Civil Project - P Costs
Civil Project - P Costs
CIVIL LITIGATION
ATP 100
CLASS F
FIRM 7
Contents
FIRM F7 MEMBERS ............................................................................ Error! Bookmark not defined.
DEDICATION ..................................................................................................................................... iv
CONSTITUTIONAL AND STATUTORY INSTRUMENTS .......................................................... v
TABLE OF CASES ............................................................................................................................. vi
Guiding Principles in determining Costs ............................................................................................... 1
a. Costs Shall Follow an Event ........................................................................................................... 3
b. Court Has Discretion to Deprive Successful Party of Costs .......................................................... 5
c. Courts Should Be Keen to Save Costs ........................................................................................... 6
d. Appeals regarding costs only lie where there is explicit evidence of non- consideration of
facts .................................................................................................................................................... 7
e. No interests on costs if there is no express order........................................................................ 8
f. A defendant has no rights to costs upon the plaintiff’s withdrawal unless court orders ........... 8
g. Costs on set-off and counterclaim ................................................................................................ 9
h. A Party entitled to an injunction is also entitled to the costs of obtaining it ........................... 10
Principles Guiding the Taxing officer in Taxation of Costs ............................................................ 10
Introduction .................................................................................................................................... 10
The Taxation Process ..................................................................................................................... 12
Advocate-client costs ...................................................................................................................... 15
Taxing officer’s discretion ............................................................................................................. 15
Entering the instruction fees ...................................................................................................... 16
Complexity of issues .................................................................................................................... 16
Take into account relevant factors arising from the case ....................................................... 17
Volume of documents read during research ................................................................................ 18
Test of Comparability and consistency ..................................................................................... 18
Consider each case on its own merit ......................................................................................... 18
Reasonableness................................................................................................................................ 18
Avoidance of unjust enrichment................................................................................................ 19
Taxation is based on experience and opinion and not mathematics ...................................... 20
Operate within his or her authority .......................................................................................... 20
Agreement of the parties ................................................................................................................ 20
Directions from courts ................................................................................................................ 21
Taxing officer to be guided by the laws of taxation ................................................................. 21
Change of advocates or where more than one advocates work on one case .......................... 21
Wrong dates on a bill of costs are not fatal to taxation ........................................................... 21
i
PARTY TO PARTY COSTS ......................................................................................................... 22
a) Discretion of the taxing officer in disputed items ..................................................................... 22
b) The taxing officer taxes the bill according to the law................................................................ 22
c) The taxing officer has no jurisdiction to award costs ................................................................ 23
d) The taxing officer has power to grant any order he or she deems fit and necessary .............. 23
e) Take into account joinder of issues ............................................................................................ 23
f) Necessity of costs to the attainment of justice .......................................................................... 24
g) Consider the interests of the party ............................................................................................. 24
Conclusion ........................................................................................................................................... 24
Draft Bill of Costs.................................................................................................................................. 25
ii
iii
DEDICATION
We, the members of Firm 7 of Class F 2018 academic year, declare that this firm project has
been researched and completed as a collective effort by the firm members and submitted as
required in fulfilment of the requirements for Civil litigation, ATP 100.
iv
CONSTITUTIONAL AND STATUTORY INSTRUMENTS
v
TABLE OF CASES
Abdullah Rahimtullah and 2 others v Francis Xavier D’Silva Civil Appeal No. 35 of 1967
Bhagwanji Premchand and others v JM Gomes and others (1956) 23 EACA 296 at 297
Butt and another vs. Sifuna t/a Sifuna & Company Advocates
Chesoni J in GM Dodhia v Jos Hansen Soehne (EA) Ltd, High Court of Kenya at Nairobi,
Cotran, J, in Kibutiri v Kenya Shell Ltd, High Court Civil Case No, 3398 of 1980
Jane Wanjiku Wambu v Anthony Kigamba Hato & 3 others [2017] eKLR
Jasbir Sign Rai & 3 others v Tarclochan Signh Rai & 4 others [2014] eKLR
John Maina Mburu T/A John Maina Mburu & Co. Advocates v George Gitau Munne (sued as
Administrator of the Estate of Samuel Gitau Munene) and 3 others [2015] eKLR
Joreth Ltd v Kigano & Associates Civil Appeal No. 66 of 1999 [2002] 1 EA 92
vi
Karuturu Networks Ltd & another vs. Dally Figgis Advocates
Mayer and four others v Trustees of the Rahimtulla Lalji Hirji Charitable Trust (1955) 22
EACA
Mwamba Rugby Football Club v Kenya Rugby Football Union, High Court of Kenya at
Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR
Republic vs. Ministry of Agriculture and 2 others Ex parte Muchiri W’njuguna & 6 others
(2006) eKLR
Republic vs. Ministry of Agriculture and 2 others Ex parte Muchiri W’njuguna & 6 others
(2006) eKLR
Republic vs. Ministry of Agriculture and 2Others Ex parte Muchiri W’njuguna & 6Others
Santana Fernades v Kara Arjan and Sons and Others [1962] EA 473
vii
vi
ii
Guiding Principles in determining Costs
Legal costs accrue at the time an advocate gets retained by his client upon taking instructions
and acting on those instructions by appearing before court and doing all legal documented work
The issue of costs has been said to be a reserve of the court or the presiding judge. The purpose
of the following research is to discuss using relevant statue law and determined case laws, the
principles that guide the judge or the court in determining issues of costs in a suit. To begin, it
is imperative to restate the guiding provision in the determination of the costs in civil suits.
