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ELCAllowedMiscellaneous Application No. E041 of 2021 (Reference)· [2025] KEELC 7197 (KLR)

Everton Coal Enterprises Limited v Theuri & Company Advocates (Miscellaneous Application E041 of 2022) [2025] KEELC 7197 (KLR)

Environment and Land Court
23 October 2025
3,275 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court threw out inflated legal fees calculated from a void agreement, ruling that a judgment already on record must set the fee basis.

What this practically means

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Executive summary

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This is a ruling on a reference by Everton Coal Enterprises Limited (Client/Applicant) under Chamber Summons dated 2nd August 2023, seeking review, variation or setting aside of the Taxing Officer's ruling of 29th August 2022 in Misc. Application No. E041 of 2021, which awarded the Advocates (Respondent) Kshs. 2,238,190 in an advocate-client bill of costs. The Applicant contended the Taxing Officer erred in principle by computing instruction fees on a sale agreement valuing the subject property at Kshs. 100,000,000 that had been declared a nullity, instead of the judgment of 18th February 2022 in Thika ELC Case No. 174 of 2018 awarding the Plaintiff Kshs. 22,550,000, and by holding the suit was still pending when judgment had already been delivered. The Respondent countered that the Taxing Officer was entitled to rely on the value pleaded in the defence and the Applicant's own submissions, which had stated the matter was pending; that the Applicant had itself produced the impugned agreement; and that the court should not interfere merely because the award seemed high or low. The court framed one issue: whether the Taxing Officer erred in principle in assessing instruction fees. Applying Joreth Limited v Kigano & Associates and Premchand Raichand v Quarry Services, the court held that once judgment is delivered it is the most reliable basis for valuing the subject matter. The Taxing Officer, who had access to the substantive file, misdirected herself by ignoring the judgment. The reference was allowed; the ruling was set aside as to instruction and getting up fees; the bill was remitted for fresh taxation before a different taxing officer on the basis of the Kshs. 22,550,000 judgment sum. Each party was ordered to bear its own costs of the reference.

Key legal issues

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01

Whether a Taxing Officer erred in principle by relying on a nullified sale agreement instead of the delivered judgment to assess instruction fees

Holding

Yes - the Taxing Officer misdirected herself by relying on the void agreement valuing the subject matter at Kshs. 100,000,000 when the judgment of 18th February 2022 awarding Kshs. 22,550,000 was on record and should have guided the assessment

Reasoning

The Taxing Officer had access to the substantive ELC file, in which judgment was delivered on 18th February 2022 awarding the Plaintiff Kshs. 22,550,000. Relying instead on a sale agreement declared a nullity, and ignoring the existing judgment, was a misdirection amounting to an error in principle. Although the Applicant did not file supplementary submissions updating the position, the judgment was on the court file and available to the Taxing Officer, so the failure to base instruction fees on the judgment sum rendered the taxation irregular and amenable to review.

p. 6
02

The proper basis for determining the value of the subject matter for instruction fees under Schedule 6(b) of the Advocates (Remuneration) Order

Holding

The value is to be determined from the pleadings, judgment or settlement if ascertainable; once judgment is delivered, it is the most reliable basis

Reasoning

Schedule 6(b) of the Advocates (Remuneration) Order provides that the value of the subject matter is determined from the pleadings, judgment or settlement where ascertainable, failing which the Taxing Officer exercises discretion. The Court of Appeal in Joreth Limited v Kigano & Associates confirms this approach. The judgment sum of Kshs. 22,550,000 reflected the court's final pronouncement on the value of the claim after full consideration of pleadings and evidence, and the failure to adopt it rendered the taxation irregular.

p. 6

Legal principles established

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  • The value of the subject matter for purposes of taxation should be determined from the pleadings, judgment or settlement, and once a judgment has been delivered it forms the most reliable and objective basis for determining the value of the subject matter
  • A court will only interfere with a Taxing Officer's decision where the officer acted on a wrong principle, took into account irrelevant factors, or failed to consider relevant ones

Court orders

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  1. 1.The reference dated 2nd August 2023 is allowed
  2. 2.The ruling of the Taxing Officer delivered on 29th August 2022 is set aside to the extent of the instruction fees and getting up fees
  3. 3.The Bill of Costs is remitted for fresh taxation before a different taxing officer, who shall assess the instruction fee based on the judgment sum of Kshs. 22,550,000 in Thika ELC Case No. 174 of 2018 Josvir Traders & Agencies Ltd v Geofirey Chege Kirundi & 2 others
  4. 4.Each party shall bear its own costs of the reference

Authorities

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Legislation

  • Advocates (Remuneration) OrderSchedule 6(b)

Cases cited (8)

  • Lubullelah & Associates Advocates v N.K. Brothers, Nairobi Misc. Application No. 52 of 2012
  • Kenyariri & Associates Advocates v Salama Beach Hotel Ltd & 4 Others
    [2014] eKLR
  • First American Bank of Kenya v Shah & Another
    [2002] 1 EA 64
  • Joreth Limited v Kigano & Associates
    [2002] 1 EA 92
  • Preuchard Raichard v Quarry Services
    (1992) E 162
  • Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another
  • Masore Nyangau & Co. Advocates v Kensalt Ltd
    ELC Misc. Appl. No. 196 of 2015
  • Josvir Traders & Agencies Ltd v Geofirey Chege Kirundi & 2 Others
    Thika ELC Case No. 174 of 2018, judgment dated 18th February 2022
On appeal from
null
null
Jurisdiction invoked
Review jurisdiction over a Taxing Officer's decision under the Advocates (Remuneration) Order; reference against taxation ruling in Misc. Application No. E041 of 2021

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Everton Coal Enterprises Limited v Theuri & Company Advocates (Miscellaneous Application E041 of 2022) [2025] KEELC 7197 (KLR)", Case Analysis (2025). Miscellaneous Application No. E041 of 2021 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7197/eng@2025-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.