https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3280

Mongare & 14 others v Calleb t/a M. Ananda & Company Advocates (Environment and Land Miscellaneous Application E097 of 2025) [2026] KEELC 3280 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELC 3280 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Miscellaneous Application E097 of 2025 JO Olola, J May 26, 2026 IN THE MATTER OF: THE ADVOCATES ACT CHAPTER 16 LAWS OF KENYA AND IN THE MATTER OF: REFERENCE AGAINST THE TAXATION RULING IN THE MATTER OF: ADVOCATES/CLIENT BILL OF COSTS IN RESPECT OF MALINDI ENVIROMENT AND LAND COURT ELC NO.207 OF 2015 AGNETA MIRIKAU VS KIKAMBALA HOUSING ESTATE LTD & 2 OTHERS Between Lilian Akinyi Olesi Mongare & 14 others Applicant and Manase Ananda Calleb t/a M. Ananda & Company Advocates Respondent Ruling 1.By a Chamber Summons dated 23rd September 2025, Lilian Akinyi Olesi Mong’are and 14 others (the Applicants) pray or an order that this Court be pleased to set aside the Taxing Officer’s Ruling delivered on 10th September 2025 as it relates to the reasoning and determination of items 1 (instruction fee), 103 (adding half) and item 105 (get up fee) and that upon doing so, the Court be pleased to adjust the figures and re-asses the fees due. 2.The application is supported by an Affidavit sworn by the 1st Applicant and is premised on the grounds inter alia, that;i.The Taxing Officer failed to consider actual facts on record and well settled principles of law in considering the quantum pertaining to items 1, 103 and 105 of the consolidated Bill of Costs;ii.The Taxing Officer misdirected himself by taxing instructions separately for all the Respondents, despite the fact that the Applicants had jointly instructed Counsel, as is evident from the Respondents Advocates correspondences to the Applicants on the matter and on payment of fees;iii.The Taxing Officer erred in the instructions fees, thus falling into error in the taxation of the get up fee and subsequently the final bill;iv.The Taxing Officer misdirected himself on the deductions of the sums already paid by the Applicants being Kshs 65,000, which had already been admitted by the Respondent Advocate by decreeing that the same shall be deducted from the final bill subject to proof of payments and yet the same had been admitted and therefore non-contentious; andv.The Taxing Officer misdirected himself on the discretion and awarded a fee that is manifestly against the taxation principles as to justify interference. 3.Manase Ananda Caleb practicing in the name and style of Ananda and Co. Advocates (the Respondent) is opposed to the application. In his Replying Affidavit sworn on 21st October 2025, the Respondent avers that the Applicants instructed his Law Firm on separate dates and that consolidation of the suits was only done on 6th April 2016. 4.The Respondent avers that the suits in the Environment and Land Court arose from different transactions and different instructions given at different dates. It is further the Respondent’s case that execution for each transaction and decree shall be different for each party. 5.The Respondent further avers that getting up fees is charged per each property and that the same cannot be jointly charged especially where parties filed separate suits which were consolidated for ease of expeditions determination of the matters. It is therefore the Respondent’s case that the Taxing Officer taxed the Advocates Client Bill of Costs dated 17th April 2025 properly guided by Schedule 6 of the Advocate’s Remuneration Order 2024 and that the VAT was equally properly awarded. 6.I have carefully perused and considered both the Reference as well as the response thereto. I have similarly perused and considered the submission and authorities placed before me by the Learned Counsels representing the parties. 7.By their application before the Court, the Applicants pray for orders that this Court does set aside the Taxing Officer’s Ruling delivered on 10th September 2025 in so far as it relates to the reasoning and determination of items Nos. 1,103 and 105. They urge the Court to adjust the figures and to re-asses the fee due. 8.The Respondent is opposed to the application. It is the Respondent’s case that the Law Firm was instructed separately and that they filed different suits which were later consolidated. The Respondent further avers that the suits arose from different transactions arising at different dates and asserts that the Taxing Officer did not fall into any error in taxing the costs as done in the impugned Ruling. 9.In regard to taxation of costs, Rule 16 of the Advocates Remuneration Order 2009, provides as follows;“ 16.Notwithstanding anything contained in this Order, the Taxing Officer may allow all such costs, charges and expenses as authorized in this order as shall appear to him to have been necessary or proper for the attainment of justice defending the rights of any party but save against the party who incurred the same, no costs shall be allowed which appear to the Taxing Officer to have been incurred or increased through over caution, negligence or mistake or by paying of special charges or expenses to witness or other persons, or by other unusual expenses.” 10.As was held by the Court of Appeal in Kipkorir, Titoo and Kiara Advocates –vs- Deposit Protection Fund Board, Nbi C.A. Civil Appeal No. 220 of 2004 (2005) eKLR.“On a reference to a judge from the taxation by the Taxing Officer, the judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs. In Arthur –vs- Nyeri Electricity undertaking (1961) EA 497, the predecessor of this Court said at page 492 paragraph I: “where there has been an error in principle the Court will interfere but questions solely of quantum are regarded as matters with which the Taxing Officers are particularly fitted to deal and the Court will interfere only in exceptional circumstances.” 