Subject to such conditions and limitations as may be prescribed, and to the provisions
of any law for the time being in force, the costs of and incidental to all suits shall be in
the discretion of the court or judge, and the court or judge shall have full power to
determine by whom and out of what property and to what extent such costs are to be
paid, and give all the necessary directions for the purposes aforesaid; and the fact that
the court has no jurisdiction to try the suit shall be no bar to the exercise of those
powers; provided that the costs of any action, cause or other matter or issue shall follow
the event unless the court or judge shall for good reason otherwise direct.
This section gives court discretion and full power to determine; by whom and to what extent
costs are to be paid subject to such conditions and limitations as may be prescribed by any law
in force.
The Halsbury’s Law of England has also delved on the issue and stated the following,
1
Emmanuel Kyobika, ‘Concept of Civil Procedure in Kenya’, Law Africa 2017
1
“The court has discretion as to whether costs2 are payable by one party to another, the
amount of those costs, and when they are to be paid. Where costs are in the discretion
of the court, a party has no right to costs unless and until the court awards them to him,
and the court has an absolute and unfettered discretion to award or not to award them.
This discretion must be exercised judicially; it must not be exercised arbitrarily but in
Retired Justice Kuloba has also written on the issue of costs and said the following;
“Costs are in the unfettered discretion of the court, subject to such conditions and limitations
as may be prescribed and to the provisions of any law for the time being in force, but they must
follow the events unless the court has good reason to order otherwise3.
In the case of Little Africa Kenya Limited v Andrew Mwiti Jason [2014] eKLR4, it was held
that, “Costs are not awarded as a matter of right. They are awarded at the discretion of the
Court. At the risk of monotony, the discretion must be exercised judicially and judicious; not
The discretionary power of the court imputes that the superior courts are equally hesitant to
interfere with the issue of costs as determined by the subordinate courts. It is argued that since
costs are a matter in the discretion of the court, an appellate court will not interfere unless it is
satisfied that the lower court acted on a wrong principle 6 . Hon Justice (Retired) Kuloba
reaffirms the holding arguing that an appellate court should not interfere on the issue of costs
2 th
Edition (Re-issue), {2010}, Vol.10. para 16
3
Richard Kuloba, Judicial Hints On Civil Procedure (LawAfrica Publication 2009) at Page 94
4
[2014] eKLR CIVIL CASE NO. 149 OF 2011
5
Paragraph 11
6
Sir Alastair Forbes V-P in Bhangwanji Raja v Swaran Singh [1962] EA 219 at 229
2
merely because it feels that it would have made a different order itself but should only interfere
when it is of the opinion that the lower court used a wrong principle7.
It is agreed that the objective of ordering a party to pay costs is to reimburse the successful
party for the amounts incurred during the suit. Costs are not issued as a mere penal measure.
They seek to compensate the successful party for the expenses incurred in defending or
The word event as read from s. 27(1) of the Civil Procedure Act means the result of all
proceedings incidental to the litigation8. However, where an action involves different issues
either arising from one cause of action or different cause of actions, the costs of any particular
issue goes to the party that wins it 9 . Normally, this principle provides that the party that
succeeds in a civil suit is entitled to costs that are paid by the party that lose the suit.
Nevertheless, the ordering of a party to pay costs is a discretionary power and should be
exercised judicially on fixed legal principles. As Odunga J., observed in Joseph Oduor Anode
“… In matters of costs, the general rule as adumbrated in the aforesaid statute [the
Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise.
That satisfaction must, however, be patent on record. In other words, where the Court
7
Ibid 1
8
Ibid at Pg 95
9
Judicial Hints at page 99, "The words "the event" mean the result of all the proceedings to the litigation. The
event is the result of entire litigation. It is clear, however, that the word ‘event" is to be regarded as a collective
noun and is to be read distinctively so that in fact it may mean the "events" of separate issues in an action.
Thus, the expression "the costs shall follow the event" means that the party who on the whole succeeds in the
action gets the general costs of the action, but that, where the action involves separate issues, whether arising
under different causes of action or under one cause of action, the costs of any particular issue go to the party
who succeeds upon it. An issue in this sense need not go to the whole cause of action but includes any issue
which has a direct and definite event in defeating the claim to judgment in the whole or in part. 10HIGH COURT
CIVIL SUIT NO. 66 OF 2009; [2012] eKLR
3
decides not to follow the general principle, the Court is enjoined to give reasons for not
doing so.…”
This principle means that costs are awarded to a successful party after a judgment in their favor.
The object is to reimburse them the expenses they incurred in pursuing the suit. Costs are, thus,
a means by which a successful litigant recoups expenses to which he put in fighting an action.
Costs should not, therefore, be made merely as a penal measure unless it is meant to purge non-
compliance or non-adherence by the party with orders of court or requirements under the law10.
Nonetheless, costs will be denied to the successful party in the suit if such party is guilty of
not used to penalize the losing party but for compensating the successful party for the trouble
taken in prosecuting a suit. The legal policy behind these rules is that it is the right of an
aggrieved party to come to court to have his rights vindicated and to be able to recover all costs
which have been occasioned by the party on the wrong12. Issuance of costs to a successful
party cannot be denied or deprived even if the matter proceeded ex-parte or was uncontested13.
