https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5292

**REPUBLIC OF KENYA IN THE ENVIRONMENT & LAND COURT AT NAIROBI MISC. APP NO. E314 OF 2025** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **CARLISLE DEVELOPMENT CO. LTD - COMPLAINANT/APPLICANT** **VS** **NATIONAL LAND COMMISSION - RESPONDENT** **RULING** **(In respect of the Applicants’ Chamber Summons application dated 7/10/2025)** 1. Before me is a Chamber Summons application dated 7/10/2025. The application is said to be anchored in the provisions of Section 1A, 1B, and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, and Rule 11 of the Advocates Remuneration Order. The Applicant seeks orders that: - 2. The decision of the taxing master delivered on 23rd September 2025 as regards items Number 1 on the Applicant’s Party and Party Bill of Cost dated 14th July 2025 be varied; 3. This Honourable Court does proceed to tax Item 1 of the Bill of Costs dated 14th July 2025, or in the alternative, the Applicant’s Bill of Costs be remitted back for taxation before another Taxing Officer of the Tribunal other than Hon. Kaimenyi Kanyiri. 4. This Honourable Court do make any additional orders as the demands of justice dictate. 5. The costs of this Application be provided for. 6. The application is premised on the face of it and on the Supporting Affidavit of James Njenga Mwangi, the Applicant’s Director, of even date. The deponent avers that the Applicant instituted Tribunal Case No. E044 of 2024 before the Land Acquisition Tribunal, seeking an order compelling the Respondent to pay Kshs. 2,250,000,000.00 as fair compensation for the compulsory acquisition of L.R No. 209/13761 (measuring 7.569 hectares), together with interest from 2016 to the date of payment. A judgment was entered in favour of the Applicant on 7/2/2025, with costs, prompting the filing of a Bill of Costs dated 14/7/2025. 7. He avers that upon taxation, the parties agreed to dispose of the Bill by way of written submissions, and both parties complied, filing their respective submissions dated 11/9/2025. The Affiant deposes that on 23/9/2025, the Taxing Master, Hon. Kaimenyi Kanyiri, rendered a ruling taxing the Bill at Kshs. 662,235.00 and striking off Kshs. 3,900,365.00. Aggrieved by that ruling, the Applicant obtained the ruling and noted that the Taxing Master had miscalculated by failing to break down the fees as prescribed under Schedule 11, paragraph 8(a) of the Remuneration Order. 8. The Applicant contends that the instruction fees ought to have been calculated on the basis of the subject matter value of Kshs. 731,135,000.00, applying the graduated scales for fees above Kshs. 250 million (0.1%), for Kshs. 20 million (0.5%), and for Kshs. 1 million (an additional 1%), as provided in the Remuneration Order. Further, the Applicant avers that the Taxing Master failed to consider the principles enunciated in Premchand Raichand Limited & Another v Quarry Services of East Africa Limited, thereby committing a serious error in principle that warrants the intervention of this Court. 9. The Respondent asserts that the Taxing Master's decision of 23/9/2025 was lawful, proper, and judicious, and was rendered within the confines of the Advocates Remuneration Order, 2014. It is further contended that the Taxing Master duly applied the principles set out in Schedule 11 of the Order, which governs the taxation of costs before statutory tribunals, and that the instruction fees of Kshs. 581,135.00 were correctly computed in accordance with paragraph 1 of Schedule 6A, based on the value of the subject matter as discernible from the judgment and pleadings. 10. The Respondent contends that the Applicant’s challenge to the Taxing Master’s award of instruction fees lacks legal or factual merit, as the Taxing Master duly considered the value of the subject matter, the complexity of the dispute, the time expended, and all other relevant circumstances in accordance with the Advocates Remuneration Order. It is further argued that taxation is a discretionary exercise, and the Court may intervene only upon a clear error of principle—a threshold the Applicant has failed to meet, as reinforced by the principles in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others [1972] EA 162. 11. The Respondent asserts that the Taxing Master’s computation of instruction fees, which applied 0.1% to the amount exceeding Kshs 250,000,000.00 plus a base fee of Kshs 100,000.00, was methodologically consistent with the Advocates Remuneration Order and binding judicial precedent, including Kenya Airports Authority v Otieno Ragot & Company Advocates [2024] KESC 44 (KLR), which mandates adherence to the Order’s structure and deference to the Taxing Officer’s discretion. Consequently, setting aside the ruling without proven error would undermine judicial efficiency, certainty, and the finality of costs disputes, invite endless references, and erode confidence in the taxing office. 