Disa Enterprises Limited v Milgo & 61 others (Environment and Land Case 478 of 2018) [2025] KEELC 766 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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/-.
Whether submissions can be treated as pleadings to establish the value of the subject matter
No; submissions are not pleadings and do not constitute evidence, though the court may consider their relevance without being bound by them
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.
Legal principles established
#- 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
#- 1.The Chambers Summons Application/Reference dated 10/06/2024 is dismissed
- 2.Costs of the Application awarded to the Respondents
- Jurisdiction invoked
- Rule 11(2) of the Advocates (Remuneration) Order - reference from the Taxing Master's ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.