https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5290

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. 1404 OF 2004** **JEPHTHAH NJAGI KARINGO - PLAINTIFF** **VS** **HON ATTORNEY GENERAL - 1ST DEFENDANT CHIEF LAND REGISTRAR - 2ND DEFENDANT** **AND** **SAMUEL NGUNU KIMOTHO - 1ST INTERESTED PARTY MAAKA MUKUHI MUGWERU - 2ND INTERESTED PARTY JOSEPH NG'ANG'A NJUGUNA - 3RD INTERESTED PARTY JOSVIR TRADERS & AGENCIES LTD - 4TH INTERESTED PARTY** **RULING** **(In respect of the 3rd & 4th Interested Parties’ application dated 18/12/2025 and the Plaintiff’s application dated 28/4/2026)** 1. What is coming up for determination is the 3rd and 4th Interested Parties’ amended chamber summons application dated 18/12/2025 and the Plaintiff’s notice of motion application dated 28/4/2026, respectively. **The 3rd and 4th Interested Parties’ application** 1. The Chamber Summons, dated 28/11/2025 and amended on 18/12/2025, is founded on the provisions of Rule 11 of the Advocates Remuneration Order. The Applicants pray for orders that; 2. The ruling on taxation rendered by Hon. Vincent Kiplagat on 6/11/2025 be set aside. 3. The 3rd and 4th Interested Parties' Bill of Costs, which had been taxed on 23/11/2023 and allowed in the sum of Kshs. 6,887,997/=, be maintained. 4. The costs of the Reference be awarded to the Applicants. 5. The application is anchored on the face of it and on the supporting affidavit of Christine Nyambura Kamau, the Applicants’ counsel on record, dated the same day. The deponent avers that the Bill of Costs of the 3rd and 4th Interested Parties was taxed on 4/3/2024 in the sum of Kshs. 6,887,997/=. Thereafter, the Plaintiff filed an application dated 29/7/2025 seeking review and setting aside of the taxation. A Ruling on the said application was delivered on 6/11/2025, in which the Deputy Registrar revised the costs downward to Kshs. 300,000/=. 6. Counsel avers that the 3rd and 4th Interested Parties, aggrieved by the Ruling of 6/11/2025, formally notified the Deputy Registrar of the Applicants' objection and requested that reasons be provided for the taxation, vide the Letter dated 7/11/2025. The deponent states that the Reference was filed at the earliest opportunity upon receipt of the typed Ruling and the requisite notice of objection. 7. The grounds for the reference are that the Deputy Registrar erred in setting aside the Instruction Fee on the basis that the substantive value of the subject matter, which formed the core of the suit successfully defended by the Applicants, ought to be disregarded. The deponent avers that the Deputy Registrar erred in law by effectively disregarding the earlier Ruling of Justice M.D. Mwangi dated 23/7/2024, which declined the Respondents' attempt to file a Reference against the taxing Master's decision. 8. It is deposed that, despite acknowledging on 15/5/2025 that the Respondents' application for enlargement of time to file a Reference was res judicata, the Deputy Registrar nonetheless permitted them to file an application for review. The Deputy Registrar is accused of acting beyond his powers and in a manner that rendered the court functus officio, having, in effect, sat on appeal over his own decision of 23/11/2023. The resultant award of Kshs. 300,000/= is manifestly low and inadequate, amounting to an error in principle. The deponent further argues that the Deputy Registrar erred in holding that the Applicants' "limited joinder" warranted a near-zero Instruction Fee, a finding contrary to binding authority that a party joined even for a limited purpose remains entitled to fees proportionate to the work undertaken in protection of its proprietary interest. On these grounds, the deponent verily believes it just and in the interest of justice that the Reference be allowed. **The Plaintiff’s Replying Affidavit** 1. The Plaintiff opposed the application by the Replying Affidavit sworn on 7/11/2025. The Plaintiff avers that the Bill of Costs filed by the 3rd and 4th Interested Parties on 24/11/2020 was taxed and certified on 4/3/2024 in the sum of Kshs. 6,887,997/-. He subsequently sought a review by the application dated 29/7/2025, which was determined vide the Ruling delivered on 6/11/2025, reducing the taxed costs to Kshs. 300,000/-. 2. The Plaintiff states that following the Ruling, his advocates sought payment details and, by a letter dated 4/12/2025, were directed to issue a cheque in favour of the Interested Parties’ Advocates. The Plaintiff deposes that he issued Cheque Number 000485 for Kshs. 300,000/- on 6/2/2026, which was forwarded to the Interested Parties’ Advocates on 9/2/2026. He believed that the matter was thereby concluded upon acceptance of the settlement, based on the receipt thereof. 3. He asserts that the 3rd and 4th Interested Parties cannot accept the settled sum and then deny the settlement, as such conduct is estopped in law. The deponent maintains that the instant application constitutes an abuse of process and an attempt to re-litigate a concluded issue, contrary to the principle of finality in litigation. He therefore prays that the application be struck out with costs. **The Plaintiff’s application** 1. The Plaintiff’s application is expressed to be brought under the provisions of Sections 1A, 1B, 3A of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules. The Plaintiff prays for orders that; 2. The Chamber Summons application filed by the 3rd and 4th Interested Parties herein be struck out. 3. The Honourable Court be pleased to find that the said application is moot, spent and overtaken by events, the decretal sum having been settled. 