https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9061

Mombasa Bricks and Tiles Ltd & 5 others v Shah & 7 others (Civil Suit 9 of 2011) [2026] KEHC 9061 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9061 (KLR) Republic of Kenya In the High Court at Mombasa Civil Suit 9 of 2011 J Ngaah, J June 26, 2026 Between Mombasa Bricks and Tiles Limited 1st Plaintiff Sojpal Jetha Limited 2nd Plaintiff Dinesh Ukumar Zaverchand Jetha 3rd Plaintiff The Estate Of Zaverchand Jetha 4th Plaintiff Ateet Dinesh Jetha 5th Plaintiff Zaverchand Sojpal Jetha Holdings Ltd 6th Plaintiff and Arvind Shah 1st Defendant Hashaben Shah 2nd Defendant Gosrani Holdings Limited 3rd Defendant Coast Properties Limited 4th Defendant Coast Clay Works Limited 5th Defendant Coast Maize Millers Limited 6th Defendant Spa Millers Nairobi Limited 7th Defendant Highway Centre Limited 8th Defendant Ruling 1.Before court are two applications the first of which is a reference from the taxing officer’s ruling, dated 18 March 2024, on the taxation of the plaintiffs’ a party and party bill of costs. The reference is dated 28 November 2025 and is expressed to be brought under paragraph 11(2) of the Advocates Remuneration Order, 2014. 2.The primary prayer is couched as follows:“This Honourable Court be pleased to vary the Ruling dated 22/5/2025 and increase the basic instruction fees from zero to the amount pleaded in item 1 and 182 of the Plaintiff's Bill of Costs dated 18/3/2024 or award such other amount as may appear reasonable in the circumstance”. 3.The application is supported by the affidavit of Mr. Simon Karina who has sworn that the taxing officer erred in principle in failing to exercise her discretion under Schedule VI Paragraph 1 of the Advocates Remuneration Order to increase the basic instruction fee from the amount of Kshs. 2,762,000/= and the item of defending the counter-claim from Kshs. 31, 665, 768.72. 4.The taxing officer is alleged to have failed to take into account the fact that the matter was of great importance to the parties because one of the subject matters is a prime industrial property measuring approximately 17.74 acres situated at the shoreline of Kilindini Harbour touching the Kilindini Port. The value of the property is said to have been over Kshs. 1.7 billion as at 2017. 5.It is also sworn that the matter was a complex one because it involved several suits that were consolidated into High Court Civil Case No. 9 of 2011. As a matter of fact, in its ruling rendered on 8 July 2022, the Supreme Court certified the matter as raising novel points of law requiring the court’s own input and also was a matter of general public interest. The defendants are said to have conceded in their pleadings that this was a complex matter. 6.In particular, the matter raised novel questions of law relating to application of the common law concepts of constructive trust to property held in companies, fiduciary duties, undue influence, misrepresentations, unconscionable bargain, and independent advice. The matter went all the way to the Supreme Court from the High Court. 7.On their part, the defendants filed a motion in which they have sought stay of execution of the “decree” of the taxing officer pending the hearing of the motion inter partes and the reference. To be precise, the prayers for the orders have been couched as follows:“2.That pending the hearing and determination of this Application inter partes, the Honourable Court be pleased to stay execution of the decree arising from the decision delivered on 22nd May 2025 by Honourable Rita Orora and all other consequential orders and proceedings arising therefrom.3.That pending the hearing and determination of the intended reference to be lodged against the ruling delivered on 22nd May 2025, the Honourable Court be pleased to stay the execution of the decree arising from the decision delivered on 22nd May 2025 by Honourable Rita Orora and consequential Orders arising therefrom”. 8.The application was compromised when the defendants agreed to deposit in court security for costs. 9.What is questioned in the plaintiff’s reference is the learned taxing officer’s exercise of her discretion in her assessment of the items of instruction fees and getting up fees in the party and party bill of costs. There should not be any doubt that in assessing costs payable to any party, the taxing officer is clothed with the discretion to increase or lower the scale of fees particularised in the Advocates Remuneration Order. Under schedule VI paragraph 1 of that Order, the taxing officer’s discretion on assessment of instruction fees is couched in the following terms:“The fee for instructions in suits shall be as follows, unless the taxing officer in his discretion shall increase or (unless otherwise provided) reduce it”. 