https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5345

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT OF KENYA AT NYERI** **ELCMISC E033 OF 2025** **-BETWEEN-** **JOSEPH MUHOHO GICHIMU T/A MUHOHO GICHIMU & CO ADVOCATE……………………………………………………….APPLICANT** **VERSUS** **MARTIN WAIGWA WANJAU………………………………RESPONDENT** **RULING** 1. The Applicant/Advocate herein filed an application under Chamber Summons dated 30th September 2025, seeking the following orders: 2. **That this Honourable Court be pleased to review and/or set aside the assessment of costs by the taxing master, issued on 17th September 2025, of the applicant's bill of costs dated 23rd May 2025, and to re-assess/re-tax the entire bill of costs dated 23rd May 2025.** 3. **That this Honourable Court, in the alternative, be pleased to issue any other or further Orders in the interests of justice with regard to the Bill of Costs being taxed by a different taxing officer.** 4. **That the costs related to this reference be provided.** 5. The application is supported by the affidavit of the Applicant, Muhoho Gichimu, Advocate, who deposed that the Court delivered its ruling on the reference filed by the Applicant on 17 September 2025. The Applicant contends that the learned taxing master erred in law by awarding Kshs 18,900/= as instructions fees to the Applicant without taking into consideration the nature of the suit, the complexities of the matter and the conduct of proceedings. 6. His argument is that, under the current remuneration Order, the instructions fee is inordinately low in the circumstances and does not reflect or equate the efforts taken in defending this Appeal, nor does it factor in the nature of the Appeal or the consequences had the Appeal not been allowed, amounting to an injustice to the Applicant, who, on record, opposed the Appeal. 7. The Respondent swore an affidavit in opposition to the instant application on the 22nd of April 2026. He deposed that the Applicant has failed to meet the legal threshold for interfering with a taxation decision. 8. That, under Rule 11 of the Advocates Remuneration Order, a court may interfere with taxation only where there is an error of principle or the award is manifestly excessive or manifestly low. 9. That the learned Taxing Master properly exercised discretion and considered the nature of the matter, its complexity, and the scope of the work performed. He contends that the Applicant has not demonstrated any error of principle to justify interference. 10. Parties filed their written submissions, which the Court has duly read and considered. **Analysis and Determination** 1. The Applicant/Advocate herein filed an Advocate-Client Bill of Costs, dated, which was taxed for a total of Kshs.57,150/- on 17th of September 2025 by the Deputy Registrar for acting for the Defendant herein in **CM ELC Case No.115 of 2018: Martin Waigwa Wanjau vs David Kibere Gakuro Kibere & others**. 2. The Applicant argues that the instruction fee of Kshs 18,900/-, as assessed in the ruling delivered by the Registrar on 17 September 2025, was manifestly low, given the nature of the suit, the complexities of the matter and the conduct of the proceedings. 3. The Court of Appeal in the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR. ***“It seems to us quite plain 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. Where, however, a suit is settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the first instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a judgment, it is indubitable that one cannot start with the pleadings where there is a settlement. It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the taxing officer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing…”*** 1. The lawsuit filed at the Chief Magistrate’s Court was initiated via Plaint dated 2nd February 2015, wherein the Plaintiff requested a permanent injunction to prevent the Defendants from encroaching on the suit land, known as Naromoru/Naromoru/Kieni East Block 1/205, as well as general damages for trespass. The legal representative herein represented the Defendant, who subsequently filed a counterclaim against the suit. 2. Judgment was delivered on 9 July 2023, in which the Defendant’s counterclaim was dismissed, a permanent injunction was issued against him, and general damages of Ksh.200,000/- were awarded to the Plaintiff. The Advocate received instructions to file an appeal against this decision. 3. According to the authority of Peter Muthoka (Supra), once a judgment has been issued, it serves as the basis for instruction fees—consequently, Ksh. 200,000 as general damages forms the basis for the advocate-client instruction fees. 4. Thus, Schedule 6(1)(b) of the Advocates Remuneration Order applies because it was an appeal, which indicates that when the value of the subject does not exceed Kshs.500,000/=, Ksh 75,000 accrues as instruction fees. Secondly, since it is an advocate-client bill of costs, the same needs to be raised by half. 5. In **First American Bank of Kenya v Shah and others [2002] EA 64,** the Court set out the applicable principles for a Court to interfere with the discretion of the taxing master. These principles are: 6. ***That 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;*** 7. ***It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause 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;*** 8. ***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 and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high:*** 9. ***It is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary;*** 10. ***The Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it;*** 11. ***The full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees;*** 12. ***The mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate's unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. The position was reiterated in Karen& Associates Advocates v Caroline Wangari Njoroge [2019] eKLR, in which the Court cited the decision of the Court in Ochieng, Onyango, Kibet and Ohaga Advocates v Adopt Light Ltd. HC Misc 729 of 2006 where the court stated that; ... The taxing master must consider the case and the labour required in the matter, the nature or importance of the matter more so the amount or value of the subject matter involved, the interest of the client in sustaining or losing a brief and the complexity of the dispute. In assessing an amount commensurate to the work undertaken, it is of fundamental importance to consider the value of the subject..." In the same case, it was held that: The law gives the taxing master some leeway but like all discretions, it must exercised judicially and in line to the material presented before court."*** 13. Arising from the foregoing, there was an error of principle in the taxation of the Advocate-Client Bill of Costs, which taxed the instruction fees at Ksh.18,900 and warrants interference by this Court. Appeal allowed. The bill of costs is remitted to the Taxing Master for reassessment in line with the principles set out above. 14. Costs to the Applicant – Advocate. **Dated, signed, and delivered virtually at Nyeri on this 19th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Kibicho for the Appellant** **Mr. Njagi for the Respondent** **Denis - Court Assistant**