https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4618

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. 816 OF 2012** **RAJAB AHMED KARUME - PLAINTIFF/RESPONDENT** **VS** **THE CHIEF LAND REGISTRAR - 1ST DEFENDANT** **THE ATTORNEY GENERAL - 2ND DEFENDANT** **INSURANCE TRAINING AND** **EDUCATION TRUST - 3RD DEFENDANT/APPLICANT** **CONSOLIDATED WITH ELC CASE NO.47 OF 2010** **JOSEPH NDUNG'U GATHONDU (As the Administrator of the** **Estate of THUMBI KARIUKI - 1ST PLAINTIFF** **JANE WANJIRU NDUMIA - 2ND PLAINTIFF** **JOSEPH NDUNG'U GATHONDU - 3RD PLAINTIFF** **VS** **INSURANCE TRAINING AND EDUCATION TRUST - DEFENDANT** **RULING** **(In respect of the 3rd Defendant’s application dated 17/2/2026)** 1. Before me is a Chamber Summons application dated 17/2/2026. The application is brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act and Paragraphs (1) and (2) of Rule 11 of the Advocates Remuneration Order. Principally, the Applicant seeks the following orders: 2. The Court be pleased to set aside the Learned Taxing Officer’s decision (Hon. Judith Omollo) delivered on 30/1/2026 dated 31/10/2024 in respect of Item 1 (Instruction Fees) and Item 2 (Getting Up Fees) of the Plaintiff’s Party and Party Bill of Costs dated 21/2/2025. 3. The Court be pleased to exercise its discretion and tax Items 1 and 2 accordingly as it may deem just. 4. Costs of the Reference be provided for 5. The application is premised on the face of it and the Supporting Affidavit of Dr. Ben Kajwang’, the Applicant’s Director, of even date. In summary, the Applicant avers that, vide the Judgment entered on 27/10/2020, the consolidated suits were dismissed with costs to the 3rd Defendant/Applicant herein. Aggrieved by the said Judgment, the Plaintiff lodged an appeal before the Court of Appeal, which appeal was allowed, thus setting aside this Court’s Judgment. The Plaintiff was awarded costs of the suit. Subsequently, the Plaintiff filed a Bill of Costs dated 24/2/2025, seeking a sum of Kshs. 102,013,315/=. 6. That under the Ruling delivered on 30/1/2026, the Taxing Officer taxed the Plaintiff’s Bill of Costs at Kshs. 13,784,645/=, taxing Instruction Fees at Kshs. 10,000,000/= and Kshs. 3,333,333/= respectively. That despite identifying the applicable schedule and paragraph, she exercised her discretion by enhancing the basic fee of Kshs. 75,000.00 by a factor of 133. The 3rd Defendant contends that this enhancement was not judicially exercised, as the Taxing Officer relied on speculative considerations such as acreage, location, and presumed property value, without any supporting valuation evidence on record, contrary to established jurisprudence, including Joreth Ltd –vs- Kigano & Associates [2002] KECA 153 (KLR), which holds that the value of the subject matter can only be ascertained from the pleadings or the judgment of the Court. 7. The 3rd Defendant further avers that the Taxing Officer improperly elevated factors such as the duration of proceedings, the number of hearings, and the volume of documentation to justify the massive increase, despite these factors not constituting exceptional circumstances warranting departure from statutory minima. It is argued that the award is manifestly excessive, punitive, and disproportionate to the nature of the matter and the work done, thereby offending the principles of fairness and access to justice as enunciated in Premchand Raichand Limited v Quarry Services of East Africa Limited & Another [ 1972] EA 162. Additionally, that the consequential award for getting up fees, computed at Kshs. 3,333,333.00, is impugned as being erroneously predicated on the inflated instruction fee. 8. In light of the foregoing, the 3rd Defendant seeks orders setting aside the Taxing Officer’s decision on Items 1 and 2, and that the Bill of Costs be referred back to for fresh taxation, and costs of the Reference. It is contended that it is in the interests of justice that the application be allowed in its entirety, particularly in view of the Court of Appeal’s prior taxation in the same matter, where instruction fees were awarded at Kshs. 1,500,000/= **The Plaintiff/Respondent’s Replying Affidavit** 1. The Plaintiff opposed the Application by his Replying Affidavit, sworn on 27/3/2026. The Plaintiff argues that the Application is a sham, frivolous, vexatious, and an abuse of the Court process. It is contended that the Application is legally incompetent and lacks any legitimate or lawful purpose, being intended primarily to obstruct the lawful resolution of a matter that has lingered in Court for over 14 years. The Respondent further asserts that the Application is a dilatory tactic, filed to delay the full resolution of the suit and to hinder the realisation of costs duly awarded, noting that the Applicant took no steps to prosecute the motion for over a month until the Respondent commenced execution proceedings. 