10.Besides this codification, there is sufficient case law entrenching the position that the taxing officer has such wide discretion in taxation of bills of costs and that the judge will only interfere with such discretion in exceptional and limited circumstances. Goudie, J. emphasised this point in Mehar Singh Brothers Ltd versus Mohanlal Nanji & Devchand Nanji, Supreme Court of Kenya at Nakuru District Registry, Civil Case No. 143 0f 1961 (February 1963) where he admitted that although he was inclined to increasing the amount awarded under the item of instruction fees, he couldn’t out of deference to the taxing officer’s exercise of discretion. The learned judge held as follows:“I myself consider that the taxing officer has in this case taken a rather stringent view and myself I would have felt inclined to order some addition to the scale fee in view of the fact that there were two Defendants whose interests were at any rate not identical even though did not think that two instruction fees were justified. However, on a matter of quantum it is not for me to substitute my discretion for that of the taxing officer. I can detect no error in principle either from the way in which the discretion has been exercised or from the sum awarded itself. I therefore refuse to interfere.” 11.Addressing the same question of references from the taxing officers on the extent of instructions fees to be awarded Thacker J. in Shivji Karson Patel v Shivji Jetha and Lalji Mulji [1944-45), 21 (1) KLR 27 at 28 reiterated the principle in the following words of Buckley LJ in White v Altrincham Urban District Council [1936 |1 All ER at 931, 932:“On questions of quantum the decision of the taxing officer is generally speaking final. It must be a very exceptional case in which the court will even listen to an application to review his decision. In questions of quantum the Judge is not nearly as competent as the taxing master to say what is the proper amount to be allowed; the court will not interfere unless the taxing master is shown to have gone wholly wrong. If a question of principle is involved it is different; on a mere question of quantum, in the absence of particular circumstances, the decision of the taxing officer is conclusive”. 12.And Gould JA., stated in Thomas James Arthur v Nyeri Electricity Undertaking, [1961] EA 492 at 492-493, (3 August 1961) that:“The principles which are applied by Judges upon review of taxing officers’ certificates are well known ... 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 intervene only in exceptional cases”; that is to say, when it is manifestly clear that the costs are so excessive or low as to indicate that it must have been arrived at unjudicially or on erroneous principles. 13.Again, Law JA. in Rogan-Kamper v Lord Grosvenor (No 3) [1977] KLR 203 at 214 (13 December 1977).“A Judge will not substitute what he considers to be the proper figure for that allowed by the taxing officer unless, in the Judge’s view, the sum allowed by the taxing officer is outside reasonable limits so as to be manifestly excessive or inadequate. In this respect a Judge must remember that in questions of quantum he is not nearly as competent as the taxing officer to say what is the proper amount to be allowed”. 14.One of the relatively recent decisions on this subject is the Court of Appeal decion in Kipkorir,Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR where the court considered the question of exercise of discretion by the learned taxing officer and circumstances under which the Judge to whom a reference has been made may disturb the exercise of that discretion. In that case, the Court of Appeal noted that the appellant was defending the suit and so the instruction fees as provided in schedule VIA (1) (d) (of the Advocates Remuneration Order) was the instructions fees calculated under sub-paragraph (1) (b) of schedule VI subject to the discretion of the taxing officer to increase or reduce the instructions fees. As far as the exercise of discretion is concerned, the Court noted as follows:“In exercising its (sic) discretion, the Taxing Officer is required to consider the matters specified in proviso (i) of schedule VIA (1) which states:Provided that:i.the taxing officer, in the exercise of his discretion shall take into consideration the other fees and allowances to the advocate (if any) in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involved, the interest of the parties, the general conduct of the proceedings, a discretion by the trial judge, and all other relevant circumstances”. 