https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3017

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI, NAIROBI** **ELC CIVIL APPEAL NO. E090 OF 2024** **AS CONSOLIDATED WITH** **ELC CIVIL APPEAL NO. E097 OF 2024** **BETWEEN** **EZRA OPIYO NGOJE................................................................................1ST APPELLANT PETER ANYUOR MANG’IRA...................................................................2ND APPELLANT GEORGE ODHIAMBO LAGO..................................................................3RD APPELLANT SOLOMON OWITI AKURA.....................................................................4TH APPELLANT ISAAC OGAL AKURA...............................................................................5TH APPELLANT PETER ODHIAMBO AKURA....................................................................6TH APPELLANT PIUS AMOLO OOKO..............................................................................7TH APPELLANT PAMELA ATIENO NYAOKE.....................................................................8TH APPELLANT** **-VERSUS-** **NATIONAL IRRIGATION AUTHORITY................................................1ST RESPONDENT NATIONAL LAND COMMISSION.......................................................2ND RESPONDENT** **RULING** 1. By a Chamber Summons Application dated 23rd September 2025 brought under Paragraph 11(2) of the Advocates Remuneration Order, 2014, the Applicant seeks, inter alia, orders that the decision of the Taxing Officer dated 11th September 2025 in Nairobi ELC Appeal No. E090 of 2024 be set aside on the contested items; that this Court be pleased to re-tax the Appellant’s Advocate-Client Bill of Costs dated 5th April 2025 or in the alternative remit the same for fresh taxation before another Taxing Officer; and that the costs of the Reference be provided for. 2. The Application is founded on the grounds set out on the face thereof and on the Supporting Affidavit sworn on 23rd September 2025 by Okongo J. Kennedy Odhiambo, Advocate for the Applicants. The Applicant contends that following the Judgment delivered on 14th February 2025 in favour of the Appellants, the Court awarded various declaratory and constitutional reliefs, general damages, exemplary damages, interest and costs against the 1st Respondent, National Irrigation Authority, but did not assess the quantum of costs, thereby necessitating taxation under Schedule 6 of the Advocates Remuneration Order, 2014. Consequently, the Applicants’ Advocates lodged a Bill of Costs dated 5th April 2025 for taxation. 3. The Applicant further avers that the Taxing Officer, Hon. Vincent Kiplagat, taxed the Bill at Kshs. 365,625/= despite allegedly allowing various items in the body of the ruling whose cumulative total amounted to Kshs. 473,975/=. The Applicant asserts that the reduction of the taxed amount was erroneous, unjustified and amounted to a misdirection in principle. 4. It is further the Applicant’s case that the Taxing Officer failed to take into account the nature, complexity and constitutional importance of the Appeal, the value of the subject matter, the numerous declaratory reliefs granted by the Court, the urgency of the matter, the volume of documents prepared and perused, and the applicable provisions of Schedule 6 Part A of the Advocates Remuneration Order. The Applicant contends that the instruction fees awarded at Kshs. 200,000/= were manifestly low and failed to reflect the value and complexity of the dispute. 5. The Applicant also contends that the Taxing Officer improperly disallowed or reduced items relating to photocopying, scanning of the Record of Appeal, attendances, service of documents and preparation of pleadings, notwithstanding that such expenses were reasonably incurred and properly chargeable under the Advocates Remuneration Order. According to the Applicant, the Taxing Officer thereby committed errors of principle warranting the intervention of this Court by way of Reference. 6. The instant Application was canvassed by way of written submissions. The Applicant filed its written submissions dated 16th October 2025 through the firm of Okong’o Wandago & Company Advocates. The Applicant submitted that the Taxing Officer committed several errors of principle in taxing the Appellants’ Bill of Costs dated 5th April 2025. 7. It was submitted that the Taxing Officer misapprehended the applicable law by invoking Schedule 6 Part B of the Advocates Remuneration Order instead of Schedule 6 Part A applicable to party and party costs before the Environment and Land Court. The Applicant relied on the case of First **American Bank of Kenya Vs Shah & Others [2002] Vol. I E.A,** where the Court emphasized that a taxing officer is obligated to determine the basic instruction fees before exercising discretion either to increase or reduce the same and must give reasons for such determination. The Applicant submitted that the Taxing Officer failed to ascertain the basic instruction fees and instead arbitrarily awarded Kshs. 200,000/= as instruction fees without assigning reasons. 8. The Applicant further submitted that the Taxing Officer failed to appreciate the nature, value and complexity of the subject matter before the Court. According to the Applicant, the Appeal concerned constitutional and environmental violations touching on the Appellants’ rights to property under **Article 40** of the Constitution, unlawful trespass, environmental degradation, compulsory acquisition without compensation and restoration of the suit properties. 