2.Counsel for the Applicant filed a Supporting Affidavit whereby he deponed that the Plaintiff’s bill of costs was taxed at Kshs. 440,951.84/- and being dissatisfied with the taxation, he wrote a letter to the Deputy Registrar requesting for reasons for the taxation but was dissatisfied with the reasons thus the instant application.
3.Mr. Obaga submitted that the instruction fee was grossly undervalued as the Taxing Master only considered the value of the suit property only, but failed to go ahead to consider that the suit took 11 years to be finalized.
4.Counsel further deponed that the Taxing Master never considered the labour or industry and time put in place by counsel therefore failed to consider the agony that the Applicant went through by being denied access to the plot. That to award Kshs. 150,000/= for work done in 11 years is equivalent to paying an advocate Kshs. 1,500/= per year for his labour and work hence grossly unfair and undermines an advocate’s professional work.
5.Mr. Obaga relied on the case of Jeremiah Muku v Methodist Church In Kenya Trustees Registered & Another and submitted that the Taxing Master ought to have considered the labour, industry and time put in the case.
6.It was counsel’s submission that the Taxing Master denied the Applicant fees on counter-claim which the court had ordered that the Plaintiff was entitled to the costs of the suit and the counterclaim and relied on the cases of Ngurumani Limted v Kenya Civil Aviation Authority & 3 Others And Kanyariri & Associates Advocates Versus Salama Beach Hotel Limited & 4 Others where the court stated that a counterclaim is in all respects a suit by the Defendant.
7.Mr. Obaga submitted that the advocate is therefore entitled to both the instruction fees for the counter claim and the getting up fees and invited the court to re-evaluate the bill of costs and direct the disputed items to be taxed as per our bill of costs.
1St Respondent’s Submissions
8.Counsel for the 1st Respondent Mr. Gicharu filed a replying affidavit where he deponed that the Taxing Officer exercised her judicial discretion and applied the Advocates Remuneration Order in taxing the Plaintiff’s bill of costs and set out the reasons and legal basis for her decision on the contentious issues.
9.Mr. Gicharu submitted that the reference was time barred having been filed over 14 days after delivery of the ruling and that the same was filed without any persuasive reason and/or justification of the delay. Counsel relied on Paragraph 11 of the Advocates (Remuneration) Order which provides for time within which an objection is to be filed which is 14 days.
10.Counsel further relied on the case of Nyakundi & Company Advocates –vs- Kenyatta National Hospital Board  Eklr, Twiga Motor Limited v Hon. Dalmas Otieno Anyango  eKLR and National Oil Corporation Ltd v Real Energy Ltd & Another  eKLR and submitted that the reference is time barred and that the applicant has not established any justification for the court to interfere with the Taxing Officer’s discretion.
Analysis And Determination
11.I have considered the application and the submissions by counsel, and the issues that arise for determination are whether the reference is time barred and whether there is sufficient reason to interfere with the discretion of the Taxing Officer.
12.Paragraph 11 of the Advocates Remuneration Order (ARO) stipulates as follows on the filing of reference objecting to the decision of the Taxing Officer; -
13.If a party is dissatisfied with the decision of the Taxing Officer, he or she must give notice in writing of such objection specifying, the items of taxation objected to, within 14 days after the decision.
14.The Applicant first expressed his displeasure with the ruling after 7 days of its delivery vide a letter dated 6th October 2021 and the Deputy Registrar responded vide a letter dated 7th October 2021. This means that the Applicant was compliant with the rules requiring a notice in writing within the stipulated period. The application is dated 29th October 2021, the court stamp is dated 4th November 2021 and the payment receipt is dated 3rd November 2021. I would give the Applicant the benefit of doubt as he had started the process which was within time.
15.On the second issue whether the Applicant has given sufficient reasons for the court to interfere with the taxing Officer’s discretion, in the case of Mbogo & Another v Shah EA ,p.15 the court held on the issue of discretion as follows: -
16.Similarly, in the case of Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board  eKLR the Court observed; -
17.In the case of Opa Pharmacy Ltd v Howse & Mcgeorge Ltd Kampala HCMA No. 13 of 1970 (HCU)  EA 233, outlined what the taxing Officer must take into account and set out the basic fee before venturing to consider whether to increase or reduce it as follows: -
18.The Taxing Officer gave reasons for arriving at the amount taxed in item 1 in her ruling dated 29th September 2021. The Taxing Officer stated that the value of the subject matter is discerned from the pleadings, judgment or settlement and in this case the Applicant was seeking for declaratory orders similarly in the counterclaim which did not make a reference to the value. The application did also not make reference to the value.
19.Further principles guiding taxation were similarly reiterated by the Court of Appeal of Uganda in Makula International v Cardinal Nsubuga & Another  HCB 11 where the Court pronounced itself as follows: -
20.The taxing Officer gave reasons for the increase of basic fee of Kshs 8,400/ to Kshs 150,000/ which she stated that she had considered the nature of the suit which was a land matter and also based on the value of the matter. It is trite that the value of the subject matter is discerned from the pleadings, judgment or the settlement. The court cannot guess the value of the subject matter and cannot go on a fishing expedition to find out what value to assign to the property.
21.I am persuaded by the findings in the case of Joreth Limited vs. Kigano & Associates  1 EA 92 at 99 where the Court of Appeal held that the value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement or settlement but if the same is not so 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 the 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.
22.The upshot is that I find no reason to interfere with the discretion of the taxing Officer as she analyzed and gave a decision which was in compliance with the Advocates Remuneration Order. The application is dismissed with costs to the 1st Respondent.