“Furthermore, a successful party cannot be deprived of his costs merely because the suit
proceeded ex parte or uncontested. This is to say, the fact that the unsuccessful party did not
contest the case is not in itself a ground for refusal of costs, but it is a factor that can be taken
into account if other good reason exists. The giving or absence of notice to sue, before a suit is
10
In re Payless Car Hire and Tours [2015] eKLR Para 4
11
Jasbir Sign Rai & 3 others v Tarclochan Signh Rai & 4 others [2014] eKLR
12
Ibid 10, WINDING UP CAUSE NO. 19 OF 2011
13
Morgan Air Cargo Limited v Evrest Enterprises Limited [2014] eKLR at Paragraph 5
4
b. Court Has Discretion to Deprive Successful Party of Costs
Notwithstanding the general principle that costs shall be awarded to the successful party, the
court has the discretion to deprive successful party the costs. Hon. JKuloba authoritatively
states as follows: -
"The law of costs as it is understood by courts in Kenya, is this, that where a plaintiff comes to
enforce a legal right, and there has been no misconduct on his part-no omission or neglect,
and no vexatious or oppressive conduct is attributed to him, which would induce the court to
deprive him of his costs-the court has no discretion and cannot take away the plaintiffs right to
costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the
plaintiff is entitled to enforce his legal right and in the absence of any reason such as
Therefore, it is a settled principle that a successful litigant is entitled to receive costs, unless
there are special circumstances that give the court discretion to deny such party. To deny a
defendant costs, it is mandatory to show that he was guilty of a conduct which induced the
Plaintiff to bring the action and without it would probably not have been brought. One of the
test according to Kuloba J., is to ask whether; the Defendant’s conduct was such as to encourage
circumstances, of obtaining an order of payment of his costs by the plaintiff, but he has no right
to costs until the court awards them since the court has the absolute and unfettered discretion
to award costs or not. An upshot of the same is that a successful litigant may be deprived of
their costs in the discretion of the trial court if some grounds can be shown, for example, any
14
, Ibid 1 at 101
15
Ibid
5
opposite party16. Nonetheless, a mere opinion of the court that a successful party did not behave
well is itself not a sufficient ground to deprive such party their costs of the suit. There must be
something to sustain a charge that the successful party did something likely to cause much
unnecessary delay and expenses, or something illegitimate in relation to the suit17. Where costs
are denied to a successful party and the court or the judge fails to give reasons, an appellate
court will not interfere if there is no evidence that the discretion was exercised on wrong
principles or non-judiciously18.
The overriding objective of the Civil Procedure Act of Kenya is to facilitate the just,
expeditious, proportionate and affordable resolution of the civil disputes governed by the Act19.
In order to achieve that objective, the court has the duty to handle all matters presented before
it for the purpose of attaining the following aims— the just determination of the proceedings;
the efficient disposal of the business of the Court; the efficient use of the available judicial and
administrative resources; the timely disposal of the proceedings, and all other proceedings in
the Court, at a cost affordable to the respective parties; and the use of suitable technology20
In Karuturu Networks Ltd & another vs. Dally Figgis Advocates21it was held that:
“The application of the overriding objective principle does not operate to uproot the
established principles and procedures but to embolden the court to be guided by a broad sense
of justice and fairness and that in interpreting the law or rules made there under, the court is
under a duty to ensure that the application or interpretation being given to any rule will
facilitate the just, expeditious, proportionate and affordable resolution of appeals. In the case
16
Kohil and Others v Bachulal Popatal, [ 1964] EA 219 at 235
17
Sir Barclay Nihil P in Shankerdass Mayer and four others v Trustees of the Rahimtulla Lalji Hirji Charitable
Trust (1955) 22 EACA 18 at 21
18
Chesoni J in GM Dodhia v Jos Hansen Soehne (EA) Ltd, High Court of Kenya at Nairobi, Civil Appeal No45
of 1978
19
Section 1A of the Civil Procedure Act, CAP 21
20
Section 1B of the Civil Procedure Act, CAP 21
21
Nairobi Court of Appeal CA NO. 293/2009
6
of Meru Farmers’ Co-operative Union versus Suleiman,22 the Court found that in addressing
the issue of securing costs for any party, Courts should be extremely anxious to ensure that the
due administration of justice does not cause unnecessary expenses. If in the course of action,
which either litigant chooses to adopt, would result in unnecessary expenses, the Court should
be zealous to ensure that course of action is not open. A Court should, above all, be most careful
to ensure that it should not itself be used as a tool to incur unnecessary expenses where it is
satisfied that such expense is unnecessary. It is also agreed that a court exists for the purpose
of doing justice to the inhabitants of the country, and a Judge does justice to both parties by
d. Appeals regarding costs only lie where there is explicit evidence of non-
consideration of facts
As a principle, an appeal against an order of costs will only lie where the evidence on the record
supports an allegation in the appeal that the judge in the lower court did not correctly apprehend
the facts in making the order appealed against24. Therefore, where a judge has expressed his
discretion on matters of costs, the courts of superior jurisdiction have no power to overrule the
exercise of that discretion, unless the sitting judge did not base his discretion in clearly
stipulated principles. The principle is fortified by the case of Mbogo Vs Shah (1968) EA 93,
where it was held that a court of Appeal should not interfere with the exercise of discretion of
a Judge unless it is satisfied that he misdirected himself in some matter and as a result arrived
at a wrong decision, unless it is manifest from the case as a whole that the Judge was clearly
wrong in the exercise of his discretion and that as a result there has been an injustice. Thus,
where a discretion as to costs has been exercised by a judge, his decision is unimpeachable
22
No. (2) [1966] EA 442 at 443-444
23
Duffus Ag in Ibid, at 444
24
Hamilton, J, in Allibhai Bahnji v Essa Thawer [ 1911- 12] 4KLR 59 at 61
7
unless he can be shown to have taken into consideration matters which are irrelevant to the
issue in the case, or non-existent25. An appeal will only be entertained from the exercise of
discretion as to costs where the appellate court is satisfied that the lower court applied a wrong
principle of law26.
