Introduction
1. Before this Court is the Applicant’s Chamber Summons dated 20th February 2026 brought under section 89 of the Civil Procedure Act, Schedule 7 of the Advocates Remuneration Order, 2014 and paragraph 11 of the Advocates Remuneration Order. The application arises from the ruling on assessment of party and party costs delivered on 11th February 2026 in Kisii CMCC No. E498 of 2023.
2. The Applicant seeks, that the judgment sum be subtracted from the assessed party and party costs and that, after such subtraction, the assessed bill be subjected to 50% reduction on account of contributory negligence, liability having been apportioned equally at 50:50 in the judgment delivered on 29th October 2025.
3. The application is supported by the affidavit of Everline Ogato sworn on 20th February 2026. The Respondent opposed the application through Grounds of Opposition dated 26th February 2026 and written submissions dated 10th March 2026.
Background
4. The primary suit was Kisii CMCC No. E498 of 2023, Beatrice Nyaboke Omoro alias Gisemba v Wilfred Nyachae Nyakoe. Judgment was delivered on 29th October 2025. The trial court apportioned liability at 50:50 between the Plaintiff and the Defendant and awarded the Plaintiff an all-inclusive sum of Kshs. 613,525/= together with costs and interest.
5. The Respondent thereafter filed her party and party bill of costs dated 29th October 2025 seeking Kshs. 792,075/=. By a ruling delivered on 11th February 2026, the learned taxing officer taxed the bill at Kshs. 743,475/=.
6. The Applicant’s complaint is twofold: first, that the judgment sum of Kshs. 613,525/= was erroneously included as part of the assessed costs; and second, that the taxing officer failed to subject the party and party costs to the 50% contributory negligence found in the judgment.
Parties’ Positions
7. The Applicant submitted that, since liability was apportioned at 50:50, the Respondent only partially succeeded in the suit. The Applicant relies on Note 3 to Schedule 7 of the Advocates Remuneration Order, which provides that where success in a suit is divided, the scale may be distributed having regard to partial success on either side. It was therefore argued that awarding full costs to the Respondent without taking into account the 50% contribution was an error in principle.
8. The Applicant further submitted that the judgment sum is distinct from costs and cannot form part of the assessed party and party costs. The Applicant urges the Court to subtract the judgment sum from the amount taxed and then subject the balance to 50% reduction.
9. The Respondent opposed the application on grounds that it is frivolous, vexatious, incompetent, defective, an abuse of court process and lacking in merit. In submissions, the Respondent argued that the Applicant has not demonstrated any error of principle warranting this Court’s interference with the taxing officer’s discretion.
10. The Respondent further argued that costs follow the event under section 27 of the Civil Procedure Act, unless the court orders otherwise. According to the Respondent, the trial court awarded costs to the Plaintiff and did not expressly order that the Plaintiff would only receive half costs. The Respondent therefore contends that the taxing officer properly taxed the bill as presented.
Issues for Determination
11. Having considered the application, the supporting affidavit, the Grounds of Opposition, the rival submissions and the authorities cited, the following issues arise for determination:
a. Whether the reference is properly before this Court;
b. Whether the Court should interfere with the taxing officer’s ruling;
c. Whether the judgment sum ought to form part of party and party costs;
d. Whether the assessed costs should be subjected to 50% contributory negligence; and
e. Who should bear the costs of this reference.
Analysis
12. Paragraph 11 of the Advocates Remuneration Order provides the procedure for challenging a decision of a taxing officer. The Applicant filed a notice of objection after the ruling delivered on 11th February 2026 and subsequently moved this Court by way of reference. I am satisfied that the reference is properly before this Court.
13. The principles upon which a court may interfere with a taxing officer’s decision are settled. In First American Bank of Kenya Ltd v Shah & 2 others [2002] KEHC 1277 (KLR) the court held that a judge will not interfere with the taxing officer’s decision unless it is shown that the decision was based on an error of principle, or that the fee awarded was so manifestly excessive or low as to justify an inference that it was based on an error of principle.
14. Similarly, in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA 162, the Court stated that taxation of costs is not a mathematical exercise but a matter of opinion based on experience; however, the discretion must be exercised judicially and upon correct principles.
15. The first issue the applicant took with the taxation is inclusion of the judgment sum in the taxed costs . A judgment sum is the decretal amount awarded to a successful party. Party and party costs are the expenses recoverable by a litigant in respect of the conduct of proceedings. The two are distinct. A judgment sum cannot be taxed as costs but is used to determine instruction fees as per the scale during taxation of party to party costs . To include the decretal sum in the bill of costs would amount to conflating the fruits of judgment with recoverable costs .
16. In the present case, the bill placed before the taxing officer included the decretal sum of Kshs. 613,525/= before setting out the items claimed as costs. The taxing officer taxed the bill at Kshs. 743,475/=. To the extent that the decretal sum was treated as part of the assessed party and party costs, that was an error of principle. The decretal sum ought to be excluded from the taxed costs.
