https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2970

Ngeno v Mosonik (Environment and Land Appeal E001 of 2022) [2026] KEELC 2970 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2970 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Appeal E001 of 2022 LA Omollo, J May 14, 2026 Between Geoffrey Ngeno Appellant and Charles Cheruiyot Mosonik Respondent Ruling Introduction. 1.This ruling is in respect of the Respondent/Applicant’s Chamber Summons application dated 10th July, 2025. The application is expressed to be brought under Paragraph 11 of the Advocates Remuneration Order and Order 40 Rule 1 of the Civil Procedure Rules. 2.The application seeks the following orders;a.Spentb.Spentc.That this Honourable Court be pleased to set aside and/or revoke the Taxing Officer’s decision and ruling dated 8th July, 2025.d.That the Honourable Court be pleased to tax afresh the bill of costs dated 25th March, 2025.e.That in the alternative to prayer 4 above, the Bill of Costs 25th March, 2025 be remitted to the Taxing Officer for taxation afresh.f.That the costs of the application be in the cause. 3.The application is based on the grounds on its face and the supporting affidavit of Charles Cheruiyot Mosonik sworn on 10th July, 2025. Factual Background. 4.The Appellant/Respondent commenced the present proceedings vide the Memorandum of Appeal dated 5th February, 2022. The grounds on the face of the Memorandum of Appeal are as follows;a.That the Learned Trial Magistrate erred in law and fact in disregarding the Appellant’s evidence thus arriving at a wrong judgement.b.That the Learned Trial Magistrate erred in law and fact in finding that the Plaintiff is the absolute owner of parcel No. Kericho/Kaptebengwet/463 in disregard of the evidence before him.c.That the Learned trial Magistrate erred in law and fact in issuing a permanent injunction against the Appellant.d.That the Learned Trial Magistrate erred in law and fact in making an award of mesne profits and general damages.e.That the Learned Trial Magistrate erred in law and fact in failing to consider all the issues in controversy.f.That the Learned Trial Magistrate erred in law and fact in awarding costs to the Respondent.g.That the Learned Trial Magistrate erred in law and fact in finding in favour of the Respondent contrary to the evidence on record. 5.The Appellant/Respondent sought for the following orders;a.That this appeal be allowed and the judgement of the Honourable S.M Mokua Chief Magistrate dated 16th December, 2021 be varied, set aside and/or reviewed accordingly.b.That the costs of this appeal and in the subordinate Court be provided for. 6.The Court in its judgement delivered on 16th May, 2024 held as follows;“In the end, I uphold the finding by the trial Learned Magistrate in his judgement delivered on 27th January, 2022 save for the award on mesne profits which award is herein set aside. The Appellant shall have cost of the instant appeal and the suit in the subordinate” 7.The Appellant/Respondent thereafter filed a Party and Party Bill of Costs dated 25th March, 2025 which was taxed on 8th July, 2025 at Kshs. 861, 645/= 8.The application under consideration first came up for hearing on 1st December, 2025 and the Court directed that it be canvassed by way of written submissions. 9.It was mentioned to confirm filing of submissions and on 17th February, 2026 it was reserved for ruling. The Respondent/Applicant’s Contention. 10.The Respondent/Applicant contends that he filed Kericho CM ELC Case No. 14 of 2019. 11.The Respondent/Applicant also contends that the suit was heard and judgement delivered on 16th December, 2021. 12.The Respondent/Applicant further contends that judgement was delivered in his favour and he was awarded Kshs. 1,104,000/= as mesne profits together with Kshs. 200,000/= as general damages for trespass together with costs and interest. 13.It is the Respondent/Applicant’s contention that the Appellant/Respondent filed the present appeal and the Court in its judgement set aside the award of Kshs. 1,104,000/= but maintained the other orders issued by the trial Court. 14.It is also the Respondent/Applicant’s contention that the appeal partly succeeded as the substantive portion of the decision of the trial Court was upheld. He goes on to state that he believes that he was the succeeding party in the appeal. 15.It is further the Respondent/Applicant’s contention that the Court erred in awarding costs of the appeal to the Appellant/Respondent who proceeded to file his bill of costs. 16.The Respondent/Applicant contends that he is aggrieved by the decision of the Taxing Officer that was delivered on 8th July, 2025 wherein he taxed the Appellant/Respondent’s Bill of Costs at Kshs. 861,645/=. 17.The Respondent/Applicant further contends that he lodged an Objection dated 9th July, 2025 objecting to the taxed costs. 18.It is the Respondent/Applicant’s contention that the costs as taxed are manifestly excessive as he successfully defended the judgement of the trial Court. He goes on to state that the taxed costs are not commensurate with the work rendered by the advocates. 