1.For determination is the chamber summons dated 21.03.2022 by Mumbe Makau (hereafter the Applicant) seeking inter alia that the decision of the taxing officer given on 17.03.2022 taxing the bill of costs in the sum of Kshs. 116,535/- be set aside; that the taxing officer’s decision on items 2, 11 and 40 of the bill of costs dated 13.07.2021 be set aside and be substituted with a decision of this court upon taxation of those items in the bill or be taxed as charged in the bill of costs. The summons is expressed to be brought under Paragraph 11 of the Advocates Remuneration Order and Section 3A of the Civil Procedure Act among others, on grounds on the face of the thereof as amplified in the supporting affidavit sworn by Nelson Felix Kaburu, counsel for the Applicant
2.The gist of counsel’s affidavit is that the Applicant’s bill of costs dated 13.07.2021 was taxed on 17.03.2021 and being dissatisfied by the said decision on Items 2, 11 and 40 preferred this reference seeking re-assessment of the foregoing items. That item 2 relates to a miscellaneous cause and not an interlocutory motion whereas item 11 relates to a filed document whose folios could be ascertained and were not factually 28 in number as was held by the taxing officer. He further deposes that the subject value of the matter was about Kshs. 844,580/- and not Kshs. 702,555/- as further held by the taxing officer. In conclusion, he asserts that it is mete and just that this court assesses the correct charges in respect of the items in question.
3.UAP Insurance Co. Ltd (hereafter the Respondent) opposes the motion through a replying affidavit dated 18.05.2022 deposed by Njomo John, counsel on record for the Respondent. He takes issue with the summons by asserting that the Applicant attempted to charge double instruction fees in respect of a singular appeal and that the taxing officer did not err in her award in respect of the same; that separately charging instruction fees for the suit and motion within the same cause amounts to unjust enrichment; that an application for leave to file an appeal is intrinsically tied to both the initial suit and appeal that springs from it; and that instruction fees are calculated based on the value of the subject matter as discerned from either the pleadings, judgment or settlement. He urged the court to dismiss the motion with costs.
4.The summons was disposed of by way of written submissions. Counsel for the Applicant confined his submissions to the three (3) items challenged in the reference. Addressing item 2, counsel relied on Schedule 6 Paragraph 1(a) & (b) of the Advocates Remuneration Order 2014, Section 2 of the Civil Procedure Act, taxation decisions in Co-operative Bank of Kenya Ltd v James Kiplagat Chesang & Another HC. Misc. Civil Appl. No. E060 of 2020, Thomas Okao & Another v Lucy Mwikali Kitonyo HC. Misc. Civil Cause No. E404 of 2020 and the of-cited decision in Joreth Limited v Kigano and Associates  1 E.A 92 to contend that the correct minimum fee that ought to have been allowed for the item was Kshs. 75,000/-.
5.He asserted that proceedings were commenced by way of originating summons and that there ought to be consistency in taxation. Submitting item 40, counsel argued that the value of the subject matter ought to have been as per the plaint and decree in the suit giving rise to the appeal and not the primary suit from which no appeal had been preferred. That the decision of the taxing officer ought to be set aside as it discloses an error of fact and principle concerning the value of the subject matter. The challenge in respect of item 11 in the reference was abandoned. In conclusion, the court was urged to allow the chamber summons with costs.
6.On the part of the Respondent, as a preliminary issue, counsel contended that the prayers sought in the reference are defective as the Applicant does not seek the review on items 2, 11 & 40 in the bill of costs hence the reference ought to be dismissed as parties are bound by their pleadings. In response to the Applicant’s submissions on items 2 and 40, counsel called to aid the decisions in Kanu National Elections Board & 2 Others v Salah Yakub Farah  eKLR and Mwangi Keng’ara & Co. Advocates v Invesco Assurance Company Limited  eKLR. His position was that the Applicant’s argument that item 2 ought to have been charged in a similar manner as a suit is misconceived and allowing it would be result in unjust enrichment and double jeopardy on the part of the Responden
7.It was further submitted that the taxing officer did not err in pegging the taxable amount on item 40 on the judgment sum rather than the decretal sum as argued by the Applicant. That the court was generous with its award on the item and ought to have applied itself to the category of appeals not provided for, the subject of the appeal having been the decision of the trial court striking out the Respondent’s defence. Che pointed out that some of the authorities cited by the Applicant lacked persuasive and or binding authority to this honorable court as such the same ought to be disregarded. Counsel urged the court to dismiss the reference with costs.
8.The Court has considered the grounds of the reference as well as the affidavit material and submissions. However, before delving into the substance of the reference it would be remiss if this court failed to address a preliminary issue. The reference before this court is in respect of party and party bill of costs in respect of proceedings in Nairobi High Court Civil Appeal No. 254 of 2019. The taxing officer delivered her ruling on 17.03.2021. However rather than filing the instant reference within the same cause, the Applicant opted to institute the instant miscellaneous proceedings.
