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Case Brief · caselaw.co.ke
Court of AppealDismissedMombasa Civil Appeal No. 76 of 2018 (Reference dated 4th March 2025)· [2025] KECA 1297 (KLR)

Autoports Freight Terminals Limited v Kenya Ports Authority

Court of Appeal of Kenya
18 July 2025
1,870 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge decision of the Court of Appeal at Mombasa (Laibuta, JA) on a Reference by Autoports Freight Terminal Limited challenging the Deputy Registrar's taxation of the respondent firm's Bill of Costs arising from the dismissed appeal in Mombasa Civil Appeal No. 76 of 2018. The Bill was taxed at Kshs. 131,750, including instructions fees of Kshs. 120,000, and the applicant contended the award was manifestly inadequate, urging that the Taxing Officer ignored the amount involved (said to be Kshs. 3.4 Billion), the nature, importance and difficulty of the appeal, and the parties' interests. The respondent first sought striking out of the Reference as filed out of time under rule 117(4) of the Court of Appeal Rules, 2022, but the court declined, finding the record did not permit ascertainment of the relevant dates owing to a disparity between the date endorsed on the ruling and the alleged delivery date. On the merits, the court held that the underlying appeal arose from judicial review proceedings to which no pecuniary value is assignable; such public law litigation is taxed under paragraph 9(2) of the Third Schedule to the Court of Appeal Rules, 2022, and a party's self-assessed figure does not convert into the value of the subject matter. Finding no error of principle in the Taxing Officer's exercise of discretion, the Reference was dismissed with no orders as to costs, affirming the ruling of 27th February 2025.

Key legal issues

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01

Whether an appeal arising from judicial review proceedings carries an assignable pecuniary value for assessment of instructions fees

Holding

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

Reasoning

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.

p. 3
02

Whether the Taxing Officer erred in principle in taxing instructions fees at Kshs. 120,000

Holding

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

Reasoning

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.

p. 3
03

Whether the Reference was filed out of time under rule 117(4) of the Court of Appeal Rules, 2022

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The applicant's Reference dated 4th March 2025 is dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.