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ELCPartially AllowedBusiness Premises Rent Tribunal Appeal from BPRT Case No. 26 of 2017 (Murang'a)· [2025] KEELC 1373 (KLR)

Waiguru v Kimani (Environment and Land Appeal E188 of 2024) [2025] KEELC 1373 (KLR)

Environment and Land Court
13 March 2025
1,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Murang'a against a ruling of the Business Premises Rent Tribunal (Hon. A. Muma, Vice Chair) delivered on 21st July 2023 in BPRT Case No. 26 of 2017, in which the Tenant's party bill of costs was taxed at Kshs. 274,000/=. The Landlord appealed on seven grounds, principally that the instruction fees of Kshs. 50,000/= and getting up fees of Kshs. 25,000/= awarded to the firm of Simon Kiragu & Co. Advocates lacked basis, given that the subject premises yielded only Kshs. 8,000/= monthly rent (Kshs. 96,000/= annual rent) and the firm came on record only on 16th January 2020 after the firm of Lee Maina & Associates had done the earlier work. The appeal was canvassed by written submissions. The court framed a single issue: whether the taxing officer erred in taxing the bill as he did. Applying the principle from Republic v Ministry of Agriculture Ex parte Muchiri W'njuguna that interference requires an error of principle or manifest excess, the court found the Tribunal erred by failing to consider the value of the subject matter, awarding instruction fees of Kshs. 50,000/= where the statutory fee was Kshs. 22,500/=. It also held getting up fees must not be less than one-third of the instruction fee, awarding Kshs. 7,500/=. The contention that the incoming firm was not entitled to items 3 to 50 failed, since costs belong to the party and only one bill is drawn. The appeal partially succeeded: instruction fees at Kshs. 22,500/=, getting up fees at Kshs. 7,500/=, total costs at Kshs. 229,000/=, with each party bearing its own costs.

Key legal issues

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01

Whether the instruction fee of Kshs. 50,000/= awarded by the Tribunal was justified

Holding

It was erroneous; the correct instruction fee under Schedule 8 paragraph 7(2)(a) of the Advocates Remuneration Order 2014, given a subject matter value of Kshs. 96,000/=, is Kshs. 22,500/= on the higher scale

Reasoning

The court applied the principle that a taxing officer's decision may only be disturbed for an error of principle or manifest excess. The Tribunal awarded instruction fees of Kshs. 50,000/= without regard to the value of the subject matter, which was Kshs. 96,000/=, being the annual rent. The statutory instruction fee for that value under Schedule 8 paragraph 7(2)(a) is Kshs. 22,500/= on the higher scale. Failing to consider subject matter value was an error of principle justifying interference.

p. 4
02

Whether getting up fees of Kshs. 25,000/= (half the instruction fee) were properly assessed

Holding

The Tribunal erred in principle; getting up fees should be not less than one-third of the instruction fee, here Kshs. 7,500/= on instruction fees of Kshs. 22,500/=

Reasoning

Relying on Schedule 8 paragraph 2 of the Advocates Remuneration Order 2014, the court held that where issues are joined by the pleadings, a getting up fee is allowed in addition to the instruction fee but shall be not less than one-third of the instruction fee allowed on taxation. Assessing getting up fees at half the instruction fee, and on an inflated instruction fee, was an error of principle.

p. 4
03

Whether the firm of Simon Kiragu & Co. Advocates, having come on record on 16th January 2020, was entitled to fees in items 3 to 50 of the bill

Holding

The contention fails; costs belong to the party, and where there has been a change of Advocates only one bill is drawn for the whole suit

Reasoning

The court held that costs are awarded to the party and not to the Advocate, and only one bill is drawn for the whole suit. The change of Advocates mid-matter does not disentitle the party to the full costs of the proceedings; the Advocate finally on record draws a single bill as submitted under the Advocates Remuneration Order.

p. 4

Legal principles established

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  • A court cannot interfere with a taxing officer's decision unless the decision was based on an error of principle or the fee awarded was manifestly excessive
  • Getting up fees flow directly from instruction fees and shall not be less than one-third of the instruction fee allowed on taxation
  • Costs are awarded to the party and not the Advocate, and only one bill is drawn for the whole suit notwithstanding a change of Advocates
  • It is an error of principle for a taxing master to fail to take into account the value of the subject matter in assessing instruction fees

Court orders

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  1. 1.Instruction fees assessed at Kshs. 22,500/=
  2. 2.Getting up fees at Kshs. 7,500/=
  3. 3.Total costs assessed at Kshs. 229,000/=
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 9A
  • Advocates Remuneration Order, 2014Paragraph 4, Schedule 8
  • Advocates Remuneration Order, 2014Rule 62(a)
  • Advocates Remuneration Order, 2014Paragraph 7(2)(a), Schedule 8
  • Advocates Remuneration Order, 2014Paragraph 2, Schedule 8

Cases cited (6)

  • Jared Ltd v Kigano & Associates
    Civil Appeal No.66/1999 (2002)1 EA 92
  • Premchand Raichand Ltd and another v Quarry Services of East African Ltd & another
    (1972) EA 162
  • First American Bank of Kenya Ltd v Gulab P. Shah & 2 others
    (2002) IEA 64
  • Kiambu Murutani Co. Ltd v Kimindi Self Fridges Supermarket
    [2021] eKLR
  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W'njuguna & 6 Others
    [2006] eKLR
On appeal from
Business Premises Rent Tribunal (Murang'a)
BPRT Case No. 26 of 2017
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Business Premises) regime

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, "Waiguru v Kimani (Environment and Land Appeal E188 of 2024) [2025] KEELC 1373 (KLR)", Case Analysis (2025). Business Premises Rent Tribunal Appeal from BPRT Case No. 26 of 2017 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1373/eng@2025-03-13

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