https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4178

Gicheru & Company Advocates v County Government of Uasin Gishu (Environment and Land Miscellaneous Application E035 of 2025) [2026] KEELC 4178 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 4178 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Miscellaneous Application E035 of 2025 EM Washe, J June 17, 2026 Between Gicheru & Company Advocates Applicant and County Government Of Uasin Gishu Respondent Ruling 1.The Applicant through a Chamber Summons Application dated 31.07.2025 (hereinafter referred to as “the present Reference”) sought the following Orders against the Respondent; -a.That this Honourable court be pleased to set aside the ruling on taxation by Hon. E.C. Chelule (DR) delivered on 18th July, 2025 with respect to items numbers 1, 2, 3 & 11 in the matter of the taxation of the Advocate/Client bill of costs dated 17th December, 2013.b.That this Honourable court be pleased to tax the Advocate/Client bill of costs dated 17th December, 2013 afresh in accordance with the Advocates (Remuneration) Order.c.That in the alternative to order (b) above, this Honourable court be pleased to refer the Advocates/Client bill of costs dated 17th December, 2013 for fresh taxation before a different taxing master with clear guidelines on the taxation principles to be employed during taxation.d.That costs of this reference be borne by the Respondent. 2.The grounds and facts in support of the above prayers are contained in the body of the present Reference as well as the Supporting Affidavit thereof and can be summarised as follows; -i.The Applicant herein was duly instructed by the Respondent to act in the proceeding known as Eldoret Environment & Land Court Case No. 30 of 2013 whose subject matter was valued at Kenya Shillings Twenty Million Five Hundred Thousand (KShs.20,500,000/-).ii.Thereafter, the client- advocate relationship between the Applicant and the Respondent did terminate.iii.Upon termination of the Advocate- Client relationship, a Bill of Costs was filed by the Applicant to ascertain the legal fees payable by the Respondent.iv.On the 18.07.2025, the Taxing Officer Hon. E.C. Chelule (DR) did pronounce a Ruling assessing the legal fees payable by the Respondent at Kenya Shillings One Hundred and Eighty Seven Two Hundred and Forty Five (KShs.187,245/-) instead of Kenya Shillings Six Hundred and Sixty Two Thousand Eight Hundred and Sixty (KShs.662,860/-)as drawn in the Bill of Costs.v.The Applicant being dissatisfied by the Ruling of the Taxing Officer pronounced on the 18.07.2025 did file the present Reference before this Court.vi.The main grievances in the present Reference was the assessment of the Instruction Fees, the getting up fees, the payable VAT and the costs of the attendance during taxation of the Bill of Costs.vii.To begin with, the Applicant did plead that the Taxing Officer erred in assessing the Instruction Fees payable as Kenya Shillings One Hundred Thousand (KShs.100,000/-) without consideration of the subject matter whose values is Kenya Shillings Kenya Shillings Twenty Million Five Hundred Thousand (KShs.20,500,000/-).viii.In the Applicant’s view, the Instruction Fees ought to be assessed at Kenya Shillings Three Hundred and Sixty-Nine Thousand Five Hundred (KShs.369,500/-) based on the provisions of Schedule VI of Advocates Remuneration Order, 2009.ix.Secondly, based on the erroneous assessment of the instruction fees, the Taxing Officer did arrive at a wrong assessment of the Getting up fees contained in Item 2 of the Bill of Costs.x.Thirdly, the Taxing Officer having erred in computation of Item No. 1 and 2 of the Bill of Costs, then the VAT payable was also wrongly assessed.xi.In essence, the Applicant sought this Court to set-aside the Ruling pronounced on 18.07.2025 as relates to the Bill of Costs dated 17.12.2013 and thereafter either assess the said Bill of Cost dated 17.12.2013 afresh or refer the same to another Taxing Officer for re-assessment. 3.The present Application was duly served on the Respondent who did oppose the same through a Replying Affidavit dated 10.12.2025. 4.The facts pleaded by the Respondent in their Replying Affidavit were as follows; -i.The Respondent did concur with the assessment of the Bill of Costs dated 17.12.2013 in the Ruling dated 18.07.2025.ii.According to the Respondent, the Taxing Officer did correctly and properly apply the law in the assessment of the Bill of Costs dated 17.12.2013 through its Ruling dated 18.07.2025.iii.In essence, the Respondent did plead that there were no grounds upon which the Orders sought by the Applicant in the present Application in relation to the Ruling dated 18.07.2025 by the Taxing Officer could be granted.iv.In conclusion, the Respondent did seek this Court to disallow the present Application with costs. 5.The Applicant upon being served with the response from the Respondent did seek to canvass the present Application by way of written submissions. 