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Court of AppealPartially AllowedReference by way of Chamber Summons dated 7th May 2025· [2025] KECA 1305 (KLR)

Emfil Limited v Registrar of Titles, Mombasa & 2 others (Civil Appeal (Application) 312 of 2012) [2025] KECA 1305 (KLR)

Court of Appeal of Kenya
18 July 2025
3,910 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 ruled that a Taxing Master must consider the value of what a case is about before awarding fees, and set aside a Kshs.500,000 award as too low.

What this practically means

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Executive summary

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This is a reference by Emfil Limited, the successful appellant in an appeal concerning the revocation of titles to 119 parcels of land, challenging the Taxing Master's ruling of 20th March 2025 which taxed its Party and Party Bill of Costs at only Kshs.506,500 (instruction fees of Kshs.500,000 and other charges of Kshs.6,500) against a claim of Kshs.6,304,741.08. The underlying litigation concerned property valued by Knight Frank at over Kshs.5.7 billion. The reference was heard on 22nd May 2025 despite the Attorney General's request for adjournment; the court found the State had been indolent in complying with directions and was not denied a hearing. Ngenye-Macharia JA held that although the Taxing Master correctly recited the principles in Premchand Raichand and Rule 9 of the Third Schedule, she failed to apply them: she did not consider the value of the subject matter or the valuation report, and gave no justification for disregarding it. That omission, together with the erroneous finding that there were no documents supporting the disbursements, amounted to errors of principle. The award of Kshs.500,000 as instruction fees was held disproportionately low for the industry involved in defending 119 properties. Allowing the reference, the court set aside the taxation ruling, referred the bill for re-taxation before a different Taxing Master to be appointed by the Registrar, directed priority handling, and awarded costs to the Applicant.

Key legal issues

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01

Whether the Taxing Master erred in principle in awarding instruction fees of Kshs.500,000 without considering the value of the subject matter and the valuation report

Holding

Yes - the failure to mention or justify disregard of the valuation report and the value of the subject matter was an error of principle, making the award disproportionately low.

Reasoning

The Taxing Master correctly recited the applicable principles in Premchand Raichand and Rule 9 of the Third Schedule but did not apply them. The value of the subject matter is a mandatory factor; the valuation report by Knight Frank was never mentioned in the ruling. Where the matter involved 119 parcels of land valued at billions of shillings and voluminous documents, the award of Kshs.500,000 was so low as to betray an error of principle warranting interference.

p. 7
02

Whether the Taxing Master erred in taxing off disbursements for want of supporting documents

Holding

Yes - the finding that there were no supporting documents was factually erroneous since the Applicant's List and Bundle of Documents contained the supporting documents.

Reasoning

The court found that pages 58 to 68 of the Applicant's List and Bundle of Documents dated 17th February 2025 contained the documents supporting the disbursements. Taxing them off entirely on the ground that no documents supported them was an error in principle justifying review of the taxed costs and re-taxation before a different Taxing Master.

p. 7
03

Proper mode of commencing a reference under Rule 117(4)

Holding

A reference is ordinarily commenced informally by letter within seven days; a Chamber Summons is permissible since Rule 117(4) is not mandatory, but moving the Court by both a Chamber Summons and a letter is duplicative.

Reasoning

The court held that Rule 117(4) permits an application for reference to be made informally at taxation or in writing within seven days. No harm was done by filing a Chamber Summons as the rule is not couched in mandatory terms, but duplicating the two modes is unnecessary and the court proceeded on the reference letter.

p. 2

Legal principles established

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  • In assessing instruction fees on a party and party bill, the value of the subject matter is one of the factors the Taxing Master must consider, and a valuation report or other documents beyond the pleadings may be used to ascertain that value.
  • A Taxing Officer must exercise discretion judicially and give reasons; it is an error of principle to omit to consider relevant factors such as a valuation report bearing on the value of the subject matter.
  • A court may interfere with a Taxing Master's award where the amount taxed is manifestly excessive or manifestly low, or where the Taxing Officer acted on a wrong principle.

Court orders

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  1. 1.The ruling of the Taxing Master, Hon E. M. Mwamuye dated 20th March 2025 on taxation of the Applicant's Party and Party Bill of Costs dated 13th July 2022 be and is hereby set aside
  2. 2.The Applicant's Party and Party Bill of Costs dated 13th July 2022 be and is hereby referred for re-taxation by another Taxing Master other than Hon. E.M. Mwamuye
  3. 3.The Hon. Registrar of this Court do appoint another Deputy Registrar who shall re-tax the bill of costs
  4. 4.The Hon. Registrar of this Court be served with this ruling or an extracted order arising from this ruling for reference
  5. 5.The re-taxation be done on a priority basis
  6. 6.Costs to the Applicant

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A & 3B
  • Court of Appeal Rules, 2022Rule 117(1), (3), (4)
  • Court of Appeal Rules, 2022Third Schedule, paragraphs 9, 10, 11, 12
  • Advocates Remuneration Orderrelevant factors on instruction fees

Cases cited (10)

  • Emfil Ltd vs. Hamisi Mwalimu Mwarandani & 8 Others
    Mombasa HCCC No. 181 of 2007
  • Republic vs. The Registrar of Titles Mombasa & 2 Others: Exparte Emfil Limited
    Mombasa High Court Miscellaneous Application (JR) No. 84
  • Shiva Enterprises vs. Mwangi Njenga & Company Advocates
    (2020) eKLR
  • Masore Nyang'au & Co. Advocates vs. Kensalt Limited
    [2019] eKLR
  • Joreth Limited vs. Kigano & Associates
    [2002] 1 EA 92
  • Premchand Raichand Ltd vs. Quarry Services of East Africa Ltd (No. 3)
    [1972] EA 162
  • First American Bank of Kenya Ltd vs. Gulab P. Shah & 2 others
    [2002] eKLR
  • Bank of Uganda vs. Banco Arabe Espanol
    (1999) EA 45 (SCU)
  • Kenya Airports Authority vs. Otieno Ragot and Company Advocates
    (Petition E011 of 2023) [2024] KESC 44 (KLR) (2 August 2024)
  • Republic vs. Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W'Njuguna & 6 others
    [2006] eKLR
On appeal from
Taxing Master, Court of Appeal (Mombasa)
Party and Party Bill of Costs dated 13th July 2022
Jurisdiction invoked
Sections 3A & 3B of the Appellate Jurisdiction Act and Rule 117(1), (3) of the Court of Appeal Rules, 2022 (reference against a Taxing Master's ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Emfil Limited v Registrar of Titles, Mombasa & 2 others (Civil Appeal (Application) 312 of 2012) [2025] KECA 1305 (KLR)", Case Analysis (2025). Reference by way of Chamber Summons dated 7th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1305/eng@2025-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.