates the value of the subject matter, and clearly offends the spirit of the Supreme Court gidance above. An award of interest is simply a mechanism to compensate a successful party for the loss or non-payment of money over time, or to restore his pecuniary interest due to a breach of contract. It is not meant to serve as a basis for computing “ instruction fees ” for purposes of taxing costs.
20. For the above reasons, I have no material to fault the Taxing Officer for upholding the accepted principle that the basis for determining the subject matter value for purposes of “ instruction fees ” is wholly dependent on the stage at which the fee is being taxed. As such, once judgment has been entered, recourse will no longer be had to the pleadings since the judgment does determine conclusively the value of the subject matter. This is because a claim, no matter how pleaded, gets its true value as adjudged by the Court ( see the case of Peter Muthoka (supra)) . It is thus only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, that the Taxing Officer is permitted to use his/her discretion to assess “ instructions fees ” in accordance with what he considers just, bearing in mind the various recognized elements. As further observed in the Peter Muthoka case (supra)) , the Taxing Officer does have discretion as to what he considers just “ but that discretion kicks in only after he/she has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement. He/she has no leeway to disregard the statutorily commanded starting point ”.
21. What I however find merited in this Reference is the Applicants’ protest that the Taxing Officer failed to exercise her discretion to reasonably increase the “ instruction fees ”. Indeed, the Remuneration Order permits the Taxing Officer to increase “ instruction fees ” at his/her discretion when the unique circumstances of the case present exceptional demands that make the standard statutory minimum or scale fees inadequate to fairly compensate the Advocate. As established in judicial principles such as in the landmark case of Joreth Ltd v Kigano & Associates [2002] 1 EA 92 (Civil Appeal No. 66 of 1999 [2002] eKLR ) , this discretion must be exercised logically, and the Taxing Officer must explicitly state the specific reasons justifying the increase. The circumstances that justify an upward variation of instruction fees include instances such as where the case involves intricate, untested, or novel points of law that require extensive, deep-dive research, and exceptional legal acumen, instances where the case involved is a highly specialized or technically demanding dispute, and instances where the case involved sheer bulk, magnitude, and complexity of pleadings, expert reports, and exhibits that require intensive analysis. Other instances include where the case involved exceptionally high pecuniary value, high property worth, or high financial stakes, in cases that carry immense public importance or important constitutional or judicial interpretations with far-reaching implications, cases that have spanned over an excessive time span requiring sustained active management over many years, and also where the trial Judge directs or recommends that the successful party should be granted enhanced higher costs due to the nature of the case. The Taxing Officer is, in fact, enjoined to take into account the amount of work done by an Advocate, the interest of the parties, the general conduct of the proceedings including the time taken, and all other relevant considerations. As observed in the Supreme Court case of Outa v Odoto & 3 others (Petition 6 of 2014) [2023] KESC 75 (KLR) (22 September 2023) (Ruling) , the essence of costs and the discretion to allow a reasonable increase over and above the minimum charge, is to ensure that a successful litigant/party receives a fair reimbursement/recompense for the costs/expenses he has had to incur on account of a suit.
22. In this case, the Taxing Officer did not give any increase, and did not at all address the issue. Looking at the case in general, I agree with Counsel for the Applicants that the litigation was marginally complex considering that the Defendants, in challenging the loan recovery claim, raised, inter alia , the difficult argument that the interest of 36% levied by the Plaintiff on the demanded loan was unconscionable and illegal, which argument, although highly contested, the Court eventually upheld and reduced the interest rate to 16.5%. The case also involved determinations on the not so easy issue of whether the guarantees invoked were void. It was clearly therefore not an “everyday run of the mill” case. The suit was also in Court for a whole 16 years before it was determined, and no doubt, required continuous, sustained and active management by the Advocates for all those years. Inflation ought to have also been factored noting that the case was filed under the regime of the 1997 Remuneration Order but was eventually determined during the regime of the 2014 Remuneration Order yet the law tied the Applicants Advocates to “ instruction fees ” computed under the obsolete and repealed 1997 Remuneration Order . In failing to address the matter of increase, which was ‘glaring at her in the eye” even as she assessed “ instruction fees ”, the Taxing Officer failed to determine an important issue of law or practice having the force of law and as such, fell into an error of principle and a misdirection.
