1. The Applicant’s reference is presented vide the chamber summons application dated 2nd April, 2025, expressed to be brought under Rule 11(2) of the Advocates (Remuneration) (Amendment) Order, 2014 and Sections 1A and 3A of the Civil Procedure Act and all other enabling provisions of the law and seeks the following orders:
a) That the decision of the Taxing Officer given on 20th March, 2025 together with all consequential orders be set aside forthwith.
b) That the Honourable Court be pleased to order the Applicant’s bill of costs dated 28th January, 2025 be assessed afresh with regards to all the disallowed but contested items.
c) That the costs of this application be provided for.
2. The listed grounds upon which the application is premised are in precis that the Applicant is aggrieved by the ruling of the Taxing Master delivered on 20th March, 2025, rendering this application necessary.
3. The application is supported by the affidavit of Geoffrey O. Okoth, Advocate sworn on 2nd April, 2025 in which the deponent states that the Applicant is challenging the Taxing Master’s determination on items 5, 7, 9, 10, 13, 17, 24, 25, 26, 28 and 30. The bill of costs is annexed to the affidavit of service as “GOO-1” and the ruling of the Taxing Master as “GOO-2”.
4. As per annexture “GOO -1”, items 5, 7, 9, 13, 17, 26 and 30 are in respect of service of various court process upon the Respondent in Kitale and within Kisumu while items 24, 25 and 28 concern attendances when the parties recorded a consent; recording a consent, when the defence case was closed; and for judgement, respectively. Item 10 is in respect of drawing an affidavit of service.
5. In her ruling, the learned Taxing Master, after considering the respective items in the bill of costs, rendered herself as follows:
“12. I have noted with great concern that out of the 39 items included in the Plaintiff’s bill of costs, only 15 items have been allowed as having been drawn to scale. Section 77 of the Advocates (Remuneration) Order provides as follows:
“77. Where more than one-sixth taxed off
(1). If more than one-sixth of the total amount of a bill of cost, exclusive of court fees, be disallowed on taxation, the party presenting the bill for taxation may, in the discretion of the taxing officer, be disallowed the costs of such taxation.
(2). The decision of the taxing officer under this rule shall be final.”
13. Essentially the amount taxed off from the Plaintiff’s bill of costs is to the tune of Ksh.47,900/- which is more than one-sixth of Ksh.60,100/- being the total amount of the bill of costs exclusive of the court fees. In light of that, the bill of costs dated 28th January, 2025 is hereby disallowed pursuant to the above provision.”
6. The application proceeded by way of written submissions and the Applicant’s main contention is that the learned Taxing Master misinterpreted Section 77 of the Advocates (Remuneration) Order and disallowed the entire bill of costs.
7. Learned Counsel for the Applicant, Mr. Okoth, took the view that as costs of the suit had already been awarded to the Applicant, interpreting Section 77 as did the Taxing Master resulted in an absurdity and a contradiction, in that the same party that was granted costs of the suit, was now denied costs vide the ruling on assessment.
8. Mr. Okoth’s interpretation of the Section is that in applying her discretion under the provision, the only thing that the Taxing Master was mandated to do was to was to disallow the costs of the taxation but not the entire bill. The costs of the taxation, urged Counsel, would only affect items 28 to 37, which are items that concerned the taxation or assessment itself and not the costs of the items that concerned the suit.
9. Largely conceding to the arguments by Mr. Okoth on Section 77, Ms. Kirabo, learned Counsel for the Respondent submitted that the matter should be remitted back to the trial court for a fresh taxation or assessment.
10. Having carefully considered the chamber summons application, the supporting affidavit, the annextures thereto including the ruling of the Taxing Master and the submissions by both learned Counsel, the court is of the view that the dispute before it turns on two closely related issues.
11. First, whether the learned Taxing Master erred in principle in her interpretation and application of Section 77 of the Advocates (Remuneration) Order so as to warrant interference by this court.
12. Second, depending on the resolution of the first issue, what is the appropriate and just order to make in the circumstances of this reference.
13. The applicable legal principles on interference with taxation are well settled. The court does not sit as a Taxing Officer and will not lightly interfere with the exercise of discretion by a Taxing Master merely because it would have arrived at a different figure.
14. Interference is only justified where it is shown that the Taxing Officer acted on a wrong principle, failed to consider a relevant factor, considered an irrelevant factor or that the decision reached is so manifestly excessive or so manifestly low as to amount to an error in principle.
