Kinuthia v Joreth Limited & another (Environment & Land Case 461 of 2012) [2025] KEELC 4380 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the taxing master erred in principle in valuing the subject matter at Kshs. 50,500,000 for purposes of the instruction fee
No error in principle; the value was properly ascertained from the judgment, in which the valuer gave evidence as PW2, and the valuation report returned Kshs. 50,500,000
Instruction fees are principally based on the value of the subject matter, to be ascertained from the pleadings, judgment or settlement. The pleadings did not provide a subject value, but the plaintiff had filed a valuation report valuing the suit property at Kshs. 50,500,000, and the valuer testified as PW2, so the value was ascertainable from the judgment. The purchase price of Kshs. 1,800,000 urged by the defendants was a transaction figure the plaintiff had pleaded was grossly undervalued and fraudulent.
Whether the taxing master failed to consider relevant factors such as complexity, history and the parties' conduct
She did consider them; the 2nd Defendant's challenge was general and unparticularised
The court reviewed the ruling and found the taxing master expressly addressed the proper method of determining value and the complexity and history of the matter, noting that the plaintiff had both to prosecute his suit and defend a counter-claim. The 2nd Defendant did not particularise what was left out, making the challenge meritless.
Whether the court was functus officio after delivering the taxation ruling such that the Plaintiff could not amend his bill
No; under Rule 71 of the Advocates (Remuneration) Order an amendment application made before taxation is concluded is not barred
The plaintiff's motion to amend the bill was filed after the ruling date was set but before the ruling was delivered. By analogy with a suit, a bill of costs being a suit under section 2 of the Civil Procedure Rules, Rule 71 imposes no limitation period provided the application is made before taxation is concluded. The functus officio objection therefore failed.
Whether the Taxing Officer's ruling should be set aside on the Plaintiff's application
Yes, not because of any error on the instruction fee, but to allow determination of the plaintiff's pending application dated 22.10.2024 to amend the bill
The plaintiff's application to amend his bill was filed before the ruling was delivered but was not considered, and no reasons were given for overlooking it. To achieve a hearing of that application on its merits, the ruling of 31.10.2024 had to be set aside so the amendment application could be determined before fresh taxation.
Legal principles established
#- On a reference from taxation, a judge will not interfere with the taxing officer's discretion unless the taxing officer erred in principle; questions solely of quantum are for the taxing officer except in exceptional cases
- There is no statutory limitation on amending a bill of costs under Rule 71 of the Advocates (Remuneration) Order provided the application is made before taxation is concluded
Court orders
#- 1.The Taxing Officer's ruling dated 31st October 2024 is set aside to make room for determination of the Plaintiff's application dated 22nd October 2024
- 2.The 2nd Defendant's application dated 8th November 2024 is dismissed with costs to the Plaintiff
- 3.The Plaintiff's application dated 17th January 2025 is allowed with an order that each party bears their costs
- Jurisdiction invoked
- Reference from taxation under paragraph 11 of the Advocates (Remuneration) Order; Rule 71 of the Advocates (Remuneration) Order considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinuthia v Joreth Limited & another (Environment & Land Case 461 of 2012) [2025] KEELC 4380 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4380/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.