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Court of AppealPartially AllowedCivil Appeal No. 245 of 2020

Twiga Chemical Industries Limited v Gichuki King’ara & Co. Advocates

Court of Appeal
25 September 2026
6,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that only documents properly admitted as evidence can be used to calculate lawyers' fees, and ordered a fresh taxation.

What this practically means

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Executive summary

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The Court of Appeal (Tuiyott, Nderi & Munyao Sila, JJ.A) allowed in part an appeal by Twiga Chemical Industries Limited against a ruling of the Environment and Land Court (E. Obaga, J) delivered on 11th June 2020 in a taxation reference dispute with its former advocates, Gichuki King’ara & Co. Advocates. The dispute arose from an advocate-client bill of costs of Kshs.77,163,514.00 in a land suit against Game Ranching Limited; the taxing master awarded instruction fees of Kshs.3,052,625.00 (increased by one-half) and declined getting-up fees. Both parties filed references: the respondent succeeded, the judge holding the instruction fees manifestly low and directing reliance on an email from the appellant valuing the suit property at Kshs.1,450,000,000. The Court of Appeal first dismissed the respondent's objections to competence, holding leave was validly sought orally and the record was complete. On the merits, it held the email was never admitted in evidence, having been introduced only through a 'List of Documents' filed with the bill of costs, and that the judge erred in directing its use for assessing instruction fees. It agreed the taxing officer's factual basis (wrong acreage and an unrelated 1977 sale) was erroneous, and remitted both instruction fees and getting-up fees for fresh assessment before a different taxing officer, being unable to resolve the conflicting findings on getting-up fees without the ELC record. It also held an unopposed application does not automatically succeed. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal stands to be struck out for want of leave under Rule 11(3) of the Advocates (Remuneration) Order and for failure to file the lower court record under Rule 89 of the Court of Appeal Rules
  2. 2.Whether the learned Judge erred in law by allowing the respondent's application to set aside the taxation of instruction fees at Kshs.3,052,625.00 as manifestly low and remitting the matter for taxation before a different taxing officer
  3. 3.Whether the learned Judge properly upheld the award of getting-up fees in the circumstances
  4. 4.Whether the learned Judge erred in failing to treat the application dated 10th April 2018 as an undefended application

Key legal issues

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01

Admissibility of the email valuing the suit property at Kshs.1,450,000,000 for taxation purposes

Holding

The email was never admitted in evidence, having been introduced only via a 'List of Documents' filed with the bill of costs, and could not be used to assess instruction fees; the judge erred in directing the taxing officer to rely on it

Reasoning

The Court accepted the appellant's authorities that documents become evidence only when produced and admitted as exhibits. The email was introduced through a 'List of Documents', a mechanism unknown to taxation practice, and no affidavit was filed. The respondent itself had conceded the document was never introduced as evidence. The judge's direction to use it was therefore erroneous.

p. 44
02

Scope of judicial interference with a taxing master's discretion on instruction fees

Holding

The taxing officer was right to exercise discretion where value was not ascertainable from the pleadings, but erred on the facts (wrong acreage of 19,803 acres instead of 497, and wrong 1977 sale); a fresh assessment before a different taxing officer was ordered

Reasoning

Applying Joreth Ltd v Kigano & Associates, where value is not determinable from pleadings, judgment or settlement, the taxing officer may use discretion considering relevant circumstances. The taxing officer's factual basis was wrong, which the judge correctly found, but the judge's remedy of mandating the email was itself wrong, warranting remittal.

p. 47
03

Entitlement to getting-up fees where the suit was not confirmed for hearing

Holding

The Court could not reconcile the conflicting findings of the taxing officer and the judge because the record of the ELC suit was not before it, and directed an independent assessment by the taxing officer guided by Schedule 6(2)

Reasoning

Schedule 6(2) provides getting-up fees are chargeable only once a case is confirmed for hearing. The taxing officer found the hearing had not commenced; the judge found correspondence showed the case had been fixed for hearing. Without the ELC record the Court could not determine which finding was correct, so it remitted the question.