19.It is also the Respondent/Applicant’s contention that the ruling delivered on 8th July, 2025 contains reasons for the taxation. 20.It is further the Respondent/Applicant’s contention that there is no justification as to why the instruction fees was taxed at Kshs. 600,000/= as this is an appeal that was heard by way of written submissions. 21.The Respondent/Applicant contends that there is no justification for the Taxing Officer’s decision to award the Appellant/Respondent getting up fees. He goes on to state that there is no certification by the Judge who heard the appeal that getting up fees was justifiable. 22.The Respondent/Applicant also contends that he is advised by his advocates on record that the applicable law on getting up fees is paragraph 3 of Schedule 6 of the Advocates Remuneration Order, 2014. 23.The Respondent/Applicant further contends that for getting up fees to be awarded, there has to be a certification by the Judge hearing the appeal based on the extent and difficulty of the work in canvassing the appeal. 24.The Respondent/Applicant reiterates that there was no such certification by the Court and ends his deposition by stating that the taxed amounts were unjustifiably high. The Appellant/Respondent’s Response 25.In response to the Respondent/Applicant’s application, the Appellant/Respondent filed a Replying Affidavit sworn on 25th July, 2025. 26.He deposes that he has been advised by his advocates on record that once the Taxing Officer taxed the bill of costs, he became functus officio and he cannot therefore hear the application. 27.He also deposes that he has been advised by his Counsel on record that the Respondent/Applicant’s application has been filed prematurely. 28.He further deposes that after the Taxing Officer delivered the ruling, the Respondent/Applicant filed a Notice of Objection on 9th July, 2025. 29.It is his deposition that he has been advised by his advocates on record that once the Notice of Objection was lodged, the Taxing Officer had fourteen days within which to give his reasons. He goes on to state that this is as per Paragraph 11(2) of the Advocates Remuneration Order. 30.It is also his deposition that it is upon failure by the Taxing Officer to give reasons or on receipt of the reasons, that an Applicant can file a reference. 31.It is further his deposition that the Respondent/Applicant filed a Notice of Objection on 9th July, 2025 and on 10th July, 2025, he filed the reference. 32.He deposes that the Respondent/Applicant gave the Taxing Officer one day to give reasons which period was insufficient. 33.He also deposes that he has been advised by his advocates on record that the reference ought to have been filed under a Miscellaneous application. 34.He further deposes that before taxation, the Respondent/Applicant’s Counsel was served with the Bill of Costs together with the taxation date. 35.It is his deposition that Counsel for the Respondent/Applicant acknowledged receipt on 1st April, 2025 and goes on to state that Counsel in his acknowledgement, questioned how the date for taxation was fixed and threatened to file a complaint with the Judicial Service Commission on what he termed as misconduct. 36.It is also his deposition that his Counsel on record responded to the said email and informed them that the date was system generated. 37.It is further his deposition that on the date of taxation of the bill of costs, Counsel for the Respondent/Applicant was present and was given time to file a response to the Bill of Costs. 38.He deposes that despite being given the opportunity to do so, the Respondent/Applicant’s Counsel did not file any response and adds that the bill of costs was therefore not opposed. 39.He ends his deposition by stating that the objection as raised by the Respondent/Applicant is an afterthought and he therefore prays that the Respondent/Applicant’s application be dismissed with costs. Issues for Determination. 40.The Respondent/Applicant filed his submissions on 19th January, 2026 while the Appellant/Respondent filed his submissions on 17th February, 2026. 41.The Respondent/Applicant submits on the following issues;a.Whether or not the application made is pre-mature (sic).b.Whether or not the taxed costs are excessive. 42.On the first issue, the Respondent/Applicant relies on Paragraph 11 of the Advocates Remuneration Order and submits that the said provision of the law does not bar the filing of a reference where the Taxing Officer’s decision has reasons. 43.On the second issue, the Respondent/Applicant submits that the Appellant/Respondent’s bill of costs as taxed at Kshs. 861,645/=. 44.The Respondent/Applicant also submits the said figure is exorbitant as there was no novelty, complexity or voluminous research required in the Appeal. 45.The Respondent/Applicant further submits that even though the Taxing Officer has discretion, the said discretion has to exercised in a way that will not overburden litigants. 