Analysis and determination
4.I have considered the 5th respondent’s reference together with the affidavit filed in support thereof. I have also considered the submissions by the 5th respondent’s advocates. The issue arising for determination in this reference is whether sufficient cause has been shown by the 5th respondent to warrant interference with the decision of the taxing officer made on 4th November 2021. In Nyangito & Co. Advocates v. Doinyo Lessos Creameries Ltd.  eKLR, the court stated that:
5.In Republic v.Kenyatta University & Another Ex parte Wellington Kihato Wamburu  eKLR the court cited with approval the Ugandan Supreme Court case of Bank of Uganda v Banco Arabe Espanol SC Civil Application No. 23 of 1999, where the court stated that:
6.In the South African case of, Visser v Gubb 1981(3) SA 753 (C) 754H – 755 C that was cited with approval in KTK Advocates v. Baringo County Government  eKLR,the court stated as follows:
7.From its notice of objection dated 19th November 2021, the 5th respondent appears to be objecting to the entire taxation of its bill of costs which it claimed was not taxed “at all”. The 5th respondent’s bill of costs had a total of 68 items. Items 1 to 2 related to instruction and getting up fees, items 3 to 8 related to drawings, items 9 to 15 related to filings, items 16 to 42 related to service, items 43 to 50 related to court attendance, items 51 to 62 related to perusals and items 63 to 68 related to disbursements. From the ruling by the taxing officer, the taxing officer taxed only the items in the bill that were contested. The uncontested bills were taxed as drawn. Item 1 of the bill relating to instruction fees was contested. The 5th respondent sought a sum of Kshs. 40,000,000/- while the 4th respondent proposed Kshs. 45,000/-The taxing officer taxed the item at Kshs. 3,000,000/- which she considered reasonable compensation for the work that was done by the 5th respondent’s advocates after considering several factors including the complexity of the proceedings, responsibility borne by the advocates, time spent, research done, and skill deployed by counsel. Item 2 of the bill of costs that concerned getting up fees was taxed at Kshs. 1,000,000/- being 1/3 of the instruction fees. The other items that were contested according to the ruling were items, 18, 22, 25, 29, 33, 37, 41, 43, 44, 45, 46, 47, 48, 49, 50, 51, 60, 61, 62, 64 and 67. All these items were taxed and the taxing officer gave reasons for her decision in respect of each of them. It is therefore my finding that the 5th respondent’s bill of costs dated 3rd June 2021 was taxed by the taxing officer. In its application and submissions, the 5th respondent did not point out which item in its bill of costs was not taxed. In its application and submissions, the applicant’s complaint is confined to the taxation of only two items namely, instruction fees and getting up fees. As I have mentioned earlier, the taxing officer awarded the 5th respondent Kshs. 3,000,000/- as instruction fees against its claim of Kshs. 40,000,000/-. Getting up fees was assessed at Kshs. 1,000,000/-against the 5th respondent’s claim of Kshs. 13,333,333.33.
8.In its bill of costs, the 5th respondent’s advocate stated the basis of its claim for Kshs. 40,000,0000/- as instruction fees as follows:
9.In assessing the instruction fees due to the 5th respondent, the taxing officer noted that the bill of costs that was before her related to a constitutional petition and that the minimum fees payable was provided for in Schedule VI (1)(j)(ii) of the Advocates Remuneration Order which provides that; to oppose an application for a constitutional and prerogative orders the respondents are entitled to such fee as the taxing master in the exercise of his discretion may determine taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate but such fees shall not be less than Kshs. 100,000/-. By awarding the 5th respondent instruction fees of Kshs. 3,000,0000/-, the taxing officer increased the minimum scale fees by 3000%. In increasing this minimum fee, the taxing officer stated that she considered among others the fact that, the proceedings were public law proceedings, what taxation of advocates fees should yield should be reasonable compensation for professional work done, taxation should avoid unjust enrichment for any party, where the complexity of a matter is alleged, particulars should be provided, where a higher level of responsibility is alleged, the particulars should be provided, when time spent, research done and skill deployed by counsel is to be taken into account, the details must be provided. Taking all these factors and principles into account, the taxing master in the exercise of her discretion, increased the minimum instruction fees from Kshs. 100,000/- to Kshs. 3,000,0000/-.
10.The 5th respondent has contended that the said sum of Kshs. 3,000,000/- was manifestly low in the circumstances as to amount to an error of principle on the part of the taxing officer. I have read the petition that was filed herein and the responses thereto that were filed by the respondents, particularly the 1st, 2nd and 3rd respondents, and the 5th respondent. In my view, the petition did not raise any complex or novel issues. The petitioners’ contention was that the 1st, 2nd and 3rd respondents were operating their factories illegally in violation of planning and environmental laws and in the process infringing on the petitioners’ statutory and constitutional right to a clean and healthy environment. I am in agreement with the 5th respondent that the impact of some of the reliefs that were sought by the petitioners would have been grave had they succeeded. I am of the view however that the impact of the closure of the 1st, 2nd and 3rd respondents’ factories upon the 5th respondent has been overrated by the 5th respondent. I am of the view that the 5th respondent was a nominal respondent in the suit. The respondents against which substantive reliefs were sought in the petition were the 1st, 2nd and 3rd respondents. From the petition, the 4th and 5th respondents were joined to the petition as physical planning, environmental management and administration regulators for the role that they played on the issues that were the subject of the petitioners’ complaints. I have noted that in its replying affidavit to the petition, the 5th respondent adopted to a large extent the affidavit by the 1st, 2nd and 3rd respondents. In its statement of justification of the instruction fees of Kshs. 40,000,000/- in its bill of costs that I have reproduced above, much of the justification is on the impact the reliefs sought against the 1st, 2nd and 3rd respondents would have had on the 5th respondent rather than the complexity of the work done, the level of responsibly, the industry and time put in by the advocate.
11.In Republic v.Minister of Agriculture & 2 others, Ex parte Samuel Muchiri W Njuguna & 6 others  eKLR the court stated that:
12.I am not persuaded that the taxing officer exercised her discretion wrongly. I am not convinced that the award of Kshs. 3,000,000/- to the 5th respondent as instruction fees was manifestly low in the circumstances taking into account the fact that the minimum scale fees the 5th respondent was entitled to was Kshs. 100,000/-. The ruling by my brother Ombwayo J. in which he increased the instruction fees payable to the 3rd respondent’s herein from Kshs. 3,000,000/- to Kshs. 12,000,000/- is the subject of an appeal to the Court of Appeal. The little said about it the better. I wish only to state that different respondents had different stakes in the petition and as such the instruction fees payable to the respondents need not be uniform. As I have mentioned, the 5th respondent was a nominal respondent in the suit. The only relief sought against the 5th respondent in the petition was a declaration that failure by the 4th and 5th respondents to stop the 1st, 2nd and 3rd respondents from operating their factories illegally was unconstitutional, illegal and contravened the law.
13.I am of the view that Kshs. 3,000,000/- and Kshs. 1,000,000/- awarded to the 5th respondent as instruction and getting up fees respectively were fair and reasonable compensation for the work done by its advocates. The 5th respondent has not convinced me that its advocates employed labour and care in the petition that would have justified an award of Kshs. 30,000,000/- instruction fees that the 5th respondent sought in the bill of costs. The work that was entrusted to the 5th respondent’s advocates was in my view nothing out of the ordinary and as such would not have justified a premium on cost sought by the 5th respondent.