JM Njenga & Company Advocates LLP v Kimuri Housing Company Limited (Environment and Land Miscellaneous Application E123 of 2023) [2025] KEELC 4017 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Officer erred in principle by relying on the 1993 purchase price instead of the value of the suit property at the time of filing suit
Yes - instruction fees must be based on the value of the subject matter at the time of filing; the taxing officer should have sought further evidence under paragraph 13A of the Advocates Remuneration Order
The court noted the applicant was instructed in 2022 on a property purchased in 1993 for Kshs 1,840,000, and that rising land prices are a matter of public knowledge. Relying on Masore Nyang'au v Kensalt, the court held the taxing officer was not confined to the pleadings and could call for documents or evidence to ascertain the 2022 value; failing to do so was an error of principle.
Whether the Taxing Officer erred in consolidating instruction fees under Items 1 and 21
Yes - the defence to the main suit and the counter-claim are separate matters attracting separate instruction fees
Item 1 related to filing a defence for the 4th Defendant while Item 21 related to a counter-claim. Following Project Innovations Limited v Aziza Residential Suites Limited, a counter-claim is a separate suit taxable independently; consolidating the two items was therefore an error requiring re-taxation.
Whether Items 4, 8, 10, 15, 49, 52 and 54 were wrongly disallowed
No - the applicant failed to demonstrate supporting evidence on the record
The applicant alleged the disallowed items were supported by evidence, but the court perused the virtual court record and found no such evidence. The claim on these items therefore failed.
Whether the Taxing Officer erred in not awarding interest under Item 78
No - the award of interest is discretionary and no error of principle was shown
Relying on Otieno Ragot & Company Advocates v Kenya Airports Authority, the court confirmed interest is discretionary, extending even to withholding interest entirely. The taxing officer exercised that discretion and the applicant did not argue it was exercised improperly, so the claim under Item 78 failed.
Legal principles established
#- A court may interfere with a taxing officer's decision only where it is based on an error of principle or where the fee is manifestly excessive, and the normal practice on error of principle is remittal for re-assessment
- Instruction fees must be pegged on the value of the subject matter at the time the suit was filed, and the taxing officer is not bound by the purchase price stated in the pleadings and may call for evidence to ascertain current value
- A counter-claim constitutes a separate suit attracting separate, independently taxable instruction fees
- The award of interest on taxed costs is discretionary
Court orders
#- 1.The Taxing Officer's decision on instruction fees under Items 1 and 21 is set aside
- 2.Items 1 and 21 are remitted to another taxing officer for re-taxation
- 3.Costs to await the outcome of the taxation
- Jurisdiction invoked
- Reference against a taxation decision of a Taxing Officer under the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JM Njenga & Company Advocates LLP v Kimuri Housing Company Limited (Environment and Land Miscellaneous Application E123 of 2023) [2025] KEELC 4017 (KLR)", Case Analysis (2025). Chamber Summons dated 8th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4017/eng@2025-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.