46.The Respondent/Applicant relies on Schedule 16 of the Advocates Remuneration Order, the judicial decision of Premchand Raichand Ltd vs Quarry Services of East Africa Ltd [1972] EA 162 in support of his submissions. 47.It is the Respondent/Applicant’s submissions that Item No. 1 of the bill of costs was taxed at Kshs. 600,000/=. The Respondent/Applicant reiterates that the said figure is excessive and astronomical. 48.It is also the Respondent/Applicant’s submissions that the Taxing Officer did not give any reasonable justification for awarding the said amount. 49.It is further the Respondent/Applicant’s submissions that Item No. 2 on Getting up Fees was taxed at Kshs. 200,000/=. 50.The Respondent/Applicant reiterates that the Appellant/Respondent neither sought nor obtained a certification by the Court as provided for under paragraph 6(3) of the Advocates Remuneration Order. 51.The Respondent/Applicant submits that in the absence of the said certification, the Taxing Officer lacked jurisdiction to tax Item No. 2. 52.The Respondent/Applicant relies on the judicial decision of Republic vs Minister of Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR and urges the Court to scale down the taxed costs in order to meet the ends of justice. 53.The Respondent/Applicant concludes his submissions by urging the Court to allow his application as prayed. 54.The Appellant/Respondent submits on the following issues;a.Whether the reference was properly lodged.b.Whether the reference was premature.c.Whether the taxed costs were excessive and should be reviewed.d.Who should bear the costs of the application. 55.On the first issue, the Appellant/Respondent relies on Paragraph 11 of the Advocates Remuneration Order and submits that the Respondent/Applicant ought to have filed a Miscellaneous Application so that the Court can look at all the documents he is relying on. 56.The Appellant/Respondent also submits that in a reference, there is an Objector/Applicant but in the present reference, there is a Respondent/Applicant. 57.The Appellant/Respondent further submits that this confusion stems from the manner in which the reference was lodged and it should therefore be dismissed for want of form. 58.On the second issue, the Appellant/Respondent submits that the Taxing Officer taxed the bill of costs on 8th July, 2025 and reiterates that the Respondent/Applicant filed a Notice of Objection on 9th July, 2025. 59.The Appellant/Respondent also reiterates that the Respondent/Applicant thereafter filed the reference on 10th July, 2025. 60.The Appellant/Respondent relies on Paragraph 11(2) of the Advocates Remuneration Order and submits that the Taxing Officer has fourteen days within which to supply his reasons. 61.The Appellant/Respondent also submits that the Taxing Officer was not given an opportunity to supply his reasons and therefore the reference was filed prematurely. 62.On the third issue, the Appellant/Respondent submits that in a reference, the Court will not interfere with a Taxing Officer’s decision except in exceptional circumstances. 63.The Appellant/Respondent submits that the exceptional circumstances include instances where the sum allowed is manifestly excessive or low and/or when the Taxing Officer acts on wrong principles in assessing costs. 64.The Appellant/Respondent relies on the judicial decisions of Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR, Joreth Limited vs Kigano & Associates [2002]eKLR and Arthur vs Nyeri Electricity Undertaking [1961] EA 497 in support of his submissions. 65.The Appellant/Respondent concludes his submissions by reiterating that the bill of costs was not opposed, that it was drawn to scale and he urges the Court not to interfere with it. Analysis and Determination. 66.I have considered the Respondent/Applicant’s application, the response thereto and the rival submissions. It is my view that the following issues arise for determination;a.Whether the reference was properly lodged.b.Whether the reference was filed prematurely.c.Whether the Taxing Officer’s decision on the bill of costs dated 25th March, 2025 delivered on 8th July, 2025 should be set aside and taxed afresh.d.Who should bear costs of the application. A. Whether the reference was properly lodged. 67.The Appellant/Respondent submits that the Respondent/Applicant did not properly lodge the reference herein. 68.The Appellant/Respondent also submits that the Respondent/Applicant ought to have filed a Miscellaneous Application and the reference as filed should be dismissed for want of form. 69.The Respondent/Applicant did not submit on this issue. 