Presybyterian Foundation, Trustees of P.C.E.A Kitengela Township Church v Export Processing Zones Authority; Export Processing Zones Authority & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 209 of 2017) [2025] KEELC 2998 (KLR)
The bottom line
#Kenya's Environment and Land Court in Kajiado ruled that legal fees must be calculated from the judgment, not pleadings, and counter-claims earn separate instruction fees.
What this practically means
#Executive summary
#Key legal issues
#Basis for determining the value of the subject matter where judgment has been delivered
The Taxing Officer erred in principle by fixing the value of the subject matter at Kshs. 135 million from the pleadings/valuation report when judgment had already been entered and the judgment did not ascertain the value; taxation of item 1 was set aside for retaxation.
Following the Supreme Court in Kenya Airports Authority v Otieno Ragot and the Court of Appeal in Peter Muthoka, the value of the subject matter must be determined from the pleadings, judgment or settlement, disjunctively. Where judgment has been entered, recourse is not had to the pleadings. Here the judgment declared ownership and ordered eviction without assigning any monetary value, so the value was not ascertainable and the Taxing Officer was entitled to exercise discretion under proviso (i) of paragraph 1 of Schedule VIA.
Entitlement to instruction fees on a counter-claim
The Taxing Officer's refusal to award instruction fees on the counter-claim as double taxation was an error of principle; item 2 was set aside for taxation afresh.
Relying on Kenya Commercial Bank v James Karanja and Beatrice Mumbi Wamahiu v Mobil Oil Kenya, the court held that a counter-claim is a fresh suit on its own. The Defendant succeeded on both the suit (as to costs) and the counter-claim, and was therefore entitled to separate instruction fees on the counter-claim. Since getting up fees are pegged at not less than one third of instruction fees, item 3 would be affected by the retaxation.
Legal principles established
#- Once judgment has been entered, recourse is not to be had to the pleadings in ascertaining the value of the subject matter for taxation; if the value is not ascertainable from the judgment, the Taxing Officer may exercise discretion under proviso (i) of paragraph 1 of Schedule VIA.
- A counter-claim is a separate and distinct suit and the party successful on the counter-claim is entitled to separate instruction fees; refusing such fees on the ground of double taxation is an error of principle.
Court orders
#- 1.Set aside the decision of the Taxing Officer in regard to the taxation of item 1 (instruction fees on the main suit) in the Defendant's bill of costs dated 20th November 2023 and ordered it be taxed afresh before another Taxing Officer other than Hon. Jane Kamau
- 2.Set aside the decision of the Taxing Officer in respect of the claim for instruction fees for prosecuting the counter-claim (item 2) and ordered it be taxed afresh before another Taxing Officer other than Hon. Jane Kamau
- 3.Allowed the Defendant's chamber summons application dated 8th November 2024 with costs to the Applicant
- Jurisdiction invoked
- Section 44 of the Advocates Act and paragraph 11 of the Advocates Remuneration Order (reference against a Taxing Officer's ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Presybyterian Foundation, Trustees of P.C.E.A Kitengela Township Church v Export Processing Zones Authority; Export Processing Zones Authority & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 209 of 2017) [2025] KEELC 2998 (KLR)", Case Analysis (2025). Chamber Summons dated 8th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2998/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.