2. Substantively, the Respondent maintains that the Taxing Officer properly exercised her discretion in awarding instruction fees of Kshs. 10,000,000.00 and total costs of Kshs. 13,784,645.00. Contrary to the Applicant’s assertions, the Taxing Officer was not bound by instruction fees awarded in separate proceedings before the Court of Appeal or the Supreme Court. The grounds for the award were clearly justified, drawing on the Court of Appeal’s observations, including the statement of Hon. Justice Kiage regarding the complex, convoluted, and document-heavy nature of the dispute that traversed the Environment Court to the apex Court. 3. The Respondent further cites the cases of Joreth Ltd –vs- Kigano & Associates [2002]KECA 153 (KLR) and Hamilton Harrison & Mathews -vs- Keroche Breweries Limited [2021] eKLR to affirm that a Taxing Officer has wide discretion to consider factors such as the nature and significance of the matter, its complexity, the time taken, the amount in dispute, and the conduct of proceedings. The Respondent emphasises that the Applicant has not adduced credible evidence to show that the Taxing Officer acted injudiciously, unreasonably, or disproportionately, and that the taxed amount is neither manifestly excessive nor disproportionate to the work performed. 4. Finally, the Respondent contends that the assertion of a forceful takeover of the suit property is dismissed as an improper attempt to re-litigate issues conclusively determined by the superior Courts, including the Supreme Court. The Respondent thus prays that the Application be dismissed with costs in the interests of justice and finality in litigation. **The Applicant’s Supplementary Affidavit** 1. In further response, the Applicant filed a supplementary affidavit sworn by Dr. Ben Kajwang’ on 15/4/2026. The deponent states that the instant Application is neither frivolous, vexatious, nor an abuse of the Court's process, but rather raises legitimate legal concerns about the Learned Taxing Officer's improper exercise of discretion in assessing Instruction Fees. The Applicant properly invokes this Court's jurisdiction under Paragraph 11 of the Advocates Remuneration Order to challenge the taxation, and contends that the Plaintiff's assertion of intended delay is unfounded, as the Applicant moved the Court within a reasonable time. That the delay in issuing directions was attributed to a system glitch on the Case Tracking System [CTS]. The Applicant's Advocates diligently pursued the matter through correspondence and physical visits to the ELC Registry. In any event, it is contended that the alleged delay is neither inordinate nor prejudicial. 2. The Applicant reiterates that the award of Instruction Fees in the sum of Kshs. 10,000,000/= is manifestly excessive, unjustified and unsupported by applicable taxation principles. That the core issue concerned the processing of Title documents, rather than the value of the suit property, which was neither pleaded nor evidenced. The Applicant further maintains that the award was not anchored on any ascertainable or objective basis, and that previous awards by the Court of Appeal and the Supreme Court, while not binding, are highly persuasive and provide necessary guidance for consistency and proportionality in taxation. 3. The Applicant further avers that the Taxing Officer's discretion, while acknowledged, is not unfettered and must be exercised within the bounds of reasonableness and established legal principles. The authorities cited by the Plaintiff, including Joreth Ltd –vs- Kigano & Associates (supra) and Premchand Raichand Limited -vs- Quarry Services of East Africa Limited (supra), reinforce the principle that costs must be reasonable, not excessive, and must not unjustly enrich a successful party. The Applicant further contends that taxation awards ought not to impose a punitive or oppressive burden on the paying party, particularly where that party derives its funding from the public, and that the getting-up Fees were similarly improperly awarded and excessive. 4. The Applicant depones that it is now exposed to unjustified execution, while the substantial awards of instruction and getting-up fees remain the subject of challenge in this Application. The Plaintiff's reference to having claimed a higher amount in the Bill of Costs is irrelevant to whether the awarded amount is reasonable or justified. It is in the interests of justice, fairness, and consistency in the administration of justice that this Honourable Court intervene to set aside and/or vary the Assessment of Instruction and getting-up fees by the Taxing Officer. The Applicant implores the Court to allow the Application and grant the orders sought. **The Written submissions** 1. The Court directed that the application be canvassed by way of written submissions. The 3rd Defendant/Applicant filed its submissions dated 28/4/2026, whereas the Plaintiff/Respondent filed his submissions dated 30/4/2016. 