9. It was submitted that besides the declaratory and restorative orders granted by the Court, the Judgment also awarded monetary compensation amounting to Kshs. 27,240,000/=, which the Taxing Officer failed to consider in assessing instruction fees. 10. In support of this argument, the Applicant relied on the cases of **Kamunyori & Company Advocates Vs Development Bank of Kenya Ltd [2015] eKLR** **and Peter Muthoka Vs Ochieng & 3 Others [2019] eKLR,** where the Court of Appeal held that failure to ascertain the correct value of the subject matter constitutes an error of principle and that once Judgment has been entered, the value of the subject matter ought to be discerned from the Judgment. The Applicant submitted that had the Taxing Officer considered the monetary award together with the constitutional reliefs granted, the instruction fees awarded would have been substantially higher. 11. The Applicant also submitted that the Taxing Officer failed to consider the complexity and magnitude of the Appeal including the extensive documentation involved, the preparation and filing of an 18-volume Record of Appeal comprising 9,128 pages, the urgency of the proceedings and the professional labour expended by Counsel. 12. The Applicant relied on the case of **Joreth Limited Vs Kigano & Associates [2002] 1 EA 92,** where the Court held that in assessing instruction fees, a taxing officer must consider the nature and importance of the matter, the interest of the parties, the complexity of the proceedings and all other relevant circumstances. 13. The Applicant further relied on **Carzan Flowers Kenya Limited Vs Mago & 18 Others (Environment and Land Civil Miscellaneous Application E9 of 2022) [2022] KEELC 14861 (KLR)** and **Katisya & Another Vs Director General, National Environment Management Authority & Another (Tribunal Appeal 100 of 2012) [2023] KENET 207 (KLR),** where substantial instruction fees were upheld in matters involving statutory tribunals and constitutional issues. It was the Applicant’s contention that the Taxing Officer completely failed to take into account comparable awards and relevant factors in arriving at the impugned award. 14. The Applicant further submitted that the Taxing Officer improperly taxed off several items relating to photocopying, scanning, attendances, service and preparation of documents without assigning reasons and contrary to paragraphs 13A and 74 of the Advocates Remuneration Order. 15. The Applicant relied on the case of **Mumias Sugar Company Limited Vs Tom Ojienda & Associates Advocates (Miscellaneous Civil Application 299 of 2017) [2021] KEHC 9051 (KLR),** where the Court held that a taxing officer has powers to call for receipts and supporting documents where necessary and ought not to dismiss itemized claims perfunctorily. It was submitted that the Taxing Officer failed to exercise that mandate judiciously and instead arbitrarily reduced the amounts claimed despite the expenses having been reasonably incurred. The Applicant further submitted that even the amounts allowed in the body of the ruling allegedly totalled Kshs. 473,975/= yet the final taxed sum was indicated as Kshs. 365,625/=, thereby demonstrating a manifest error in taxation. 16. Lastly, the Applicant submitted that the taxed costs were manifestly low and failed to fairly indemnify the successful litigants for the expenses incurred in prosecuting the Appeal. Reliance was placed on the decisions in **KANU National Elections Board & 2 Others Vs Salah Yakub Farah [2018] eKLR**, where the Courts reiterated that costs should fairly reimburse a successful litigant and that the Court may interfere where the award is manifestly low or based on an error of principle. The Applicant therefore urged the Court to set aside the impugned ruling and Certificate of Taxation and either proceed to tax the Bill of Costs itself or remit the same for fresh taxation before another Taxing Officer. 17. Although the Applicant in its submissions stated that the Reference was unopposed on account of the 1st Respondent allegedly having failed to comply with directions on filing of responses and submissions, this Court has perused the record and noted that the 1st Respondent subsequently filed written submissions dated 17th April 2026 in opposition to the Reference. In the interest of justice and in keeping with the dictates of **Article 50(1)** of the Constitution on the right to a fair hearing, the Court shall consider the said submissions in determining the present Application. 18. In the said submissions, the 1st Respondent opposed the Reference and maintained that the Taxing Officer properly exercised his discretion in taxing the Bill of Costs. The 1st Respondent contended that the Applicant had failed to demonstrate any error of principle warranting interference with the taxation and urged the Court to uphold the ruling and Certificate of Taxation issued by the Taxing Officer. 19. The Court has considered the instant Application, the pleadings herein, the written submissions by the parties, the impugned Ruling by the Taxing Officer, the cited authorities and the relevant provisions of law and finds that the issues for determination are as follows: - 20. Whether the Reference dated 23rd September 2025 is merited. 21. Who should bear the costs of the Reference. 22. However, before analyzing the above issues, it must be emphasized that matters of quantum of taxation are matters purely within the province, competence and judicial discretion of the taxing officer. This Court will not lightly interfere with an award of quantum by the taxing officer unless there was an error in principle or the discretion was improperly exercised resulting in injustice. The Court of Appeal in **Kipkorir, Tito & Kiara Advocates Vs Deposit Protection Fund Board [2005]** eKLR was categorical that; ***“On 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.”*** 23. The proper exercise of discretion by a Taxing Officer was further restated in **Kamunyori & Company Advocates Vs Development Bank of Kenya Limited [2015] Civil Appeal No. 206 of 2006** where the Court held that; ***“.. Failure to ascertain the correct subject matter in a suit for the purpose of taxation is an error of principle. So too, failure to ascribe the correct value to the subject matter is an error of principle. Authorities on taxation show that a Judge will normally not interfere with the Taxing Officer’s decision on taxation unless it is based on an error of principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of principle can be inferred. If instructions fee is arrived at on the wrong principles, it will be set aside.”