https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3906

Kundu t/a KN Wesutsa & Co Advocates v Ambulwa (Miscellaneous Application E085 of 2025) [2026] KEELC 3906 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3906 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Miscellaneous Application E085 of 2025 A Nyukuri, J June 16, 2026 Between Nigel Wesutsa Kundu t/a KN Wesutsa & Co Advocates Applicant and Brian Atswenje Ambulwa Respondent (Being a reference from the decision of the taxing officer Hon. V.O. Amboko delivered on 21/11/2025 in KAKAMEGA ELC MISC. CASE NO. E002 OF 2025) Ruling Introduction 1.This reference was filed by the applicant challenging the decision of the taxing officer made on 21st November 2025, in Kakamega ELC MISC. Application NO. E002 OF 2025. The reference was presented by way of a chamber summons dated 5th December 2025 where the applicant sought against the respondents the following orders;a.That this Honourable court be pleased to set aside the decision of the Taxing Master delivered on the 21st day of November 2025 in respect of the applicant’s Advocate- Client Bill of costs dated 13th January 2025.b.That this Honourable court be pleased to reassess and re-determine the instruction fees payable to the applicant; or in the alternative, remit the bill of costs for fresh taxation before a different taxing Master.c.That this Honourable court be pleased to set aside the Taxing Master’s finding that the sum of Kshs. 50, 000/= allegedly paid to the advocate by the respondents constituted instruction fees in relation to the Memorandum of understanding dated the 5th day of January 2024 concerning the disposal of parcel No. Kakamega Municipality/Block1/101.d.That this Honourable court be pleased to set aside the Taxing Master’s finding that, save for preparation of the said memorandum of understanding, the advocate did not undertake any further professional work on behalf of the respondents in relation to the disposal of the property.e.That the costs of this reference be provided for. 2.The application is anchored on the grounds on its face and the supporting affidavit sworn by the applicant. The applicant’s case is that he was instructed by the respondent to prepare Memorandum of understanding dated 5th January 2024 for the disposal of parcel No. Kakamega Municipality / Block I/101 valued at Kshs. 36, 000, 000/= and to pursue discharge of charge registered over the said property, which required instituting proceedings to compel Kenya Commercial Bank and Kakamega County Land Registrar to execute necessary discharge instruments vide Succession Cause No. E013 OF 2021. 3.Further that by a ruling dated 21st November 2025, the taxing master held that the sum of Kshs. 50, 000/= paid to the applicant between 2021 and 2023 constituted adequate remuneration in the preparation of the Memorandum of understanding yet the amount related to Kakamega High court Succession Cause No. E013 OF 2021, where he acted for the respondents who were joint administrators of the estate. 4.The applicant complained that the taxing Master misapprehended the evidence and failed to appreciate that the Memorandum of understanding was prepared much latter on 5th January 2024 and was unrelated to the Succession Cause. That the taxing officer failed to appreciate evidence that the instructions to the applicant was beyond preparation of the Memorandum of understanding and included litigation and necessary steps in following up discharge of charge as per paragraph 5 of the Memorandum of understanding. That the Taxing officer errored in principle when she took into account irrelevant factors and failed to take into account relevant factors. He attached Memorandum of understanding; consent order in Kakamega High court Succession cause No. E013 OF 2021; the impugned ruling; and certificate of confirmation of grant. 5.The reference was opposed. The 1st respondent filed replying affidavit and Notice of preliminary objection both dated 16th February 2026. In the preliminary objection, he stated that the application offended paragraph 11(1) of the Advocates Remuneration Order which requires parties objecting to the decision of the taxing officer to give a written notice of objection within 14 days of the taxing officer’s decision. 6.In the replying affidavit, he stated that the decision of the taxing officer was proper as the sum of Kshs. 50, 000/= constituted adequate costs for preparing a memorandum of understanding. That no suit was instituted in respect of discharge of charge as the same was undertaken way back on 23rd February 2010. That the Kshs. 50, 000/= was not in regard to the succession cause as the applicant filed Kakamega High court Miscellaneous Application E005 OF 2025, whereof the taxation ruling was made on 6th November 2025. 7.The application was canvassed by way of written submissions. On record are submissions filed by the applicant dated 19th May 2026 and those by the respondents dated 25th May 2026; both of which this court has duly considered. Applicant’s submissions 8.The applicant argued that the 14-day notice of objection provided for in Rule 11 of the Advocates Remuneration Order is not mandatory and cannot be the basis for defeating substantive justice. To buttress this position, the applicant relied on the case of Ahmed Nasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd [2006] e KLR for the proposition that where reasons for taxation are in the taxing officer’s ruling, there would be no need for seeking further reasons. The applicant maintained that the reasons for the ruling were contained in the ruling of the taxing officer. 9.It was further contended by the applicant that the taxing officer acted on an error of fact regarding the payment history when she held that the sum of Kshs. 50,000/= paid was reasonable as that did not reflect the value of the work done. He argued that as payment of the said sum was done between 2021 and 2023, it was in respect of different instructions, which are in respect of Kakamega HCC Succession Cause No. E013 OF 2021 because the Succession Cause terminated on 31st May 2023 as per the confirmed grant. 10.The applicant maintained that the sum of Kshs. 50, 000/= was inordinately low and disproportionate as the land in issue was valued at Kshs. 36, 000, 000/=. Reference was made to Schedule 5 Part II of the Advocates Remuneration Order on factors that ought to be considered in taxation. He maintained that the high value of the subject matter would mean more than what was awarded. He faulted the taxing officer’s decision, arguing that she was more concerned with the number of pages of documents involved instead of the value of the subject matter. 