4. The Honourable Court be pleased to find that the said application constitutes an abuse of the court process. 5. The costs of this application be awarded to the Plaintiff. 6. The application is based on the grounds set out on the face of it and is further supported by the Plaintiff’s affidavit dated 28/4/2026. The Plaintiff restates his assertions as set out in the Replying Affidavit. He maintains that the 3rd and 4th Interested Parties, having accepted the Kshs. 300,000/= settlement, cannot turn around and deny it. **The 3rd and 4th Interested Parties Replying Affidavit** 1. The 3rd and 4th Interested Parties opposed the application vide the Replying Affidavit of Dominic Njuguna Mbigi, their Counsel on record, dated 27/7/2026. Counsel avers that by the time the applicant proposed the payment on 28/11/2025, a reference had already been preferred against the Deputy Registrar’s ruling of 6/11/2025, which purported to order the re-taxation of a Bill of Costs previously taxed on 4 March 2024. He further states that as evidenced by the Letter dated 4/12/2025 annexed to the Supporting Affidavit, the 3rd and 4th Interested Parties’ advocates had offered to receive the payment “on account without prejudice to our client’s rights on the reference.” He asserts that the Plaintiff therefore made the payment in February 2026 with full knowledge that it was being received as a deposit on account and not as a final settlement. Counsel argues that the application is misconceived as it is based on an untruthful factual substratum and ought to be disallowed. **The written submissions** 1. Pursuant to this Court’s directions, issued by consent of the parties on 7/7/2026, the application was canvassed by way of written submissions. Both parties complied. The 3rd and 4th Interested Parties’ submissions are dated 27/7/2026, whereas the Plaintiffs’ submissions are dated 30/7/2026. **Interested Parties’ submissions** 1. On their application, the 3rd and 4th Interested Parties submit that the Reference arises from the Deputy Registrar’s ruling dated 6/11/2025. They further submit that the Reference complies with Rule 11 of the Advocates Remuneration Order, having received the reasons for taxation on 14/11/2025 and filed the Reference on 18 November 2025. It is contended that the impugned taxation was undertaken notwithstanding that the Plaintiff’s earlier attempts to challenge the original taxation, including an application for enlargement of time, had been dismissed. It is further contended that the subsequent notice of objection dated 26/5/2025 was incompetent and incapable of conferring jurisdiction. The applicant further submits that the Deputy Registrar lacked jurisdiction to determine a Reference against a taxation decision made by a fellow Deputy Registrar, such jurisdiction being vested in a Judge. Accordingly, the resulting re-taxation, which reduced the applicant’s Bill from Kshs. 6,887,997 to Kshs. 300,000/- was therefore a nullity ab initio. Reliance is placed on the principle that jurisdiction derives from the Constitution or statute and cannot be conferred by consent or judicial innovation, as articulated in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KECA 48 and the Supreme Court case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others (2012) e KLR. The Court is consequently urged to set aside the impugned ruling in its entirety. 2. In respect of the Plaintiff’s application, the Interested Parties submit that the payment of the taxed costs was made on a without prejudice basis and that the Interested Parties did not waive their right to pursue the pending reference. The payment made did not therefore constitute a final satisfaction or settlement of the costs. Relying on Dr. Sunny Samuel vs. Simon M. Mbwika & Another (1998) KECA 224, they distinguish the finding in that case, where payment was accepted without reservation, and maintain that the 3rd and 4th Interested Parties remained aggrieved by the amount awarded and expressly reserved their rights. They accordingly submit that the reference was not compromised or rendered functus officio. They urge the court to dismiss the application with costs. **The Plaintiff’s submissions** 1. The Plaintiff identified three issues for determination. The first is whether the Taxing Officer had lawful jurisdiction to review his own taxation decisions and reduce the award. The Plaintiff states that the Interested Parties are estopped from challenging the competence or jurisdiction of the review proceedings because, by the Deputy Registrar’s ruling of 15/5/2025, the Plaintiff was expressly granted liberty to apply before the taxing master for review of the ruling dated 14/12/2023, which the Interested Parties neither appealed nor otherwise challenged. Pursuant thereto, the Plaintiff filed an application on 26/5/2025. That notwithstanding its erroneous designation as a “Notice of Objection to Taxation,” the substance and prayers of which sought a downward review of the taxed costs. The Plaintiff contends that, pursuant to Article 159(2)(d) of the Constitution and sections 1A and 1B of the Civil Procedure Act, the application was determined on its merits, thus correcting the error of principle that arose from the taxation of Kshs. 6,887,997 on the basis of an unsupported land value of KES 150 million, without a certified valuation report. Accordingly, the Plaintiff maintains that the review application was properly before the court and that the Deputy Registrar’s intervention was within the jurisdiction expressly conferred by the earlier ruling. 