*** 24. The principles upon which a Court may interfere with the decision of a Taxing Officer were also well established in ***Premch and Raichand Limited & Another Vs Quarry Services of East Africa Limited & Another* [1972] E.A 162, *First American Bank of Kenya Vs Shah and Others* [2002] EA 64 and *Joreth Ltd Vs Kigano and Associates* [2002] 1 EA 92.** These principles include: 25. That there was an error of principle. 26. That the fee awarded was manifestly excessive or so low as to amount to an injustice. 27. That a successful litigant ought to be fairly reimbursed for the costs incurred. 28. That so far as practicable there should be consistency in awards. 29. With the above principles in mind, the Court now turns to consider whether the Applicant has demonstrated sufficient grounds to warrant interference with the decision of the Taxing Officer. 30. The gravamen of the Applicant’s complaint is that the Taxing Officer failed to properly ascertain the value of the subject matter and consequently exercised his discretion on wrong principles in taxing instruction fees at Kshs. 200,000/= only. 31. The Applicant further faults the Taxing Officer for allegedly failing to consider the constitutional and declaratory reliefs granted in the Judgment, the complexity of the Appeal, the volume of documents involved and the labour expended by Counsel in prosecuting the Appeal. 32. This Court has carefully perused the impugned Ruling and notes that the Taxing Officer acknowledged that the Court had awarded general and exemplary damages amounting to Kshs. 27,240,000/= to the Appellants. The Taxing Officer further appreciated the principles set out **in *Joreth Ltd Vs Kigano & Associates* [2002] 1 E.A. 92** wherein the Court stated that; “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 the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” 33. However, despite setting out the correct principles, the Taxing Officer proceeded to tax instruction fees at Kshs. 200,000/= without demonstrating how the said figure was arrived at. The ruling does not disclose the applicable basic instruction fee under the Advocates Remuneration Order nor how the discretion was exercised after taking into account the value of the subject matter, the constitutional and declaratory reliefs granted, the nature of the Appeal and the complexity of the proceedings. 34. In the Court’s considered view, the failure to demonstrate the basis upon which the instruction fees were assessed amounted to an error in principle. 35. The Court further notes that the Appeal arose from proceedings involving allegations of unconstitutional deprivation of property rights, compulsory acquisition without compensation and environmental degradation arising from the Lower Kuja Irrigation Development Project. The Appeal was therefore not an ordinary claim but one involving constitutional, environmental and proprietary issues of considerable importance to the parties. Further, the proceedings involved extensive documentation including an 18-volume Record of Appeal comprising over 9,000 pages, which factors ought to have informed the exercise of discretion by the Taxing Officer. 36. With regard to the contested items relating to photocopying, scanning, attendances, service and preparation of documents, the Court notes that the Taxing Officer taxed Items 9 to 78 globally at Kshs. 250,000/= without specifically addressing the individual items objected to or assigning reasons for the reductions made. Whereas a Taxing Officer retains discretion in taxation, such discretion must be exercised judiciously and the reasons for taxation ought to be discernible from the ruling. 37. The Court also notes that there appears to be inconsistency in the computation contained in the impugned ruling. While the Taxing Officer indicated the various amounts allowed and taxed off, the final taxed sum was indicated as Kshs. 365,625/= without a clear demonstration of how the said figure was ultimately arrived at. The lack of clarity in the computation further lends credence to the Applicant’s complaint that the taxation was not properly undertaken. 38. In the circumstances, and taking into account the principles set out in ***Premchand Raichand Limited & Another vs Quarry Services of East Africa Limited & Another* [1972] E.A 162, *First American Bank of Kenya Vs Shah and Others* [2002] EA 64, *Joreth Ltd Vs Kigano & Associates* [2002] 1 EA 92 and *Kamunyori & Company Advocates Vs Development Bank of Kenya Limited* [2015] eKLR**, this Court is satisfied that the Applicant has demonstrated sufficient grounds to warrant interference with the taxation by the Taxing Officer. 39. The Court has considered whether it should proceed to re-tax the Bill of Costs itself. However, given the numerous contested items and the necessity of undertaking a comprehensive reassessment of the Bill, the Court finds that the interests of justice would best be served by remitting the Bill of Costs for fresh taxation before another Taxing Officer. 40. Accordingly, the Chamber Summons Application dated 23rd September 2025 is hereby allowed in the following terms: - 41. The ruling and taxation delivered on 11th September 2025 by Hon. Vincent Kiplagat, Deputy Registrar, in respect of the Appellants’ Bill of Costs dated 5th April 2025be and is hereby set aside. 42. The Appellants’ Bill of Costs dated 5th April 2025 is hereby remitted for fresh taxation before a different Taxing Officer other than Hon. Vincent Kiplagat. 43. The Applicants shall have the costs of this Reference. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on **15th** day of **May, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **N/A** for the Appellants **Mr. Ochola** for the 1st Respondent **Philomena W.** Court Assistant