15.The court noted that once a reference is made to the judge, the judge will not interfere with the exercise of the taxing officer’s discretion unless she has erred in principle. This is what the Court said:“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 v 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 cases”. 16.The court went further to give instances of what may be deemed to be an error of principle to include cases where the costs allowed are so manifestly excessive as to justify an inference that the taxing officer acted on erroneous principles or where the taxing officer has over emphasized the difficulties, importance and complexity of the suit (see Devshi Dhanji v Kanji Naran Patel (No. 2), [1978] KLR 243. Another instance of error of principle is where:“…the taxing officer fails to apply the formula for assessing instructions fees or costs specified in schedule VI or fails to give due consideration to all relevant circumstances of the case particularly the matters specified in proviso (1) of schedule VIA (1). 17.I am also guided by the decision in Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No. 3) [1972] EA 162 in which the principles of taxation were outlined as follows:(a)That costs should not be allowed to rise to a level as to confine access to justice as to the wealthy,(b)that a successful litigant ought to be fairly reimbursed for the cost he has had to incur,(c)that the general level of remuneration of Advocates must be such as to attract recruits to the profession and,(d)so far as practicable there should be consistency in the award made and(e)The court will only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party. 18.In her taxation of the bill of costs in contention, the learned taxing officer appears to have strictly applied the scale in the Advocates Remuneration Order without increasing or decreasing the amount specified in the scale. She noted as follows:“This suit having been filed in 2011, the Advocates (Remuneration) (Amendment) Order of 2006 and 2014 applies.Before doing the taxation, I shall look at the Defendants’ submissions dated 12th August, 2024 where the Defendant contended the amounts the Plaintiffs asked for the instruction fee in item 1 (the main suit), instruction fees in the counter claim (Item 182), the getting up fees, item 2 to 181, Item 183 to 434 and the disbursements. I have gone through the same and taxed them as hereinunder.1.Item 1This item provides for instruction fees where the value of the suit as per the judgment delivered by the Court of Appeal in Civil Appeal No. 117 of 2018 and the Plaint was Kshs 212,000,000/- with the Court of Appeal upholding the decretal sum as assessed herein which I proceed to be guided by Para 1(b)(ii) which I calculate as follows:1st Kshs 1,000,000/- Kshs 77,000/-2nd Kshs 19,000,000/- * 1.5% Kshs 285,000/-Bal Kshs 192,000,000/- *1.25% Kshs 2,400,000/-Total Kshs 2,762,000/-I proceed to tax the item at Kshs 2,762,000/-. Kshs 50,000,000/- is taxed off.2.Item 182This item provides for instruction fees in defending the counter claim. The plaintiff further seeksinstruction fees on the counter claim. I am persuaded by the findings inKenyariri & Associates Advocates -v- Salama Beach Hotel Limited And 4 Others in which the court held –“A Counterclaim contains assertions that a defendant could have made by starting a lawsuit if the Plaintiff had not already begun an action. It is governed by almost the same rules that regulate a claim made by a Plaintiff except that it is a part of the answer that the Defendant files in response to the Plaintiffs claim. A Counterclaim is therefore in all respects a suit by the Defendant."Where the value of Counter claim was Kshs 2,097,051,248/- on instructions given on 9th December, 2014 in the High Court which was valued by the Defendants themselves and which I proceed to be guided by Para 1(b)(ii) which I calculate as follows:1st Kshs 1,000,000/- Kshs 120,000/-2nd Kshs 19,000,000/- * 2% Kshs 380,000/-Bal Kshs 2,077,051,248/- *1.5% Kshs 31,155,768.72/-Total Kshs 31,655,768.72/-I