17. The second issue concerns the effect of contributory negligence on costs. The trial court apportioned liability at 50:50. That finding means that the Plaintiff succeeded only partially. Note 3 to Schedule 7 of the Advocates Remuneration Order provides that where success in a suit is divided, the scale may be distributed having regard to partial success on either side.
18. I am persuaded by the reasoning in Nyaanga & another v Otieno, Misc. Civil Application E034 of 2022 [2023] KEHC 502 (KLR), where the Court held that where liability had been apportioned, the successful party was entitled to costs only to the extent of his partial success. The same principle applies here. The Respondent succeeded to the extent of 50%. A taxation which awards full costs without reflecting the apportioned liability does not accord with the judgment and the relevant note under Schedule 7.
19. I do not agree with the Respondent’s submission that because the judgment awarded costs, the Respondent was automatically entitled to full costs. Section 27 of the Civil Procedure Act gives the court discretion on costs, but that discretion must be read together with the actual outcome of the suit. Where success is divided by an express finding on liability, costs ought, unless good reason exists, to mirror that partial success.
20. I therefore find that the taxing officer erred in principle by failing to exclude the judgment sum from the party and party costs and by failing to subject the properly assessable costs to the 50% contribution.
21. The amount taxed was Kshs. 743,475/=. The judgment sum of Kshs. 613,525/= is hereby excluded. The remaining assessable party and party costs are therefore Kshs. 129,950/=. Subjecting that amount to the 50% contributory negligence leaves Kshs. 64,975/=.
Disposition
22. In the result, the Chamber Summons dated 20th February 2026 succeeds in the following terms:
a. The ruling on assessment of costs delivered on 11th February 2026 in Kisii CMCC No. E498 of 2023 is set aside to the extent that it assessed party and party costs at Kshs. 743,475/= without excluding the judgment sum and without applying the 50% contributory negligence.
b. The judgment sum of Kshs. 613,525/= shall not form part of the party and party costs.
c. The properly assessable costs are hereby computed at Kshs. 129,950/=.
d. The said sum shall be subjected to 50% contribution, leaving payable party and party costs of Kshs. 64,975/=.
e. The Respondent shall therefore recover party and party costs in Kisii CMCC No. E498 of 2023 in the sum of Kshs. 64,975/=.
f. Each party shall bear its own costs of this reference.
T.A ODERA
JUDGE
4.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 4TH DAY OF MAY 2026 IN THE PRESENCE OF MISS NYASANI FOR THE APPLICANT FOR THE APPLICANT & MISS OLOO FOR THE RESPONDENT . CA KIPCHIRCHIR
1. Before this Court is the Applicant’s Chamber Summons dated 20th February 2026 brought under section 89 of the Civil Procedure Act, Schedule 7 of the Advocates Remuneration Order, 2014 and paragraph 11 of the Advocates Remuneration Order. The application arises from the ruling on assessment of party and party costs delivered on 11th February 2026 in Kisii CMCC No. E498 of 2023.
2. The Applicant seeks, that the judgment sum be subtracted from the assessed party and party costs and that, after such subtraction, the assessed bill be subjected to 50% reduction on account of contributory negligence, liability having been apportioned equally at 50:50 in the judgment delivered on 29th October 2025.
3. The application is supported by the affidavit of Everline Ogato sworn on 20th February 2026. The Respondent opposed the application through Grounds of Opposition dated 26th February 2026 and written submissions dated 10th March 2026.
Background
4. The primary suit was Kisii CMCC No. E498 of 2023, Beatrice Nyaboke Omoro alias Gisemba v Wilfred Nyachae Nyakoe. Judgment was delivered on 29th October 2025. The trial court apportioned liability at 50:50 between the Plaintiff and the Defendant and awarded the Plaintiff an all-inclusive sum of Kshs. 613,525/= together with costs and interest.
5. The Respondent thereafter filed her party and party bill of costs dated 29th October 2025 seeking Kshs. 792,075/=. By a ruling delivered on 11th February 2026, the learned taxing officer taxed the bill at Kshs. 743,475/=.
6. The Applicant’s complaint is twofold: first, that the judgment sum of Kshs. 613,525/= was erroneously included as part of the assessed costs; and second, that the taxing officer failed to subject the party and party costs to the 50% contributory negligence found in the judgment.
Parties’ Positions
7. The Applicant submitted that, since liability was apportioned at 50:50, the Respondent only partially succeeded in the suit. The Applicant relies on Note 3 to Schedule 7 of the Advocates Remuneration Order, which provides that where success in a suit is divided, the scale may be distributed having regard to partial success on either side. It was therefore argued that awarding full costs to the Respondent without taking into account the 50% contribution was an error in principle.
8. The Applicant further submitted that the judgment sum is distinct from costs and cannot form part of the assessed party and party costs. The Applicant urges the Court to subtract the judgment sum from the amount taxed and then subject the balance to 50% reduction.
9. The Respondent opposed the application on grounds that it is frivolous, vexatious, incompetent, defective, an abuse of court process and lacking in merit. In submissions, the Respondent argued that the Applicant has not demonstrated any error of principle warranting this Court’s interference with the taxing officer’s discretion.