70.In the judicial decision of Okoth and Company Advocates v Mount Kenya University [2019] KEELC 901 (KLR) the Court held as follows;“ 7.My understanding of a reference under Rule 11 (2) is that it comprises of both the cause and the entire record giving rise to the chamber summons contemplated under the rule. The record includes the bill of costs, all the documents presented to the taxing officer to aid in the taxation, the parties’ submissions, the ruling or decision of the taxing officer, the notice of objection, all correspondence under the rule, and the chamber summons itself. To argue that a party aggrieved by a decision of the taxing officer is at liberty to challenge the decision through the platform of a fresh cause is, in my view, erroneous. The platform available to the aggrieved party is the cause in which the taxing officer made the impugned decision.” (Emphasis mine) 71.In the above cited judicial decision, the Court held that a reference is to be filed in the Cause in which the Taxing Officer made the decision. The Court also held that it would be erroneous to argue that a party intending to challenge the decision of a Taxing Officer has to file a fresh cause. 72.A perusal of the Court record shows that the Court delivered judgement on 16th May, 2024 and thereafter the Appellant/Respondent filed a Party and Party Bill of Costs dated 25th March, 2025 which was taxed on 8th July, 2025. 73.As was held in Okoth and Company Advocates v Mount Kenya University (supra), it follows that the reference ought to be filed in the present suit and the Respondent/Applicant has rightly done so. 74.I find that the reference was properly lodged and is properly before this Court. B. Whether the reference was filed prematurely. 75.The Appellant/Respondent submits that the Taxing Officer taxed the bill of costs on 8th July, 2025. 76.The Appellant/Respondent also submits that the Respondent/Applicant filed a Notice of Objection on 9th July, 2025. 77.The Appellant/Respondent further submits that the Respondent/Applicant thereafter filed the reference on 10th July, 2025. 78.It is the Appellant/Respondent’s submissions that the Taxing Officer was not given sufficient time to furnish the reasons for his decision and therefore the reference was filed prematurely. 79.The Respondent/Applicant on the other hand submits that the Taxing Officer’s decision contains reasons. 80.The Respondent/Applicant also submits that the law does not bar a party from filing a reference where the Taxing Officer’s reasons are evident on the face of the ruling. 81.Paragraph 11 of the Advocates Remuneration Order provides as follows;1)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 which he objects.2)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.3)Any person aggrieved by the decision of the Judge upon any objection referred to such Judge under subparagraph (2) may, with the leave of the Judge but not otherwise, appeal to the Court of Appeal.4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by Chamber Summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have expired.” 82.Where a party is dissatisfied with the decision of a Taxing Officer, he has to give a Notice of Objection Itemizing the Items objected to especially where the Taxing Officer has not given any reasons for the decision. 83.The Taxing Officer taxed the Appellant/Respondent’s bill of costs dated 25th March, 2025 on 8th July, 2025 and observed as follows;“I have carefully considered the application above and taken note of paragraph 1[a] and [b] of schedule 6 which applies only where the value of the subject matter can be determined from the pleadings/judgment or settlement between parties. I have also taken note of the case of Premchand Raichand Ltd Vs Quarry Services Of East Aftrica (sic) Ltd [no.3] [1972] EA 162, where the following principles should guide in the assessment of costs;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 incurc, That the general level of remuneration of Advocates must be such as to attract recruits to the profession andd, So far as practicable there should be consistency in the award ande, The Court will only interfere when the award of taxing officer, is so high or so low as to amount to an injustice to one party.The taxing master is also guided by such factors as the nature and importance of the case, complexity, difficulty or novelty, value of the subject matter and the time expended as provided for under schedule 6.I have carefully considered the submission by the Appellant and I proceed to tax it as per schedule 6 of the Advocates [Remuneration] Amendment] Order 2014.Instrusction (sic) FEESThis is the crucial issue for me to determine and note that indeed ksh 1,500,000 requested by the Applicant is on the higher side and in view of the reasons given in the quoted rulings and cited cases as there was no value of the said land was pleaded. (sic) It is my considered opinion that ksh 600,000 will suffice herein and therefore instruction fees is hereby awarded at kshs 600,000.Item 2, 1/3 for getting up is at ksh 200,000Item 3 taxed as drawnItem 4 TO ItemS 5 are all taxed as drawnItemS 6 TO ItemS 9 are all taxed at ksh 1000 each.ItemS 10 to Item 11 are all taxed as drawn.Item 12 is taxed at ksh 1000ItemS 13 TO ItemS 15 are all taxed as drawn ItemS 16 TO ItemS 19 are all taxed at ksh 1000 each ItemS 20 TO ItemS 23 are all taxed as drawnItem 24 AND Item 25 are all taxed at ksh 1000 each. Item 26 AND Item 27 are all taxed as drawn.Item 28 is taxed at ksh 1000 ItemS 29 TO ItemS 31 are all taxed as drawn.Item 32 is taxed at ksh 1000.Item 33 AND Item 34 are all taxed as drawn Item 35 is taxed as drawn.Item 36 is taxed as drawn.Item 37 is taxed at ksh 1000Item 38 AND Item 39 are all taxed as drawn.Item 40 AND Item 41 are all taxed at ksh 1000 each.Total Amount Taxed ----------------Kshs. 861,645The Party to Party bill of cost dated 25th day March (sic) 2025 is hereby taxed at Kshs. 861,645…” 84.The Court record also shows that on 9th July, 2025, the Respondent/Applicant filed a Notice of Objection and on 10th July, 2025, he filed the reference. 