1By a Ruling dated 13th May 2021, the learned Taxing Officer taxed the 1st Respondent’s Bill of Costs in the sum of Kshs 162,760/=.
1.The Appellant was dissatisfied with the said ruling and filed the reference which is the subject of the ruling.
2.By its reference, the Appellant asked the Court to review, set aside or vary the decision which the taxing officer made in respect to the following items; 5, 6, 7, 8, 12, 15, 17, 18, 19, 21, 22, 23, 25, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49.
Overcharging for Perusal
4.The Appellant submitted that the 1st Respondents had overcharged for perusal of their own authorities.
5.However, the Appellant did not specify the impropriety in the said decision.
6.I find that the Appellant did not show that the taxing officer had applied the wrong principles in respect to this issue.
7.There was no indication of any irrelevant factors which the taxing officer had taken into account.
8.There was also no indication that the taxing officer had failed to take into account some relevant factor.
Did the taxing officer exercise her discretion judicially or not?
11.The taxing officer expressed herself in the following manner;
12.According to the 1st Respondent;
13.Frankly, I failed to trace, in the ruling, the consideration which the 1st Respondents alluded to in their submissions. The taxing officer made no reference to the complexity of the case.
14.She did not talk about adopting a flexible or sensible approach to the task of striking the balance.
15.Furthermore, the taxing officer did not make reference to any particular features of the appeal.
16.The ruling was precise. It taxed the Party and Party of Costs as drawn, because it had been drawn to scale and/or because it was reasonable, in consonance with the sixth schedule of the Advocates Remuneration Order.
17.Assuming that the taxing officer was very right, regarding the fact that the Bill of Costs was drawn to scale, that cannot be a sufficient answer to the reference herein.
18.I so find because during taxation the Appellant had already pointed out that some of the fees claimed by the 1st Respondent were not supported by evidence that would show the actual services rendered.
19.As was held in the case of DESAI, SARUIA & PALLAN ADVOCATES Vs JAMBO BISCUITS (KENYA) LIMITED  eKLR;
20.I would add that even when the Bill of Costs was not opposed, it is imperative that the taxing officer verifies matters such as whether or not the Applicant attended court on the dates cited in the bill; whether or not the disbursements claimed were backed with receipts; and whether or not the trial court had awarded costs of a particular application or a particular attendance, to the Applicant.
21.In the case of MUMIAS SUGAR COMPANY LIMITED Vs TOM OJIENDA & ASSOCIATES  eKLR, the Court held as follows;
22.It cannot be right to award to an Applicant an amount which he claimed as a disbursement, if he did not provide proof of such disbursement.
23.In the case of HEZRON ODHIAMBO ABOK Vs PRAJAPAT PRAVINBHAI JIVABHAI HC. MISC. APPLICATION NO. 84 OF 2018, Musyoka J. held that;
24.In this case I find that the taxing officer did not verify whether or not the 1st Respondents had attended Court on all the instances when they claim to have done so.
25.In the circumstances I find that there are grounds for interfering with the decision of the taxing officer. Therefore, I allow the reference, set aside the ruling dated 13th May 2021, and order the Hon. Lina Akoth to undertake the task of tasking the Bill of Costs afresh.
26.Ordinarily, a fresh taxation would be conducted by a different taxing officer; but because the error in this case is one which requires verification, I find that there would be no prejudice to any of the parties if the same taxing officer conducted the requisite process of verification.
27.As regards the costs of the reference, I order that the same shall await the fresh taxation. If the exercise yields a result that is less than the sum awarded earlier, the 1st Respondent would pay the costs of the reference.
28.On the other hand, if the results remain the same as earlier awarded, the Appellant shall pay to the 1st Respondent the costs of the reference.