11.In faulting the taxing officer’s decision, the applicant argued that the taxing officer ignored provisions of paragraph 22 and Schedule 5 of the Advocates Remuneration Order by choosing to proceed under non contentious business and penalising the advocate by awarding him lower costs. The applicant insisted that what was awarded was less than the minimum. It was also submitted by the applicant that the taxing officer failed to appreciate the full scope of the work done. That the MOU was not done in isolation but was part of a broader legal strategy that involved litigation and eventual discharge of charge. Respondent’s submissions 12.The respondents submitted that the application offended provisions of paragraph 11 of the Advocates Remuneration Order which required filing of objection to the taxation to precede the filing of a reference. Reliance was placed on the case of Otieno Ragot & Company Advocates v Kenindia Assurance Company Limited [2023] KECA 1143 (KLR) (24 November 2023) (Judgment) for the proposition that to challenge a taxation, an applicant ought to invoke Rule 11 of the Advocates Remuneration Order. 13.The respondents further cited the case of Dennis K. Magare & Ben Musundi t/a Magare Musundi & Co. Advocates v Parminder Singh Manku & Another [2021] KEELC 1271 (KLR) and argued that compliance with Rule 11 of the Advocates Remuneration order was mandatory and that therefore the reference herein was premature and an abuse of the court process. 14.Regarding the value of the subject matter, the respondents argued that the taxing officer appreciated that the value of the subject matter was Kshs. 36, 000, 000/= and proceeded to award a sum of Kshs. 50, 000/= which was reasonable in the circumstances. 15.On whether the taxing officer exercised his discretion judiciously, the respondents relied on the case of Kipkorir Tito & Kiara Advocates v Deposit Protection Fund Board [2005] KLR and argued that the Judge will not normally interfere with the taxing officer’s decision unless there is an error in principle, which according to them was not demonstrated. 16.They referred to Schedule 5 of the Advocates Remuneration Order and submitted that having adopted the alternative method of taxation, the taxing officer took into account all the relevant considerations under the law. Analysis and determination 17.The court has carefully considered the reference, the preliminary objection, the replying affidavit and the submissions filed by the parties. The issues for determination are whether the court has jurisdiction to determine the reference and whether there is sufficient material presented by the applicant to justify this court’s interference with the decision of the taxing officer. 18.From the documents filed, it is clear that the applicant herein represented the respondents in Kakamega HC Succession Cause No. E013 OF 2021. In that matter, the two respondents herein were the administrators of the estate of the late Stephen Chiluka Ambulwa, the Land Registrar Kakamega County was the respondent while Kenya Commercial Bank was the interested party. 19.The three parties in the Succession cause entered a consent dated 30th September 2024 which required the joint administrators to prepare a joint discharge of charge in regard to parcel No. Kakamega Municipality Block 1/101, which constituted the estate of the late Stephen Chiluka Ambulwa. It was also agreed in the consent that on execution of the discharge of charge by KCB, and upon being satisfied that the new discharge of charge met the legal threshold, the Land Registrar was to proceed to implement the same by vacating entry Nos. 3 and 4 in the register for parcel No. Kakamega Municipality Block I/101 and register the two administrators as joint proprietors of that property in accordance with the confirmed grant made on 31st May 2023. 20.The Memorandum of understanding dated 5th January 2024, which was made between the respondents/administrators and an intended purchaser of the said parcel of land, specifically stated that the High court has directed the administrators to dispose of the estate herein (parcel No. Kakamega Municipality Block I/101) and that the administrators had agreed to sell the estate at a consideration of Kshs. 36, 000, 000/=. 21.In view of the history above, it is clear that the drafting of the Memorandum of understanding and discharge of charge were done pursuant to and in the implementation of the orders made in Kakamega High Court Succession Cause No. E013 OF 2021. 22.The jurisdiction of this court as provided for in Article 162 (2) (b) of the Constitution of Kenya as read with section 13 of the Environment and Land Court Act is to hear and determine matters concerning the environment and use, occupation of and title to land. Therefore, this court has no jurisdiction to hear and determine matters touching on succession which is the preserve of the High court or the Magistrates court where the pecuniary jurisdiction allows. 23.As this court has no jurisdiction to hear and determine succession matters, it cannot determine references arising from taxation of bills of costs in regard to succession matters, even where the estate in issue is land. This is because the matters before the High court in Kakamega HCC Succession Cause No. E013 OF 2021 had nothing to do with the use, occupation of and title to land, but had everything to do with the distribution of the estate of the late Stephen Chiluka Ambulwa, which estate included parcel Kakamega Municipality Block I/101. 24.This court has no power to review a decision of the taxing officer which relates to what the applicant did on behalf of the respondents pursuant to the consents and orders made in Kakamega High Court Succession Cause No. E013 OF 2021, even if sale of land and discharge of charge were involved. The Land Registrar and the Kenya Commercial Bank were joined in the Succession cause not because it was a land case, but because their actions were necessary for implementing the confirmed grant and for the distribution of the deceased’s estate. It is worth noting that the fact that the bill of costs was filed in the Environment and Land court and not in the High court cannot bring the reference within the jurisdiction of this court. 25.This court has no jurisdiction to determine the application herein, therefore it has to down its tools and cannot inquire into the question as to whether a notice of objection was required before the instant application was filed. 26.In the premises, I find and hold that this court has no jurisdiction to review the decision of the taxing officer dated 21st November 2025 made vide Kakamega Elc Misc Application No. E002 OF 2025. In the premises, I hereby strike out the Chamber summons dated 5th December 2025, with costs to the respondents. 27.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 16TH DAY OF JUNE 2026A. NYUKURIJUDGEIn the presence of:No appearance for the applicantMr. Samba for the respondentsCourt Assistant: Delphine