6.The Applicant did file their submissions on the 26.02.2026 while the Respondent filed its submissions on 16.03.2026. 7.The Court has perused the present Reference, the Replying Affidavit and the submissions of the parties and identifies the following issues for determination; -Issue No.1- Did the taxing officer make the appropriate considerations in assessment of items no. 1,2,3 and 11 of the bill of costs dated 17.12.2013?Issue No.2- If negative, what was the correct principle for the assessment of the bill of costs dated 17.12.2013.Issue No.3- What is the proper assessment and/or relief to be granted by this court?Issue No.4- Is the present reference merited or not?Issue No.5- Who bears the costs of the present reference? 8.The Court having duly identified the above-mentioned issues for determination, the same will now be discussed as provided below. Issue No.1- Did the taxing officer make the appropriate considerations in assessment of items no. 1,2,3 and 11 of the bill of costs dated 17.12.2013? 9.the first issue for determination in the present Reference is whether or not the Taxing Officer applied the relevant principles in the assessment of the Bill of Costs presented in Court. 10.It is trite law that in matters of taxation and a reference such as this, a Court hearing the reference must warn itself that the decision of the taxing master can only be interfered with where there is an error in the principles applied in the taxation giving rise to the reference. 11.This rule was affirmed in the case of Kipkorir, Titoo & Kiara Advocates -versus- Deposit Protection Fund (2005) eKLR, where the Court did state as follows; -“On a 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. In Arthur vs Nyeri Electricity Undertaking (1961) EA 497, the predecessor of this Court said at page 492 paragraph 1.Where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases’.” 12.Therefore, this Court will only interfere if the taxing officer applied a wrong principle of law or took into account irrelevant matters or failed to take into account relevant ones, and thus arrived at a wrong decision. 13.The Bill of Costs dated 17.12.2013 is one that relates to a suit filed before this Court in which the firm of Gicheru & Company Advocates, the Applicant herein, was instructed to represent the Respondent. 14.Since the Bill of Costs was filed in 2013, the Taxing Officer did apply the Advocates (Remuneration) Order, 2009. 15.On instruction fees, the Taxing Officer did make the following finding;-“I have reviewed the documents filed and I do note that the that the Bill of Costs arose from a matter filed in Environment and Land Court where the Applicant represented the Respondent herein in a suit seeking a permanent injunction against them and a declaration that the interference with the Plaintiffs parcel of land was illegal and unlawful.That being a suit that was seeking prerogative orders schedule VI(1)(j) shall apply. The ARO provides that:“To present or oppose an application for a prerogative order; such sum as may be reasonable but not less than 28,000/-…” . 16.In making the above finding, the Taxing Officer did take into account that the proceedings before the Trial Court were commenced by way of a Plaint dated 21.01.2013. 17.The Plaint dated 21.01.2013 was primarily seeking for a Permanent Injunction against the Defendants as well as and a declaration that the suit property therein was the asset of the Plaintiff together with costs. 18.However, the provision of the Advocates Remuneration Order, 2009 used to assess the Bill of Costs dated 17.12.2013 was Schedule VI(1)(j) which applies to assessment of Prerogative Orders;- 19.In the Black’s Law Dictionary 11th Edn. at page 1928, a prerogative writ or an extraordinary writ is defined as:-“a writ issued by a court exercising unusual or discretionary power. Examples are certiorari, habeas corpus, mandamus, and prohibition.” 20.Neither an Injunctive Order nor a Declaratory order fall within the definition of what is a prerogative order. 21.In essence, this Court is of the considered finding that the Taxing Officer did apply the wrong provision of the Advocates Remuneration Order, 2009 and therefore was misguided on the applicable principles in the assessment of the Bill of Costs dated 17.12.2013. 22.To this end, this Court is satisfied that the Ruling pronounced on the 18.07.2025 by the Taxing Officer was based on the wrong principle of taxation and should be set-aside. Issue No.2- If negative, what was the correct principle for the assessment of the bill of costs dated 17.12.2013. 23.The Court having made a finding that the applicable provision applied by the Taxing Officer in the assessment of the Bill of costs dated 17.12.2013 was not the correct one, the Court is of the view that the appropriate provision of the Advocates Remuneration Order, 2009 was Schedule VI (a) or (b). 24.The Court is of the considered view that the Plaint dated 21.01.2013 was one of immovable property whose value if need be would be ascertained. Issue No.3- What is the proper assessment and/or relief to be granted by this court? 