https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4599

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCA NO. E252 OF 2025** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_­­­­­­­\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **KIBET ROP & COMPANY ADVOCATES - APPLICANT** **VS** **KASARANI MALL LIMITED - 1ST RESPONDENT** **UCHUMI SUPERMARKET PLC - 2ND RESPONDENT** **RULING** **(In respect of the Advocate’s application dated 24/11/2025)** 1. The subject of this ruling is a reference dated 24/11/2025. The Reference is brought pursuant to the provisions of Rule 11(2) of the Advocates Remuneration Order, 2014, Section 1A,1B and 3A of the Civil Procedure Act and Order 40, Rule 4, Order 51 (1) of the Civil Procedure Rules. The Applicant seeks for orders that: 2. The Honourable Court be pleased to set aside the Ruling of Hon. Vincent Kiplagat (DR) delivered on 12/11/2025. 3. The Honourable Court be pleased to Remit the Bill of Costs back to the Court for taxation before a different Deputy Registrar with directions that it be heard and determined on its merits and a reasoned ruling be issued. 4. In the alternative to (2) above, this Honourable Court be pleased to hear and determine the Bill of Costs afresh. 5. The Honourable Court be pleased to award the costs of this Appeal and of the taxation in the Lower Court to the Appellant. 6. The Honourable Court be pleased to grant any other or further relief that this Honourable Court may deem just and fit to grant. 7. The Honourable Court be pleased to review and reconsider the Applicant’s Bill of Costs. 8. The application is premised on the grounds set out on the face of the application and in the supporting affidavit sworn by Paul Kibet Rop on 24/11/2025. The Advocate avers that the Applicant filed a Bill of Costs dated 21/5/2025 for services rendered to the Client in ELC E010 of 2022, in which Judgment was entered on 19/5/2025. The Bill of Costs was not opposed by the Respondent, as a consent was executed upon the Applicant giving the Respondent a discount, with payment agreed at a sum of Kshs. 67,000,000/=. 9. The deponent deposes that the Taxing Master declined to adopt the said consent until the Respondents produced a board resolution supporting the consent. That the Respondents failed to produce the board resolution in support of the consent. Subsequently, the Taxing Master proceeded to deliver his ruling on 12/11/2025, dismissing the Bill of Costs. 10. It is averred that the Applicant is aggrieved by the finding on the basis that the Taxing Master misapplied the law and committed errors of principle by failing to provide a reasoned decision. The Taxing Master is also faulted for failing to evaluate and determine specific items in the Bill of Costs, thereby failing to provide a basis for his decision on each item. The Taxing Master is therefore accused of failing to exercise his discretion judiciously; hence the need for the Court to reconsider the Bill of Costs and set aside the impugned Ruling. 11. The Respondents were duly served with the application but did not file any response thereto. In fact, their counsel, Ms. Matata appeared in Court on 22/1/2026 and confirmed that they were not opposed to the application. The application is therefore unopposed. The Applicant opted not to file written submissions. 12. Although the application is unopposed, the Court shall determine it on its merits. **Analysis and determination** 1. This Court has considered the application, the annexures thereto and the applicable law, I find that the main issues for determination are; 2. Whether the Advocate/ Applicant’s application is competent 3. Whether the Taxing Master’s decision should be set aside 4. Which orders should this Court make? **Whether the Advocate/ Applicant’s application is competent** 1. The Applicant is aggrieved by the decision of the Taxing Master in dismissing its Bill of Costs on the basis that there was no proper consent capable of being adopted to compromise the Bill. The Taxing Master delivered his Ruling on the 12/11/2025. 2. It is settled law that any grievance emanating from a Ruling on Taxation can only 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 Vishisht Talwar –vs- Antony Thuo Kanai T/a Thuo Kanai Advocates **[2014] eKLR**the Court adopted the decision in the case of Machira & Co. Advocates -vs- Arthur K. Magugu **(CA 199/2012) eKLR** and discussed the filing of a reference under Rule 11 as follows: - **“Rule 11 therefore provides for ventilation of grievances from such decision through references to a Judge in chambers. The effect may be viewed as an appeal or a review but these being legal terms in respect of which different considerations apply, they should not be loosely used. Appeals require the typing of proceedings, compiling of records of appeal and hearing of the same in open Court. Reviews, however, would require provisions akin to those in Section 80 of the Civil Procedure Act of discovery of new and important matters, errors on the fact of the record and so on. In our view of the Rules committee intended to avoid all that and provide for a simple and expeditious mode of dealing with decisions on Advocate’s bill of costs through reference under Rule 11 to a Judge in chambers.”** 1. That is the only legal provision on which the Plaintiff/Applicant herein needed to base her application without invoking the provisions of the Civil Procedure Act and the Rules. 2. I have reviewed the proceedings herein; the Applicant did not file any notice of objection. However, it filed a Notice of Appeal dated 24/11/2025, which indicates that leave was granted on 12/11/2025. 3. It is held time and again that the Civil Procedure Code is not applicable to Advocates' remuneration. In the case of Hezekiel Oira t/a Oira Advocates –vs- Kenya Broadcasting Corporation (2015) eKLR, the Court stated as follows: - “...the Applicant cannot invoke the Civil Procedure Act and Rules made thereunder to circumvent the procedure provided under the Advocates Act and the Advocates Remuneration Order in regard to review of a decision of the taxing officer in an advocate/Client bill of costs where the taxing officer exercises the special jurisdiction conferred upon him or her under the Advocates Remuneration Order and NOT in his capacity as the Deputy Registrar of this Court.” 