Centurion Engineers & Builders Ltd v Kenya Bureau of Standards (Civil Appeal (Application) E398 of 2021) [2026] KECA 828 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that instruction fees must reflect the value of the disputed subject matter, but no separate getting up fees can be claimed on appeal.
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 officer erred in principle in awarding instruction fees of Kshs 1,000,000 against a claim of Kshs 30,000,000, including whether she failed to give due consideration to the value of the subject matter and took into account irrelevant factors
- 2.Whether the taxing officer erred in declining to award getting up fees on appeal
Key legal issues
#Principles governing interference on a reference from a taxing officer
Interference is warranted only on demonstration of an error of principle, or where the award is so manifestly excessive or low as to justify an inference of such error
The court restated the settled principles from Joreth Ltd v Kigano & Associates and Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board. The taxing officer enjoys a discretion on quantum, but an award that is so manifestly low that it cannot be justified on the accepted factors permits an inference of an improper exercise of discretion and justifies intervention.
Weight to be given to the value of the subject matter in assessing instruction fees
The taxing officer erred in principle by failing to give due consideration to the subject matter value of Kshs 584,492,094.20, making only a passing reference to it, rendering the award of Kshs 1,000,000 manifestly low
Relying on Joreth, the court held that value of the subject matter is to be determined from the pleadings, judgment or settlement. While considering the identity of the paying party (a public entity) and access to justice were relevant factors, they did not absolve the taxing officer of the duty to give due weight to the value of the subject matter. An award of Kshs 1,000,000 on a subject matter of over half a billion shillings was so manifestly low as to infer improper exercise of discretion.
Whether consideration of the party to bear the costs is an irrelevant factor amounting to discrimination
It is not irrelevant; paragraph 9(2) of the Third Schedule expressly requires regard to 'the fund or person to bear the costs'
The applicant contended that the taxing officer's reference to the institution condemned to pay opened the door to discrimination contrary to Article 27 of the Constitution. The court held that this factor is expressly listed in paragraph 9(2) of the Third Schedule, so its consideration was proper and not a misdirection.
Entitlement to getting up fees on appeal
Getting up fees are not awardable on appeal; the discretion said to exist under paragraph 9(4) of the Third Schedule does not extend to such fees, which are subsumed in instruction fees
Following the reasoning in Credit Bank Limited v Nyanza Spinning & Weaving Mills Limited, the court held that the Third Schedule makes no express provision for getting up fees on appeal; all work necessary and properly done in connection with the appeal, including such elements, is captured within instruction fees under paragraph 9(3). The taxing officer therefore properly exercised her discretion in declining the award.
Legal principles established
#- A Judge on a reference from a taxing officer interferes only where an error of principle is demonstrated or where the award is so manifestly excessive or low as to justify an inference of such error
- The value of the subject matter, determined from the pleadings, judgment or settlement, is a critical component in the assessment of instruction fees and must be given due consideration by the taxing officer
- Getting up fees are not awardable on appeal under paragraph 9 of the Third Schedule to the Court of Appeal Rules, 2022; all such charges fall within instruction fees
Court orders
#- 1.The reference is allowed in so far as it relates to the taxation of the instruction fees
- 2.The ruling of the Deputy Registrar dated 3rd April 2025 is set aside with respect to instruction fees
- 3.That element of the Party and Party Bill of Costs filed on 25th October 2024 is remitted for fresh taxation before a taxing officer other than Hon. J.N. Wambilyanga
- 4.Each party to 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, Court of Appeal (Hon J.N. Wambiliyanga)
- Taxation of Party and Party Bill of Costs filed 25th October 2024
- Jurisdiction invoked
- Rule 117(1) of the Court of Appeal Rules, 2022 (reference from a decision of the taxing officer)
Relief refused
#Award of getting up fees on appeal
Paragraph 9 of the Third Schedule to the Court of Appeal Rules, 2022 makes no provision for getting up fees on appeal; such charges are subsumed under instruction fees
Setting aside the whole ruling of the taxing officer
The taxing officer exercised her discretion properly on all other aspects, including consideration of the fund or person to bear the costs
Costs
Each party bears its own costs of the reference.
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.
A Judge will only interfere with the decision where an error of principle is demonstrated, or where the award is so manifestly excessive or low as to justify an inference of such error
While the taxing officer properly addressed her mind to the applicable principles in assessing the instruction fees, she did not consider the value of the subject matter, a critical component in taxation, making only a passing reference to it.
the amount of Kshs 1,000,000 awarded by the taxing officer as instructions fees is so manifestly low as to lead to an inference of an improper exercise of discretion
A reading of paragraph 9 of the Third Schedule shows that no such fees is awardable on an appeal, all such charges being subsumed under instructions fees.
I accordingly allow the reference in so far as it relates to the taxation of the instruction's fees, and I set aside the ruling of the Deputy Registrar dated 3rd April 2025 with respect thereto. That element of the Party and Party Bill of Costs filed in Court on 25th October 2024 is hereby remitted for fresh taxation before a taxing officer other than Hon. J.N. Wambilyanga.
As the applicant only partially succeeds on the reference, I direct that each party bears its own costs of the reference.
Issues in the judgment
#The judgment inconsistently states the value of the subject matter / decretal sum, referring to both Kshs 548,492,094.20 and Kshs 584,492,094.20
Submissions of the applicant are dated 4th October 2026, which post-dates the judgment date of 30th April 2026; the judgment itself flags this with '(sic)'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Centurion Engineers & Builders Ltd v Kenya Bureau of Standards (Civil Appeal (Application) E398 of 2021) [2026] KECA 828 (KLR)", Case Analysis (2026). Reference from ruling of the Deputy Registrar dated 3rd April 2025 (Party and Party Bill of Costs filed 25th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/828/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.