Obiero t/a C Obiero & Associates Advocates v County Government of Kisumu & another (Miscellaneous Application E042 of 2024) [2025] KEELRC 1394 (KLR)
The bottom line
#Kenya's High Court set aside a Kshs.900,000 instruction fee because the taxing officer ignored a Kshs.396 million claim's value when assessing costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Taxing Master erred in principle by failing to consider the substantial value of the claim (Kshs.396,247,822.00) and the complexity of the matter when assessing instruction fees
- 2.Whether sufficient cause was established to warrant setting aside the certificate of costs and Ruling of the Taxing Master
- 3.Whether the fact that the application is unopposed entitles the applicant to the orders sought
Key legal issues
#Whether failure to consider the value of the subject matter constitutes an error of principle
Yes - the Taxing Master awarded Kshs.900,000 without noting the value of the subject matter of Kshs.396,247,822.00, which amounted to an error of principle justifying interference
The court held the Taxing Master noted the importance of the matter (145 Petitioners, voluminous pleadings) but failed to note or consider the enormous value of the subject matter. Citing Joreth Ltd v Kigano & Associates, the value should be ascertained from the pleadings, and here it was easily ascertainable. Omitting a relevant factor is an error of principle, warranting the court's interference with the assessment.
Whether the Taxing Officer is obliged to give reasons for the decision
No - the Taxing Officer is not obligated to give reasons if they are embodied in the Ruling itself
The applicant deposed that a letter dated 23rd March 2024 seeking reasons for the taxation went unanswered. The court held, citing Ahmed Nasir v National Bank of Kenya and Bernard Gichohi Njira v Kanini Njira Kathendu, that the Taxing Officer need not give reasons where they are already embodied in the Ruling. The applicant therefore could not rely on the absence of reasons as an independent ground for setting aside the taxation.
Whether an unopposed application automatically entitles the applicant to the orders sought
No - the court may grant reliefs only where a proper legal basis has been established
The application was unopposed as the respondent neither filed a response nor submissions. Relying on Namai v National Bank of Kenya Ltd, the applicant urged that the court may grant reliefs if a proper legal basis is established. The court accordingly examined the merits on the affidavit evidence and found an error of principle, rather than granting the orders merely because they were unopposed.
Legal principles established
#- The court can interfere with a Taxing Officer's decision only where it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive or low as to justify an inference of error of principle
- The value of the subject matter of a suit for purposes of taxation is to be determined from the pleadings, judgment or settlement, failing which the taxing officer may exercise discretion
- Challenges to a Taxing Master's decision lie by way of reference under Rule 11 of the Advocates Remuneration Order, not by fresh litigation
Court orders
#- 1.The Applicant's Chamber Summons dated 13th March, 2025 is merited
- 2.The ruling by the Taxing Officer dated 20th September, 2024 is set aside as regards the award on instruction fee
- 3.The Bill of costs dated 25th April, 2024 is remitted for assessment by a different Taxing Officer
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 45 Rule 1, Order 49 Rule 7(3) of the Civil Procedure Rules and Sections 11 and 51 of the Advocates Act; reference under Rule 11 of the Advocates Remuneration Order
Relief refused
#Setting aside the certificate of costs and Ruling in their entirety
The court set aside the Ruling only as regards the award on instruction fee, not the whole certificate of costs
Costs of the application
The court directed that parties bear their own costs
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the ruling by the Taxing Oficer dated 20th September, 2024 be and is hereby set aside as regards the award on instruction fee;
the Bill of costs dated 25th April, 2024 be and hereby remitted for assessment by a difierent Taxing Oficer.
In the circumstances parties shall bear their own costs.
Clearly, the learned taxing oficer does not appear to have noted or considered the enormous value of subject matter, Kshs.396,247,822.00.
The court cannot interfere with the Taxing Oficer’s decision on taxation unless it is shown that either the decision was based on an error of principle or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.
Issues in the judgment
#The judgment does not disclose the case number or title of the suit in which the Chamber Summons was filed, only the application date and parties' roles
Citation of Joreth Ltd appears variously as [2002] IEA 92, and the underlying Bill of costs total of Kshs.2,110,370.00 appears only in the disposition without earlier mention
The COVID-19 virtual delivery order appended references 2020 directions notwithstanding the ruling being delivered in May 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obiero t/a C Obiero & Associates Advocates v County Government of Kisumu & another (Miscellaneous Application E042 of 2024) [2025] KEELRC 1394 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1394/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.