12. The Respondent further argues that the Applicant’s application is frivolous, vexatious, and an abuse of process, intended to delay execution rather than correct any genuine legal or factual error. That the taxation ruling is said to be fair, balanced, and proportionate, causing no prejudice to the Applicant, whose dissatisfaction stems merely from a desire for this Court to substitute its own discretion for that of the Taxing Master. In all the circumstances, the Respondent prays that the Taxing Master’s decision be upheld in its entirety, as it is sound in law and fact. 13. The court directed that the Application be canvassed by way of written submissions. The Respondent complied and filed its submissions dated 26/3/2026. However, the Applicant did not comply. The Court has had occasion to read the Applicant’s submissions, which now form part of the court’s record. **Analysis and determination** 1. The Court has considered the instant application, the pleadings herein, the written submissions, the impugned Ruling, the cited authorities and the relevant provisions of law, and finds that the issues for determination are as follows: - 2. Whether the Honourable Taxing Officer erred in principle in the assessment of Instruction Fees. b. Who should bear the cost of this application? **Whether the Honourable Taxing Officer erred in principle in the assessment of Instruction Fees.** 1. I start by noting that the Client has cited the provisions of the Civil Procedure Act. The Advocates Act and the Advocates Remuneration Order, for that matter, are a complete statute in themselves on matters of taxation of costs, and as such, a party cannot invoke the provisions of the Civil Procedure Act or the Rules made thereunder for the purpose of challenging any decision of the Taxing Officer. 2. Before delving into the issue, it is important to note that the Reference before this court is competent, having been filed in accordance with Rule 11 of the Advocates Remuneration Order. I note that the Applicant, aggrieved by the decision of the Taxing Master, filed a Notice of Objection dated 7/10/2025, being the fourteenth (14) days after the Ruling was delivered. 3. Rule 11 of the Advocates Remuneration Order makes provision for the procedure an aggrieved party must adopt. It provides: 4. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. 1. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. 1. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. 2. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired. 3. The procedure contemplated above is: a. The aggrieved party issues a notice within 14 days on the items objected b. The Taxing Officer shall forthwith give reasons for his decision c. Upon receipt of the reason, the objector shall within 14 days file an application to the High Court setting out grounds for objection 1. If dissatisfied with the High Court, the objector shall with leave of court appeal to the Court of Appeal. 2. The procedure above, as drafted, is mandatory. The Court notes that the Applicant has complied with all the requirements outlined in Section 11 above. The Ruling by the Taxing Master was delivered on 23/9/2025. The Applicant filed a Notice of Objection dated 7/10/2025 and, on the same day, the instant Reference. This is within 14 days of the delivery of the Ruling. The Objection further identified the specific Item objected to, namely the Instruction Fees. 3. In the case of Twiga Motor Limited -vs- Hon. Dalmas Otieno Anyango (2015) eKLR, the Court stated that; “The time limits in Rule 11 of the Advocates Remuneration Order have been put there for a reason. Failure to adhere to the said time lines would mean that the application would be rendered incompetent in the first instance.” [own emphasis] 1. This court therefore has jurisdiction to determine this Reference. 2. It is important to emphasise at this point that matters of quantum of taxation are purely within the province, competence and judicial discretion of the taxing officer. This Court will not lightly interfere with an award of quantum by the taxing officer unless there was an error in principle or the discretion was improperly exercised, resulting in injustice. The Court in the case of Kipkorir, Tito & Kiara Advocates vs. Deposit Protection Fund Board [2005] eKLR was categorical that; “On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.” 