9.The procedure provided in the Advocates Act for recovery of costs is intended to be uncomplicated and expeditious. Thus, it is difficult to understand why the Applicant opted to take the path of instituting a fresh and separate cause. Thus, potentially denying the court convenient access to material relevant to the application. Nonetheless, the court will endeavor to render a determination based on the material placed before it.
10.In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd  EA 162, Spry, V-P. stated at p.164 that:-
11.The Court of Appeal in the foregoing decision laid down some principles to undergird the exercise of discretion by taxing officers in the assessment of costs as follows:-
12.Ojwang J (as he then was) in Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others (supra). observed that:-
13.Similarly Ringera, J (as he then was) in First American Bank of Kenya v Shah & Others  1 E.A. 64 at p.69 stated;-
14.With the foregoing principles in mind, the court has reviewed the grounds argued before it. The Applicant’s reference is specific to items 2 and 40 item 11 having been abandoned. Surprisingly, the Applicant did not attach the subject bill of costs that was fortunately furnished by the Respondent as “Annexure NJ-02” in the response to the reference. The bill was in respect of a miscellaneous application for leave to appeal out of time and the substantive appeal. The Applicant contends that instruction fees in item 2 relate to a miscellaneous cause and not an interlocutory motion in the substantive appeal. In rebuttal the Respondent argues that Applicant has attempted to charge separate instruction fees in respect of a singular appeal. The taxing officer awarded Kshs. 5,000/- on item 2, which this court pre-supposes was premised on Schedule 6 Part A in relation to Appeals. (See;- Appeals (c)(viii)).
15.What the said schedule provides for is instruction fees for applications not otherwise provided for arising during proceedings. The application in question here is a miscellaneous motion seeking leave to appeal out of time. The court’s reasoned deduction is that the nature of the application is not interlocutory; depending on the outcome of the application, the matter may end there, or an appeal may be subsequently filed. In my reading of the entirety of Schedule 6, instruction fees for that kind of motion is not provided for.
16.Quite possibly the Applicant’s thinking may have been informed by the item titled “other matter not provided for” contained in the schedule. Given the nature of item 2, the court, while applying itself to the facts and drawing guidance from the principles enunciated in Premchand Raichand (supra) finds and holds that the award of the taxing officer under the said item was justified. Awarding fees under item 2 as proposed by the Applicant would result in an excessive or double award on instructions. Nothing therefore turns on this aspect.
17.Concerning item 40, the Applicant contended that the taxing officer erred by failing to find that the value of the subject matter was Kshs. 844,580/- and not Kshs. 702,555/-. On the part of the Respondent, it was summarily argued that instruction fees is calculated based on the value of the subject matter as discerned from either the pleadings, judgment or settlement. The Court of Appeal in Joreth Limited v Kigano and Associates  1 E.A 92 stated that:
18.The taxing officer while relying on the case of Joreth Limited proceeded to award Kshs. 75,000/- under item 40, stating that:-
19.On a perusal of the record and material presented before this court, and the judgment in Nairobi High Court Civil Appeal No. 254 of 2019, it is evident that the said proceedings terminated in favour of the Applicant. The taxing officer was appropriately cognizant of the applicability of Schedule 6 (1) (b) of the Advocates Remuneration Order in assessing the taxable amount under item 40. This court gathers from the judgment delivered by Sergon J. in the above appeal, that the appeal originated from the judgment of the lower court in respect of a declaratory suit essentially seeking to enforce the award made in the primary suit
20.The value of the subject matter could be ascertained, though it appears that the taxing officer applied the decretal sum and not the judgment award. This was an erroneous deduction in the court’s observation. That said, the Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board  eKLR stated as follows;-An example of an error of principle is where the costs allowed are so manifestly excessive as to justify an inference that the taxing officer acted on erroneous principles – see Arthur v Nyeri Electricity Undertaking (supra) or where the taxing officer has over emphasized the difficulties, importance and complexity of the suit (see Devshi Dhanji v Kanji Naran Patel (No. 2),  KLR 243. We have no doubt that if the taxing officer fails to apply the formula for assessing instructions fees or costs specified in schedule VI or fails to give due consideration to all relevant circumstances of the case particularly the matters specified in proviso (1) of schedule VIA (1), that would be an error in principle. And if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle the general practice is to remit the question of quantum for the decision of taxing officer (see - D’Souza v Ferrao  EA 602. The judge has however a discretion to deal with the matter himself if the justice of the case so requires (see Devshi Dhanji v Kanji Naran Patel (No. 2) (supra).
21.The applicable value was the judgment award and the Applicant’s reference is partially merited to the extent that Schedule 6 (1) (b) of the Advocates Remuneration Order prescribes instruction fees on an appeal in respect of the award in the instant matter (“See: -Annexure NJ-03”) to be Kshs. 90,000/-. The taxing officer misapplied herself when she taxed item 40 at Kshs 75,000/-. Accordingly, her decision on item 40 is hereby set aside and the item taxed at Kshs. 90,000/-. To that extent only the reference has succeeded. All other items remain as taxed.