https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4189
The taxing master committed an error of principle by failing to explain the basis for disallowing specific items and by not properly addressing the ascertainable subject matter value for instruction fees. However, because the taxation involved discretionary assessment of instruction fees and other items, the...
Source-derived case information.
- Citation
- [2026] KEELC 4189 (KLR)
- Parties
- Applicant: Kingdom Bank; Respondent: Susan Moraa Bosire T/A Wimonya Enterprises
- Court
- Environment and Land Court
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E002 of 2026
- Procedural Posture
- Environment and Land Miscellaneous Application / Reference From Taxation Ruling
- Outcome
- Reference allowed in part; taxation varied.
- Judges
- ["AA Omollo"]
- Legal Topics
- Reference Against Taxation, Review/set Aside of Taxing Master’s Decision, Instruction Fees, Error of Principle in Taxation, Remittal Versus Re Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kingdom Bank
Applicant
Susan Moraa Bosire T/A Wimonya Enterprises
Respondent
Procedural Posture
Environment and Land Miscellaneous Application / Reference From Taxation Ruling
Legal Issues
- 1 Whether the taxing master committed an error of principle in taxing the party and party bill of costs.
- 2 Whether the court should re-tax the bill or remit it for fresh taxation.
- 3 Whether the value of the subject matter was ascertainable from the pleadings for purposes of instruction fees.
Ratio Decidendi
The taxing master committed an error of principle by failing to explain the basis for disallowing specific items and by not properly addressing the ascertainable subject matter value for instruction fees. However, because the taxation involved discretionary assessment of instruction fees and other items, the appropriate remedy was to vary the taxed instruction fee and uphold the remaining items as taxed, not a full re-taxation by the judge.
Court Disposition
Reference allowed in part; taxation varied.
Orders
- The Chamber Summons dated 9 February 2026 was allowed.
- The ruling and taxation delivered on 27 January 2026, together with the Certificate of Costs if already issued, was varied on the instruction fee only; the remaining items remained as taxed in the bill.
Full Case Text
Judgment text and source record
1 paragraphs
Kingdom Bank v Bosire t/a Wimonya Enterprises (Environment and Land Miscellaneous Application E002 of 2026) [2026] KEELC 4189 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4189 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Environment and Land Miscellaneous Application E002 of 2026 AA Omollo, J July 2, 2026 Between Kingdom Bank Applicant and Susan Moraa Bosire T/A Wimonya Enterprises Respondent Ruling 1.The Applicant filed a reference vide Chamber Summons dated 9th February 2026 premised on the grounds on the face of it and the supporting affidavit;a.The court be pleased to review and or set aside the ruling of the taxing master delivered on 27 January 2026, the impugned party and party bill of costs;b.The costs of this reference should be provided for. 2.The applicant has demonstrated an error of principle in the taxation. The taxing master merely stated that items 8, 15, 19, 20, 25 and 26 "are not provided for" and reduced the instruction fees without explaining the basis for doing so. The ruling does not analyse the applicable provisions of the Advocates (Remuneration) Order or explain why the amounts claimed were unjustified. 3.Further, the taxing master did not demonstrate how the instruction fee was arrived at despite the pleadings disclosing the value of the subject matter as Kshs. 4,029,800, being the loan secured by the suit property. The applicant's reliance on the principles in Peter Muthoka & Another v Ochieng, Onyango, Kibet & Ohaga Advocates is therefore well founded, namely that where the value of the subject matter is ascertainable from the pleadings, the taxing officer should use that value as the starting point in assessing instruction fees. 4.Equally, the taxing master gave no reasons for disallowing the service charges, attendances and affidavits of service despite those items being specifically provided for under Schedule 7 of the Advocates (Remuneration) Order, assuming they were supported by the court record. A blanket statement that the items were "not provided for" amounted to a misdirection in principle. 5.However, it would not be appropriate for the Judge to re-tax the bill. The settled practice is that once an error of principle has been established, the proper course is to remit the bill to another taxing officer for fresh taxation unless the error concerns only a discrete item capable of correction without exercising the taxing officer's discretion. The impugned taxation involved the exercise of discretion on instruction fees and several other items, making remittal the appropriate remedy. 6.Accordingly, I grant orders as follows:i.The Chamber Summons dated 9 February 2026 is allowed.ii.The ruling and taxation of the learned taxing master delivered on 27th January 2026, together with the Certificate of Costs, if already issued, is varied in terms of the amount taxed as instructions fee. The remaining items remain as taxed presented in the bill.iii.I proceed to tax the instructions costs at Kshs 170,000 as provided for in Schedule 7 of the Advocates Remuneration Act as amended. The total bill is now taxed at Kshs 233, 850=iv.The Applicant shall have the costs of this reference. DATED, SIGNED AND DELIVERED AT KISII, THIS 2ND DAY OF JULY, 2026A. OMOLLOJUDGE