23. As such, I increase and/or enhance the “ instruction fees ” (Item No. 1) from the sum of Kshs 228,866/-awarded to the Applicants, which I find to have been too low in the circumstances, to a sum of Kshs 500,000/-, which I find reasonable and fair.
Item No. 2 – Getting-Up Fee
24. A “ getting-up fee ” is basically a legal cost allowed by a taxing officer in a bill of costs to compensate an Advocate for extra preparation and difficult work done for getting ready for a trial. Under Paragraph 2 of Schedule 6 of the Renumeration Order , it is pegged as a fraction, namely, “ not less than one-third ” of the “ instruction fee ”. In this case, no reason has been given why the Court should give an award over and above the one-third starting point noting that I have already increased the “ instruction fees ” with the result that the final figure computed under this item shall also increase. In the circumstances, having enhanced the “ instruction fee ” to Kshs 500,000/-, applying the one-third formula, “ getting-up fee ” shall now be Kshs 166,667/-.
Item No. 38 and 51 – Instruction Fee to Draw Notices of Motion
25. The Taxing Officer disallowed both these items claimed at Kshs 10,000/- each on the ground that they were “ not drawn to scale ”. I agree with Applicant’s Counsel that this ground used to disallow the two items is unknown in law. Under Paragraph 1(o)(viii) of Schedule VI of the 1997 Renumeration Order , the amount provided “ where the Application is opposed , such sum as may be reasonable but not less than Kshs 2,500” , I award a sum of Kshs 5,000/- for each of the two items.
Item No. 132 – Instruction Fee on Notice of Motion
26. This item claimed at Kshs 5,000/- was taxed off in its entirety without any reasons being given. As such, I restore and award it as prayed at Kshs 5,000/-.
Item No. 295 – Making 3 copies of Pleadings and Documents of Approx. 40 Folios
27. For this item claimed at Kshs 30,000/-, a sum of Kshs 10,000/- was taxed off. The Taxing Officer is presumed to have perused the Court file, and satisfied herself on taxing-off of the Kshs 10,000/-. I will not therefore interfere.
Item No. 390 – Witness Allowance Paid to Expert Witness
28. This item, claimed as a disbursement at Kshs 200,000/-, was disallowed for not being “ supported by any vouchers ”. As the Applicants do not deny that indeed they did not attach any form of document to support the item, I decline to interfere with the Taxing Officer’s decision. For an amount claimed under Rule 16, 19 of the Remuneration Order as a disbursement for payment made to an expert witness, like special damages, it is not always a question of awarding a reasonable sum. Such nature of disbursement, unless it can be satisfactorily explained why supporting documents such as a receipt cannot be produced or are not necessary, ought to be backed up by evidence of the payment. Indeed, Rule 74 provides that “ subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officer .”
Final Order
29. For the foregoing reasons, the 2 nd and 3 rd Defendant’s (Applicants) dated 25/087/2025 only partially succeeds, only to the following extent:
The Ruling of the Deputy Registrar, sitting as Taxing Officer, rendered in this matter on 11/08/2025 is set aside and substituted only to the extent of the amounts increased in respect to the following five items:
Item No. in Bill of Costs
Sum awarded by Taxing Officer
Sum now enhanced to
Item No. 1
Kshs 228,866/-
Kshs 500,000.00
Item No. 2
Kshs 76,289/-
Kshs 166,667.00
Item No. 38
Nil
Kshs 5,000.00
Item No. 51
Nil
Kshs 5,000.00
Item No. 132
Nil
Kshs 5,000.00
30. The Deputy Registrar of this Court shall therefore issue a Certificate of Costs in accordance with the above substitution.
31. As the Reference has only partially succeeded, each party shall bear his/its own costs of the Reference.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14 TH DAY OF AUGUST 2026
……………..……..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Mr. Okiring Papaa for the Plaintiff
Mr. Mwaura – Court Assistant at Shah & Parekh Advocates for the Defendants
Court Assistant: Amos Boso
Milimani High Court Commercial Court Case No. 91 of 2005