proceed to tax the item at Kshs 31,655,768.72/-. Kshs 80,000,000/- is taxed off.” 19.As noted earlier in this ruling, the dispute between the plaintiffs and the defendant escalated from this Honourable Court through the Court of Appeal and, ultimately, to the Supreme Court. The Apex Court summarised the plaintiffs’ case and the defendants’ counterclaim in its judgment rendered on 28 December 2023. While granting the defendants leave to appeal against the decision of the Court of Appeal, the Supreme Court identified the following issues as being issues of general public importance:“i.Whether a constructive trust can be imported into a land sale agreement to defeat a registered title therefrom; andii.Whether a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.” 20.The Supreme Court also summarised the genesis of the dispute between the plaintiffs and the defendants; to the extent that this summary is necessary to the determination of this reference, I can do no better than borrow, in this ruling, what the Supreme Court said. 21.Sometime in May, 2005, the plaintiffs experienced financial challenges as a result of debts incurred by the 1st plaintiff; the dbts were secured by Plot No.500/VI/Mainland North (Title No. C.R. 4226) (suit property) registered in the name of the 1st plaintiff. The suit property was developed with a factory and business premises, amongst other developments. The suit property was, however, threatened with sale by the financier, Standard Chartered Bank Ltd, to recover the monies secured by it. 22.In their efforts to save the suit property, the 2nd and 3rd plaintiffs sought the assistance of the 1st defendant, who recommended the restructuring of the 1st plaintiff. According to the 1st defendant’s proposal, two companies were incorporated; namely, Zaverchand Sojpal Jetha Holdings Ltd, that was itself to be owned 100% by the plaintiffs and Goshrani Holdings Ltd, which was to be owned by the 1st defendant or his agents. The two companies were to incorporate four other companies to hold various assets of the 1st plaintiff. The four incorporated companies were: Coast Properties Ltd; Coast Maize Millers Ltd; Coast Clay Works Ltd; and Spa Millers Nairobi Ltd, which are the 4th, 5th, 6th and 7th defendants, respectively. 23.At their incorporation, the companies did not own any assets. The companies were to hold the 1st plaintiff’s assets for the sole benefit of the plaintiffs during the process of repayment of the facility and redeeming the assets from the charge held by Standard Chartered Bank Kenya Ltd. 24.The plaintiffs acted upon the 1st defendants’ recommendations. Before the incorporation of the companies was complete, the 1st plaintiff passed a resolution dated 2 June, 2005 to sell the suit property. Subsequently, a sale agreement between the 1st plaintiff and the 8th defendant was entered into for the sale of the suit property for the sum of Kshs. 27,000,000/- equivalent to the outstanding loan amount owed to Standard Chartered Bank Kenya Ltd. 25.In order to forestall the looming auction, the 1st defendant approached Standard Chartered Bank Kenya Ltd with the resolution, the sale agreement and a proposed settlement of the outstanding debt upon registration of title to the suit property in favour of the 8th defendant or its nominee. 26.Standard Chartered Bank accepted the proposal on condition that 10% of the purchase price, being Kshs. 2,700,000/-, be paid upfront as a non-refundable deposit and a guarantee for payment of the balance thereof be given by a reputable bank. Concurrently, the 1st defendant sought financing from Giro Commercial Bank Limited which had agreed to offer a loan facility secured by the suit property. 27.Meanwhile, the incorporation of the 4th to the 7th defendants was concluded with the shareholding comprising the 1st defendant, 4th plaintiff and the 3rd defendant, each holding 20, 490 and 490 shares, respectively. The directors of the 4th to the 7th defendant were the 3rd plaintiff and 1st defendant. Subsequently, the 8th defendant nominated the 4th defendant to be registered as proprietor of the suit property. The brick making plant and maize milling factory on the suit property were assigned to the 5th, 6th and 7th defendants. 