Where there is no express court order that interest is to be paid on the costs, such interest cannot
“The court or judge may give interest on costs at any rate not exceeding fourteen per cent per
annum, and such interest shall be added to the costs and shall be recoverable as such.”
Therefore, by dint of that section, interests on costs are a discretionary power of the judge.
Therefore, costs will not carry interest without special order27. In the case of, Jane Wanjiku
Wambu v Anthony Kigamba Hato & 3 others [2017] eKLR29the court held that like interest on
damages, the Trial Court has a wide latitude to award interest on costs. However, there is no
rule of thumb that a successful litigant who has been awarded costs must get interest on those
costs. Indeed, the decisional principle in our jurisdiction seems to run in the opposite direction:
it is not normal to award interest on costs. Similarly, courts have argued that they have power
f. A defendant has no rights to costs upon the plaintiff’s withdrawal unless court
orders
Where a plaintiff withdraws or discontinues his or her case, the defendant has no right to costs
unless the court has in its discretion made an order of costs in his favor. The court has the
25
Ibid 2 at Pg. 104
26
Kohli and others v Bachulal Popatlal [1964] EA 230
27 29
Santana Fernades v Kara Arjan and Sons and Others [ 1962] EA 473
COURT CIVIL APPEAL NO. 32 OF 2016
28
Hasanali v City Motor Accessories Ltd & Others [1972] EA 423.
8
unfettered discretion in ordering terms as to costs upon discontinuance or withdrawal of an
action without leave29. So, costs for the defendant are not automatic after the discontinuance30.
Costs in both set-off and counterclaim are subject to the discretion of whether a special order
should be made to that effect. Where both the Plaintiff and the Defendant succeed in their
respective suits, that is, the Plaintiff in the original suit and the Defendant on the
Counterclaim, the Plaintiff will be entitled to the costs of the original suit while the Defendant
to the costs of the counterclaim31. However, this will be determined by the circumstances and
the nature of the particular case. Regarding a set-off, where the Defendant succeeds in
establishing a set-off equal to or exceeding the Plaintiff’s claim, the general rule is that in
absence of circumstances which court may deny the judgement of costs, entitled to an order of
costs. Where the defendant has also counterclaimed in the matter under the setoff, he is also
entitled to the costs of counterclaim. Also, courts have held that it is wrong to allow the Plaintiff
any costs on his claim where the sum of the set-off and counterclaim exceeds the amount
awarded in the judgment for the Plaintiff32. Therefore, where there is a counterclaim the amount
action but a mere additional cost resulting from the counterclaim33. Hence in summary, in a
counterclaim the Defendant who raises a counterclaim is only entitled to those costs on the
counterclaim and not to obtain costs as if the counterclaim was a separate action34.
29
Order 25 rule 2(2) of the Civil Procedure Rules 2010
30
Crabble JA in Kohli and Others v Bachulal Popatlal [ 1964] EA219 at 230
31
Judicial Hints on Civil Procedure at p. 107
32
Kiska Ltd v De Angelis, [ 1969] EA 6
33
Ibid 32
34
AbdullahRahimtullah and 2 others v Francis Xavier D’Silva Civil Appeal No. 35 of 1967
9
h. A Party entitled to an injunction is also entitled to the costs of obtaining it
As a general principle, a party who is entitled to an injunction is also entitled to the costs of
obtaining it. However, where a party asks too much, he may be deprived of the costs to which
he would otherwise have been entitled. The principle is that where there is a successful
application for injunction the order of costs shall be in the cause but for an unsuccessful
application, the Applicant will abide with the result of the case35. It has been held that an
unsuccessful application should attract costs against the Applicant, otherwise, costs should be
in the cause36.
Introduction
Taxation is an assessment of the fees which properly represents the work done. It may be
undertaken by a registrar, a district registrar, a deputy registrar and in their absence, by such
other as may be appointed by the Chief Justice. A bill of cost is a factual statement of services
The taxing officer is the person tasked with the responsibility of taxing the fees of advocates.
The court deprecates reference to the taxing officer with a deputy registrar or district registrar
or registrar of the court or any other registrar appointed by the Chief Justice.38
A bill of costs is an itemized account reflecting all the charges, including fees and
the rules. The bill of costs should indicate the date on which the work was done, the item in
35
Cotran, J, in Kibutiri v Kenya Shell Ltd, High Court Civil Case No, 3398 of 1980
36
Mwamba Rugby Football Club v Kenya Rugby Football Union, High Court of Kenya at Nairobi, Civil case
number 556 of 1981
37
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 2015 pg 111
38
Advocates (Remuneration) Order Cap 16, Paragraph 10
10
respect of which costs are charged (which items must be listed in chronological order, and
should be numbered), the number of folios or pages involved, and the period of time spent in
relation to each item, a precise description of each item and fees for each item, charged in
His jurisdiction in Kenya is to tax a bill and then sign to a certificate of taxation. There is no
power vested in a taxing officer to award costs. He is empowered only to disallow or allow
The court cannot interfere with the taxing officers’ decision on taxation unless it is shown that
either the decision was based on an error of principle, or the fee awarded was manifestly
obviously be an error of principle to take into account irrelevant factors or to omit to consider
relevant factors.
criteria which are clearly expressed for the parties to perceive with ease. Regularity in this
respect cannot be achieved without upholding fairness as between the parties. The taxing
officer should avoid the possibility of unjust enrichment for any party and ought to refuse any
It is evident that the principles of taxation are of every importance to the taxing officer to enable
him to conduct the process smoothly and to guide him in the exercising of his discretion powers.