1. Similarly, the Court of Appeal in Machira & Company Advocate –vs- Arthur K. Magugu (2012) eKLR in this regard stated that: “Appeals require the typing of proceedings compiling of records of appeal and hearing of the same in open Court. Reviews, however, would require provisions akin to those of Section 80 of the Civil Procedure Act, of discovery of new and important matters, errors on the face of the record and so on. In our view, the Rules committee intended to avoid all that and provide for a simple and expeditious mode of dealing with the decisions on advocates bill of costs through references under Rule 11 to a judge in chambers.” 1. The Court further held that: “The appellate jurisdiction of any Court is a creature of the statute and has to be exercised in accordance with the provisions of the statute creating it. With regard to the advocates bills of costs, we agree with the decision of Ringera J (as he then was) in Machira vs Magugu that the Advocates Remuneration Order is a complete code which does not provide for appeals from the taxing master’s decisions. Rule 11 thereof provides for ventilation of grievances from such decisions through references to a judge in chambers. The effect may be viewed as an appeal or a review but these being legal terms in respect of which different considerations apply, they should not be loosely used….” 1. It would therefore have been sufficient for the Applicant to base its application solely on the provisions of the Advocates Remuneration Order, 2014. The Advocates Remuneration Order is a complete code on the remuneration of Advocates. It is not fatal for the Applicant to cite and comply with other provisions of the law, such as the Civil Procedure Act and Rules; however, they add no value to the application. 2. I have, however, perused the impugned Notice of Appeal; the Applicant indicates that it is dissatisfied with the whole Ruling of the Taxing Master, hence the instant Reference. 3. In the often-cited case of Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd **(2) (2006) 1 EA 5 where the Court h**eld as follows: - “Although rule 11 (1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons. Where the reasons for the taxation on the disputed items in the Bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of sub rule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.” 1. **Similarly, Odunga J. (as then was) stated as follows in** Evans Thiga Gaturu, Advocate vs.- Kenya Commercial Bank Limited **[2012] eKLR:** “However, where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring a reference.... 1. Guided by the above decision and in view of the provisions of Article 159 of the Constitution, which enjoins this Court to administer justice without regard to procedural technicalities, I find that the application is competent, having been filed within 14 days of the Taxing Master's decision. **Whether the Taxing Master’s decision should be set aside** 1. The often-cited case of First American Bank of Kenya vs. Shah & Others [2002] 1 EA 64 sets out the circumstances under which a Judge of the High Court (read Environment and Land Court) can interfere with the Taxing Master’s exercise of discretion. These principles are also to be found in the old Court of Appeal decisions in Premchand Raichand Limited & Another vs. Quarry Services of East Africa Limited and Another [1972] E.A 162. The said principles were also re-affirmed by the Court of Appeal in Joreth Limited vs. Kigano and Associates [2002] 1 E.A 92. These principles include; 2. that the Court cannot interfere with the Taxing Master’s discretion 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 interference that it was based on an error of principle; 3. it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Remuneration 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; 4. if the Court considers that the decision of the Taxing Master discloses errors of principle, the normal practice is to remit it back to the Taxing Master 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; 5. it is within the discretion of the Taxing Master to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary.” 6. From the above stated, it can be discerned that there is a general caveat on the Court’s interference with the Taxing Master’s decision. 7. Section 37 (2) of the Companies Act, 2015 provides that: “A document is validly executed by a company if it is signed on behalf of the company- (a) by two authorized signatories; or (b) by a director of the company in the presence of a witness who attests the signature.” 1. I have reviewed the consent dated 21/7/2025. As duly noted by the Taxing Master, the signatories of the Respondents do not indicate their names or capacities. It is a well-known legal principle that incorporated companies act through their directors. Although the 1st Respondent appointed its director to act on its behalf, as per the annexed Letter of Authority dated 20/1/2022, that authority does not include the execution of a consent. Further, the director’s signature on the Letter of Authority is entirely different from that on the Consent. 2. Consequently, I find no fault with the Taxing Master's refusal to adopt the impugned consent. The consent was not validly executed on behalf of the Respondents. 3. Having found that the consent was not properly executed, was the Taxing Master justified in dismissing the Bill of Costs? An Advocate who has acted on behalf of a client is entitled to their legal fees. For that reason, the Applicant filed the Advocate-and-Client Bill of Costs, which is the subject of these proceedings. 4. Although consent was not given, the Taxing Master ought to have proceeded to tax the Bill of Costs in accordance with the law. It is therefore my finding that the Taxing Master erred in dismissing the Bill of Costs as he did. 5. Based on the foregoing, the Applicant’s application succeeds partially. It is therefore determined in the following terms; 6. The Ruling of the Taxing Master delivered on 12/11/2025 is set aside only on the dismissal of the Bill of Costs. 7. The Bill of Costs is hereby remitted to another Taxing Master for fresh taxation. 8. There shall be no orders as to costs. 9. 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. Kibet for Appellant 2. N/A for Respondents 3. CA – Ms Kendi