28.Subsequently, the 4th defendant applied for a loan and an overdraft facility of Kshs.50,000,000/- from Giro Commercial Bank to finance the purchase of the suit property and its working capital. The financing was approved on 11 August 2005. A fresh charge over the suit property was registered in favour of Giro Commercial Bank and the balance of the outstanding loan released to offset the loan at Standard Chartered Bank. 29.According to the Supreme Court’s summary of the dispute, the underlying issues concerning the shareholding and controlling interest of the companies surfaced in the year 2009 resulting in the institution of numerous suits by the parties.These suits were filed at the High Court being, HCCC Nos. 2, 21, 22, 23, 24 of 2009, Misc. No. 4 of 2009 and HCCC. No.9 of 2011. Following this Honourable Court’s directions, all the cases were stayed pending determination of HCCC No. 9 of 2011 whose outcome would guide the related cases. 30.In the Mombasa High Court Civil Case No. 9 of 2011 against the defendants, the Plaintiff sought the following orders:“a.A declaration that the 4th, 5th, 6th and 7th defendants held and continue to hold the piece of land known as 500/VI/MN and all the attachments thereto in trust for the plaintiffs.b.A mandatory injunction compelling the defendants herein to unconditionally transfer the title and interest on plot No. 500/VI/MN back to the 1st plaintiff or the respondents and or their nominee.c.In the alternative, a setting aside or nullifying the purported agreement of the sale dated 31/8/2005 in respect of the transfer of the land from the 1st plaintiff to the 4th defendant.In the alternative and without prejudice to the above,a.A declaration that the shares held by the 1st and 3rd defendants in the 4th, 5th, 6th and 7th defendant companies are held by the said 1st and 3rd defendants in trust for the plaintiffs.In a further alternative,i.As against the 1st, 3rd and 4th, 5th, 6th and 7th defendants, the said defendants be ordered to pay the plaintiffs through the 1st plaintiff 50% of the market value of the suit plot No.500/VI/MN, brick manufacturing machinery and every asset of the respondent as at the date of valuation actual payment.In a further alternative,a.As against the 4th, 5th, 6th and 7th appellants, the Honourable court be pleased to order that the respective contributions into the past and present assets of the 4th, 5th, 6th and 7th defendants as between the plaintiffs and the 1st, 2nd, and 3rd defendants be assessed by an auditor appointed jointly by the parties hereto or by the court.b.The value of the assets and in particular plot No. 500/VI/MN and the brick manufacturing machinery over and above the nominal value of the shares be declared to be share premium and be transferred to the share premium account.c.The 4th, 5th, 6th and 7th defendant companies be directed to increase their authorised capital and issue such bonus shares as the court will direct from the said share premium and the said share premium capital be deemed as allotted and issued to the shareholders according to their actual proportionate contribution to the assets of the company and the memorandum and Articles of Association and or share register be deemed as amended accordingly and share certificates issued.d.Any other relief as the Honourable Court may deem fit.The defendants not only filed a defence to the suit but they also lodged a counter-claim in which they sought the following orders:a.Mombasa High Court Civil Suit Nos. 2, 21, 22, 23 and 24 of 2009 be dismissed with costs to the 1st, 2nd and 3rd defendants.b.The 1st, 2nd and 3rd respondents jointly and severally be ordered to pay mesne profit to the 3rd defendant in the sum of Kshs. 1,200,000/- per month from 1st May 2013 until the 2nd and 3rd plaintiff vacate the suit premises.c.The 1st respondent be restrained from running the affairs of the 3rd and 4th appellants without the involvement of the 1st and 2nd appellants.d.A perpetual injunction be issued against the 2nd, 3rd and 4th respondents from engaging in any business, trade or manufacture of any item in the suit premises.e.An order of eviction to evict the 2nd and 3rd respondents from the suit premises.f.A declaration that the 1st and 2nd appellants are entitled to the shares they hold in the 4th -7th appellants.g.Punitive and aggravated damages against 3rd respondent for trespass/conversion.” 31.The plaintiffs suit in this Honourable Court was dismissed. The defendants counter-claim was allowed. In making his determination, Otieno, J. directed, inter alia, that the suit property be valued and the rent payable be determined. The learned judge adjudged the 4th defendant to be the owner of the suit property. 