One therefore cannot talk about the discretion powers of the taxing officer without talking about
the principles that govern him or her. To be emphasized therefore, is that the discretion of the
39
Kenya Laws Online_Kenya civil procedure law: Post litigation proceedings. Available at:
https://kenyalawsonline.blogspot.com last accessed on June 20, 2018 at 11:48 am. 42
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 2015 pg 121.
40
First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64
41
Republic vs. Ministry of Agriculture and 2 others Ex parte Muchiri W’njuguna & 6others (2006) eKLR
11
taxing officer is only so far as the principles allow and if a decision is made at the expense of
the said principles, the aggrieved party can appeal the decision to court for the decision to be
set aside and for the officer to be required to re-tax the bill of costs.
There are two bases on which costs may be taxed; Standard basis and Indemnity basis. Standard
basis is where the court allows a reasonable amount for all costs where reasonable and any
doubt as to whether costs were reasonable in quantum shall be resolved in favour of the paying
party. 42 Indemnity basis on the other hand are costs allowed by court except those of
unreasonably incurred and any doubts as to whether costs reasonably incurred or reasonable in
This paper will therefore address the principles that guide the taxing officer and the court in
exercising their discretion on matters concerning fees. This paper will discuss the principles of
Within 12 months from the date on which the proceedings are finally concluded, the receiving
party shall file a Bill of Costs which should list the costs payable by the paying party. The party
ordered to pay costs requires the receiving party to have the bill taxed by the taxing officer of
the court. The paying party is more often than not, the losing party or the judgment debtor. The
Bill of Costs shall be in the form prescribed under Schedule VI of the Advocates
(Remuneration) Order. The receiving party must draw the bill of costs and later request a date
for taxation from the taxing officer.44 No addition or alteration shall be made in a bill of costs
by the party submitting the same after the bill has been lodged for taxation, except by consent
of the parties, or by permission or direction of the court or taxing officer.45 A hearing date will
42
Kenya Laws Online_Kenya civil procedure law: Post litigation proceedings. Available at:
https://kenyalawsonline.blogspot.com last accessed on June 19, 2018 at 11:48 am.
43
ibid
44
ibid
45
Paragraph 71, Advocates (Remuneration) Order Cap 16
12
then be fixed, purposed for the taxation of the Bill of Costs referred to as the Taxation hearing
date. This is usually not less than five days after the filing date of the Bill of Costs. After such
date has been allocated, a notice of taxation is to be served on all parties entitled to attend the
hearing by the registrar, indicating when and where the taxation will occur, accompanied by a
All parties are entitled to be present at the taxation, and to put arguments to the taxing officer
in favour of or against the charges being taxed. The taxing officer should not proceed to the
taxation of any bill of costs unless he is satisfied that the party liable to pay has received due
notice as to the time and place of such taxation, together with notice that he is entitled to be
present. The taxing officer shall however have power to proceed to taxation ex parte in default
of appearance of either or both parties or their advocates, and to limit or extend the time for
any proceedings before him, and for proper cause to adjourn the hearing of any taxation from
time to time.47
If the paying party wishes to object to the Bill of costs, he must file a Notice of Dispute at least
7days before the Taxation hearing date. During the Taxation hearing process, the advocate of
the liable party or paying party, brings to the attention of the taxing officer all items that in his
opinion should not appear on such account. 48 For example he may argue that unnecessary
phone calls were made. The advocate who submitted the Bill of costs must then explain to the
taxing officer why those telephone calls were made and furnish proof thereof by notes of
telephone conversations on file. When the taxation of the bill is finalized, the taxation officer
allocates the amount that is payable in terms of the taxed bill of costs, puts his stamp on it and
signs it.49
46
Paragraph 72, Advocates (Remuneration) Order Cap 16
47
ibid Paragraph 76
48
Paragraph 74 and 74A, Advocates (Remuneration) Order Cap 16.
49
Kenya Laws Online_Kenya civil procedure law: Post litigation proceedings. Available at:
https://kenyalawsonline.blogspot.com last accessed on June 19, 2018 at 1:30 pm.
13
The Taxing Officer shall have regard to all relevant circumstances, including but not limited
to:50
a) Any payment of money into court and the amount of such payment;
b) The conduct of all parties, including conduct before and during the proceedings;
c) The parties’ conduct in relation to any attempt to resolve the matter through mediation
d) The extent to which parties followed the applicable relevant pre-action protocol or
e) The complexity of the cause or matter and the difficulty and novelty of the questions
involved.
Any party not satisfied with the amount of costs granted by the taxing Registrar may file an
application for a review by a Judge of the High Court in chambers within 14days after the
taxing officer’s decision. If the court considers that the decision of the officer discloses errors
of principle, the normal practice is to remit it back to the taxing officer for reassessment unless
the judge is satisfied that the error cannot materially have affected the assessment.51 The court
is not entitled to upset taxation because in its opinion the amount awarded was high. The court
can direct the taxing officer with appropriate directions on how it should go about the taxation
where it proves error in principle. Court must permit itself after viewing the case to interfere
with the discretion of the taxing master.52 Both the taxing officer and the judge owe a duty to
the public to see that costs are not allowed to rise to such a level as to deprive off access to the
courts all but the wealthy.56 They also bear in mind that a successful litigant ought fairly to be
50
Kenya Laws Online_Kenya civil procedure law: Post litigation proceedings. Available at:
https://kenyalawsonline.blogspot.com last accessed on June 19, 2018 at 7:35pm.
