Autoports Freight Terminals Limited v Kenya Ports Authority
The bottom line
#Kenya's Court of Appeal confirmed that judicial review appeals have no financial value for costing fees, even when billions are claimed.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal arising from judicial review proceedings carries an assignable pecuniary value for assessment of instructions fees
No. Instructions fees on such appeals are governed by paragraph 9(2) of the Third Schedule, which directs the Taxing Officer to consider the nature, importance and difficulty of the appeal, the parties' interests, the general conduct of proceedings and other relevant circumstances, not the value of the subject matter
The court distinguished public law from private law litigation: in private law disputes the pecuniary value of the subject matter is ascertainable and drives assessment of instructions fees, but judicial review, constitutional references and petitions are of a special nature to which that approach does not extend. A party's self-assessed figure (Kshs. 3.4 Billion) does not convert into the value of the subject matter.
Whether the Taxing Officer erred in principle in taxing instructions fees at Kshs. 120,000
No error in principle was demonstrated. The Taxing Officer considered the relevant factors and increased instructions fees from Kshs. 1,500 under the scale to Kshs. 120,000
The court found nothing on record to suggest the Taxing Officer failed to consider the nature, importance and difficulty of the appeal, the parties' interests or the general conduct of proceedings. Nor was complexity, importance or injustice demonstrated. The court applied the settled principle that interference is warranted only where there is an error in principle, and quantum questions are for the Taxing Officer.
Whether the Reference was filed out of time under rule 117(4) of the Court of Appeal Rules, 2022
The timeliness could not be ascertained from the record given the disparity between the date endorsed on the ruling (27th February 2025) and the alleged delivery date (27th January 2025); the application to strike out was declined
The record lacked a transcript of proceedings from which the dates of taxation and delivery could be ascertained. The court reasoned that if taxation occurred on 4th February 2025, the ruling could not have been dated and delivered on 27th January 2025. Without independent evidence, the delay contention remained unascertainable.
Legal principles established
#- Public law litigation such as judicial review, constitutional references and petitions, and appeals therefrom, are of a special nature; their costs are taxed under the Third Schedule to the Court of Appeal Rules and no pecuniary value is assignable to the subject matter of such appeals for purposes of instructions fees
- On a reference from taxation, a judge will not interfere with the Taxing Officer's discretion unless the Taxing Officer erred in principle; questions solely of quantum are for the Taxing Officer and the court intervenes only in exceptional cases
Court orders
#- 1.The applicant's Reference dated 4th March 2025 is dismissed
- 2.No orders as to costs
- On appeal from
- Deputy Registrar (Taxing Officer), Court of Appeal, Mombasa
- Taxation of Bill of Costs dated 29th August 2023 (Ruling dated 27th February 2025)
- Jurisdiction invoked
- Reference against a Taxing Officer's decision under the Court of Appeal Rules, 2022 (rule 117(4) and paragraph 9(2) of the Third Schedule invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Autoports Freight Terminals Limited v Kenya Ports Authority", Case Analysis (2025). Mombasa Civil Appeal No. 76 of 2018 (Reference dated 4th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1297/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.