https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1095

Kivure & 8 others (Suing on their Behalf and on Behalf of 4201 Members of Kishamba B Group Ranch) v Mwakina & 19 others (Civil Appeal (Application) 52 of 2020) [2026] KECA 1095 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1095 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) 52 of 2020 F Tuiyott, JA June 12, 2026 Between John Kivure & 8 others (Suing on their Behalf and on Behalf of 4201 Members of Kishamba B Group Ranch) Applicant and Benson Mlambo Mwakina & 19 others Respondent (Being an application for reference on taxation from the ruling of the Deputy Registrar (Hon. E. M. Mwamuye) dated 26th February, 2026 in Civil Appeal No. 52 of 2020) Ruling 1.This is a reference to this Court from a ruling dated 26th February, 2026 of a taxing officer, Hon. Mwamuye, in a taxation matter. The applicants/appellants through their advocates, Litoro & Omwebu Advocates had presented to the taxing officer a party and party bill of costs amounting to Kshs. 1,614,410/= for taxation. In the end, the amount was taxed down to Kshs. 85,543.50/=. 2.Aggrieved by that ruling, a reference has been made to a single judge pursuant to rule 117 (1,3 and 5) of the Court of Appeal Rules, 2022 through a letter dated 2nd March 2026 on the following grounds: -1.The Taxing Master misdirected herself on the law and the matter before her, failed to take into consideration relevant matters and or exercise her discretion judiciously thereby making a plainly wrong decision that the appeal before court involved a simple and not novel appeal against the Superior Court order declining to grant an injunction which the Court of Appeal allowed the appeal and substituting with an order for injunction whereas the record showed the contrary.2.The Taxing Master award on instruction fees was in the circumstances manifestly inadequate, unfairly, unreasonably and unconscionably very low contrary to the prescribed scales and inconsistent with judicial precedent set out in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another [1972] EA 162.3.The Taxing Master award on the Appellants Party to Party Bill of Costs is manifestly low, inadequate, contrary to the prescribed scales and judicial precedent in the matter. 3.Before the taxing officer, the respondents raised a preliminary objection in their written submissions and contended that the appellants’ Bill of Costs was fundamentally incompetent and should be struck out because Kishamba ‘B’ Group Ranch had legally ceased to exist. They argued that the entity had been dissolved pursuant to section 47 of the Community Land Act and that this dissolution was confirmed by a judgment delivered on 25th September 2025 in Voi ELC No. E004 of 2024. It was asserted that the court lacked jurisdiction to proceed with taxation, maintaining that a "party" under section 2 of the Advocates Act must be a person or entity recognized by law and one cannot tax a bill against a "ghost" or a defunct entity. Furthermore, that the proceedings had abated under Order 24 of the Civil Procedure and Rule 3 of the Court of Appeal Rules because the group ranch was a legal nullity and no cause of action or liability survived its dissolution concluding that the Bill was fatally defective for failing to identify a liable party capable of satisfying a judgment. 4.The appellants, in rebuttal, argued that the Preliminary Objection was legally incompetent because it failed the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] 1 EA 696 (CAN) threshold as it required the court to investigate complex factual questions regarding dissolution, abatement and the survival of liability rather than pure points of law. It was asserted, further, that all twenty-nine respondents were jointly and severally liable for the costs awarded in the 2023 judgment, so that even if the group ranch had lost legal capacity, the twenty-eight natural person respondents remained fully liable for the entire debt. In addition, the respondents were estopped from claiming non-existence because their own conduct, specifically filing a new appeal (Civil Appeal No. E208 of 2025) and seeking judicial intervention as a group, demonstrated continued legal capacity. It was asserted that the respondents could not approbate and reprobate by litigating as an existing entity while simultaneously claiming to be a nullity to avoid paying costs. Finally, the appellants argued that the court's jurisdiction to tax costs was a necessary procedural consequence of its prior jurisdiction to award costs and that subsequent changes in a party's status could not retrospectively extinguish a vested right to costs that had crystallized upon the delivery of the judgment. 5.On the quantum of costs, the appellants submitted, before the taxing officer, that it had not been challenged by the respondents nor was any item or rate disputed, emphasizing that the objection raised by the respondents was purely technical in nature. 6.I have considered the Bill and arguments made before the taxing officer, the impugned ruling as well as the judgment of this Court in which the order awarding Costs to the appellants was made. 7.The relevant provision pertaining to this reference is rule 117 which reads: -117.Reference on taxation1.A person who is dissatisfied with a decision of the Registrar in his or her capacity as taxing officer may require any matter of law or principle to be referred to a judge for the judge’s decision and the judge shall determine the matter as the justice of the case may require.2.For the purpose of sub rule (1), any decision extending or refusing to extend time for the lodging of a bill of costs or any exercise by the Registrar of the over-riding discretion given the Registrar by paragraph 12 of the Third Schedule shall be deemed to involve a matter of principle.3.A person who contends that a bill of costs as taxed is, in all the circumstances, manifestly excessive or manifestly inadequate, may require the bill to be referred to a judge and the judge shall