85.In the Notice of Objection, the Respondent/Applicant objects to all the Items in the Appellant/Respondent’s bill of costs dated 25th March, 2025 save for the Items that were struck off. 86.In the judicial decision of Evans Thiga Gaturu Vs Kenya Commercial Bank Ltd [2012] eKLR the Court held as follows;“In my own view, where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the Judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles. However, where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish further reasons.” (Emphasis mine) 87.In the judicial decision of Multiline Motors (Kenya) Ltd v Migori County Government [2021] eKLR the Court held as follows;“I need not rehash the provisions of Paragraph 11 (1) of the ARO which clearly provide that if a party is dissatisfied with the decision of the taxing officer then he has to give Notice of objection; Itemizing the Items objected to. The applicant has not filed such Notice within fourteen (14) days as per the law. Learned Counsel Mr. Singei submitted that the provision is not couched in mandatory terms. In its application, the applicant annexed and marked “PO1” being a copy of the said ruling dated 28/10/2021. The aforementioned annexure is a copy of the handwritten ruling. On the face of it, there seems to be no reasons advanced on why the specific Items in the bill of costs dated 13th August, 2021 were taxed as so. In considering the provisions on Paragraph 11 (1) of the ARO, Odunga J in Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited [2012] eKLR had this to say:-“In my own view, where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the Judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles.”Even if no reasons are indicated on the face of the application, the applicant has the duty to notify the taxing officer to give the reasons, The only person who can give reasons for their decision is the taxing officer which should indicate whether they took into account irrelevant matters or applied wrong principles of law in reaching their findings. It is upon the grounds that the Court would find good ground to refer the bill of costs for re-taxation before the same officer or a different taxing officer. If the ruling is without reasons, what the applicant is expecting this Court to do, is to sit as if it is taxing the bill afresh which is not the proper procedure under the law. The applicant must comply with the due process under paragraph 11 of AMO.” {Emphasis mine} 88.I have set out in the preceding paragraphs the decision of the Taxing Officer that was delivered on 8th July, 2025 in its entirety. 89.Even though the Respondent/Applicant contends that the said decision has reasons, it is evident that the Taxing Officer did not advance any reasons for his decision. 90.It is therefore my view that it would have been prudent for the Respondent/Applicant to await the furnishing of reasons before filing the reference or to wait for the time within which the reasons should be furnished to lapse. 91.In Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited [2012] eKLR, the Court held that reasons for a Taxing Officer’s decision have to be furnished in order for the Court to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles. 92.Even though the Respondent/ Applicant filed the Notice of Objection as required under Paragraph 11(2) of the Advocates Remuneration, it is evident that he filed the reference one day after and before the Taxing Officer could furnish his reasons. 93.I find that the reference was filed prematurely. It was important for the reasons to be furnished by the Taxing Officer and/or for time within which reasons should be furnished to lapse. Failure to furnish reasons for taxation is an important consideration in deciding whether a reference fails or succeeds. C. Whether the Taxing Officer’s decision on the bill of costs dated 25th March, 2025 delivered on 8th July, 2025 should be set aside and taxed afresh. 94.Given my finding on issue (B) above, I will not determine this issue on its merits. D. Who should bear costs of the application. 95.It is now settled that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise Disposition. 96.Taking the foregoing into consideration, I find that the application dated 10th July, 2025 lacks merit and it is hereby struck out with costs. 97.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 14TH DAY OF MAY, 2026.L. A. OMOLLOJUDGE.In the presence of: -Mr. Langat for the Applicant.Mr. Okok for the Respondent.Court Assistant; Mr. Joseph Makori.