Chabari v Kirai & another (Environment and Land Case 51 of 2017) [2025] KEELC 7041 (KLR)
The bottom line
#A Kenyan court ruled that missing dates on a legal bill aren't fatal and successfully challenged a tiny costs award, ordering fresh taxation.
What this practically means
#Executive summary
#Key legal issues
#Time for filing a reference under Rule 11(2)
The reference was timeously filed; the 14 days run from receipt of the taxing officer's response, not from the date of the ruling
The court held that although reasons for taxation may be contained in the ruling, Rule 11(2) makes computation of time dependent on the taxing officer's response, either supplying reasons or intimating that the reasons are in the ruling. Here the deputy registrar responded by email on 13th August 2025 directing the applicant to the correct forum, so the reference filed that day was in time. Decisions suggesting otherwise cannot supersede the clear letter of the law.
Competence of an affidavit sworn by counsel
The affidavit sworn by learned counsel was competent because it deponed only to matters within his knowledge and borne out of the court record
The court applied the apex court's position that counsel may not depone to contentious factual or evidential matters, but held that the bar does not restrict depositions borne out of the court record or concerning what the deponent did in the proceedings. No contentious evidential matter was identified in the counsel's affidavit, so the objection was a misreading of the ratio of the cited decisions.
Errors of principle in the taxation
The taxing officer committed errors of principle by refusing instruction fees and taxing off items for lack of dates, and by awarding a manifestly low sum of Kshs.14,350
The suit was admittedly prosecuted by an advocate, so instruction fees accrued; the omission of dates was a mere procedural lapse which the taxing officer could have cured by ordering amendment or by applying Article 159(2)(d). An award of Kshs.14,350 as costs to a successful party in a matter prosecuted before the Environment and Land Court was manifestly and inordinately low and thus an error of principle, warranting setting aside of the certificate of taxation.
Effect of failure to indicate dates in a bill of costs (Rule 69)
The omission is not fatal; items should not be taxed off merely for lack of dates
The court acknowledged Rule 69's requirement of a five-column bill with dates, but held that the failure is procedural and curable by amendment or Article 159(2)(d). It expressly declined to follow JB Shilenje v Kenindia Assurance, holding that a dichotomy must be drawn between directory and mandatory 'shall' and that substantive justice should prevail unless the defect goes to the root of the substance.
Legal principles established
#- Under Rule 11(2) of the Advocates Remuneration Order, time for lodging a reference runs from receipt of the taxing officer's reasons (including an intimation that reasons are contained in the ruling), not from the date of the ruling itself.
- Where a court decision contradicts the clear letter of the law, the statute prevails.
- An advocate may swear a supporting affidavit on matters within his knowledge or borne out of the court record, provided he does not depone to contentious factual or evidential matters.
- Failure to include dates of services in a bill of costs is a curable procedural defect which should not result in items being taxed off or a successful party being denied instruction fees.
- A court may interfere with a taxing officer's decision only where there is an error of principle or the award is manifestly excessive or manifestly deficient.
Court orders
#- 1.The Chamber Summons Application dated 13th August 2025 is allowed
- 2.The certificate of taxation issued on 17th July 2025 and the attendant ruling are set aside
- 3.The Applicant's party and party bill of costs is remitted to the deputy registrar/taxing officer for fresh taxation, bearing in mind that the non-inclusion of dates when services were rendered is a procedural technicality remediable by amendment
- 4.The taxation shall be undertaken on priority and on the basis of established principles of taxation
- 5.Each party shall bear own costs of the reference
- Jurisdiction invoked
- Rule 11(2) of the Advocates Remuneration Order (reference against a certificate of taxation before the High Court/ELC Judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chabari v Kirai & another (Environment and Land Case 51 of 2017) [2025] KEELC 7041 (KLR)", Case Analysis (2025). Chamber Summons application dated 13th August 2025 (Reference under Rule 11(2) of the Advocates Remuneration Order). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7041/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.