Kitur v National Land Commission & another (Environment and Land Case 4 of 2019) [2025] KEELC 7297 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled both land acquisition defendants must pay legal costs, and slashed a lawyer's bill for relying on untested valuations.
What this practically means
#Executive summary
#Key legal issues
#Who between the two Defendants bears the Plaintiff's costs of the suit
Both Defendants bear the Plaintiff's costs; the 2nd Defendant was not excluded from the proceedings
The suit was withdrawn with costs to the Plaintiff. The 2nd Defendant was a party when the suit was withdrawn and was never struck out, nor did the court determine it was not a necessary party. The order of 1st November 2022 released it only from compliance issues, not entirely. Absent an express release from the entire proceedings, the 2nd Defendant was not persuaded that costs were meant to be borne by the 1st Defendant alone.
Whether the Plaintiff should bear the 2nd Defendant's costs
No; the 2nd Defendant failed to show entitlement to costs against either the Plaintiff or the 1st Defendant
Costs follow the event and the Plaintiff was successful. No determination was ever made that the 2nd Defendant was an unnecessary party. The 2nd Defendant had options such as a notice against a co-defendant for indemnity which it never pursued. There was no determination or settlement of any claim in its favour to entitle it to costs.
Whether the Taxing Officer erred in principle on instruction fees
Yes; the value of the subject matter could not be ascertained from the pleadings since the suit was withdrawn before trial, and the Taxing Officer erred in adopting the valuation report figure
Following Joreth Ltd v Kigano & Associates, the value for taxation must come from pleadings, judgment or settlement. Here the suit was withdrawn, so the court never determined whether the value was Kshs. 18,643,575 or Kshs. 31,385,085. The Taxing Officer therefore erred in principle in finding the value ascertainable from the pleadings and in relying on the untested valuation report. Items 1 and 2 were set aside.
Items 3, 4 and 5 relating to succession proceedings
Taxed off; costs of the succession cause cannot be visited on parties who did not contribute to the Plaintiff's lack of capacity
The items related to obtaining Letters of Administration Ad Litem to give the Plaintiff capacity to sue. Since the Defendants did not contribute to the lack of capacity and the succession cause number was never disclosed, they cannot be condemned to pay those costs. The Taxing Officer erred in taxing them as drawn.
Disbursements (items 30 to 32)
Set aside; the Taxing Officer should have required proof of disbursements when an objection had been raised
The 2nd Defendant had objected in its submissions on the bill to items 30 to 32, requiring receipts. The Taxing Officer ignored the objection and taxed them as drawn. Following Wasuna & Company Advocates v Kajulu Holdings, failure to require proof where an objection was raised is an error in principle.
Legal principles established
#- A Judge on a reference will not normally interfere with a Taxing Officer's discretion unless the Taxing Officer erred in principle in assessing costs
- The value of the subject matter for taxation is to be determined from the pleadings, judgment or settlement; if not so ascertainable, the Taxing Officer may exercise discretion to assess a just instruction fee
- Costs follow the event unless the court, for good reason, otherwise orders
Court orders
#- 1.The Taxing Officer's decision on Item No's 3, 4 and 5 of the bill of costs dated 12th September, 2022 are hereby set aside
- 2.The bill of costs dated 12th September, 2022 is remitted for fresh taxation of item No's 1, 2, 30, 31 and 32 before a different Taxing Officer in line with the directions and guidelines set out in the ruling
- 3.The 2nd Defendant/Applicant shall have costs of the application
- Jurisdiction invoked
- Rule 11(1) & (2) of the Advocates Remuneration Order; Sections 1A, 1B, 3 & 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitur v National Land Commission & another (Environment and Land Case 4 of 2019) [2025] KEELC 7297 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.