1. The proper exercise of discretion by the Taxing Officers was restated in Kamunyori & Company Advocates –vs- Development Bank of Kenya Limited (2015) Civil Appeal 206 of 2006, where it was held that; “…Failure to ascertain the correct subject matter in a suit for the purpose of taxation is an error of principle. So too, failure to ascribe the correct value to the subject matter is an error of principle. Authorities on taxation show that a Judge will normally not interfere with the Taxing Officer’s decision on taxation unless it is based on an error of principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of principle can be inferred. If instructions fee is arrived at on the wrong principles, it will be set aside” 1. The Applicant seeks an order varying the ruling delivered on 23/9/2025 regarding item 1. The principles for setting aside the decisions of the Taxing Master are well established in the cases of Premchand Raichand Limited & Another –vs- Quarry Services of East Africa Limited and Another [1972] E.A 162, First American Bank of Kenya vs Shah and Others (2002) EA 64, and Joreth Ltd. –vs- Kigano and Associates (2002) 1 EA 92. These include; a. That there was an error of principle b. The fee awarded was manifestly excessive or is so high as to confine access to the court to the wealthy c. That the successful litigant ought to be fairly reimbursed for the costs he has incurred. That so far as practicable there should be consistency in the award. 1. With these principles in mind, the issues for determination are whether the Taxing Officer herein rightly exercised his discretion in determining and taxing the instruction fees in the Party and in the Party Bill of costs dated 14/7/2025. 2. The Supreme Court, in the case of Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR), stated that; “It is common ground that the subject matter of the suit in issue should be identified first, and then the value thereof determined. How is the value of the subject matter to be determined? Paragraph 1 of Schedule VIA is clear on this issue, and in point of fact stipulates that, “… where the value of the subject matter can be determined from the pleading, judgment or settlement of the parties”. This means that the value of the subject matter can be determined from the pleadings or judgment or settlement of the parties. In that regard, the Court of Appeal in the case of Joreth Ltd –vs- Kigano & Associates [2002] 1 EA 92 expressed that- “We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a Bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) 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 cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” 1. The Learned Judges further cited with approval the Court of Appeal case of Peter Muthoka & Another –vs- Ochieng &3 Others, Civil Appeal No 328 of 2017; [2019] eKLR in considering the issue of how the value of a subject matter can be determined and stated that; “the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court.” 1. Having perused the Bill of Costs, it is not in doubt that the value of the subject matter of the suit was ascertainable from the pleadings and was confirmed in the Judgment delivered on 25/9/2024. It is that value that the Taxing Master considered when calculating the instruction fees in the Party & Party Bill of Costs. 2. In calculating the instruction fees, the taxing officer alleged to have relied on Schedule 11, Rule 8 of the Advocates (Remuneration) Order, and considered fees as follows: Kshs. 250,000,000/=, and Kshs. 120,000/= as fees for the amount not exceeding Kshs. 250,000,000/=. He then subtracted Kshs. 250,000,000/= from the value of the suit property (731,135,000 - 250,000,000). He then applied a multiplier of 0.1% and added Kshs. 100,000 to arrive at Kshs. 581,135/=. 3. In fact, the applicable provision for calculating instruction fees is Schedule 11, Rule 8, of the Advocates (Remuneration) Order, which provides for costs of proceedings before the Tribunals where the value of the subject matter can be ascertained. However, I note that the Taxing Officer erred in computing the instruction fees. The applicable schedule does not provide that the payable fees for a sum of Kshs. 250,000,000 are Kshs. 120,000/=. In fact, such a figure is not stated anywhere in the said schedule. 4. It is therefore my finding that, although the taxing officer identified the correct schedule to apply, he erred in principle in his computation of the figure, thereby granting an award that is manifestly too low. 5. Ultimately, in view of the foregoing analysis of the application, the Court makes the orders set out below: 1. That the Chamber Summons application dated 7/10/ 2025 is meritorious. 2. The Taxing Officer’s award of Kshs. 581,135/= as instruction fees is set aside and/or varied. 3. The Party & Party Bill of Costs dated 14/7/2025 is hereby remitted back for re-taxation of Item 1 (Instruction Fees) only before a different Taxing Officer of the Tribunal other than Hon. Kaimenyi Kanyiri. 4. The Applicant is granted costs of the application. 6. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Ms Gikonyo HB for Mr Thuita 2. N/A for the Defendant 3. C.A – Mr. Amos