32.The Court of Appeal allowed the plaintiffs’ appeal and overturned the High Court judgment in its decision rendered on 4 April, 2019. It dismissed the cross appeal by the defendants. The court held, inter alia, that there was a relationship of trust between the respondents and the 1st appellant, who offered to reorganize and restructure the plaintiffs’ business in order to salvage the suit property; instead of using his position as a trustee, the 1st defendant set out a scheme to purchase the property at Kshs.27,000,000/- unjustly enriching himself and he was conflicted between his duties as a trustee and his scheme to purchase the property. 33.The court further held that, there was a presumption of undue influence on the part of the 1st defendant as the net effect of the documents giving rise to the arrangement the parties found themselves in did not reflect the true and independent consent of the 1st to 4th plaintiffs. The transactions, thus, met the criteria of being regarded as unconscionable bargains. The court lifted the corporate veil of the 3rd and 8th defendants that the companies were used to cover the 1st defendant’s improper conduct. It deemed the said defendants to be one and the same with respect to the transaction in issue. 34.The Court of Appeal further found that the 1st and 3rd defendants held the shareholding in the 4th to the 7th defendant companies in trust for the 1st plaintiff or its nominees, and the 4th defendant held the suit land in trust for the 1st plaintiff. Whereas the 4th defendant’s title was registered under Section 23 of the repealed Registration of Titles Act, the Court of Appeal found it impeachable. Thus, it nullified the sale agreement dated 31st August, 2005 and the transfer of the suit property to the 4th appellant. 35.The defendants’ appeal to the Supreme Court was dismissed. The Supreme Court, as noted, determined that a constructive trust can be imported into a land sale agreement to defeat a registered title therefrom; and also, a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration. 36.The main reason I have found it necessary to flag out what I consider the pertinent parts of the dispute, as pleaded in this Honourable Court, the Court of Appeal and ultimately in the Supreme Court is to demonstrate that at no stage of the proceedings in the three courts was the figure adopted by the taxing officer as the basis for computation of instruction fees ever pleaded. In her ruling on the party and party bill of costs, the learned taxing officer adopted the figure of Kshs. 212,000,000/= which she attributed to the Court of Appeal judgment and the “plaint”. To quote the taxing officer, this is what she said:“This item provides for instruction fees where the value of the suit as per the judgment delivered by the Court of Appeal in Civil Appeal No. 117 of 2018 and the Plaint was Kshs 212,000,000/- with the Court of Appeal upholding the decretal sum as assessed herein which I proceed to be guided by Para 1(b)(ii) which I calculate as follows…” 37.Neither the plaint nor the judgment of the Court of Appeal speaks of Kshs. 212,000,000/= in terms suggested by the taxing officer or at all. The Court of Appeal held as a fact that, at the time material to the suit, the value of the property in issue was Kshs. 150,000,000/=. At paragraph 76 of its judgment, the Court held as follows:“76.We do not agree with the respondents’ contention that the suit land was valued at Kshs.27,000,000; nor are we impressed with the arithmetical formula set out in their submissions with a bid to convince us otherwise. It is given that the parties do not agree on the value of the suit land but the evidence on record corroborates that it was around Kshs.150,000,000.” 38.Going by the decision of the Court of Appeal in, Joreth Limited v Kigano & Associates [2002] eKLR, the amount of Kshs. 150,000,000/=ought to have been the basis upon which the taxing officer assessed the instruction fees. In that case the court held 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.” 39.Thus, the value of the subject matter in the suit could properly be ascertained from the judgment of the Court of Appeal. There is no doubt that the suit property was the subject matter in the dispute because this what Otieno, J. established as a fact in his judgment. The learned judge held as follows:“I have said that the entire disputes revolve around the ownership of the suit property and the control of the corporate in whose name it is registered owner. I consider HCC No. 9 of 2011 to consolidate the entire dispute and to bring under one roof all the disputants.” 