have power to make such deduction or addition as will render the bill reasonable and except as provided in this subrule, there shall be no reference on a question of quantum only.4.An application for a reference may be made to the Registrar informally at the time of taxation or in writing within seven days thereafter.5.A reference to a judge may be adjourned for the consideration of the Court.6.Any person dissatisfied by the decision of a judge given under subrule (1) or subrule (3) may apply to the Court to vary, discharge or reverse the same and such application, may be made either informally to the judge at the time of the decision or by writing to the Registrar within seven days after the time.7.The President may issue practice directions as to the manner in which appeals and references shall be made under this section and the court fees, if any, that shall be paid. 8.On quantum is paragraph 9 of the Third Schedule;9.Quantum of costs1.The fee to be allowed for instruction to make, support or oppose any application shall be such sum as the taxing officer shall consider reasonable but shall not be less than one thousand shillings.2.The fees to be allowed for instructions to appeal or to oppose an appeal shall be such sum as the taxing officer shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings, the fund or person to bear the costs and all other relevant circumstances.3.The sum allowed under subparagraph (2) shall include all works necessary and properly done in connection with the appeal and not otherwise chargeable, including attendances, correspondence, perusals, and consulting authorities.4.Other costs shall, subject to the provisions of paragraphs 10, 11 and 12, be awarded in accordance with the scale set out in the table set out at the end of this schedule or, in respect of any matter for which no provision is made in those scales, in accordance with the scales applicable in the High Court. 9.As there was no reference by the respondents themselves concerning the finding by the taxing officer regarding the propriety of the taxation proceedings, I deal right away with this reference itself. 10.It is well settled law that a judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer erred in principle or law in assessing the costs (see Kipkorir,Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR)) or that the taxation was manifestly excessive or manifestly inadequate (subrule (3) of rule 117). The appeal which was before this Court was against a ruling of the Environment and Land Court, (Yano, J) delivered on 26th February, 2020 on an application by the appellants against the respondents herein seeking a temporary order of injunction to restrain the respondents from interfering with all that land known as Sagalla/Kishamba B/1, (hereinafter the suit property). The 1st respondent resisted the entire proceedings by mounting a Preliminary Objection arguing want of leave to file suit in a representative capacity and without the written authority by four thousand one hundred and ninety three (4193) members. The ELC upheld the Preliminary Objection and proceeded to strike out the application and the entire suit with costs to the 1st respondent. On appeal to this Court, the appellants sought that the impugned ruling be set aside and substituted with an order allowing the injunction sought by the appellants and a dismissal of the 1st to 3rd respondents’ preliminary objection. The Court framed one issue for determination in the appeal; “whether the ELC Judge misdirected himself as to the Preliminary Objection taken by the 1st respondent, framed a new point of law with which he determined the PO”. This Court found that the learned ELC Judge went outside the objection raised by the 1st respondent, ventured into areas which were not raised or canvased, and thus fell into error. In the end, the Court allowed the appeal and set aside the impugned ruling and directed that the matter be remitted to the ELC for hearing and determination by another judge. Clearly, this Court considered the preliminary demurrer only and did not go into the merits of whether a temporary injunction was deserved. 11.The learned taxing officer relied on paragraph 9(2) of the Third Schedule and the case of Premchand Raichand Ltd & Another v. Quarry Services of East Africa Ltd & Another (No. 3) [1972] 1 EA 162 (CAN) which set out the principles a taxing officer ought to take into account amongst other matters; that costs should not be allowed to rise to such a level as to limit access to the courts to the wealthy only; that a successful litigant ought to be fairly reimbursed for the costs he or she has to incur; that the general level of remuneration of advocates must be such as to attract recruits to the profession; and that so far as practicable there should be consistency in the awards made. The taxing officer further noted that under paragraph 9(3), the sum allowed for instructions to appeal includes all works necessary and properly done in connection with the appeal and not otherwise chargeable, including attendances, correspondence, perusals, and consulting authorities. 12.Paragraph 9(2) of the Third Schedule relates to fees allowed for instructions to appeal or oppose an appeal and is the relevant law with regards to taxing instruction fees in appeals. Arising in the appeal was the singular issue regarding the preliminary objection. This was considered by the taxing officer not to be novel and an award of Kshs. 50,000/= as instruction fees as reasonable. No material has been placed or arguments made before me to demonstrate that the single issue arising in the appeal was indeed novel or otherwise complex. Neither has the amount taxed been shown to be grossly inadequate. Indubitably the taxation by the taxing officer cannot be faulted. 13.The reference of 2nd March 2026 is dismissed with costs to the respondents. DATED AND DELIVERED AT MOMBASA THIS 12TH DAY OF JUNE, 2026.I certify that this is the true copy of the originalsignedDEPUTY REGISTRARF. TUIYOTT…………………JUDGE OF APPEAL