https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4397

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLMISC/E071/2025 NATIONAL BANK OF KENYA LIMITED VS JUJA COFEE EXPORTERS LIMITED RULING This ruling is in respect of the Applicant’s Chamber Summons Application dated 12th August, 2024 which seeks the following orders: 1. THAT the decision of the Taxing Master dated 30th July 2024, in so far as the same relates to the reasoning and determination pertaining taxation of the Party and Party Bill of Cost dated 14th June 2024 on Item 1 (instruction and getting up fees), be vacated by way of reference and be set aside. 2. THAT the Honourable Court exercises its inherent jurisdiction and be pleased to re-tax item 1 on instruction and getting up fees in the Party and Party Bill of Costs dated 14th June 2024. 3. THAT in the alternative to prayer 1 and 2, the Honourable Court exercises its inherent jurisdiction and refer the Party and Party Bill of Costs dated 14th June 2024 to another Taxing Officer for re-taxation of the aforesaid items and make directions to a fresh taxation. 4. THAT the costs of this reference be provided for. The application is supported by the annexed affidavit of Muchai Lumatete Walubengo, the Applicant’s counsel, sworn on 12th August, 2024. He deponed that the value of the subject matter was the outstanding debt of Ksh 913,779,153.00/= owing to the Applicant. The applicant’s counsel deponed that he filed a party and party Bill of Costs dated 14th June, 2024 and the same was served on the Respondent on 27th June, 2024. The Applicant’s counsel deponed that that the learned taxing master delivered the impugned ruling on 30th July 2024 where the sum of Kshs 13,531,687.30/= and Ksh 4,464,206.81/= were taxed off the instruction fees and getting up fees respectively. He deponed that the learned taxing master in assessing the instruction and getting up fees erred in law and in fact. The Applicant’s counsel deponed that the taxing master ought to have considered the pleadings and documents on record, the nature and importance of the matter. Counsel for the Respondent filed Grounds of Opposition dated 31st October 2024. Counsel stated that the learned taxing master delivered a ruling on 30th July 2024 taxing the Applicants Bill of Costs at a total of Ksh 759,470/=. Counsel stated that the Learned Taxing Master taxed instruction fees at Ksh 375,000/= and getting up fees at Ksh 125,000/= Counsel stated that the Applicant’s application does not meet the threshold for this Honourable Court to interfere with the ruling made by the taxing master. Counsel for the Respondent stated that the value of the subject matter cannot be ascertained from the pleadings and the applicable scale is Schedule VI (other matters) of the Advocates (Remuneration) Order, 2014. Counsel stated that the Applicant’s application lacks merit and should be dismissed. APPLICANT’S SUBMISSIONS Counsel for the Applicant filed submissions dated 12th February, 2025 and identified the following issues for determination: 1. Whether the Taxing Master erred in law and principle in taxation of the bill dated 14th June, 2024? 2. Whether the party and party bill of costs should be re-taxed? 3. Who should bear the costs of this application? On the first issue, counsel submitted that the taxing master did not address themselves to the value of the subject matter and they did not give cogent reasons why the amount addressed in the pleadings could not qualify as the value of the subject matter. Counsel relied on the cases of Vipul Premchand Haria vs Kilonzo & Co Advocates [2020] eKLR, Joreth Ltd vs Kigano & Associates [2002] 1EA 92, Peter Muthoka & another vs Ochieng & 3 others [2019] eKLR, Tom Ojienda & Associates Advocates vs County Government of Narok [2021] eKLR and Kenya Aids Ngos Consortium & another vs Urthur Ingutya & Co Advocates & another [2024]. On the second issue, counsel submitted that the decision and ruing of the Tax master delivered on 30th July 2024 be set aside and the court be pleased to vary, review or issue an order directing that the subject bill of costs be remitted to another taxing master for fresh taxation on the instruction and getting up fees. Counsel relied on the case of Kamunyoro & Company Advocates vs Department Bank of Kenya Limited (2015) eKLR. On the third issue, counsel asked the court to condemn the Respondent to pay costs of this application. RESPONDENT’S SUBMISSIONS Counsel for the Respondent filed submissions dated 13th March 2025 and identified the following issues for determination: 1. Whether the Applicant has met the threshold for setting aside a Taxing Masters decision? 2. Whether the Taxing Master erred in law and principle in taxation of the Bill of Costs dated 14th June, 2024? On the first issue, counsel submitted that the Applicant has failed to demonstrate how the taxing master was ‘clearly wrong.’ Counsel relied on the case of Desai Sarvia & Pallan Advocates vs Tausi Assurance Company Limited (2020) eKLR. On the second issue, counsel submitted that the taxing officer made his decision after considering all relevant factors and taxed the Bill at a reasonable amount. Counsel relied on the following cases: Meir Mizrahi & another vs Nairobi City Council & 2 others (2013) eKLR and Robert Ngande Kathathi vs Francis Kivuva Kitonde (2020) eKLR. Counsel prayed that the application be dismissed with costs to the Respondent. ANALYSIS AND DETERMINATION The issue for determination is whether this court should set aside the decision of the Taxing Master dated 30th July 2024 and grant the Applicant the orders sought in its Chamber Summons Application dated 12th August, 2024. The Apex Court in Non- Governmental Organizations Coordination Board vs EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 102 (KLR) (Civ) (8 December 2023) (Ruling) stated: “A certificate of taxation would be set aside, and a single judge could only interfere with the taxing officer’s decision on taxation if: There was an error of principle committed by the taxing officer. The fee awarded was shown to be manifestly excessive or was so high as to confine access to the court to the wealthy; (and conversely, if the award was so manifestly deficient as to amount to an injustice to one party).The court was satisfied that the successful litigant was entitled to fair reimbursement for the costs he had incurred, (and the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party). The award proposed was so far as practicable, consistent with previous awards in similar cases. There was no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances. Although the taxing officer exercised unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically. The single judge would normally not interfere with the decision of the taxing officer merely because the judge believed he would have awarded a different figure had he been in the taxing officer’s shoes.” The Applicant contends that the learned Taxing master misdirected himself in failing to appreciate that the value of the subject matter in dispute was the outstanding debt of Ksh 913,779.153.00 owed to the Applicant as stated in the Replying Affidavit dated 11th February, 2019 but proceeded to award instruction fees at Ksh 375,000/= and getting up fees at Ksh 125,000/=. It is the Applicant’s contention that the taxing master misdirected himself in principle in holding that instruction fees in the party and party Bill of Costs dated 14th June, 2024 fell under Schedule VI (Other matters) of the Advocates Remuneration Order, 2014 and not Schedule VI 1 (b). The Court of Appeal in the case of Joreth Ltd vs Kigano & Associates NRB CA Civil Appeal No. 66 of 1999 [2002] eKLR 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.” The taxing master in the ruling dated 30th July, 2024 stated that item 1 which provides for instruction fees as per the pleadings did not equate value of the subject property. It is trite that where a reference is properly before the court, the Judge is mandated to consider whether the Taxing Officer applied the correct legal principles. The Applicant herein contends that the Taxing Master ought to consider it’s Replying Affidavit dated 11th February, 2019. The court notes that the Replying Affidavit dated 11th February, 2019 is in response to an application specifically the Respondent’s Notice of Motion application dated 21st January, 2019. The applicant is therefore asking this court to consider its replying affidavit as a pleading. This court finds that the Applicant’s replying affidavit cannot be used to determine the value of the subject matter in question. It therefore follows that the Applicant’s Chamber Summons Application dated 12th August, 2024 lacks merit and is hereby dismissed with costs. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-09 22:30:24