Wamae & 2 others v Kamau (Miscellaneous Application E023 of 2025) [2025] KEELC 6576 (KLR)
The bottom line
#A Nyeri court upheld most of a Ksh.512,195 costs award but struck out Ksh.10,000 charged as instruction fees on two applications, confirming the Advocates Remuneration Order sets no such fees.
What this practically means
#Executive summary
#Key legal issues
#Determination of the value of the subject matter for instruction fees
The valuation report over the suit property (Ksh.15,000,000) should be adopted as the value of the subject matter; on that value the KES.400,000 taxed for Item 1 falls within Schedule 6 part 1 and there is no fault with its taxation
Following Joreth Limited v Kigano & Associates, the value should be ascertained from the pleadings or judgment; where the pleadings and judgment did not state the value, a valuation report on record assessing the property and structures at Ksh.15,000,000 was the proper basis. The Schedule 6 scale for a defended matter between KES.1,000,000 and 20,000,000 yields KES.120,000 plus 2%, within the KES.400,000 taxed.
Instruction fees on Notices of Motion (Items 5(1) and 9(1))
The instruction fees of Ksh.5,000 on each application were taxed off as the Advocates Remuneration Order makes no provision for instruction fees on applications, leaving drawing fees, filing fees and service
The court found that the Remuneration Order provides no instruction fee for applications. Items 5(1) and 9(1) were therefore struck. Filing fees and service could be allowed as they follow the ordinary business of the court even though receipts were not produced.
Standard for interference with a taxing officer's decision
Taxation is a matter of opinion based on experience; the court will interfere only on an error of principle or where the award is manifestly excessive or inadequate amounting to injustice
Citing Republic vs Ministry of Agriculture & 2 others Ex parte Muchiri W'njuguna with approval, the court applied the principle that taxation is not a mathematical exercise. On this standard, the court upheld items 22, 23 and 24, finding item 22 to be an attendance fee under Schedule 6(7) and that the hearings of 20th March 2023 and 5th July 2023 sufficed as full-day hearings.
Legal principles established
#- The value of the subject matter for taxation of a bill of costs is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may exercise discretion to assess a just instruction fee
- A court will not interfere with a taxing officer's decision unless it is based on an error of principle or is so excessive or low as to amount to an injustice
- The Advocates Remuneration Order does not provide for instruction fees for an application; such items must be taxed off
Court orders
#- 1.The decision of the taxing officer dated 9th April 2025 on the taxation of the respondent's Bill of Costs dated 22nd July 2024 be and is hereby set aside and/or varied to a limited extent
- 2.Item 5(1) at Ksh.5,000/= as instruction fees to file Notice of Motion Application dated 19th September 2014 is taxed off
- 3.Item 9(1) at Ksh.5,000/= as instruction fees to defend the Application dated 18th May 2018 is taxed off
- Jurisdiction invoked
- Reference against the taxing officer's decision under the Advocates Remuneration Order (Chamber Summons dated 11th March 2025)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamae & 2 others v Kamau (Miscellaneous Application E023 of 2025) [2025] KEELC 6576 (KLR)", Case Analysis (2025). Chamber Summons dated 11th March 2025 (arising from Nyeri Elc Case No. 170 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6576/eng@2025-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.