https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3629

Odunga & Associates Advocates v Inuka Afrika Properties Limited (Miscellaneous Application E013 of 2025) [2026] KEELC 3629 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3629 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Miscellaneous Application E013 of 2025 FM Njoroge, J June 11, 2026 Between Odunga & Associates Advocates Advocate and Inuka Afrika Properties Limited Applicant Ruling 1.This is a ruling on a reference brought by way of the Chamber Summons dated 27th October, 2025. It seeks the following Orders:1.That application herein be certified urgent and service be dispensed with in the first instance;2.That this Honourable Court be pleased to stay the ruling of the Deputy Registrar Hon. Thamara delivered on 29th September 2025 and the execution of the resultant certificate of taxation and/or decree of the court pending the hearing and determination of the instant reference application;3.That this Honourable Court be pleased to set aside the ruling of the Deputy Registrar Hon. Thamara delivered on 29th September 2025 and the resultant certificate of taxation to the extent that it relates to the reasoning and the determination pertaining to taxation of the advocate/client bill of costs dated 6th May 2025;4.That this Honourable Court be pleased to remit the bill of costs dated 6th May 2025 for fresh taxation before another Taxing Master other than Hon. Thamara with directions on the taxation;5.That the costs of this application be provided for. 2.The application is supported by Affidavit of Joseph Mbugua and is based on the following grounds:a.That the Learned Taxing Master delivered a ruling on 29th September 2025 Taxing the Advocate’s bill of costs of Kshs 1,214,250/- and the Advocate has already commenced the process of execution of the said taxed costs hence execution is imminent if the aforementioned ruing is not stayed to allow room for the hearing of the instant reference application;b.That the Client/Applicant stands to suffer irreparable loss and injury unless this Honourable court issues an order staying the execution of the impugned ruling pending the hearing and determination of the instant application as the application will be rendered nugatory and an academic exercise should execution issue against the Applicant;c.That the Client/Applicant filed the Notice of Objection dated 6th October 2025 indicating its intention to challenge the award of instruction fees by the Learned Taxaing Master hence the order for stay for execution is necessary to protect the client from the imminent execution;d.That the Client/Applicant challenges the impugned ruling on several grounds of law and principle and specifically challenges the award of instruction fees by the Learned Taxing Master on the erroneous basis that the value of the subject matter was ascertainable when it is clear that the value of the subject matter was unascertainable;e.That the Learned Taxing Master erred in law and principle by considering evidence that was not produced in court by the Advocate hence reaching an erroneous decision on the value of the subject matter;f.That the Learned Taxing Master erred in law, fact and principle by ignoring the evidence produced by the Client on the conflicting values attached to the subject matter namely the Land Control Board Consent and the transfer document which clearly indicated the value of the subject matter as Kshs 2,000,000/- thus arriving at an erroneous decision;g.That the Learned Taxing Master erred in law, and principle by making reference to a judgment that was not produced as evidence during the taxation proceedings thus relying on an external document to the detriment of the Client who was not given time to scrutinize and submit on the said judgment;h.That the Learned Taxing Master erred in law, fact and principle by referring to a valuation report that was not produced by the Advocate during the taxation proceedings thus robbing the client the right to a fair hearing contrary to the rules of natural justice;i.That the Learned Taxing Master erred in law, fact and principle by abandoning the value of the subject matter as presented by the Advocate through the sale agreement that was duly produced and instead assigning a higher value as the value of the subject matter thus arriving at an erroneous decision;j.That the Learned Trial Master erred in law, fact and principle by relying an orbiter in the judgment which was not produced as evidence in the taxation proceedings as the authority of basing and/or assigning a value to the subject matter of taxation when it is clear that the Taxing Master ought to restrict herself to the evidence produced by parties to taxation when deciding value of subject matter for purpose of taxation;k.That it is in the interest of justice and fairness that the instant application be certified urgent and a stay order issued to avert the danger of execution that will render the application nugatory and academic in addition to averting irreparable injury to the Client. 