2. The sole issue for determination is whether the Taxing Officer committed an error of principle warranting this Court's interference with her decision on the taxation of instruction fees. The Applicant contends that although the learned Taxing Officer correctly identified the applicable legal framework, she fundamentally erred in the exercise of her discretion. It is submitted that the Taxing Officer relied on speculative considerations such as acreage, location, and the presumed value of the suit property, despite there being no valuation evidence on record. That reliance on extraneous and unproven factors vitiated the exercise of discretion and departed from the requirement that instruction fees be grounded on ascertainable criteria. The Applicant further submits that the Taxing Officer improperly elevated factors such as the duration of proceedings, the number of hearings, and the volume of documentation, all of which have been charged separately under the Bill of Costs. It is submitted that while these are relevant considerations, they cannot independently justify a substantial enhancement of instruction fees without demonstrable exceptional circumstances. 3. The Applicant submits that the principles governing interference with a Taxing Officer's decision are well settled. In Kipkorir, Tito & Kiara Advocates –vs- Deposit Protection Fund Board [2005] e KLR and First American Bank of Kenya Ltd –vs- Shah & Others [2002] 1 EA 64, the Court established that interference is warranted where the decision is based on wrong principles of law. The Applicant further cites the Supreme Court decision in Outa v Odoto & 3 Others [2023] KESC 75 (KLR), in which Ouko SCJ confirmed that a Judge may set aside a Certificate of Taxation where there is an error of principle, the fee awarded is manifestly excessive or deficient, the award is not a fair reimbursement to the successful party, or the award is inconsistent with previous awards in similar cases. The apex Court further emphasised that, while the taxing officer exercises unfettered judicial discretion, that discretion must be exercised judicially, not whimsically, and that a Judge will not interfere merely because he would have awarded a different figure. The Applicant further cites the Court of Appeal decision in Kamunyori & Company Advocates –vs- Development Bank of Kenya Limited [2015] KECA 595 (KLR), which distilled instances where an error of principle may be inferred, including where an award is manifestly excessive or where the Taxing Officer has failed to ascertain the correct subject matter. 4. The Applicant contends that the award of Kshs. 10,000,000/= as instruction fees is, on the face of it, manifestly excessive and disproportionate. The Taxing Officer enhanced the minimum chargeable fee of Kshs. 75,000/- by a factor of 133 without any cogent justification. It is contended that the Taxing Officer at the Court of Appeal, having exercised discretion and awarded Instruction Fees of Kshs. 1,500,000.00, should have guided the Taxing Officer herein. No distinction or justification was provided for departing from that award. In Premchand Raichand Limited v Quarry Services of East Africa Limited and Another (supra), the Court emphasised that costs should not be allowed to rise to a level that restricts access to justice to the wealthy only. A successful litigant should be fairly reimbursed, but not unjustly enriched, and awards must be reasonable and proportionate. On that basis, the Applicant argues that instruction fees should be reassessed. 5. Regarding the getting-up fees, the Applicant avers that, because they are derived from an inflated instruction fee, they must also fail if the instruction fee is found to be erroneous. The Applicant therefore urges the Court to set aside the Taxing Officer’s decision and have it reassessed. 6. The Respondent submits that the Applicant has failed to meet the stringent threshold for interfering with the exercise of the Taxing Officer’s discretion. Relying on Visser -vs- Gubb 1981 (3) 753 (C) and Tushar Shar –vs- KTK Advocates [2020] eKLR, the Respondent contends that this Court may interfere only where the Taxing Officer acted on a wrong principle, disregarded relevant factors, considered improper matters, or was clearly wrong to a pronounced degree. The Respondent argues that the Applicant’s sole grievance, that the award of Kshs. 13,784,645/= is excessive, is merely a challenge to quantum and does not constitute a valid ground for review. 7. The Respondent further emphasises that the Taxing Officer’s discretion as to quantum is presumptuously final, as affirmed in Tom Ojienda v County Government of Meru [2021] KEHC 7953 (KLR) and First American Bank of Kenya -vs- Shah and Others [2002] EA 64, and that the reviewing Court must be slow to interfere unless the award is manifestly excessive or founded on an error of principle. It is submitted that the Taxing Officer’s ruling was detailed and well-reasoned, and considered the value of the subject property, the protracted nature of the litigation spanning over a decade, and the extraordinary complexity of the dispute as recognised by the Court of Appeal. The Respondent maintains that the Applicant has failed to demonstrate any error of principle or unreasonableness in the exercise of discretion. 