11.Considering what would amount to an error of principle in Nyangito & Co. Advocates -vs- Doinyo Lessos Creameries Ltd (2014) eKLR, it was held inter alia that;“(2)It would be an error of principle to take into account irrelevant factors or to omit 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 discretion by the trial judge; and(3)if the Court considers that the decision of the Taxing Officer discloses an error of principle, the normal practice, is to remit it back to the Taxing Officer for re assessment 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…..” 12.In the matter herein, the Taxing Officer taxed item No. 1 on instruction fees at Kshs. 210,000/=. Item No. 103 was taxed at Kshs. 168,561/= while the getting up fees (item No. 105) was taxed at Kshs. 70,000/=. The Applicants are aggrieved by the taxation of those three (3) items. It is their case, that the Taxing Officer misdirected himself by taxing the instruction fees separately for each of the Applicants despite the fact they had all jointly instructed the Respondent. 13.From a perusal of the record however, it was apparent to me that the suits were filed separately in the year 2015 before an order was made for their consolidation on 6th April 2016. The suits related to different housing units belonging to different parties. In that respect, I was left with no doubt in my mind that the Respondent had received separate individual instructions from the Applicants and that the Taxing Officer was not in error in treating them as such. 14.The basis of taxing instruction fees was set out by the Court of Appeal in Peter Muthoka & Another –Vs- Ochieng and 3 others NRB Civil Appeal No. 32 of 2017 (2019) eKLR where the Court delivered itself thus:“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.…………….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 instruction fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or settlement. He has no leeway to disregard the statutorily commanded starting point. And we think, with respect, that the starting point can only be one of the three. It is not open to the Taxing Officer to choose one or the other to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive.” 15.In the matter herein, the Applicants submit that the instruction fees ought to be based on the consolidated value of the subject matter and not separately. Accordingly, the Applicants aver that the consolidated value of the properties being Kshs. 30,800,000/= the instructions fees ought to have been assessed at Kshs. 662,000/=. 16.From a perusal of page 1 of his Ruling; it was clear to me that the Taxing Officer had addressed himself to the issue. In the last sentence thereof, the Taxing Officer states as follows;“The Respondent through the 1st Respondent herein, Lilian Akinyi Oleso Mong’are who swore the Replying Affidavit on her own behalf and on their behalf have owned up that each Respondent was separately and individually paying Kshs. 65,000/= on giving instructions to the Advocate/Applicant.” 17.The Taxing Officer further noted in the ruling as follows;“From the pleadings herein each Respondent was also separately pursuing registration of their various sub leases each with a specific value.” 18.Arising from the foregoing, it was again apparent that the Applicants had themselves treated their dealings with the Respondent as separate and distinct from each other and there was no basis upon which the Taxing Officer could be faulted on the basis that he did not consider the consolidated value of the properties in assessing the instruction fees. 19.Finally, on whether the Taxing Officer misdirected himself on the deductions of the sum of Kshs. 65,000/= paid by the Applicants, I note that at page 14, the Taxing Officer states as follows:“Learned Counsel for the clients/Respondents also submitted the taxed amounts should be paid less deposits paid by the 15 Respondents at the rate of Kshs. 65,000/= each. I so order subject to proof of payment of the said deposit by various Respondents.” 20.I did not however think that such a qualification was necessary on the part of the Taxing Officer. At page 1 of the Ruling the Taxing Officer captures the response by the Respondent herein as follows:“In response, the Advocate/Applicant filed a Reply to the Respondents’ Replying Affidavit, sworn by the Advocate/Applicant, Manase Ananda Caleb on 22nd July 2025. He acknowledged that the Respondents paid the Advocate /Applicant money amounting to Kshs. 65,000/= each but no further amount was paid and averred that each Respondent instructed the Advocate /Applicant on different dates…..” 21.Arising from the foregoing, it was evident that the Respondent herein had acknowledged receipt of the sum of Kshs. 65,000/= from each of the Applicants and that the payment was not disputed. In my considered view, the Taxing Officer ought to have considered this fact and taken it into account while assessing the costs due from the Applicants. 22.In the premises the Chamber Summons dated 22nd September 2025 succeeds partially to the extent that I hereby direct that the uncontested amount of Kshs. 65,000/= be deducted from the final bills as taxed by the Taxing Officer. 23.Each party shall bear their own costs. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 26TH DAY OF MAY, 2026.…………………………….J.O. OLOLAJUDGEIn the presence of:Mr. Leakey Court Assistant.Mr. Chege Kamau Advocate for the ApplicantsMr. Ngaira Advocate for the Respondents