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ELCPartially AllowedNgong MCELC No. 107 of 2018 (Reference; Chamber Summons dated 2nd May 2025)· [2025] KEELC 7478 (KLR)

Kinuthia & another v Ndegwa (Miscellaneous Case E027 of 2025) [2025] KEELC 7478 (KLR)

High Court of Kenya
30 October 2025
2,698 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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The High Court cut Kshs. 7,785 from taxed costs because some billed items were improper, but left the Kshs. 350,000 instruction fee untouched.

What this practically means

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Executive summary

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This is a reference under Rule 11 of the Advocates (Remuneration) Order against the taxation on 3rd April 2025 of a Party and Party Bill of Costs dated 19th November 2024 at Kshs. 379,785 in Ngong MCELC No. 107 of 2018, a withdrawn land suit. The applicants, who were the plaintiffs, contended the taxation was erroneous and unjust: the instruction fee of Kshs. 350,000 was manifestly excessive given the suit did not proceed to hearing; attendances for mentions and rulings were not provided for under Schedule 7; and items relating to an application whose ruling made no order as to costs, and an attendance on a day the court was indisposed, were wrongly allowed. The respondent, the successful party, maintained the taxation was proper, relying on authority that a court will not disturb a taxing officer's discretion absent error of principle or manifest excess or insufficiency. The court applied the settled test from Republic v Ministry of Agriculture; Ex parte Muchiri W'Njuguna and KANU National Elections Board v Salah Yakub Farah, holding that interference is warranted only on proof of error of principle. It upheld the instruction fee under paragraph 1(a) of Schedule 7 (paragraph 1(b) applying only to summary determination of liquidated claims) and upheld the mention and ruling attendances under paragraph 6 of Schedule 7. It found errors of principle only in respect of Items 24, 26, 27, 28 and 45 (costs of an application decided with no order as to costs) and Item 32 (attendance when the court was not sitting). The ruling was varied only to that extent, deducting Kshs. 7,785 and leaving Kshs. 372,000, with each party bearing its own costs of the reference.

Key legal issues

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01

Whether the instruction fee of Kshs. 350,000 was manifestly excessive given the suit was withdrawn before trial

Holding

No error of principle; paragraph 1(b) of Schedule 7 did not apply as the suit was not a liquidated claim determined in a summary manner; the taxing officer properly used paragraph 1(a) parameters

Reasoning

The suit, concerning land, was withdrawn before trial, so paragraph 1(b) of Schedule 7 (summary determination of liquidated claims) was inapplicable. The taxing officer correctly exercised discretion under paragraph 1(a), considering value of subject matter, nature and importance of the cause and interests of the parties, settling between the parties' competing proposals of Kshs. 300,000 and Kshs. 500,000.

p. 4
02

Whether attendances for mentions and rulings were properly allowed (Items 17, 18, 19, 35)

Holding

Properly taxed; paragraph 6 of Schedule 7 provides Kshs. 1,400 for necessary attendance before a magistrate, and adjourned ruling dates were necessary appearances

Reasoning

Schedule 7 does provide for attendances; the mentions formed part of case management and the dates listed for the adjourned ruling were necessary appearances. The taxing officer was entitled to allow such items if he found them necessary, and no error of principle was disclosed.

p. 5
03

Whether Items 24, 26, 27, 28 and 45 (application of 27th July 2021) were properly taxed

Holding

Erroneous; the ruling on that application made no order as to costs, so those costs were not recoverable

Reasoning

Since the ruling of 3rd February 2022 on the underlying application expressly made no order as to costs, any costs claimed in respect of that application were unrecoverable, and allowing them amounted to an error of principle warranting interference.

p. 5
04

Whether Item 32 (attendance of 20th June 2024) was properly taxed

Holding

Erroneous; the court was indisposed and the matter did not proceed, and the respondent did not rebut this

Reasoning

The applicants deponed that the court was indisposed on 20th June 2024 and the respondent did not rebut this. Attendance on a day the court was not sitting cannot attract costs, so the taxing officer erred in principle in allowing the item.

p. 5

Legal principles established

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  • A court will not interfere with a taxing officer's decision unless it is shown to be based on an error of principle or the amount is manifestly excessive or low as to amount to an injustice
  • Costs in respect of an application whose ruling made no order as to costs are not recoverable
  • Attendance cannot attract costs where the court was not sitting

Court orders

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  1. 1.The ruling of the taxing officer delivered on 3rd April 2025 is varied only to the extent of Items 24, 26, 27, 28, 32, and 45, which shall be taxed off, amounting to Kshs. 7,785, to be deducted from the taxed costs leaving a sum of Kshs. 372,000
  2. 2.Each party shall bear its own costs of the reference

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11 (including Rule 11(1) and 11(2))
  • Advocates (Remuneration) OrderSchedule 7, paragraph 1(a)
  • Advocates (Remuneration) OrderSchedule 7, paragraph 1(b)
  • Advocates (Remuneration) OrderSchedule 7, paragraph 6 (also referred to as Paragraph 7 of Schedule 7, 2017)

Cases cited (4)

  • First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others
    [2002] eKLR
  • Joseph Tamaa v May Nthambi Mbuvi
    [2021] eKLR
  • Republic v Ministry of Agriculture and 2 Others; Ex parte Muchiri W'Njuguna & Others
    [2006] eKLR
  • KANU National Elections Board & 2 Others v Salah Yakub Farah
    [2018] eKLR
On appeal from
Magistrates' Court at Ngong
Ngong MCELC No. 107 of 2018
Jurisdiction invoked
Rule 11 of the Advocates (Remuneration) Order

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, "Kinuthia & another v Ndegwa (Miscellaneous Case E027 of 2025) [2025] KEELC 7478 (KLR)", Case Analysis (2025). Ngong MCELC No. 107 of 2018 (Reference; Chamber Summons dated 2nd May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7478/eng@2025-10-30

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