40.It follows that the learned taxing officer erred in law and in fact to have adopted Kshs. 212,000,000/= as the base figure for computation of the instruction fees. 41.As far as the instruction fees on the counter-claim is concerned, I am not quite certain how the taxing officer arrived at Kshs. Kshs 2,097,051,248/= as the base figure for calculation of the instruction fees. In her ruling, she held as follows:“Where the value of counter claim was Kshs 2,097,051,248/- on instructions given on 9th December, 2014 in the High Court which was valued by the Defendants themselves and which I proceed to be guided by Para 1(b)(ii) which I calculate as follows…” 42.The figure of Kshs 2,097,051,248/- is not mentioned anywhere in the defendants’ defence and counter-claim. The only liquidated claim made in the counter-claim is for payment of the sum of Kshs. 1,200,000/= per month from May 2013 until the plaintiffs occupying the suit property vacated the property. The particular prayer read as follows:“(h)The 1ˢᵗ, 2ⁿᵈ and 3ʳᵈ Defendants in the counterclaim jointly and severally be ordered to pay mesne to the 3ʳᵈ Plaintiff in the counterclaim in the sum of Kshs.1,200,000.00 per month from 1ˢᵗ May 2013 until the 2ⁿᵈ and 3ʳᵈ Defendants in the counterclaim vacate the suit premises”. 43.It is not clear from the taxing officer’s ruling whether the Kshs. 2,097,051,248/= arises from this prayer and whether it is made up of an amount accrued over a specific period; if that is the case, it is not clear for what period the amount accrued. 44.According to Order 7 rule 3 of the Civil Procedure Rules, a counter-claim is as good as a cross-suit. The rule reads as follows:A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof. 45.While it is true that a counter-claim has the status of an independent suit the principles of taxation of instructions and getting up fees on a successful counter claim do not treat it as such. 46.According Rudd, J, in D’Silva v Rahimtulla and Others, [1967] EA 423 at 425, (12 May 1967) the rule as to costs on a counterclaim is that the successful party on the claim gets his costs in the ordinary way, and the successful party on a counterclaim does not get his full costs as if the counterclaim were a complete new claim in a separate suit, but only gets the extra costs to which he is entitled and which arise on the counterclaim.In that case the learned judge held as follows:The English rule as to costs on a counter-claim is laid down in the leading case of Medway Oil and Storage Co.Ltd. v. Continental Contractors Ltd. (1929) A.C. 88, which has been held to be the guiding authority on the matter.“The rule is that the successful party on the claim gets his costs in the ordinary way, and the successful party on the counter-claim does not get his full costs as if the counter-claim were a complete new claim in a separate suit, but only gets the extra costs to which he is entitled and which arise on the counter-claim” 47.This decision was affirmed on appeal, at 1968 EA 335, (7 May 1968). Spry JA said in his decision as follows:“When the costs of the counter-claim came to be considered by the Taxing Master, the question was raised whether the appellants were entitled to an instruction fee under para. (f) of item (1) of Sched. 6 of the Advocates Remuneration Order or under para. (1) of that item.Rule ( f ) relates to instruction fees to "sue or defend any other proceedings commenced by plaint" or originated in certain other manners. The reference to other proceedings follows certain specific actions which are not relevant to these proceedings. Paragraph (l) refers to instruction fees to sue or defend in any case not otherwise provided for.It appears to me that the essence of this appeal is what is meant by the words "commenced by plaint". Mr. Mackie-Robertson for the appellants, has argued that because a counter-claim has much the character of a cross-action it should be regarded as being commenced by a plaint. With respect, I cannot accept that argument. I agree entirely that a counter-claim of the attributes and may in many ways be equated to a cross-action but it is not one. Indeed, the procedure is expressly set up so as to avoid the necessity for cross-actions. I would therefore, on the plain interpretation of para. (f), dismiss this appeal.”On his part, Sir Charles Newbold P. held:“The issue on this appeal is dependent upon the very simply stated question as to whether the word "plaint" in item 1 (f) of Sched. 