51
First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64
52
John Maina Mburu T/A John Maina Mburu & Co. Advocates v George Gitau Munne (sued as Administrator
of the Estate of Samuel Gitau Munene) and 3 others [2015] eKLR 56 Khatijabai Jiwa Hashan v Zainab Daughter
of Chandu Nansi
14
reimbursed the costs he has had to incur. The general level of the remuneration of advocates
Advocate-client costs
Advocate-client costs are costs which are payable by the client to his advocate and where such
costs are payable by the client to his advocate. The costs must be payable out of funds belonging
in its entirety to that party and is on a full indemnity basis. Where the bill of costs is between
an advocate and his own client, the advocate is entitled to charge for all work performed by
The use of discretion must not be exercised perfunctorily and as a mere formality. It is necessary
for the taxing officer to specify clearly and candidly how she had exercised her discretion since
of which are guided by principles, the elements of which are clearly stated and which are logical
and conscientiously conceived. 54 The officer ought to describe accurately the nature of the
The taxing officer in exercising his or her discretion to increase or decrease cost must first set
out the basic fee before venturing to consider whether to increase or reduce it. This is to be
done before they give reasons for the increment or reduction.55 In the case of Opa Pharmacy
Ltd. vs. Howse & Mcgeorge Ltd56the taxing officer failed to give reasons for doubling of the
instruction fees. This denied the paying party a reason for his choice of figure for it is
impossible to say what was in the taxing officer’s mind. Had he given the reasons why he
doubled the fees, it would be clear of the reasons for the inflation thereby avoiding appeals to
53
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 1984
54
Republic vs. Ministry of Agriculture and 2 others Ex parte Muchiri W’njuguna & 6 others (2006) eKLR
55
First American Bank of Kenya vs. Shah &Others [2002] 1 EA 64
56
Opa Pharmacy Ltd. vs. Howse & Mcgeorge Ltd Kampala HCMA No. 13 of 1970 (HCU) [1972] EA 233
15
the courts. The judge in this case held that, failure to give any reason for the choice amounts to
an arbitrary determination in the figure and is not a judicial exercise of one’s discretion.
Instruction fee is an independent and static item hence is charged only once. It is not affected
or determined by the stage the suit has reached. The full instruction fees to defend a suit are
earned the moment a defense has been filed and the subsequent progress of the matter is
Complexity of issues
The taxing officer should clearly identify any elements of complexity in the issues before the
court and in this regard should revert to the perception and mode of analysis and determination
adopted by the trial judge. 58 He should state clearly the nature of any novel matter in the
proceedings.59
The responsibility entrusted to counsel if it is ordinary and calls for nothing but normal
diligence, such as attending the work of a professional in any field, then there is nothing novel
in the proceedings that would justify any special allowance in costs. The advocate must indicate
that the case was a time-consuming, research involving or skill engaging activities as to justify
The mere fact that the defendant does research before filing a defence and then puts a defence
informed of such research is not necessarily indicative of the complexity of the matter as it may
well be indicative of the advocate’s unfamiliarity with basic principles of law and such
unfamiliarity should not be turned into an advantage against the adversary. 61 An advocate
57
First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64
58
Republic vs. Ministry of Agriculture and 2 others Ex parte Muchiri W’njuguna & 6 others (2006) eKLR
59
ibid
60
ibid
61
First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64
16
cannot therefore claim that the matter was a complex matter because of the research done. It is
upon the taxing officer to rule as to whether the case was a complex one or not.
The learned judge, Ojwang’ J (as he then was) in Republic vs. Ministry of Agriculture and
2Others Ex parte Muchiri W’njuguna & 6Others62was keen to note that private law claims do
not fall in the same class as public law claims such as those in judicial review, constitutional
applications and public electoral matters. Such matters are in a class of their own and the
instructions fees allowable in respect of them should not, in principle be extrapolated from the
practices obtaining in the private law domain which may involve business claims and profit
calculations.
According to the Advocates (Remuneration) Order63 come of the relevant factors to take into
account include the nature and importance of the case or matter, the amount or value of the
subject matter involved, the interest of the parties, the general conduct of the proceedings and
any discretion by the trial judge. Not all the factors may exist in any given case and it is
therefore open to the taxing officer to consider only such factors as may exist in the actual case
before him. It would be an error of principle to take into account irrelevant factors or to omit
to consider relevant.64
The value of the subject matter for the purposes of taxation of a bill of cost ought to be
determined from the pleadings, judgment and 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 case.65
62
Republic vs. Ministry of Agriculture and 2 others Ex parte Muchiri W’njuguna & 6 others (2006) eKLR
63
Shedule VI Clause 1, Advocates (Remuneration) Order Cap 16 of 2014
64
First American Bank of Kenya vs. Shah &Others [2002] 1 EA 64
65
Joreth Ltd v Kigano & Associates Civil Appeal No. 66 of 1999 [2002] 1 EA 92
17
Volume of documents read during research
To receive costs for documents that were used in the course of the case, the advocate must
indicate that there is a great volume of crucial documents which the advocate needed to refer
The taxing office should as far as possible apply the test of comparability. The officer should
endeavour to achieve objectivity when considering ill-defined criteria such as public policy,
interests affected, importance of the matter to the parties and importance of the matter to the
public. There must be consistency in the awards made in that one cases’ decision can be
determined from another previous one.67 Most importantly in the taxation of costs is that there
should be consistency so far as that is possible, allowing for the fact that no two cases are alike.
