PD Onyango & Company Advocates v Ogutu (Environment and Land Miscellaneous Application E016 of 2023) [2025] KEELC 4001 (KLR)
The bottom line
#Kenya's High Court confirmed that a valuation report cannot inflate legal fees—only values pleaded in court documents count when taxing advocates' bills.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether or not the valuation report was a pleading for purposes of ascertaining the value of the subject matter for purposes of taxing Advocate-Client Bill of Costs
- 2.whether or not the ruling of the Taxing Master took into account monies paid by the Client to the Advocate before the taxation
- 3.whether or not the Advocate was entitled to the entire of the instructions fees and getting up fees considering the stage of the suit as at the time the Advocate ceased acting for the Client
- 4.whether or not the matter should be remitted to the Taxing Master for fresh taxation
- 5.what order to make on costs
Key legal issues
#Whether a valuation report constitutes a pleading for ascertaining the value of the subject matter in taxation
A valuation report is only evidence, not a pleading, and cannot be the basis of ascertaining the value of the subject property for taxation where the value was not pleaded
The court applied Section 2 of the Civil Procedure Act's definition of pleadings and Joreth Ltd v Kigano & Associates, holding value must come from pleadings, judgment or settlement. The valuation report was part of the Client's evidence awaiting production as an exhibit, so it could not found the instructions fee claim based on a value of Kshs.15,000,000.
Whether the Taxing Master erred in awarding Kshs.200,000 instructions fees
No error in principle; the discretion was exercised judiciously given the suit stage and unpleaded value
The Advocate demonstrated the matter had completed pre-trial and was fixed for hearing when he ceased acting, which the Client did not dispute. Since the value was not ascertainable from the pleadings, the Taxing Master properly exercised her discretion and reasonably taxed item 1 at Kshs.200,000.
Whether the taxed award accounted for the Kshs.150,000 already paid, VAT and the 50% increase
The Taxing Master deducted the Kshs.150,000 before certification and correctly applied VAT at 16% after increasing instructions fees by half
The certified grand total of Kshs.347,550.50 reflected deduction of Kshs.150,000 from the computed Kshs.497,550.50. It was undisputed that VAT and the half increase applied; the only contest was the base amount, and having upheld Kshs.200,000 the court found the computation correct.
Legal principles established
#- A High Court judge on reference will not interfere with a Taxing Master's decision unless there is an error in law or principle
- The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; documents filed as evidence are not pleadings
- Where value of subject matter is not disclosed in the pleadings, the taxing officer may exercise discretion considering the circumstances of the case
Court orders
#- 1.Both the Reference by the Advocate and the Reference by the Client are dismissed
- 2.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Reference to a Judge from the Taxing Master's decision under the Advocates Remuneration Order
Relief refused
#Applicant's reference seeking setting aside and re-taxation of items 1, 2 and 3 of the Bill of Costs
The Taxing Master made no error in principle; value of subject matter not disclosed in pleadings so discretion was properly exercised
Respondent's reference seeking review, setting aside and variation of the taxation ruling
The Kshs.150,000 paid was already deducted and VAT and 50% increase correctly applied
Remittal to the Taxing Master for fresh taxation
Both references lacked merit and were dismissed
Costs
Each party shall bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
on Reference to a Judge from the Taxing Oficer, the Judge will not normally interfere with the exercise of discretion by the Taxing Oficer unless the Taxing Oficer erred in principle in assessing the costs.
The documents contained in the list or bundle of documents is not pleadings. The valuation report in my view was only part of the evidence proposed to be produced by the Client, which was awaiting production as exhibit and admission as evidence.
I find that the Taxing Master exercised her discretion judiciously in arriving at the amount of Kshs.200,000 in her ruling dated 5th September, 2024.
For the foregoing reasons, I find that both the reference by the Advocate and reference by the Client lack merit. Both References are hereby dismissed.
Given the circumstances of the case namely; that each of the parties’ Reference has failed, each party shall bear own costs.
Issues in the judgment
#Judgment states the Notice of Change of Advocates was 'dated 22nd June, 2023' in the Respondent's grounds but 'dated 2nd June, 2023 and filed in court on the same date' in paragraph 35
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PD Onyango & Company Advocates v Ogutu (Environment and Land Miscellaneous Application E016 of 2023) [2025] KEELC 4001 (KLR)", Case Analysis (2025). Not stated in judgment (references from taxation ruling of 5th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4001/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.