Gilanis Supermarket Ltd v Mwangi
The bottom line
#Kenya's Court of Appeal threw out a Kshs. 300,000 legal fee award because the taxing officer failed to explain how she calculated it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Taxing Master erred in principle by basing instruction fees on an erroneous understanding of the subject matter of the appeal, rendering the fees manifestly high and unsupported
- 2.Whether there was an error in principle on the part of the Taxing Officer in items 3 to 16 of the bill of costs in its entirety
Key legal issues
#Whether the instruction fee of Kshs. 300,000 was based on an error of principle
Yes - the taxing master failed to apply the correct principles and take into account the correct factors; the ruling was set aside and remitted for re-taxation.
The taxing officer awarded Kshs. 300,000 instruction fees for costs arising from an application to withdraw a notice of appeal, where the decretal amount was about Kshs. 198,000. Under paragraph 9(2) of the Third Schedule, fees must have regard to the amount involved, nature, importance and difficulty of the appeal. The taxing officer's ruling did not disclose which considerations guided the assessment, and the court was persuaded she failed to apply the correct principles and factors.
Whether the judge may interfere with a taxing officer's discretion on a reference
Only where the taxing officer erred in principle or the award is manifestly excessive or deficient; questions of quantum are for the taxing officer except in exceptional cases.
Relying on Arthur v Nyeri Electricity Undertaking, Premchand Raichand and Nairobi Bottlers, the court restated that interference requires demonstration of an error of law or principle, or that the award is manifestly excessive or inadequate. The applicant bore the burden of demonstrating this, and the court found the burden discharged on the facts.
The duty of a taxing officer to give reasons
Giving reasons is a normal incident of the judicial process with a constitutional dimension; inadequate reasons prevent a reviewing court from ascertaining whether discretion was properly exercised.
The court examined three purposes of reasons: enabling parties to understand the decision, furthering judicial accountability, and formulating rules for future cases. The taxing officer's ruling did not clearly communicate the considerations guiding her final decision, which supported the conclusion that the discretion was not judicially exercised.
Legal principles established
#- A judge on reference will not interfere with a taxing officer's discretion unless the taxing officer erred in principle; quantum alone is for the taxing officer except in exceptional cases.
- Instruction fees must be assessed from the pleadings, judgment or settlement; only where the value is not discernible from those sources may the taxing officer exercise discretion.
- A taxing officer's decision may be interfered with on error of principle, or where fees are manifestly excessive or deficient.
- Where an error of principle is found, the general practice is to remit quantum to the taxing officer, though the judge may deal with the matter himself.
Court orders
#- 1.The applicant's reference is allowed
- 2.The Taxing Master's ruling dated 14th March 2024 is set aside
- 3.The matter is remitted back for re-taxation by a different taxing officer
- 4.Each party will bear its own costs of the reference
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Deputy Registrar of the Court of Appeal (taxing officer, Hon. Lina Akoth)
- Civil Appeal (Application) No. E080 of 2021
- Jurisdiction invoked
- Rule 117 of the Court of Appeal Rules - reference to a single judge from a taxing officer's ruling
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises, I allow the applicant's reference, set aside the Taxing Master's ruling dated 14th March 2024, and remit this matter back for re-taxation by different taxing officer. Each party will bear its own costs of the reference.
It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the taxing officer is permitted to use his discretion to assess instructions fees
where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases
The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision.
Issues in the judgment
#Garbled sentence in the dispositive reasoning
Inconsistent citation of the taxing officer's ruling date context - notice of appeal described as both dated 1st October 2021 and 23/09/2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilanis Supermarket Ltd v Mwangi", Case Analysis (2025). Civil Application E080 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2184/eng@2025-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.