15. This position was articulated in the case of Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA 162 and reaffirmed in the decision of First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64.
16. It therefore follows that once an error of principle is established, this court is not only entitled but duty-bound to intervene.
17. I will now proceed to consider the construction and scope of Section 77 of the Advocates (Remuneration) Order. The fulcrum of this reference is the meaning and effect of the said provision. The provision empowers a Taxing Officer, where more than one-sixth of the total amount of a bill of costs is disallowed on taxation, to disallow, in the exercise of discretion, “the costs of such taxation.”
18. The wording of the Section is deliberate and circumscribed. It does not speak to the disallowance of the entire bill of costs, nor does it confer authority to negate costs of the suit that have already been awarded by a competent court.
19. A plain and purposive reading of the provision demonstrates that its object is punitive but limited: to discourage the presentation of exaggerated or inflated bills by exposing the party presenting such a bill to the risk of losing the costs attendant to the taxation process itself. It does not, either expressly or by implication, permit the extinguishment of the substantive entitlement to costs of the suit.
20. In the present case, the learned Taxing Master, having found that more than one-sixth of the bill had been taxed off, proceeded to disallow the entire bill of costs, purportedly pursuant to Section 77. With respect, that approach amounted to a fundamental misdirection in law. By collapsing the distinction between costs of the suit and costs of taxation, the Taxing Officer applied Section 77 beyond its lawful reach. That amounted to an error of principle in the impugned ruling.
21. Costs of the suit are awarded by the trial court as an incident of the judgment or order determining the dispute. Taxation or assessment is merely the machinery through which those costs are quantified.
22. To deny a successful party the entirety of their costs through taxation, in circumstances where the trial court had already awarded costs, is to indirectly overturn the order on costs made by the trial court, a jurisdiction that the taxing officer does not possess.
23. The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] 1 KLR 528 cautioned that Taxing Officers must act strictly within the parameters of the Advocates (Remuneration) Order and that a departure from those parameters constitutes an error of principle warranting interference on reference. The ruling impugned herein falls squarely within that category.
24. What then are the consequences of the misinterpretation of Section 77? The misapplication of Section 77 had the effect of producing an outcome that is both legally untenable and practically unjust. It resulted in the Applicant, who had been awarded costs of the suit, being wholly deprived of those costs through a taxation or assessment process that was meant only to quantify them. Such an outcome offends the basic principles governing the award and assessment of costs, including the principle that costs follow the event unless the court orders otherwise and that taxation should be fair, reasonable and consistent with the Advocates Remuneration Order.
25. In these circumstances, the court is satisfied that the learned Taxing Master acted on a wrong principle, thereby opening the door for this court’s intervention.
26. What appropriate remedy is available? Once an error of principle is established, the general and preferred course is for the court to remit the bill back for fresh taxation or assessment rather than undertake the taxation itself. This preserves the statutory role of the Taxing Officer and avoids the court descending into the arena of first instance assessment.
27. Where, as here, the error goes to the root of the decision, it is also prudent that the fresh taxation be conducted before a different taxing officer, so as to safeguard both the reality and appearance of impartiality. This approach accords with established practice and principle and ensures that the parties obtain a lawful and objective reassessment of the bill.
28. For the foregoing reasons, the court finds that the reference dated 2nd April, 2025 is merited. Accordingly, the court makes the following orders:
a. The decision of the Taxing Master delivered on 20th March, 2025, together with all consequential orders, is hereby set aside in its entirety.
b. The Applicant’s bill of costs dated 28th January, 2025 is hereby remitted for fresh taxation/assessment before a Taxing Master other than Hon. M.N. Olonyi.
c. The fresh taxation shall be conducted strictly in accordance with the Advocates (Remuneration) Order and the applicable principles governing the assessment of party and party costs.
d. The original record in Tamu SPMCC No. E094 of 2023 to be placed before the Head of Station, Tamu Senior Principal Magistrate’s Court on 12th March, 2026 for further orders/directions as to the fresh taxation/assessment in line with this ruling. A copy of this ruling to be placed inside the said file.
e. The costs of this reference shall abide the outcome of the fresh taxation.
29. This file is hereby closed.
30. It is so ordered.
DELIVERED (virtually), DATED and SIGNED this 26th day of February, 2026.