25.The third issue for determination is what would be the proper and/or correct assessment of the Bill of Costs dated 17.12.2013. 26.The Applicant seeks this Court to either re-assess the Bill of Costs dated 17.12.2013 and/or refer the same for fresh taxation before another Taxing Officer. 27.The law is clear that where a Taxing Officer disregards applicable legal standards or fails to consider relevant factors, a superior Court such as this one is entitled to intervene. 28.In such circumstances, the Court may intervene by either remitting the matter for fresh taxation or proceed to tax the Bill itself where the interests of justice so demand. 29.This Court’s election is to assess the Bill of Costs dated 17.12.2013 rather than send it back for re-assessment before a Taxing Officer which will take substantial time herein. 30.To begin the re-assessment by this Court, it is not in dispute that the Items in the Bill of Costs dated 17.12.2013 which are being contested are Items 1,2,3 and 11. 31.On Item No. 1, the Applicant did submit that the Plaint dated 21.01.2013 was in relation to a subject matter whose value was estimated to be Kenya Shillings Twenty Million Five Hundred Thousand (KShs.20,500,000/-). 32.In essence, the Applicant was of the view that the Instruction Fees of Kenya Shillings Three Hundred and Sixty-Nine Thousand Five Hundred (369,500/-) as drawn in the Bill of Costs dated 17.12.2013 was justified and the decision of assessing the same at Kenya Shillings One Hundred Thousand (KShs.100,000/-) was wrong. 33.Flowing from the wrongful assessment on Item No.1, the Applicant faults the Taxing Officer for under-assessing Item No. 2 and Item No. 3 which are dependent on the value of the instruction fees. 34.The Applicant also did object to the assessment of Item No. 11 of the Bill of Costs dated 17.12.2013 35.It is crucial to point out that according to the proceeding of the Trial Court file, it is clear that the Applicant herein did not handle the matter from the beginning to conclusion of the same through a full hearing. 36.Therefore, the applicable law on the instruction fees is Schedule VI A1(ii) of the Advocates Remuneration Order, 2009, which provides that:-ii.To sue or defend in a suit in which the suit is determined in a summary manner in any manner whatsoever without going to full trial the fee shall be 75% of the fees chargeable under item 1(b) where the value of the subject matter is in excess of Ksh. 3,000,000. 37.The instruction fees are dependent on the value of the subject matter, for which the Court in the case of Joreth Limited-versus- Kigano & Associates (2002) 1 EA 92, made the following finding:-“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, judgement or settlement (if such be the case), but if the same is not ascertainable the taxing officer is entitled to use his discretion to assess such instructions fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any directions by the Trial Judge and all other relevant circumstances thereof” 38.The Plaintiff did indeed plead at paragraph 12 of his Plaint that the value of the subject matter was at the time KShs.20,500,000/-. 39.In support of this claim, the Plaintiff also filed a Valuation Report done by Highland Valuers Limited with respect to Eldoret Municipality Block 8/578, the suit property herein, dated 1st November, 2012. 40.The said valuation report sets the value of the land itself at KShs.16,000,000/- and the value of the improvements at KShs.4,500,000/-, bringing the aggregate value of land and improvements to KShs.20,500,000/-. 41.None of the Defendants opposed the value claimed by the Plaintiff, or filed another Valuation report to counter the one availed by the Plaintiff. 42.The award on instruction fees thus ought to have been premised on the value of the subject matter which from the pleadings was KShs.20,500,000/-. 43.That being the case, going by the said value of KShs.20,500,000/-, item 1 of the Bill of Costs dated 17th December, 2013 being the amount of instruction fees is hereby taxed at KShs.69,000/-. 44.As regards item 2 of the Bill of costs, under the Advocates Remuneration Order, this item is charged as fees for getting up for trial, and the Applicant has acknowledged at paragraph 7 of her supporting affidavit that the said item was indeed in respect of getting up fees. 45.In that regard, Schedule VI Part A paragraph 2 of the Advocates Remuneration Order, 2009 provided for as follows:-2.Fees for getting up or preparing for trial in any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall be not less than one-third of the instruction fee allowed on taxation:Provided that –(i)this fee may be increased as the taxation officer considers reasonable but it does not include any work comprised in the instruction fee;(ii)no fee under this paragraph is chargeable until the case has been confirmed for hearing, but an additional sum of not more than 15 per cent of the instruction fee allowed on taxation may, if the judge so directs, be allowed against the party seeking the adjournment in respect of each occasion upon which a confirmed hearing is adjourned:(iii)in every case which is not heard the taxing officer must be satisfied that the case has been prepared for trial under this paragraph. 