10. The Respondent further argued that costs follow the event under section 27 of the Civil Procedure Act, unless the court orders otherwise. According to the Respondent, the trial court awarded costs to the Plaintiff and did not expressly order that the Plaintiff would only receive half costs. The Respondent therefore contends that the taxing officer properly taxed the bill as presented.
Issues for Determination
11. Having considered the application, the supporting affidavit, the Grounds of Opposition, the rival submissions and the authorities cited, the following issues arise for determination:
a. Whether the reference is properly before this Court;
b. Whether the Court should interfere with the taxing officer’s ruling;
c. Whether the judgment sum ought to form part of party and party costs;
d. Whether the assessed costs should be subjected to 50% contributory negligence; and
e. Who should bear the costs of this reference.
Analysis
12. Paragraph 11 of the Advocates Remuneration Order provides the procedure for challenging a decision of a taxing officer. The Applicant filed a notice of objection after the ruling delivered on 11th February 2026 and subsequently moved this Court by way of reference. I am satisfied that the reference is properly before this Court.
13. The principles upon which a court may interfere with a taxing officer’s decision are settled. In First American Bank of Kenya Ltd v Shah & 2 others [2002] KEHC 1277 (KLR) the court held that a judge will not interfere with the taxing officer’s decision unless it is shown that the decision was based on an error of principle, or that the fee awarded was so manifestly excessive or low as to justify an inference that it was based on an error of principle.
14. Similarly, in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA 162, the Court stated that taxation of costs is not a mathematical exercise but a matter of opinion based on experience; however, the discretion must be exercised judicially and upon correct principles.
15. The first issue the applicant took with the taxation is inclusion of the judgment sum in the taxed costs . A judgment sum is the decretal amount awarded to a successful party. Party and party costs are the expenses recoverable by a litigant in respect of the conduct of proceedings. The two are distinct. A judgment sum cannot be taxed as costs but is used to determine instruction fees as per the scale during taxation of party to party costs . To include the decretal sum in the bill of costs would amount to conflating the fruits of judgment with recoverable costs .
16. In the present case, the bill placed before the taxing officer included the decretal sum of Kshs. 613,525/= before setting out the items claimed as costs. The taxing officer taxed the bill at Kshs. 743,475/=. To the extent that the decretal sum was treated as part of the assessed party and party costs, that was an error of principle. The decretal sum ought to be excluded from the taxed costs.
17. The second issue concerns the effect of contributory negligence on costs. The trial court apportioned liability at 50:50. That finding means that the Plaintiff succeeded only partially. Note 3 to Schedule 7 of the Advocates Remuneration Order provides that where success in a suit is divided, the scale may be distributed having regard to partial success on either side.
18. I am persuaded by the reasoning in Nyaanga & another v Otieno, Misc. Civil Application E034 of 2022 [2023] KEHC 502 (KLR), where the Court held that where liability had been apportioned, the successful party was entitled to costs only to the extent of his partial success. The same principle applies here. The Respondent succeeded to the extent of 50%. A taxation which awards full costs without reflecting the apportioned liability does not accord with the judgment and the relevant note under Schedule 7.
19. I do not agree with the Respondent’s submission that because the judgment awarded costs, the Respondent was automatically entitled to full costs. Section 27 of the Civil Procedure Act gives the court discretion on costs, but that discretion must be read together with the actual outcome of the suit. Where success is divided by an express finding on liability, costs ought, unless good reason exists, to mirror that partial success.
20. I therefore find that the taxing officer erred in principle by failing to exclude the judgment sum from the party and party costs and by failing to subject the properly assessable costs to the 50% contribution.
21. The amount taxed was Kshs. 743,475/=. The judgment sum of Kshs. 613,525/= is hereby excluded. The remaining assessable party and party costs are therefore Kshs. 129,950/=. Subjecting that amount to the 50% contributory negligence leaves Kshs. 64,975/=.
Disposition
22. In the result, the Chamber Summons dated 20th February 2026 succeeds in the following terms:
a. The ruling on assessment of costs delivered on 11th February 2026 in Kisii CMCC No. E498 of 2023 is set aside to the extent that it assessed party and party costs at Kshs. 743,475/= without excluding the judgment sum and without applying the 50% contributory negligence.
b. The judgment sum of Kshs. 613,525/= shall not form part of the party and party costs.
c. The properly assessable costs are hereby computed at Kshs. 129,950/=.
d. The said sum shall be subjected to 50% contribution, leaving payable party and party costs of Kshs. 64,975/=.
e. The Respondent shall therefore recover party and party costs in Kisii CMCC No. E498 of 2023 in the sum of Kshs. 64,975/=.
f. Each party shall bear its own costs of this reference.
T.A ODERA
JUDGE
4.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 4TH DAY OF MAY 2026 IN THE PRESENCE OF MISS NYASANI FOR THE APPLICANT FOR THE APPLICANT & MISS OLOO FOR THE RESPONDENT . CA KIPCHIRCHIR