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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 3677 (KLR)

Maina v Attorney General & 7 others (Environment & Land Case 486 of 2017) [2025] KEELC 3677 (KLR)

High Court of Kenya
7 May 2025
2,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court cut a taxed legal bill by removing getting up fees, confirming that such fees are only chargeable once a case is confirmed for hearing.

What this practically means

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Executive summary

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The Plaintiff/Applicant filed a Reference by Chamber Summons dated 9th September 2024 challenging a Deputy Registrar's taxation ruling of 26th August 2024 on the 7th and 8th Defendants' Party and Party Bill of Costs. The Applicant, an administrator of the estate of James Kinyuru Muongi who had sued co-beneficiaries to preserve estate property, complained that the award of Kshs. 1,500,000 as instruction fees was manifestly excessive and unsupported by specific reasons, and that getting up fees of Kshs. 375,000 were improperly awarded since the suit was never confirmed for hearing, having been struck out on a preliminary objection of res judicata. The Respondents maintained the taxing master judiciously exercised her discretion, the value of the subject matter (said to exceed Kshs. 400,000,000) not being ascertainable from the pleadings. The court framed two issues: whether the instruction fee was excessive and whether getting up fees were proper. On the first, the court found the taxing master's reasons clear and sound, applying the Joreth Ltd v Kigano & Associates and Premchand Raichand principles, and declined to interfere. On the second, applying Schedule 6A(2) of the Advocates Remuneration Order, the court held that no getting up fee is chargeable before confirmation for hearing and that preparation for a preliminary objection was not preparation for trial. The court set aside the getting up fee award and substituted a total award of Kshs. 1,243,210, with costs of the application to the Applicant. The Reference succeeded only in part.

Key legal issues

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01

Whether the instruction fee of Kshs. 1,500,000 was manifestly excessive where the value of the subject matter was not ascertainable from the pleadings

Holding

The Taxing Master did not err; the reasons for the award were clear, sound and self-explanatory, applying the Joreth Ltd v Kigano & Associates principles

Reasoning

The court held that where the value of the subject matter is not ascertainable from the pleadings, judgment or settlement, the taxing master has discretion to assess a just instruction fee guided by the Joreth factors. The Applicant's complaint that reasons were general was rejected; the court found the ruling's reasons clear and sound and declined to interfere with the discretion exercised.

p. 6
02

Whether getting up fees were properly awarded where the suit was struck out before being confirmed for hearing

Holding

The award of getting up fees was erroneous; preparation for a preliminary objection and an application was not preparation for trial

Reasoning

Schedule 6A(2) of the Advocates Remuneration Order provides no getting up fee is chargeable until a case is confirmed for hearing, and in unheard cases the taxing officer must be satisfied the case was prepared for trial. The suit was struck out on a preliminary objection; no additional witness statements or documents were filed, so the taxing master erred in awarding getting up fees.

p. 6

Legal principles established

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  • The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may use discretion considering the nature and importance of the cause, the interests of the parties, the general conduct of the proceedings and other relevant circumstances
  • No getting up fee is chargeable until a case has been confirmed for hearing, and in every case not heard the taxing officer must be satisfied the case was prepared for trial

Court orders

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  1. 1.The orders of the Taxing Master dated 26th August 2024 were set aside insofar as they awarded getting up fees
  2. 2.The court substituted its own total award of Kshs. 1,243,210/- (One million, two hundred and forty three thousand two hundred and ten shillings only)
  3. 3.The costs of the application were awarded against the Respondents

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule 6(A)(2) (including provisos (ii) and (iii))

Cases cited (9)

  • Peter Muthoka & Another v Ochieng & 3 Others
    (2019) eKLR
  • Ngatia & Associates Advocates v Ngatia & Associates
    (2018) eKLR
  • Kenya Agriculture & Livestock Research Organization (Formerly Kenya Agricultural Institute) v Njama
    (2017) eKLR
  • Joreth Ltd v Kigano & Associates
    (2002) eKLR
  • Rachuonyo & Rachuonyo Advocates v National Bank of Kenya Limited
    (2020) eKLR
  • Republic v Minister for Agriculture & 2 Others ex-parte W' Njuguna & 6 Others
    (2006) eKLR
  • Nguruman Limited v Kenya Civil Aviation Authority
    (2014) eKLR
  • Mwakio Kirwa & Company Advocates v County Public Service Board & Joshua Terer
    (2022) eKLR
  • Premchand Raichand Ltd & Another v Quarry Services of East Africa
    (1972) EALR
Jurisdiction invoked
Reference against a Deputy Registrar's taxation ruling under the Advocates Remuneration Order (Chamber Summons dated 9th September 2024); no specific constitutional provision cited

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, "Maina v Attorney General & 7 others (Environment & Land Case 486 of 2017) [2025] KEELC 3677 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3677/eng@2025-05-07

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