2. The second issue is whether the Interested Parties are estopped from seeking to declare the ruling a nullity after actively enforcing it by accepting payment. The Plaintiff submits that the Interested Parties cannot challenge the validity of the 6/11/2025 ruling after voluntarily providing their banking details, directing payment to their advocates, and accepting and retaining the KES 300,000/= decreed sum. Relying on Evans v Bartlam (1937) 2 ALL. E.R. 649, at page 652, as cited in Premier Food Industries Limited v Public Health Prosecutor – Kisumu [2021] eKLR, the Plaintiff contends that this conduct constitutes approbation and reprobation, creating an absolute estoppel by conduct, and that the "without prejudice" label does not shield them from the inconsistency of accepting the judgment's benefit while attacking its validity. 3. As to whether it serves the interests of justice to allow to stand a KES 6,887,997/- cost award for an Interested Party joined purely for a narrow, limited procedural inquiry, the Plaintiff submits that the original cost award of Kshs. 6,887,997/= is shocking and disproportionate. He contends that the Interested Parties were merely optional participants who joined voluntarily only for a minor procedural clarification. He further contends that they provided no substantial legal work, did not defend the title, and did not submit complex arguments to warrant the initial award of such a colossal sum. He maintains that the Deputy Registrar's reduced award of Kshs. 300,000/= is fair and appropriately reflects the limited scope of their involvement. **Analysis and Determination** 1. Having considered the Applications, the Affidavits in support, the rival responses to each application and the respective submissions, the issues for determination are; 2. Whether the 3rd and 4th Interested Parties are estopped from pursuing the Reference after accepting payment of the awarded costs. 3. Whether the Taxing Officer had jurisdiction to review his own taxation decision 4. Whether the Reference is merited. 5. Who should bear the costs of the application**.** **Whether the 3rd and 4th Interested Parties are estopped from pursuing the Reference after accepting payment of the awarded costs.** 1. In his application, the Plaintiff contends that the Interested Parties, having received the taxed costs of Kshs. 300,000/=, are estopped from challenging the validity of the Ruling delivered on 6/11/2025. 2. The Plaintiff annexed a Letter dated 4/12/2025 to his supporting affidavit. The Letter is from the Interested Parties’ advocates to his Counsel on record. It states in part that; ‘Please note that any payment received will be credit on account without prejudice to our Client’s rights on the Reference.’ 1. The record shows that the Interested Parties’ chamber summons was initially filed on 28/11/2025 and subsequently amended on 18/12/2025. The Plaintiff issued a cheque for Kshs. 300,000/= on 6/2/2026. 2. Evidently, the Reference had already been filed by the time the Plaintiff issued the cheque. Further, Counsel for the Interested Parties categorically stated that the payment was received only on a without prejudice basis to the Reference. Therefore, when making the payment, the Plaintiff knew that the Interested Parties were keen to prosecute the Reference. The Plaintiff cannot therefore turn around and allege that the Interested Parties’ application is overtaken by events, or that the Interested Parties’ conduct in accepting the payment estops them from pursuing the Reference. 3. Section 44 of the Advocates Act, Cap. 16 allows the Chief Justice to make orders prescribing remuneration. Subsection (1) provides that; ‘The Council of the Society may make recommendation to the Chief Justice on all matters relating to the remuneration of advocates, and the Chief Justice, having considered the same, may by order, prescribe and regulate in such manner as he thinks fit the remuneration of advocates in respect of all professional business, whether contentious or non-contentious.’ 1. The Advocates (Remuneration) Order, 2014 is the applicable order under the said section. Rule 11 of the Advocates (Remuneration) Order sets out the procedure an aggrieved party must follow. The Rule allows an aggrieved party to file a Reference to challenge the Taxing Master’s decision before a Judge. The Reference is akin to an appeal. The right to appeal, in this case through a Reference, guarantees a fair trial. If the Taxing Master committed errors of principle, the Judge is at liberty to review and correct them. This right, conferred by statute, can only be taken away by another statute. 