JOE M. OMIDO
JUDGE
FOR THE APPLICANT: Ms. Aguko.
FOR THE RESPONDENT: Ms. Ongong’a.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
a) That the decision of the Taxing Officer given on 20th March, 2025 together with all consequential orders be set aside forthwith.
b) That the Honourable Court be pleased to order the Applicant’s bill of costs dated 28th January, 2025 be assessed afresh with regards to all the disallowed but contested items.
c) That the costs of this application be provided for.
2. The listed grounds upon which the application is premised are in precis that the Applicant is aggrieved by the ruling of the Taxing Master delivered on 20th March, 2025, rendering this application necessary.
3. The application is supported by the affidavit of Geoffrey O. Okoth, Advocate sworn on 2nd April, 2025 in which the deponent states that the Applicant is challenging the Taxing Master’s determination on items 5, 7, 9, 10, 13, 17, 24, 25, 26, 28 and 30. The bill of costs is annexed to the affidavit of service as “GOO-1” and the ruling of the Taxing Master as “GOO-2”.
4. As per annexture “GOO -1”, items 5, 7, 9, 13, 17, 26 and 30 are in respect of service of various court process upon the Respondent in Kitale and within Kisumu while items 24, 25 and 28 concern attendances when the parties recorded a consent; recording a consent, when the defence case was closed; and for judgement, respectively. Item 10 is in respect of drawing an affidavit of service.
5. In her ruling, the learned Taxing Master, after considering the respective items in the bill of costs, rendered herself as follows:
“12. I have noted with great concern that out of the 39 items included in the Plaintiff’s bill of costs, only 15 items have been allowed as having been drawn to scale. Section 77 of the Advocates (Remuneration) Order provides as follows:
“77. Where more than one-sixth taxed off
(1). If more than one-sixth of the total amount of a bill of cost, exclusive of court fees, be disallowed on taxation, the party presenting the bill for taxation may, in the discretion of the taxing officer, be disallowed the costs of such taxation.
(2). The decision of the taxing officer under this rule shall be final.”
13. Essentially the amount taxed off from the Plaintiff’s bill of costs is to the tune of Ksh.47,900/- which is more than one-sixth of Ksh.60,100/- being the total amount of the bill of costs exclusive of the court fees. In light of that, the bill of costs dated 28th January, 2025 is hereby disallowed pursuant to the above provision.”
6. The application proceeded by way of written submissions and the Applicant’s main contention is that the learned Taxing Master misinterpreted Section 77 of the Advocates (Remuneration) Order and disallowed the entire bill of costs.
7. Learned Counsel for the Applicant, Mr. Okoth, took the view that as costs of the suit had already been awarded to the Applicant, interpreting Section 77 as did the Taxing Master resulted in an absurdity and a contradiction, in that the same party that was granted costs of the suit, was now denied costs vide the ruling on assessment.
8. Mr. Okoth’s interpretation of the Section is that in applying her discretion under the provision, the only thing that the Taxing Master was mandated to do was to was to disallow the costs of the taxation but not the entire bill. The costs of the taxation, urged Counsel, would only affect items 28 to 37, which are items that concerned the taxation or assessment itself and not the costs of the items that concerned the suit.
9. Largely conceding to the arguments by Mr. Okoth on Section 77, Ms. Kirabo, learned Counsel for the Respondent submitted that the matter should be remitted back to the trial court for a fresh taxation or assessment.
10. Having carefully considered the chamber summons application, the supporting affidavit, the annextures thereto including the ruling of the Taxing Master and the submissions by both learned Counsel, the court is of the view that the dispute before it turns on two closely related issues.
11. First, whether the learned Taxing Master erred in principle in her interpretation and application of Section 77 of the Advocates (Remuneration) Order so as to warrant interference by this court.
12. Second, depending on the resolution of the first issue, what is the appropriate and just order to make in the circumstances of this reference.
13. The applicable legal principles on interference with taxation are well settled. The court does not sit as a Taxing Officer and will not lightly interfere with the exercise of discretion by a Taxing Master merely because it would have arrived at a different figure.
14. Interference is only justified where it is shown that the Taxing Officer acted on a wrong principle, failed to consider a relevant factor, considered an irrelevant factor or that the decision reached is so manifestly excessive or so manifestly low as to amount to an error in principle.
15. This position was articulated in the case of Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA 162 and reaffirmed in the decision of First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64.
