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ELCDismissedReference dated 10/06/2024 re Plaintiff's Bill of Costs dated 12/04/2024· [2025] KEELC 766 (KLR)

Disa Enterprises Limited v Milgo & 61 others (Environment and Land Case 478 of 2018) [2025] KEELC 766 (KLR)

Environment and Land Court
24 February 2025
3,111 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The court upheld a Kshs. 750,000 instruction fee because the property's value was never stated in the pleadings, and submissions alone cannot fix it.

What this practically means

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Executive summary

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This is a Reference under Rule 11(2) of the Advocates (Remuneration) Order in which the Plaintiff challenged the Taxing Master's Ruling of 28th May 2024 taxing item 1 (instruction fees) of its Party and Party Bill of Costs dated 12th April 2024 at Kshs. 750,000/-. The Plaintiff contended that the Taxing Master erred by valuing the subject matter at the Kshs. 100,000/- general damages awarded for trespass in the judgment of 22nd February 2024, instead of using the value of the suit property L.R. Number 209/11620 (variously stated as Kshs. 350,000,000/-, Kshs. 120,000,000/- or Kshs. 113,450,000/-). The 3rd batch of Defendants opposed, arguing the fees were inordinately high. Justice Mogeni restated that a court interferes with a Taxing Master's decision only on an error of principle or where the discretion was improperly exercised causing injustice. Applying Joreth Ltd v Kigano & Associates, the Court held that the value of the subject matter must be ascertained a priori from the pleadings, judgment or settlement; the Plaintiff had not filed any valuation report with its pleadings, and its valuation figures appeared only in submissions, which do not constitute evidence or pleadings (Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi). The Taxing Master therefore rightly exercised discretion, and the instruction fee of Kshs. 750,000/- was upheld. The Reference dated 10/06/2024 was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Taxing Master erred in principle by valuing the subject matter at the general damages of Kshs. 100,000/- awarded for trespass instead of the value of the suit property

Holding

No error of principle; there was no value of the subject matter disclosed from the pleadings or judgment, and the Taxing Master properly exercised her discretion

Reasoning

The Applicant did not file a valuation report with the pleadings, introducing it only at taxation. The Taxing Master considered the general damages awarded, the age of the suit and the 13-year duration. The valuation figures relied on by the Applicant (Kshs. 350,000,000/- and Kshs. 113,450,000/-) appeared only in submissions and annexures to the reference, which do not constitute pleadings or evidence. The Court upheld the exercise of discretion in awarding instruction fees of Kshs. 750,000/-.

p. 6
02

Whether submissions can be treated as pleadings to establish the value of the subject matter

Holding

No; submissions are not pleadings and do not constitute evidence, though the court may consider their relevance without being bound by them

Reasoning

Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the Court held that submissions are merely 'marketing language' and not evidence. The Applicant's valuation figures were advanced only in submissions and were therefore not before the Taxing Master as material for ascertaining subject matter value. The Imperial Bank v Bakari Juma Bechpende authority was cited for the proposition that the court considers but is not bound by submissions.

p. 6

Legal principles established

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  • A court will interfere with a Taxing Master's decision only where there is an error of principle or the discretion was improperly exercised resulting in injustice
  • The value of the subject matter for taxation must be ascertained a priori from the pleadings, judgment or settlement; where unascertainable, the Taxing Master may exercise discretion
  • Submissions do not constitute evidence and cannot be used to establish the value of the subject matter

Court orders

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  1. 1.The Chambers Summons Application/Reference dated 10/06/2024 is dismissed
  2. 2.Costs of the Application awarded to the Respondents

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(2); Schedule VI
  • Civil Procedure ActSections 1A and 1B

Cases cited (11)

  • Kipkorir, Tito & Kiara Advocates vs. Deposit Protection Fund Board
    [2005] eKLR
  • Kamunyori & Company Advocates vs. Development Bank of Kenya Limited
    (2015) Civil Appeal 206 of 2006
  • Premch and Raichand Limited & Another vs Quarry Services of East Africa Limited and Another
    [1972] E.A 162
  • First American Bank of Kenya vs Shah and Others
    (2002) EA 64
  • Joreth Ltd vs Kigano and Associates
    (2002) 1 EA 92
  • Peter Muthoka & another vs. Ochieng & 3 Others
    [2019] eKLR
  • Lucy Waithira & 2 others vs. Edwin Njagi T/A E. K Njagi & Company Advocates
    [2017] eKLR
  • Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W'njuguna & 6 Others
    [2006] eKLR
  • Eunice Nyakiumba Waweru vs NIC Bank Limited & 2 Others
    ELC Civil Suit No. 175 of 2011
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    Nairobi Civil Appeal No. 240 of 2011 [2014] eKLR
  • Imperial Bank Limited v Bakari Juma Bechpende
    Mombasa Civil Appeal No. 68 of 2012 [2016] eKLR
Jurisdiction invoked
Rule 11(2) of the Advocates (Remuneration) Order - reference from the Taxing Master's ruling

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, "Disa Enterprises Limited v Milgo & 61 others (Environment and Land Case 478 of 2018) [2025] KEELC 766 (KLR)", Case Analysis (2025). Reference dated 10/06/2024 re Plaintiff's Bill of Costs dated 12/04/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/766/eng@2025-02-24

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