3.It is clear from the face of the reference that only the decision of the Taxing Master regarding the instructions fees is impugned. The applicant’s submission is that the Taxing Master assigned the value of Kshs 28,000,000/= to the subject matter while the advocate had assigned a value of Kshs 10,200,000/= and the client/applicant had assigned the value of Kshs 2,000,000/=. The client/applicant’s further submission is that there was no concrete ground provided by the Taxing Master for departing from those two lower values and using the higher one, and that in any event the judgment in ELCC E038/2023 and the alleged valuation in the taxation proceedings were not produced by the advocate at the taxation proceedings to enable the client/applicant an opportunity to peruse them in preparation for the defence. The Taxing Master’s reliance on the two documents is said to have resulted in an unfair trial. Counsel submitted that the plaint sought only declaratory orders and there was no value attached top the plaint or defence and counterclaim, and as per the Supreme Court holding in Kenya Airports Authority Vs Otieno Ragot & Co Advocates Pet E011 of 2023) (2024) KESC 44(KLR) the assumption should be that the value of the subject matter is unascertainable and thus the discretion of the Taxing Master ought to be properly invoked; that in any event the official documents availed – the consent of the Land Control Board and the Transfer of Land Form produced by the applicant- placed the value at Kshs 2,000,000/=. Instead of using a document that was not produced at the taxation proceedings the Taxing Master ought to have applied the value of Kshs 2,000,000/= in the documents mentioned herein before. 4.The respondent/advocate submitted that the court would only interfere with the decision of a Taxing Master where it is demonstrated that there is an error of principle, or where the award is manifestly excessive or manifestly low; that the plea by the applicant/client that the value was unascertainable conflicts with its pleadings and evidence; that the value should be ascertained from the pleadings, proceedings, judgment or settlement; that in the primary proceedings the applicant confirmed on oath that the value was Kshs 10,200,000/=, and the figure was placed in the Defence and Counterclaim, and thus the value was ascertainable; that the Taxing Master was right in relying on the court record and the value used was not speculative; that there is no requirement that the parties do re-produce the documents already in the court record at the taxation. Counsel relied on Muraya Vs Kenya Commercial Bank Ltd & Another ELC NO 113 of 2014. Counsel asserted that there was no breach of the right to a fair hearing and that the proposes remittal to another Taxing Master is punitive and unjustified in the circumstances of the present case. He also stated that stay of execution is not automatic and stay must be specifically sought as per Order 42 Rule 6 CPR and relied on the case of Vishram Ravji Halai Vs Thorntorn & Turpin Civil Application No Nai 15 Of 1990 KLR 365. 5.I find it to be the correct position that the Taxing Master went beyond the taxation file record and used the judgment in ELC E038 of 2023 which was the principal file where the services of the advocate had been rendered to the client applicant. However, it was for taxation purposes, and she did not go beyond her jurisdiction in seeking to ascertain the value; Consequently, I agree with the advocate that the parties did not have to re-file the documents in the main file at the taxation. Failure to do so also did not render the Taxing Master’s reliance on the value in that record fatal to the taxation. There was no error of principle to that extent since the value should be ascertained from the pleadings, proceedings, judgment or settlement. I also find that when she was perusing through that record, it was at her discretion to apply the most appropriate value that she was to find in that record, but only subject to the maximum that was submitted by the parties as the value. She could not suo moto exceed the value that the advocate was seeking. If the advocate chose to rely on the pleadings and the evidence and submitted on the bill based on the pleadings and the evidence, it was an error then to go beyond what the advocate submitted as the value because the bill belongs to the advocate. In assigning the value of Kshs 28,000,000/= while the advocate was urging and is still urging in his present submissions that the proper value according to the evidence and the pleadings was Kshs 10,200,000/= the Taxing Master made a serious error and the client/applicant can be excused for stating that it was ambushed with the higher value of Kshs 28,000,000/-. 6.The upshot of the foregoing is that this court finds that the present reference has merit and the same is hereby allowed to the extent that the taxation of Item No 1 (instructions fee) in the advocate client Bill of costs dated 6th May 2025 is hereby set aside entirely and referred back for taxation before any Taxing Master other than Thamara, R.M., with the direction that the exercise of discretion in the next taxation session should observe the ceilings set by the parties’ submissions. For the avoidance of doubt all other unrelated items in the bill of costs remain unaffected by this ruling. However, the Taxing Master shall in arriving at the final costs payable, as urged by the client, take into consideration upon proof by documentation, any sum proved to have been paid by the client to the advocate as urged in paragraph 29 of the client’s submission dated 19/6/2025 in support of the reference. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 11TH JUNE 2026. MWANGI NJOROGEJUDGE, ELC MALINDI.