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ELCPartially AllowedMilimani ELC Appeal 73 of 2018 (Formerly HCCA 608 of 2023)· [2025] KEELC 3197 (KLR)

Munga v Munga & 9 others (Environment & Land Case 73 of 2018) [2025] KEELC 3197 (KLR)

Environment and Land Court
4 April 2025
TMT. Murigi
2,037 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a legal fees taxation, ruling a taxing officer cannot charge for items outside the costs a court actually awarded.

What this practically means

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Executive summary

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The Applicant, by Chamber Summons dated 27th January 2025, sought review of the Taxing Master's ruling of 2nd May 2024 taxing the Respondents' Bill of Costs dated 10th July 2023. He contended that the underlying appeal had been settled by a consent recorded on 10th March 2015 under which each party was to bear its own costs, and that only the costs of an application dated 27th March 2019, dismissed on 5th May 2020 with costs to the Respondents, were properly taxable. He argued that items 2-12 of the bill pre-dated that application, and that the award of Kshs.30,000/= as instruction fees was excessive, Schedule 6 of the Advocates Remuneration Order providing only Kshs.5,000/= to oppose an opposed application. The Respondents opposed via grounds of opposition, contending the reference was incompetent for non-compliance with Rule 11 of the Advocates Remuneration Order and that no error of principle was shown. T. Murigi J framed a single issue: whether the Taxing Officer erred in taxing the bill. Relying on Premchand Raichand Ltd v Quarry Services and Kipkorir Titoo & Kiari Advocates, the court held that the consent order settled costs in the appeal and lower court, that items predating the application of 27th March 2019 fell outside the costs awarded, and that the taxing master thereby erred in principle; the Kshs.30,000/= instruction fee was likewise excessive. The court allowed the reference, set aside the taxation decision of 2nd May 2024, ordered taxation afresh before another taxing officer, and directed each party to bear its own costs.

Key legal issues

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01

Whether the Taxing Officer erred in taxing items of costs that pre-dated and fell outside the application dated 27th March 2019 whose costs alone were awarded

Holding

Yes - the taxing master erred in principle in allowing items that did not form part of the costs awarded

Reasoning

The appeal had been settled by a consent recorded on 10th March 2015 which dealt with costs in the appeal and lower court. Only costs of the application dated 27th March 2019, dismissed on 5th May 2020 with costs to the Respondents, were properly taxable. Items predating that application fell outside the costs awarded and their inclusion was an error of principle.

p. 5
02

Whether the award of Kshs.30,000/= as instruction fees on item 1 was excessive

Holding

Yes - the award was excessive; Schedule 6 of the Advocates Remuneration Order provides Kshs.5,000/= to oppose an opposed application in an appeal

Reasoning

The applicable Schedule 6 figure for opposing an opposed application in an appeal is Kshs.5,000/=. The Respondents had also conceded Kshs.1,100/= per attendance on undisputed attendances. The award of Kshs.30,000/= was therefore excessive in the circumstances.

p. 5
03

Whether the court lacks jurisdiction for failure to comply with Rule 11 of the Advocates Remuneration Order (no Notice of Objection)

Holding

The objection was not upheld; the reference proceeded to determination on its merits

Reasoning

The Respondents argued the reference should be struck out for want of a Notice of Objection under Rule 11. The court did not strike out the reference but determined it on the merits, finding merit in the application and setting aside the taxation.

p. 3

Legal principles established

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  • A taxing officer errs in principle by allowing items of costs that did not form part of the costs awarded by the court

Court orders

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  1. 1.The decision of the Taxing Master dated 2nd May 2024 is set aside
  2. 2.The bill of costs dated 10th July 2023 shall be taxed afresh before another taxing officer
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11
  • Advocates Remuneration OrderSchedule 6
  • Civil Procedure Rulesunspecified

Cases cited (3)

  • Premchand Raichand Ltd and another v Quarry Services of East Africa Ltd and Others
    (1972) EA 162
  • Kipkorir Titoo & Kiari Advocates vs Deposit Protection Fund Board
    (2005) 1 KLR 528
  • Joreth vs Kigano Associates
    (2002) EA 92
Jurisdiction invoked
Reference against a Taxing Master's decision under the Advocates Remuneration Order (Rule 11) and Civil Procedure Rules

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, "Munga v Munga & 9 others (Environment & Land Case 73 of 2018) [2025] KEELC 3197 (KLR)", Case Analysis (2025). Milimani ELC Appeal 73 of 2018 (Formerly HCCA 608 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3197/eng@2025-04-04

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