8. Lastly, the Respondent characterises the Applicant’s description of the award as a “133 times increase” as sensationalised and lacking factual or legal foundation, noting that the Applicant had already benefited from a reduction of more than 75% of the amount originally sought. The Respondent submits that the Reference is an inequitable attempt to undermine the Taxing Officer’s lawful exercise of discretion and to delay the resolution of the dispute. Consequently, the Respondent prays that the Application be dismissed with costs. **Analysis and Determination** 1. Having considered the pleadings, the rival submissions and the record of taxation before me, the only issue for determination in my view is whether this Court should interfere with the Taxing Officer’s decision 2. It is settled law that any grievance emanating from a Ruling on Taxation can be ventilated through Paragraph 11 of the Advocates Remuneration Order. In *Machira & Co. Advocates v Magugu* [2002]2 E.A, Ringera J (as he then was) held as follows: “As I understand the practice relating to Taxation of Bills of Costs, any complaint about any decision of the Taxing officer whether it relates to a point of law taken with regard to Taxation or to a grievance about the Taxation of any item in the Bill of Costs is ventilated by way of a Reference to a Judge in accordance with paragraph 11 of the Advocates Remuneration Order.” 1. Under Paragraph 11 of the Advocates Remuneration Order, it is mandatory that a reference can only be filed within 14 days of filing the notice to the Court under the same rule. The said Paragraph provides, inter alia, as follows: - 2. 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. 3. 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. 4. ………………………. 5. The procedure contemplated above is that: 6. The aggrieved party issues a notice within 14 days on the items objected 7. The Taxing Officer shall forthwith give reasons for his decision 8. Upon receipt of the reason, the objector shall within 14 days’ file an application to the High Court setting out grounds for objection 9. If dissatisfied with the High Court, the objector shall with leave of Court appeal to the Court of Appeal***.*** 10. It is clear from the above provision that the only avenue available to a party seeking to object to a decision following a Taxation is to approach the Court under Paragraph 11 of the Advocates Remuneration Order. 11. In this case, the Applicant is aggrieved by the decision of the taxing officer rendered on 30/1/2026. The Applicant filed a notice of objection dated 5/2/2026, in accordance with Order 11 (1). The notice was in respect of Items 1 (Instruction Fees) and 2 (Getting Up Fees) of the Plaintiff’s Party and Party Bill of Costs dated 21/2/2025. Accordingly, the summons is properly before this Court. 12. Under prevailing jurisprudence, when handling a reference, the persuasive decision of First American Bank of Kenya Ltd -vs- Gulab P. Shah & 2 others [2002] KEHC 1277 (KLR), which this Court adopts, holds that a Court should refrain from intervening in decisions made by the taxing officer concerning taxation unless it can be shown that the decision was based on an error of principle or that the fee awarded was so obviously excessive as to indicate a mistake of principle. 13. The discretion of a Taxing Officer is judicial. It is to be exercised judicially and judiciously. It is not to be exercised whimsically or capriciously, according to personal inclination. The matters considered by the Taxing Officer should be apparent from the reasons given in the decision. This is the indicator of whether or not the Taxing Officer exercised the discretion properly. 14. The parameters for consideration by the Taxing Officer are not limited. In Joreth Limited –vs- Kigano & Associates [2002]KECA 153 (KLR) to which both parties referred, the Court stated as follows: “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, judgment or settlement (if such be the case) but if the same is not so ascertainable the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.’’ 1. Where the Taxing Officer has properly considered the applicable parameters and exercised his discretion, the Court is not entitled to upset a taxation merely because it is of the opinion that the award is too high or too low. In the case of Premchand Raichand Limited and Anor vs Quarry Services of East Africa Limited and Another [1972] 562, the Court addressed this issue 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, and 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.’’ 