6 of the Advocates Remuneration Order 1962, includes a counter-claim. If it does, then clearly the Taxing Master was right in approving as the instruction fee the minimum set out in the item for the reason that he had no discretion to award any smaller sum. If it does not, then the only other item under which the order of this court giving to the defendant, who was successful on his counter-claim, the costs of that counter-claim could have those costs quantified is item 1 (l).” 48.The learned judge did not find much difference between a plaint and a counter-claim, save that for purposes of taxation, a counter-claim has to be understood in context. In this regard, he held as follows:“For myself, I find more difficulty in coming to the conclusion that the word "plaint" does not include counter-claim than my brethren. In my view the word ""plaint" should normally include counter-claim unless there is good reason to the contrary. The reason for this view is, as has been urged by Mr. Mackie-Robertson, that a counter-claim is merely a type of procedure devised to avoid the necessity of two separate actions, which would then be consolidated. In my view the very provisions of 0. 8, which specifically speak of equating the one to the other, make it clear that for all practical purposes a counter-claim is to be regarded as a plaint; and from this it follows that where legislation uses the word "plaint" with no other provision which would include a counter-claim, then that word should normally be construed as including the word counter-claimAll legislation, however, has to be construed in the particular context. The context in which this word "plaint" appears is an Order dealing with the amount, the quantum of costs, to be awarded when an order for costs has been made by a court. Therefore, in my view, that word has to be construed having regard to the general principles followed by the courts in relation to the award of costs. In England, in a case which has been referred to as the Medway case (Medway Oil and Storage Co. Ltd. v. Continental Contractors Ltd., [1929] A.C. 88), it has been held that if there is a counter-claim then the amount of costs to be given on that counter-claim, where an order is made for the defendant who has counter-claimed to get his costs on the counter-claim, is not to be determined as if it were a separate action but is to be determined on the basis that only the additional costs resulting from the counter-claim are to come within the order of the court allowing the defendant the costs of the counter-claim. 49.Turning back to the reference before court, the learned taxing officer relied on the decision in Kenyariri & Associates Advocates -v- Salama Beach Hotel Limited and 4 others (2014) KEELC 214 (KLR) where the court held:“A counterclaim contains assertions that a defendant could have made by starting a law suit if the plaintiff had not already begun an action. It is governed by almost the same rules that regulate a claim made by a plaintiff except that it is part of the answer that the defendant files in response to the plaintiff’s claim. A counter-claim is therefore in all respects a suit by the defendant.” 50.Indeed, it is true, as Sir Newbold, P. held in D’Silva v Rahimtulla and Others, (1967) EA 423 at 425, (12 May 1967) that a counter-claim is as good as a suit but it is also true that the Court of Appeal in that case was unanimous that assessment of costs in a counter-claim is not to be determined as if the counter-claim were a separate action. Since the decision in D’Silva v Rahimtulla and Others, the remuneration order has never been amended to elevate a counter-claim to the status of an independent suit for purposes of taxation of costs. It follows that the principles enunciated in Medway Oil and Storage Co. Ltd. v. Continental Contractors Ltd (supra) on taxation of counter-claim hold today as much as they did in 1929. 51.For the reasons I have given, I hold that in taxing the party and party bill of costs, the learned taxing officer erred in principle and for this reason, based on the decisions I have cited, this court is entitled to interfere with the exercise of her discretion and remit the plaintiff’s party and party bill of costs for fresh taxation. I make no order as to costs. Order accordingly. SIGNED, DATED AND DELIVERED ON 26 JUNE 2026NGAAH JAIRUSJUDGE