This principle is not in contrast with the one discussed above. In issues with similar subject
matters and values, the fees decided on should not fall far from each other. Every case must be
decided on its own merit and in every variable degree, the value of the suit property may be
Reasonableness
In exercising his discretion, the Taxing officer should be guided by the principle of
reasonableness. This has been explained best by the learned judge (as he then was) Mwera J in
66
John Maina Mburu T/A John Maina Mburu & Co. Advocates v George Gitau Munne (sued as Administrator of
the Estate of Samuel Gitau Munene) & 3 others [2015] eKLR
67
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 1984
68
Mayers and Another v Hamilton and others [1975] EA 13 at 14.
18
the case of Danson Mutuku Muema vs. Julius Muthoka Muema & Others69 an amount awarded
being ten times the sum provided for was not reasonable and found that it was definitely
excessive as opposed to three or four times. Contrary to this ruling, the court of appeal in the
case of Butt and another vs. Sifuna t/a Sifuna & Company Advocates70 while appreciating that
the basic instructions fees was Kshs. 9,000/= in a winding up petition nevertheless awarded
Kshs. 150,000/= in respect of instruction fees, which is 17 times the basic instructions fees.
Borrowing from this, the taxing officer should exercise reasonableness when increasing or
reducing the fees payable to advocates noting to give reasons for their actions.
Costs should not be allowed to rise to such levels as to confine access to court to the wealthy.71
The taxation of advocates’ instruction fees is to seek no more and no less than reasonable
compensation for professional work done.72 The taxation of advocates’ instruction fees should
avoid any prospect of unjust enrichment, for any particular party or parties. It is in public
interest that costs be kept to a reasonable level so that justice is not put beyond the reach of
poor litigants.
The amount awarded should be reasonable and not excessive in the circumstances of the case.
If any of the facts alleged in the bill are shown to be untrue for example if it is shown that a
particular service charged for has not been made, the relevant item in the bill will be taxed off.73
If an advocate makes obviously excessive claims as regards instructions and supports them by
misleading particulars, the taxing officer should deal drastically with him or her.74
69
Danson Mutuku Muema vs. Julius Muthoka Muema & Others Machakos High Court Appeal No. 6 of 1991
70
Butt and another vs. Sifuna t/a Sifuna & Company Advocates civil appeal no. 45 of 2005 [2009] eKLR 427
71
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 1984
72
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 1984
73
Bhagwanji Premchand and others v JM Gomes and others (1956) 23 EACA 296 at 297
74
Taj Doen v Dobrisklonsky and Bhalla and Thakore [1957] EA 379 at 381-382
19
Taxation is based on experience and opinion and not mathematics
The taxation of costs is not a mathematical exercise. A taxing officer does not arrive at a figure
by multiplying the scale fee, but places what he considers a fair value upon the work and
responsibility involved.75 It is a matter entirely based on opinion and experience.76 A court will
not therefore interfere with the award of a taxing officer, particularly where he is an officer of
great experience, merely because it thinks the award so high or so low as to amount to an
injustice to one party or the other. The taxing officer being the major player of the taxation
process, his discretion is mainly considered. Great experience acquired over time is an added
advantage.
The taxing officer whilst taxing the Bill of Costs is carrying out his function as such only. The
officer is an officer of the Superior court appointed to tax bills of costs.77 He or she is therefore
In determining costs, the taxing officer should consider the agreement between the advocate
and the client. Agreed fees by parties that are not in dispute are not subject or open to be referred
to taxation.78 Where there is an agreement, the costs of an advocate shall not be taxed79 unless
there is fraud, illegality and/or coercion in the agreement. If two parties willingly agree to
conceive an idea and the same is put into writing, signed, accepted and executed by the parties,
75
Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR
76
Republic vs. Ministry of Agriculture and 2 others Ex parte Muchiri W’njuguna & 6 others (2006) eKLR
77
Joreth Ltd v Kigano & Associates Civil Appeal No. 66 of 1999 [2002] 1 EA 92
78
John Maina Mburu T/A John Maina Mburu & Co. Advocates v George Gitau Munne (sued as Administrator of
the Estate of Samuel Gitau Munene) and 3 others [2015] eKLR.
79
Section 45(6) Advocates Act Cap 16.
80
D. N. Njogu and Co. Advocates v NBK (2007) eKLR
20
Directions from courts
At any time after the bill of costs has been filed, and before the suit has been set down for
hearing, any party to the suit may take out summons for directions as to whether such bills
should be taxed by the taxing officer before the suit is heard.81 Taxation can occur at whatever
The laws to guide taxation are but not limited to, the Advocates Act,82 the Advocates
(Remuneration) Act,83 the Civil Procedure Act84 and the Civil Procedure Rules.85
Change of advocates or where more than one advocates work on one case
There is nothing wrong with having more than one advocate acting on a case as long as one has
the money to cater for the fees. Where there is a change of advocate, the present advocate on
record lodges his client’s bill and annex thereto a separate bill of the former advocate of the
party for the past services rendered and for disbursements sought to be charged for where
rendered or made.86
Work in connection with the preparation of a case or an appeal is not done on any particular
day, but over a period of days hence the date given for such items as perusing the record, taking
instructions, making research in the law and so forth must necessarily present an approximate.87
Misdating of a bill of costs therefore cannot be used as a reason by the taxing master for
reduction of costs.