2. It is my view that the right to file a Reference cannot be extinguished by payment of the taxed sum. In the case of Bash Hauliers Limited v Peter Mulwa Ngulu [2020] eKLR, the court, dealing with the contention that an appeal had received the decretal sum and hence could not pursue an appeal, stated that: 27. “It was again contended that it was an abuse of the court process for the Respondent to proceed with the appeal after the decretal sum had been settled. A not-too-dissimilar issue arose before the Court of Appeal in Machakos District Co-operative Ltd. v Nzuki Kiilu, Civil Application No. Nai 17 of 1997, where it was argued that since the decretal sum had been paid, the right of appeal had been lost. The Court (Shah, JA) however had no hesitation in holding that the fact that the decretal sum has been paid does not deprive a party of the right of appeal. Waki, JA, on his part in **Seventh Day Adventist Church East Africa Ltd. & another v M/S Masosa Construction Company Civil Application No Nai. 349 of 2005** held that: ‘Where the Respondent has already recovered all the decretal sum and costs attendant to the litigation, the right of appeal being a strong right which is rivalled only to the right to enjoy the fruits of judgement, no prejudice would be caused to the respondent who has enjoyed his rights in full if an opportunity is given to the applicants to enjoy theirs too, even if it is on a matter of principle.” 1. See also the case of Ismael Lonkishu Kobei v David Kariuki Gichangi & Another [2017] eKLR, where the applicant’s application for an order dismissing the appeal before the court on the grounds that the decretal sum was paid in full was dismissed. The Court held that; “The equitable doctrine of “clean hands” and the rule that one cannot approbate and reprobate at the same time cannot override the appellant’s statutory right of appeal.” 1. From the foregoing, it is my view that the application to strike out the Reference on the ground that the 3rd and 4th Interested Parties have received the taxed sum cannot succeed, as it is an exercise of a statutory right. **Whether the Taxing Officer had jurisdiction to review his own taxation decision** 1. 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, which provides that; (1) 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. (2) 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. (3) 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. (4) 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. 1. 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 timelines would mean that the application would be rendered incompetent in the first instance.” [own emphasis] 1. Under the above provisions, a party aggrieved by the decision of a taxing master is obliged to file and/or lodge a Notice of Objection to Taxation against that decision within 14 days of the date of such taxation. Therefore, the filing of the Notice of Objection to Taxation is mandatory. Further, the Notice of Objection to Taxation must specify the particular items with which the Applicant contends to be aggrieved and/or dissatisfied. A Notice of Objection to Taxation should not be omnibus. An omnibus notice, if any, would be incompetent and incapable of grounding a Reference. 2. **The 3rd and 4th Interested Parties, aggrieved by the Taxing Master's decision, filed a Notice of Objection dated 7/11/2024, the day after the Ruling was delivered. The Objection further states that they were aggrieved by the downward review of their costs to Kshs. 300,000/=. This court therefore has jurisdiction to determine this Reference.** 3. **I note that the 3rd and 4th Interested Parties attached a Notice of Objection dated 7/11/2025 to their Chamber summons dated 28/11/2025, which was amended on 18/12/2025. I have checked the Case Tracking System (CTS) and find that the notice was never filed or uploaded. The court only became aware of the Notice of Objection on 28/11/2025, when the Chamber summons was filed. A document annexed to an affidavit cannot be said to have been filed. In any case, the notice is addressed to the Deputy Registrar of the High Court Kajiado, not the Deputy Registrar of this Court, creating further doubt as to the authenticity of t** 4. **Even if the court were to assume that the Notice was duly filed, it was filed about 8 days after the 14-day period expired. The Notice would have been filed out of time without leave of court.** 5. **It is therefore my finding that the 3rd and 4th Interested Parties did not file the Notice of Objection to taxation contemplated under Rule 11(1) above, but instead filed the Reference under Rule 11(2) without first filing the Notice of Objection. The instant Reference is therefore incompetent and is dismissed accordingly.** 6. **The upshot is that the chamber summons, amended on 18/12/2025, and the notice of motion dated 7/11/2025 are both dismissed. Each party to bear its own costs.** 7. **It is so ordered.** **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF AUGUST 2026 THROUGH MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered Virtually in the presence of;** 1. Mr Kigen for the Plaintiff 2. N/A for the Defendants 3. N/A for the Interested Parties 4. C/A – Mr Amos