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ELCPartially AllowedChamber Summons application dated 27th August, 2024 (ELC at Kwale)· [2025] KEELC 681 (KLR)

Stratman v Putzker (Environment & Land Case 3 of 2022) [2025] KEELC 681 (KLR)

Environment and Land Court
18 February 2025
5,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court cut a lawyer's fee award from over Kshs. 666,000 to 200,000 because the taxing master guessed the land's value instead of using evidence.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kwale, delivered by Hon. L.L Naikuni J on 18th February 2025, determined a Chamber Summons dated 27th August 2024 by Stefien Putzker, the Defendant/Applicant, seeking to set aside or vary the Deputy Registrar's ruling of 7th August 2024 taxing the Plaintiff/Respondent's party and party bill of costs dated 18th October 2022, which had awarded instruction fees of Kshs. 500,000/- and getting up fees of Kshs. 166,666.67/-. The Applicant contended that the taxing master erred in principle by ignoring the pleaded value of the suit property (40,000 Euros, about Kshs. 3,200,000/-), assuming unproven appreciation in value without a valuation report, failing to apply the 75% discount for suits determined in a summary manner under Schedule 6 of the Advocates Remuneration Order, and awarding getting up fees though the suit was compromised by consent before trial. The Respondent opposed, maintaining the taxing master properly exercised her discretion. The court framed four issues, found the applicant had complied with the Rule 11 objection procedure, and held the taxing master used wrong principles: the value of the property at the time of instituting the suit should guide instruction fees, and appreciation could not be assumed absent a valuation report. The court reduced instruction fees to Kshs. 150,000/- and getting up fees to Kshs. 50,000/-, declined to remit the bill to a different taxing officer, directed issuance of a fresh Certificate of Costs, and ordered each party to bear its own costs. The application was allowed but the relief was effectively varied rather than granted as sought.

Key legal issues

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01

Compliance with the objection procedure under Rule 11 of the Advocates Remuneration Order

Holding

The applicant complied with the Rule 11 procedure, having served the statutory notice on the taxing officer before filing the chamber summons, so the application was procedurally merited

Reasoning

The court traced the Rule 11 procedure: notice of objection within 14 days, reasons from the taxing officer, then a chamber summons to a judge. Although the court could not trace the reasons forwarded by the Taxing Master, the statutory notice dated 19th August 2024 was served and the application followed it, satisfying the laid-down procedure.

p. 7
02

Whether the Taxing Master erred in principle in assessing instruction fees at Kshs. 500,000/-

Holding

Yes - the award was based on assumptions about the property's size, location and alleged appreciation without any valuation report; instruction fees reduced to Kshs. 150,000/-

Reasoning

The taxing master relied on assumed appreciation of the suit property's value since 2012 and on its size and location, without a valuation report. The court held that the value at the time of instituting the suit governs instruction fees and that the taxing master based her award on assumption, amounting to an error of principle; it also factored in the 75% summary-determination discount under Schedule 6 Part A(1)(b).

p. 8
03

Whether getting up fees of Kshs. 166,666.67/- were properly awarded

Holding

The award was reduced to Kshs. 50,000/-, being one-third of the reduced instruction fees, since the suit had been set down for formal proof before the consent was recorded

Reasoning

Paragraph 2 of Schedule 6 allows a getting up fee of not less than one-third of the instruction fee where issues are joined, and the taxing officer must be satisfied the case was prepared for trial. Default judgment had been entered and the matter set down for formal proof before the consent, evidencing preparation; hence a getting up fee was due but scaled down proportionately to the reduced instruction fee.

p. 10

Legal principles established

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  • A court cannot interfere with a Taxing Officer's decision on taxation unless it is shown that the decision was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference of error of principle
  • Where the value of the subject matter is ascertainable, instruction fees should be computed on the value of the property at the time of instituting the suit, and a taxing master cannot assume appreciation in value without a valuation report
  • Where a suit is determined in a summary manner without full trial, the instruction fee is 75% of the fee chargeable under Schedule 6 item 1(b), and no getting up fee is chargeable unless the taxing officer is satisfied the case was prepared for trial

Court orders

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  1. 1.The application dated 27th August, 2024 is found to be meritorious and allowed, setting aside the decision of the Taxing Master dated the 4th February, 2021
  2. 2.The bill of costs dated 18th October, 2022 re-assessed to Kshs. 150,000/- for instruction fees and Kshs. 50,000/- for getting up fees
  3. 3.The Taxing Officer directed to re-calculate the new assessed amount and issue the new Certificate of Costs
  4. 4.The other items to remain as taxed
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3, 3A
  • Civil Procedure Act, Cap. 21Section 27
  • Advocates Act, Cap. 16Rule 11
  • Advocates Remuneration OrderRule 5
  • Advocates Remuneration OrderRule 11
  • Advocates Remuneration OrderRule 16
  • Advocates Remuneration Order 2014Schedule 6, Part A(1), paragraph 1(b)
  • Advocates Remuneration Order 2014Schedule 6, paragraph 2 (Schedule 6A paragraph 2 as stated)
  • Constitution of Kenya, 2010not specified

Cases cited (13)

  • Joreth Limited - Versus - Kigano & Associates Advocates
    [2002] EA 92
  • C.N. Kihara Advocates Versus Maendeleo Ya Wanawake Organisation (MYWO)
    [2021] eKLR
  • Del Monte Kenya Limited Versus Kenya National Chamber of Commerce and Industry (KNCCI) Murang'a Chapter & 2 Others
  • Premchand Raichand Limited & Another - Versus - Quarry Services of East Africa Limited and Another
    [1972] E.A 162
  • First American Bank of Kenya vs Shah and Others
    (2002) EA 64
  • Visser - Versus - Gubb
    1981 (3) SA 753 (C) 754H - 755C
  • Shamshudin Khosla as Chairman, Abdul Gafur Pasta as Honorary Secretary & Mohamed Bayusuf as Treasurer (On their own behalf and on behalf of) the Members of Kenya Transport Association - Versus - Kenya Revenue Authority
    [2011] eKLR
  • Alpha Knits Limited - Versus - Kenindia Assurance Company Limited
    [2023] eKLR
  • Ramesh Naran Patel - Versus - Attorney General
    [2012] eKLR
  • Republic V Ministry of Agriculture and 2 Others; Exparte Muchiri W'njuguna & Others
    [2006] eKLR
  • Republic - Versus - Rosemary Wairimu Munene - Versus - Ihururu Dairy Farmers Co-Operative Limited - JR. Appl. No. 6 of 2004
  • Cecilia Karuru Ngayu - Versus - Barclays Bank of Kenya Limited
    (2016) eKLR
  • Jasbir Singh Rai & 3 Others - Versus - Tarlochan Singh Rai & 4 Others
    Supreme Court Petition No. 4 of 2012 eKLR
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21; Rule 11 of the Advocates Act, Cap. 16

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, "Stratman v Putzker (Environment & Land Case 3 of 2022) [2025] KEELC 681 (KLR)", Case Analysis (2025). Chamber Summons application dated 27th August, 2024 (ELC at Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/681/eng@2025-02-18

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