46.On this head, in Nyangito & Co. Advocates vs Doinyo Lessos Creameries Ltd (Supra), Justice GV Odunga further held that:-“28.… With respect to fees for getting up and preparing for trial under Schedule VI paragraph 2, no fees is chargeable under the said paragraph until the case is confirmed for hearing and in case where the case is not heard, the taxing master must be satisfied that the case has been prepared for trial. It is obvious that the case which gave rise to these proceedings was not heard. There is no evidence that the case was prepared for trial. Accordingly this paragraph did not apply.” 47.The Applicant herein entered appearance on 29th January, 2013 and was replaced through a Notice of Change of Advocates dated and filed on 15th January, 2014. 48.At that time, the Applicant had only filed a Defence and a Notice of Preliminary Objection that was yet to be prosecuted. 49.From the record of the Trial file, the Applicant had not even complied with pre-trial directions under Order 11 of the Civil Procedure Rules, and thus cannot claim to have prepared for trial of the proceedings known as Eldoret Environment & Land Court Case No. 30 of 2013. 50.There is therefore no evidence that the case was prepared for trial as to qualify the Applicant for an award under the head of fees for getting up for trial. 51.Consequently, the said item is taxed off. 52.The Applicant has also objected to the amount assessed with respect to Item 3 of its bill of costs which relates to Value Added Tax (VAT). 53.The relevant statute on this is the Value Added Tax Act, Cap 476, Laws of Kenya. Section 9(3) of the said Act provides that:-In calculating the value of any services for the purposes of Subsection (1) there shall be included any incidental costs incurred by the supplier of the services in the course of making his supply to his client provided that, if the commissioner is satisfied that the supplier has merely made a disbursement to a third party as an agent of his client, then such disbursement shall be excluded from the taxable value. 54.As regards what items can be charged VAT, in Aoro vs Were (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR), the court explained that:-“From the above authorities, it is clear that VAT is chargeable on the instruction fees and also on disbursements. Therefore, in the instant case, VAT of 16% was indeed chargeable on the instructions fees. I find the objection thereto misplaced.” 55.There being no head for disbursements, the VAT in this case is chargeable on the instruction fees, which has been assessed at KShs.69,000/-, and 16% thereof is KShs.11,040/-. 56.Turning to Item 11 of the bill of costs, the same is on attendance of Court for the taxation of the Bill of Costs dated 17.12.2013. 57.The Taxing Officer gave no reason why she taxed off the amount from KShs.2,000/- to KShs.315/-, which amount this Court finds is manifestly low. 58.This Court finds that the amount drawn at KShs.2,000/- is reasonable and proceeds to assess the said item 11 at KShs.2,000/- as drawn. 59.In conclusion thereof, the Bill of Costs dated 17.12.2013 be and is hereby assessed at Kenya Shillings Ninety Three Thousand Nine Hundred and Seventy (KShs.99,970/-) all inclusive. Issue No. 4- Is the present reference merited or not? 60.The fourth issue for determination is whether or not the present Reference is merited. 61.Based on the findings in Issue No. 1, 2 and 3 hereinabove, this Court is of the finding that the present Reference is merited. Issue No.5- Who bears the costs of the present reference? 62.On the issue of costs, the general law is that costs follow the event and are awarded to the successful party. 63.In this instance, the Applicant has only been partially successful in prosecuting the present reference. 64.Consequently, the Court sees no need to condemn the Respondent to bear the costs of the Application, thus it shall not exercise its discretion in making any order as to costs. Conclusion 65.In conclusion, the Court hereby makes the following Orders in determination of the present Reference; -a.An order be and is hereby made setting-aside the ruling pronounced on the 18.07.2025 by hon.e.c. chelule regarding the bill of costs dated 17.12.2013.b.The bill of costs dated 17.12.2013 be and is hereby assessed at a sum of kenya shillings ninety-nine thousand nine hundred and seventy (kshs 99.970/-) all inclusive.c.There will be no orders as to costs in relation to the present reference. DATED, SIGNED AND DELIVERED IN ELDORET THIS 17TH DAY OF JUNE, 2026.EMMANUEL.M. WASHEJUDGEIn the presence of:Court Assistant: Mr. BrianCounsel for the Applicant: Mr. OgongoCounsel for the Respondent: Mr. Kuto