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ELCPartially AllowedMiscellaneous Application (Chamber Summons) dated 19th June 2024, arising from Siaya ELC Misc. Application No. E019 of 2022 taxation reference· [2025] KEELC 1477 (KLR)

County Government of Siaya v Oruenjo Kibet & Khalid Advocates (Miscellaneous Case E008 of 2024) [2025] KEELC 1477 (KLR)

High Court of Kenya
24 March 2025
5,829 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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Kenya's High Court slashed a Kshs 156 million legal fee to Kshs 5 million, ruling advocates cannot charge full fees for cases decided early without trial.

What this practically means

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Executive summary

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The County Government of Siaya, by Chamber Summons dated 19th June 2024 under paragraph 11(2) of the Advocates Remuneration Order, sought to set aside the ruling of the Taxing Master, Hon. L. Simiyu, Deputy Registrar, delivered on 29th May 2024, which upheld the Respondent advocates' instruction fees of Kshs. 156,025,500 in an Advocate-Client Bill of Costs arising from Siaya ELC Misc. Application No. E019 of 2022 (Justus Ouma Owino & 3 Others v National Land Commission & 2 Others). The Applicant contended that the Taxing Master erred by deriving the value of the subject matter - the 20,756-acre Yala Swamp property - from counsel's submissions, including a google search estimate, rather than from the pleadings, and that the fees were punitive, excessive and an impediment to access to justice. The Respondents maintained the fees were duly earned given the complexity and public importance of the matter. Justice A.E. Dena held that submissions are not evidence and that the value of the subject matter could only be ascertained from the pleadings, judgment or settlement; since the suit was resolved at preliminary objection stage without a hearing on the merits, the value was not pleaded and reliance on extraneous propositions was an error of principle. Applying the Supreme Court's reasonability principle in Kenya Airports Authority v Otieno Ragot, the court found full instruction fees excessive for a matter disposed of at preliminary stage. The court set aside items 1 and 2 of the Bill, taxed instructions fees at Kshs. 5,000,000 and item 2 at Kshs. 2,500,000, upheld the remaining uncontested items, set aside the Certificate of Costs, and directed each party to bear their own costs of the reference.

Key legal issues

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01

Whether the Taxing Master erred in principle in assessing instructions fees

Holding

Yes - the Taxing Master relied on value proposals made in submissions rather than on the pleadings, judgment or settlement, and the acreage is not the value of the suit property.

Reasoning

The value of the subject matter was neither pleaded nor ascertainable from any judgment or settlement. The Taxing Master derived value from counsel's submissions, including a per-acre estimate and a google search figure. The Court of Appeal authorities establish that the taxing officer's discretion only arises after engaging the mandatory starting point of pleadings, judgment or settlement. Reliance on submissions, which are not evidence, was an error of principle.

p. 6
02

Whether full instructions fees were justified where the suit was disposed of at preliminary objection stage

Holding

No - fees must be reasonable and commensurate with work done; charging full instructions fees for a matter resolved at preliminary objection stage was excessive.

Reasoning

The substantive suit was determined on a preliminary objection without hearing on merits, so complexity had not fully kicked in. The court applied the Supreme Court's reasonability principle in Kenya Airports Authority v Otieno Ragot, holding that fees should reflect the amount of work done and should not impede access to justice or amount to unjust enrichment at the expense of the tax-paying public.

p. 9
03

Whether the court should remit the bill for fresh taxation or tax it itself

Holding

The court exercised its own discretion and taxed the contested items itself, setting instructions fees at Kshs. 5,000,000 and item 2 at Kshs. 2,500,000.

Reasoning

While Joreth endorses remittal to the same or another taxing officer as the general practice, the court found no authority making remittance mandatory and noted that the discretion to tax the bill itself remains available. Guided by the figure of Kshs. 5,000,000 upheld by Majanja J in Kenya Airports Authority v Otieno Ragot, the court fixed instructions fees and reduced item 2 accordingly.

p. 10

Legal principles established

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  • The value of the subject matter for taxation of instructions fees must be ascertained from the pleadings, judgment or settlement; submissions are not evidence and cannot supply that value.
  • Instructions fees are not static; they must be reasonable, commensurate with the work done, and must not impede access to justice.
  • A court may interfere with a Taxing Officer's decision where there is an error of principle or where the fee awarded is manifestly excessive or so high as to confine access to the court to the wealthy.

Court orders

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  1. 1.The ruling of the Taxing Master delivered on 29th May 2024 is set aside on items 1 and 2 of the Bill of costs dated 9th March 2024
  2. 2.Items 1 and 2 of the Bill of costs are taxed at Kshs. 5,000,000 and Kshs. 2,500,000 respectively
  3. 3.The rest of the items of the Bill of costs are retained and upheld as taxed by Honourable L. Simiyu, Deputy Registrar on 29th May 2024
  4. 4.The Certificate of Costs issued pursuant to the ruling of the Taxing Master is set aside
  5. 5.A Certificate of Costs to issue based on the ruling of the court under this reference
  6. 6.Each party to bear their costs on this reference
On appeal from
Taxing Master (Deputy Registrar, Siaya)
Misc. E005 of 2024 - Advocate-Client Bill of Costs dated 9th March 2024
Jurisdiction invoked
Paragraph 11(2) of the Advocates Remuneration Order

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, "County Government of Siaya v Oruenjo Kibet & Khalid Advocates (Miscellaneous Case E008 of 2024) [2025] KEELC 1477 (KLR)", Case Analysis (2025). Miscellaneous Application (Chamber Summons) dated 19th June 2024, arising from Siaya ELC Misc. Application No. E019 of 2022 taxation reference. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1477/eng@2025-03-24

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