1. The basis for determining subject matter value for the purpose of instruction fees depends on the stage at which the fees are taxed. If taxation occurs before judgment, the pleadings will form the basis for determining subject matter value. If judgment has been entered, recourse will be to the judgment, since it determines the value of the subject matter conclusively. But if the value is not ascertainable, the taxing officer is entitled to exercise discretion to assess such instruction fee as he considers just, considering, among other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances. 2. The Taxing Officer has discretion to increase or reduce instruction fees after considering the basic fee. In the case of Kamunyori & Company Advocates -vs- Development Bank of Kenya Ltd, Civil Appeal No. 206 of 2006, the Court held that where the sum awarded on taxation is so manifestly excessive, an error of principle can be inferred. The Court stated as follows: “Authorities on taxation show that a Judge will normally not interfere with the Taxing Officer's decision on taxation unless it is based on an error in principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of Principle can be inferred. If instruction fee is arrived at on the wrong Principles, it will be set aside.’’ 1. See also the Supreme Court decision in Kenya Airports Authority -vs- Otieno Ragot and Company Advocates [2024] KESC 44 (KLR), where the apex Court set out some of the guidelines for the assessment of costs. 2. In the instant suit, the value of the suit property was not ascertainable; thus, the Taxing Officer exercised her discretion to assess the instruction fees. The Taxing Officer considered that the general labour and conduct of proceedings in the matter were immense, as evidenced by the extensive documentation perused. She further noted that the hearing of the matter had proceeded before two separate judges, each taking 10 days, with half a day per hearing. The Taxing Officer further considered that the matter had been appealed and that the Court of Appeal had noted that, indeed, the matter was complex. She noted that the matter had been further appealed to the Supreme Court; hence, the matter was important to the parties. The Taxing Officer further considered the size and location of the suit property and noted that it was evidently of high value. On that basis, she awarded a sum of Kshs. 10,000,000/= as reasonable instruction fees. 3. From the record, it is evident that the documents were extensive in volume, indicating that a considerable amount of work was involved. It is also evident that the hearing of the matter proceeded for a long period of time and before different judges. The matter also went before the Court of Appeal and the Supreme Court. 4. Although the Taxing Officer considered that the matter had gone to appeal, the costs before the Court of Appeal have been taxed, and an instruction of Kshs. 1,500,000/= has been granted to the Plaintiff/Respondent. It follows that the issues of complexity were considered when determining the costs to be granted. As for the Supreme Court, the costs were likewise be taxed at the apex Court. 5. The Taxing Officer further considered the number of times the matter had proceeded before different judges and the duration thereof. The Advocates Remuneration Order allows a party to charge for Court attendances, among other services. It is therefore my considered view that the Taxing Officer erred in principle by considering attendances in determining the appeal as well as the appeals preferred, in ascertaining the instruction fees. 6. The Court finds that an error of principle was committed, which vitiated the award of instruction fees, making it excessive. This necessitates interference by the Court. 7. Having determined that an error occurred in determining the instruction fees, it follows that the getting-up fees, which are one-third of the instruction fees, have to be adjusted as well. 8. Ultimately, this Court finds that the chamber summons application dated 17/2/2026 is merited. The ruling delivered by the Taxing Officer on 30/1/2026 is hereby set aside, and the appropriate order is that the Party & Party Bill of Costs dated 21/10/2025 be remitted for taxation on items 1 and 2 only. Each party shall bear their respective costs. 9. Consequently, the following final orders are issued: 1. The Chamber Summons dated 17/2/2026 is allowed. 2. The Party & Party Bill of Costs dated 21/10/2025 is remitted for taxation before a taxing officer other than Hon. Judith Omollo, Deputy Registrar. 3. Each party to bear their own costs. 10. It is so ordered. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF JULY 2026 VIA MICROSOFT TEAMS** **J G KEMEI** **JUDGE** **Delivered Virtually in the Presence of**: 1. Mr. Muchoki for the Plaintiff 2. N/A for the 1st and 2nd Defendants 3. Mr. Ouma for the 3rd Defendant 4. CA – Ms Kendi