p. 49
04

Competence of the appeal - leave under Rule 11(3) and completeness of record under Rule 89

Holding

The appeal was competent: leave was verbally sought and granted before the High Court as permitted by Rule 41(1), and the supplementary record contained the High Court proceedings; the objections were also out of time under Rule 86

Reasoning

The supplementary record showed counsel orally sought leave on 11th June 2020 and it was granted. Rule 41(1) permits informal leave applications at the time of the decision. The supplementary record of appeal incorporated the High Court proceedings, satisfying Rule 89, and the objections were brought outside the 30-day window in Rule 86.

p. 30
05

Whether an unopposed application must be allowed

Holding

No - an unopposed application does not automatically succeed; the respondent's competing application, heard together, was treated as a response

Reasoning

The Court held that failure to reply divests a party of the right to be heard but does not compel the court to grant the relief. Since both references were heard together and sought re-taxation of the same items, one could be deemed a response to the other.

p. 34

Legal principles established

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  • A document filed or merely marked for identification does not become evidence until tendered and admitted as an exhibit; a document not admitted in evidence cannot be used to assess a bill of costs
  • There is no provision for filing a 'List of Documents' with a bill of costs; documents may only be introduced through an affidavit
  • A court is not bound to allow an application merely because it is unopposed; it must still be satisfied the relief is permissible in law
  • Leave to appeal from a reference decision may be sought informally at the time the decision is given, per Rule 41(1) of the Court of Appeal Rules
  • An appeal against a judge's decision on a taxation reference is akin to a second appeal, confining the Court to matters of law

Court orders

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  1. 1.Disallowed the use of the impugned email in the assessment of the instruction fees
  2. 2.Referred the assessment of instruction fee and getting-up fee to another taxing officer other than Senior Deputy Registrar, Hon. I. N. Barasa
  3. 3.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Nairobi
ELC Misc. Application No. 164 of 2017
Jurisdiction invoked
Appeal from a judge's decision on a taxation reference under Rule 11(3) of the Advocates (Remuneration) Order, with leave of the judge

Relief refused

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Appellant's prayer that its application dated 10th April 2018 be allowed as unopposed

A court is not bound to allow an unopposed application; the respondent's competing application heard together served as a response

p. 34

Respondent's objections seeking striking out of the appeal

Leave was verbally obtained and the record was complete; objections were also out of time under Rule 86

p. 34

Costs

Each party to bear his/her own costs

Quotable passages

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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 final analysis, the appeal succeeds in that this Court disallows the use of the impugned email in the assessment of the instructions fee.
p. 51Final orders - disallowance of the email
Accordingly, the assessment of instructions fee and getting up fee are referred to another taxing officer other than Senior Deputy Registrar, Hon. I. N. Barasa.
p. 51Final orders - remittal to a different taxing officer
Given the circumstances of this case, it is best that each party bears his/her own costs.
p. 51Final orders - costs
Since the email was not introduced into the matter through the proper channel, it cannot be considered as a document that has been admitted as evidence, and in light of that it cannot be used for purposes of taxing the Bill of Costs.
p. 44Admissibility of documents in taxation
Firstly, a court is not bound to allow an application merely because the other party has not opposed it.
p. 34Unopposed applications
This is an appeal against a decision of a judge upon a reference in taxation and is akin to a second appeal and therefore this Court confines itself to matters of law only
p. 29Scope of appeal from taxation references

Issues in the judgment

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minor

The taxing officer's quoted ruling refers to a 19,803-acre property while the pleadings describe approximately 497 acres, an unexplained factual discrepancy in the record

minor

The taxing officer's quoted ruling contains evident drafting errors in its operative sentence

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, "Twiga Chemical Industries Limited v Gichuki King’ara & Co. Advocates", Case Analysis (2026). Civil Appeal No. 245 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1784/eng@2026-09-25

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