81
Section 49(d) Advocates Act Cap 16.
82
Advocates Act Cap 16, 2014.
83
ibid
84
Civil Procedure Act, Cap 21.
85
Civil Procedure Rules, Cap 21 (Subsidiary Legislation) 2010.
86
Edward Sarget v Sheikh Brothers Ltd & others, Supreme Court of Kenya at Nairobi, Civil Case No. 481 of 1958
87
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 1984
21
Ordering advocates to pay -A taxing officer can order an advocate to pay unnecessary or
Reimbursement of the advocate -A successful litigant ought to be fairly reimbursed for the
costs he had to incur in the case. Where responsibility borne by advocates is taken by the
A successful litigant is entitled to be reimbursed sums of money reasonably paid by him to his
advocate in the course of litigation. These are complete indemnity but they are only given in
the nature of an indemnity to the person entitled to them. In dealing with Party to party costs,
the taxing officer is also guided by principles to exercise his discretion. These include;
A claiming party can produce vouchers to prove such payment made to his advocate that he is
claiming from the losing party. If the taxing officer is satisfied that such amounts were
reasonable for the item of work performed, then the claiming party will be allowed such amount
for taxation. If the successful litigant cannot produce the vouchers but the taxing officer is
satisfied that some amount was properly paid in respect of the item, it is for the taxing officer
Costs are awarded by the court to the winning party according to the quantum requested by the
parties and on to the orders of the court. 90 The officer is concerned with the taxation of a
litigant’s costs as authorized by the order of the court.91 His function is to interpret the order of
88
MF Patel, Taxing officer in SM Akram v Ata-Ul-Haq
89
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 2015
90
Nyamogo &Nyamogo Advocates v Pan Africa Insurance Company Limited & another[2016]
91
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 2015 pp 121
22
the court, not to make one for the parties.92 Once the court has made the order his function is
There is no power vested on the taxing officer to award costs. The costs are awarded by the
court and it is on the taxing officer only to allow or disallow costs. 94 This is mainly because
these costs are awarded to the parties by the court during the proceedings of the case. 95 Taxation
of costs whether those costs are between party and party or between advocate and client is a
Order.96
d) The taxing officer has power to grant any order he or she deems fit and necessary
For purposes of any proceedings before him, the taxing officer shall have power and
authority to summon and examine witnesses, to administer oaths, to direct the production of
books, papers and documents and to direct and adopt all such other proceedings as may be
Take into account the circumstances that more than one cause of action could have been
conveniently litigated in one suit.98 He may disallow or refuse to allow costs for a suit which
92
ibid
93
Hilda Frances Nevill v Gerald Edward Nevill, High Court of Kenya at Nairobi, Divorce Cause No. 47 of 1964
94
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 2015 p 121
95
Nyamogo &Nyamogo Advocates v Pan Africa Insurance Company Limited & another[2016]
96
Donholm Rahisi Stores (firm) v EA Portland Cement Ltd [2005] eKLR
97
Paragraph 13A, Advocate (Remuneration) Order Cap 16
98
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 2015 p 122
23
f) Necessity of costs to the attainment of justice
The taxing officer may allow all costs, charges and expenses that appear to him to have been
necessary for the attainment of justice or for defending the rights of any party.99 In using his
discretion, a taxing officer may allow such costs appearing to him to have been necessary or
The taxing officer must carefully consider the interests of the parties. This mainly applies in
cases where there are two or more plaintiffs or defendants, where the taxing officer has to
consider the fact that some plaintiffs or defendants might have a greater interest than others.101
Conclusion
Gathered from the above paper is that the taxing officer as the official person tasked with the
responsibility of taxing bill of costs, must be guided with taxation principles while exercising
his discretion. The court is not to interfere and where an applicant goes to court to challenge
the action of the taxing officer, the court in making its decision will consider whether the taxing
officer errored in principle or not. The court will then highlight this issue and return
99
Paragraph 16 of the Advocates (Remuneration) Order Cap 16
100
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 2015 p 122
101
Richard Kuloba, “Judicial Hints on Civil Procedure” lawAfrica 2nd edition 2015 p 135
24
Draft Bill of Costs
REPUBLIC OF KENYA
MDOSICA………………………………………………….…………………....PLAINTIFF
VERSUS
25
8. 1/4/2016 Towards making 3 copies of verifying Kshs. 225/=
affidavit
26
27
22. 26/5/2016 Towards attending court for hearing of Kshs. 5,000/=
application
DISBURSEMENTS
29. 1/4/2016 Court filing fees for plaint, verifying Kshs. 1,500/=
affidavit, witness statement and list of
documents
36. 11/5/2016 Court fees for filing notice of motion Kshs. 60/=
application
28
29
GRAND TOTAL Kshs. 905,096/=
Advocates
Box 27-100,
NAIROBI.
To Be Served Upon
30
REPUBLIC OF KENYA
MDOSICA………………………………………………….…………………....PLAINTIFF
VERSUS
NOTICE OF TAXATION
TAKE NOTICE that the Bill of costs in the above case lodged in the High court by the Plaintiff for taxation
will be taxed/taken on the………………….day of ………………20…. at 9:00am. A copy of the Bill of costs is
attached hereto for your case.
DEPUTY REGISTRAR
31
32