https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4950

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC LAND MISC CASE NO. E032 OF 2023** **J.M. NJENGA & CO. ADVOCATES LLP::::::::::APPLICANT/ADVOCATE** **VERSUS** **KIMURI HOUSING COMPANY LIMITED::::::::::RESPONDENT/CLIENT** **RULING** The application is dated 4th August 2025 and is brought under Paragraph 11 (2) of the Advocates (Remuneration) order and pursuant to leave granted on 29th July 2025 seeking the following orders; 1. That the decision of the Taxing Officer dated 18th September 2024, be set aside. 2. That alternatively, the decision of the Taxing Officer dated 18th September 2024, be set aside and the court to reassess the same or be referred or remitted back for taxation before another Taxing Officer. 3. That costs of the application be provided for. It is supported by the annexed affidavit of Margaret Wambui Ngugi and based on the grounds that the Advocate acted for the client in a contentious matter, being ELC 247 of 2017, Machakos. Following a disagreement with the client, the client changed legal representation a consequence of which the Advocate filed an Advocate/Client Bill of Costs dated 22nd November 2023. Item 1 of the Bill of Costs enumerated the prayers in ELC 247 OF 2017. Machakos. It is instrumental to note that the said prayers do not disclose the value of the subject matter. That under Item 1 of the Bill of Costs, the Advocate provided a value of the subject property of a sum of Kshs. 1,000,000,000/=. The said value is not discerned from the pleadings or from any judgement. There was no Valuation Report which may have guided the Taxing Officer in determining the value of the subject matter of the said suit. On 18th September 2024, the court delivered its ruling in which it taxed the Advocate/Client Bill of Costs dated 22nd November 2023, by allowing it or at a sum of Kshs. 15,834,785/=. On or about 29th July 2025 the client was granted leave of the Court to file a reference (appeal) out of time. The decision of the Taxing Officer was in error and the client sets forth the following grounds in support of the reference. The Taxing Officer erroneously exercised her discretion by allowing a charge under instruction fees based on a value of the subject matter of the suit, which value cannot be discerned or ascertained from the pleadings. The Taxing Officer erred in taxing the Bill of costs in arriving at a finding that the value of the subject matter was a sum of Kshs. 500,000,000/= without any valuation report. The Taxing Officer acted on the wrong principles in reaching her findings. This court has considered the application and the submissions therein. The procedure for the challenge of a Taxing Master's decision is provided under Rule 11 of the Advocates Remuneration Order which provides as follows: *“(1) Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which the 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.”* Be that as it may, the principles of varying or setting aside a Taxing Master’s decision are set out in the cases of First American Bank of Kenya vs Shah and Others (2002) EA 64 and Joreth Ltd vs Kigano and Associates (2002) 1 EA 92, that the Taxing Master’s judicial discretion can only be interfered with when it is established that the there was an error of principle, that the fee awarded is manifestly excessive for such an inference to arise, and where discretion is exercised capriciously and in abuse of the proper application of the correct principles of law. In First American Bank of Kenya vs Shah and Others (2002) E.A.L.R 64 the court held that; *“First, I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle”.* These principles reiterate the position of the Court of Appeal in Joreth Ltd vs Kigano & Associates (2002) eKLR, where the said Court held that a Taxing Master in assessing costs to be paid to an advocate in a bill of costs was exercising her judicial discretion and that such judicial discretion can only be interfered with when it is established that the discretion was exercised capriciously, and in abuse of proper application of the correct principles of law, or where the amount of fees awarded by the Taxing Master is excessive to amount to an error in principle. The Applicant in the instant application contends that being dissatisfied with the Taxing Officer’s decision have filed this application. That the Taxing Officer erred in law and in fact in not taxing the Instructions Fees based on the value of the property which was Kshs. 500,000,000/= which was disputed. That the correct one would be schedule 6(1)(a). In Republic vs Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’Njuguna (2006) eKLR Ojwang, J (as he then was) expressed himself as follows: *“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. 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 somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle. Of course it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some 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 direction by the trial judge. Needless to state not all the above 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. If the court considers that the decision of the taxing 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…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…Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorising clause in the law, or a particularised justification of the mode of exercise of any discretion provided for…The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs…”* Schedule 6 provides that; *“To sue in any proceedings (whether commenced by plaint, petition, originating* *summons or notice of motion) in which no defense or other denial of liability is filed, where the value of the subject matter can be determined from the pleading, judgment or settlement between the parties and—* *That value exceeds But does not exceed* *Kshs Kshs. Kshs.* *500,000 45,000* *500,000 750,000 65,000* *750,000 1,000,000 75,000* *1,000,000 20,000,000 fees as for Kshs. 1,000,000 plus an* *additional 1.75%* *Over 20,000,000 fees as for 20,000,000 plus an additional 1.5%.* *(b) To sue in any proceedings described in paragraph (a) where a defense or other denial of liability is filed; or to have an issue determined arising out of inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and—* *That value exceeds But does not exceed* *Kshs. Kshs. Kshs.* *500,000 75,000* *500,000 750,000 90,000* *750,000 1,000,000 120,000* *1,000,000 20,000,000 fees as for Kshs.1,000,000 plus an* *additional 2%.* *Over 20,000,000 Fees as for 20,000,000 plus an additional 1.5%.* *(c) To defend proceedings where the defendant substantially adopts the defence of* *another defendant; an instruction fee calculated under sub-paragraph 1(a).* *(d) To defend any other proceedings; an instruction fee calculated under subparagraph”* The Advocate Remuneration Order is a remuneration code which stipulates how an advocate is to be remunerated once the advocate is retained to render professional services. It contains a costing of the services ordinarily rendered by advocates. Because it is a code which specifies what a particular service would cost, it has been split into various schedules, each schedule containing the costing of a particular category of services. The First Part of Schedule 1 relates to services rendered by an advocate in relation to sales and purchases of land. The Second Part of Schedule 1 relates to services rendered by an advocate in relation to debentures, mortgages and charges. The third part of Schedule 1 relates to services rendered by an advocate in relation to negotiation of sale of property by private treaty or loan secured by mortgage. It is not disputed that this bill of costs arises out of a dispute over ownership of the suit property measuring 40 acres. The Applicant/Advocate placed the value of the subject matter at over Kshs. One billion (1,000,000,000/=) which is in dispute. The Taxing Master in her ruling dated 18th September 2024 provided that the taxation of the matter would be based on Remuneration (Amendment) order of 2014. Under Item one the taxing master based her calculations on schedule 6 of the 2014 Advocates Remuneration order and taxed it at Kshs 15,834,785/=**.** She considered that the value of the subject matter was Kshs 500,000,000/= based on a valuation report which the Respondent’s state was not properly filed. That the purported list of documents containing the valuation was not filed electronically as required by the gazette Notice No. 2357 of 20th March 2020 annexed as A in the supplementary affidavit. I find that in the circumstances I find that the issue of whether the valuation report is disputed or not needs to be determined before settling on the value in the said report. I find that there is an error by the Taxing Master in the assessment based on the said report. Consequently, I find that the application is merited and make the following orders; 1. That the Ruling of the Taxing Officer delivered on 18th September 2024 be set aside/vacated. 2. That the bill of costs is to be taxed by a different Taxing Master. 3. There will be no order as to costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**