The Parties submissions
The Petitioner/Applicants submissions
6.These are dated 22nd June 2022 and filed by Kimani & Michuki advocates. Counsel’s main issue is whether the taxing officer erred in principle to warrant the court reviewing and / or setting aside the decision delivered on 1st March 2022. In reference to the said decision he submits that the DR clearly indicated that the matter was not complex in any form or manner nor did it contain any novel questions of law. On this he referred to the case of Republic vs. Ministry of Agriculture & 20 others exparte Muchiri W’Njuguna (2006) eKLR where J. B. Ojwang J (as he then was) stated that the complex elements in the proceedings which guide the exercise of the taxing officer’s discretion must be specified cogently and with conviction. It’s his submission that the taxing officer and 3rd respondent did not set out any complexity or novelty in the matter. Therefore to him the Taxing Officer erred in more than doubling the amount in instruction fees, which amounted to punishing the petitioner.
7.In reference to schedule 6 Rule A 1 J (1) of the Advocates (Remuneration Order counsel submitted that the matter before Court did not qualify for a figure of Kshs.100,000/= as set out in Schedule 6 Rule A 1 (J) 1 (ii). He thus submitted that it should have been taxed at Kshs.45,000/= with getting up fees of Kshs.15,000/= under item 108 on the Bill of costs.
8.While relying on the case of National Oil Corporation Limited vs. Real Energy Limited and another  eKLR and others, Counsel argued that this court should find that the Taxing Officer erred in awarding the Kshs.100,000/= to the 3rd respondent and proceed to review it, with costs to the Applicant.
The 3rd respondent’s submissions
9.These are dated 8th July 2022 and were filed by Hamilton Harrision & Matthews advocates. Counsel submits that there is no error of principle evident in the assessment of the 3rd respondent’s costs to justify interference by this Court. Referring to the cases of National Oil Corporation Limited vs. Real Energy Limited & another and Otieno, Ragot & Company Advocates vs. Kenya Airports Authority  eKLR, he submitted that there was no “error of principle” on record to make this court interfere with the taxation of the 3rd respondent’s bill of costs. That the court cannot simply interfere with the taxation of the said bill because the award is high in the petitioner’s opinion.
10.Counsel further contends that the DR took into account all the relevant factors and that did not in itself determine the matter to be complex. He cites Rule 6 A 1 (J) of the Advocates (Remuneration) Order which lists the factors to be taken into account as follows:
11.He argues that the DR at no point taxed the bill relying on Rule 6A 1 (J) (ii) as claimed by the Applicant at paragraph 14 of the submissions. Counsel relies on the Court of Appeal case of Aktar Shamid Butt & another vs. David Kinusu T/A Sifuna & Company Advocates  to argue that even in a matter that is not complex, the instruction fees can be enhanced. Further reference has been made to the case of Republic vs. Public Procurement & Administrative Review Board & 2 others Exparte Samitam Services (EA) Limited .
12.Counsel has further argued that there were three (3) distinct applications whose fees must be taxed separately and so the sum of Kshs.100,000/= was not excessive & should not be interfered with. He adds that the figure of Kshs.45,000/= under Rule 6A1(j) (ii) is the minimum, and there was no error committed by the DR.
Analysis and determination
13.Upon due consideration of the chamber summons/ Reference, grounds of opposition, submissions, cited authorities and the law I find the issue falling for determination to be whether the decision by the DR on taxation dated 1st March 2022, should be set aside. The Reference herein is in respect of the 3rd respondent only. The DR taxed the bill at Kshs.383,400/33 (Kenya Shillings three hundred and eighty three, thousand, four hundred and thirty three cents only). Taxed off was Kshs.769,983/67 (Kenya Shillings seven hundred and sixty nine thousand, nine hundred and eighty three and sixty seven cents only).
14.The bill of costs filed by the 3rd respondent comprised of 156 items. The applicant has issues with Items 1, 5, 22 & 49 only. All these items relate to instruction fees. A total of Kshs.695,000/= was claimed by the 3rd respondent on these items in the bill of costs dated 22nd November 2021.
15.It is not disputed that this matter proceeded to full hearing and Makau J delivered a Judgement dated 30th September 2021. In the Judgment His Lordship identified five (5) issues as falling for determination. The first issue was whether the court had jurisdiction to hear and determine the issues raised therein. In the final analysis he found that the court had no jurisdiction and he dismissed the petition. The reason for dismissing it was because the matter had proceeded to full hearing. It is not therefore correct to state that because the petition was dismissed for want of jurisdiction not much had been put in by the 3rd respondent.
16.The whole purpose of taxing a bill is to ensure justice to both the client and advocate. Further that the general level of remuneration of advocates must be such as to attract recruits to the profession. See (i) Royal Media Services vs. Telkom Kenya Limed & 13 others  eKLR by Martha Koome J (as she then was), (ii) Premchand Raichand Limited & another  E.A. 162.
17.The general principle is that on reference to a Judge from taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the said officer erred in principle in assessing the costs. The case of Kipkorir, Tito & Kiara Advocates vs. Deposit Protection Fund Board  eKLR is clear on this.
18.I have read through the DR’s Ruling and the reasons for taxing the impugned items at Kshs.100,000/= instead of Kshs.695,000/=. This is set at paragraphs 16 – 25 of the Ruling. She considered all the issues, the law and relevant case law. The reasons she gave for reducing the instruction fees are very sound.
19.As stated the petition was not struck out based on a preliminary objection but upon hearing it.
20.There may have been no complex issues, but the court considers other issues. This matter was filed on 26/01/2018 and finalized on 30/9/2021 – (over three (3) years). The record shows that there were three interlocutory applications and instructions had to be taken on them besides the petition, and responses had to be filed.
21.The getting up fees is therefore allowed at 1/3 of the instruction fees. Item 108 which had sought for Kshs.216,667/= was reduced to Kshs.33,333/33 and Kshs.183,333/67 taxed off.As has been held in several decisions, the Taxing Officer exercises discretion in taxation matters. The High Court may only interfere with the exercise of that discretion if there is a good reason/reasons to do so. See : (i) Maronge & Company Advocates vs. Kenya Airports Authority Kisumu Court of Appeal Civil Appeal No. 262 of 2012  eKLR, (ii) KTDA Limited vs. J. M. Njenga & Company Advocates High Court  eKLR, (iii) Otieno Ragot & Company Advocates vs. Kenya Airports Authority  eKLR.
22.From the above analysis I do not find any reason to make this Court fault the Taxation decision by the DR dated 1st March 2022. I therefore find no merit in the Chamber Summons/Reference dated 14th March 2022 which I hereby dismiss with costs.Orders accordingly.