16. It therefore follows that once an error of principle is established, this court is not only entitled but duty-bound to intervene.
17. I will now proceed to consider the construction and scope of Section 77 of the Advocates (Remuneration) Order. The fulcrum of this reference is the meaning and effect of the said provision. The provision empowers a Taxing Officer, where more than one-sixth of the total amount of a bill of costs is disallowed on taxation, to disallow, in the exercise of discretion, “the costs of such taxation.”
18. The wording of the Section is deliberate and circumscribed. It does not speak to the disallowance of the entire bill of costs, nor does it confer authority to negate costs of the suit that have already been awarded by a competent court.
19. A plain and purposive reading of the provision demonstrates that its object is punitive but limited: to discourage the presentation of exaggerated or inflated bills by exposing the party presenting such a bill to the risk of losing the costs attendant to the taxation process itself. It does not, either expressly or by implication, permit the extinguishment of the substantive entitlement to costs of the suit.
20. In the present case, the learned Taxing Master, having found that more than one-sixth of the bill had been taxed off, proceeded to disallow the entire bill of costs, purportedly pursuant to Section 77. With respect, that approach amounted to a fundamental misdirection in law. By collapsing the distinction between costs of the suit and costs of taxation, the Taxing Officer applied Section 77 beyond its lawful reach. That amounted to an error of principle in the impugned ruling.
21. Costs of the suit are awarded by the trial court as an incident of the judgment or order determining the dispute. Taxation or assessment is merely the machinery through which those costs are quantified.
22. To deny a successful party the entirety of their costs through taxation, in circumstances where the trial court had already awarded costs, is to indirectly overturn the order on costs made by the trial court, a jurisdiction that the taxing officer does not possess.
23. The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] 1 KLR 528 cautioned that Taxing Officers must act strictly within the parameters of the Advocates (Remuneration) Order and that a departure from those parameters constitutes an error of principle warranting interference on reference. The ruling impugned herein falls squarely within that category.
24. What then are the consequences of the misinterpretation of Section 77? The misapplication of Section 77 had the effect of producing an outcome that is both legally untenable and practically unjust. It resulted in the Applicant, who had been awarded costs of the suit, being wholly deprived of those costs through a taxation or assessment process that was meant only to quantify them. Such an outcome offends the basic principles governing the award and assessment of costs, including the principle that costs follow the event unless the court orders otherwise and that taxation should be fair, reasonable and consistent with the Advocates Remuneration Order.
25. In these circumstances, the court is satisfied that the learned Taxing Master acted on a wrong principle, thereby opening the door for this court’s intervention.
26. What appropriate remedy is available? Once an error of principle is established, the general and preferred course is for the court to remit the bill back for fresh taxation or assessment rather than undertake the taxation itself. This preserves the statutory role of the Taxing Officer and avoids the court descending into the arena of first instance assessment.
27. Where, as here, the error goes to the root of the decision, it is also prudent that the fresh taxation be conducted before a different taxing officer, so as to safeguard both the reality and appearance of impartiality. This approach accords with established practice and principle and ensures that the parties obtain a lawful and objective reassessment of the bill.
28. For the foregoing reasons, the court finds that the reference dated 2nd April, 2025 is merited. Accordingly, the court makes the following orders:
a. The decision of the Taxing Master delivered on 20th March, 2025, together with all consequential orders, is hereby set aside in its entirety.
b. The Applicant’s bill of costs dated 28th January, 2025 is hereby remitted for fresh taxation/assessment before a Taxing Master other than Hon. M.N. Olonyi.
c. The fresh taxation shall be conducted strictly in accordance with the Advocates (Remuneration) Order and the applicable principles governing the assessment of party and party costs.
d. The original record in Tamu SPMCC No. E094 of 2023 to be placed before the Head of Station, Tamu Senior Principal Magistrate’s Court on 12th March, 2026 for further orders/directions as to the fresh taxation/assessment in line with this ruling. A copy of this ruling to be placed inside the said file.
e. The costs of this reference shall abide the outcome of the fresh taxation.
29. This file is hereby closed.
30. It is so ordered.
DELIVERED (virtually), DATED and SIGNED this 26th day of February, 2026.
JOE M. OMIDO
JUDGE
FOR THE APPLICANT: Ms. Aguko.
FOR THE RESPONDENT: Ms. Ongong’a.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.