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ELCPartially AllowedELC Case No. 52 of 2017· [2025] KEELC 7552 (KLR)

Orago v Adede (Environment and Land Case 52 of 2017) [2025] KEELC 7552 (KLR)

Environment and Land Court
31 October 2025
2,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that taxing officers must explain their fee decisions in detail, or lawyers can challenge the resulting costs.

What this practically means

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Executive summary

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The Plaintiff/Applicant, through Winny Adhiambo Ochwal, Advocate, filed a Chamber Summons dated 11th July 2023 under Rule 11(1) & (2) of the Advocates (Remuneration) Order, Sections 1A, 1B & 3A of the Civil Procedure Act and Articles 159 & 165 of the Constitution, seeking review of a taxation ruling of 21st June 2023 in which a party-to-party Bill of Costs dated 28th November 2022 was taxed at Kshs. 179,890/=, off Kshs. 552,979/=. Instruction fees were allowed at Kshs. 75,000/= under the heading 'other matters' and getting-up fees were marked 'not applicable'. The dispute arose from a land suit over LR No. Kanyamkago/Kajulu/2002 (about 1.415 hectares) in which judgment was entered for the Plaintiff on 31st October 2022 with costs. The Respondent filed no response or submissions. The Court framed three issues: the principles governing interference with a taxing master's decision; whether the taxing master erred in principle; and the Applicant's entitlement to relief. Applying Kipkorir, Tito & Kiara, Arthur v Nyeri Electricity Undertaking, Joreth Ltd and Peter Muthoka, the Court held its supervisory jurisdiction is triggered only by error of principle. It found the taxing officer failed to give reasons for the instruction fee, wrongly disallowed getting-up fees despite the matter proceeding to full hearing, and disallowed other items without considering supporting affidavits of service. Declaring the reasons inadequate under Paragraph 11(2), the Court set the ruling aside as to the disputed items, remitted the Bill to a different Taxing Officer for reasoned justification within 30 days, stayed execution of the Certificate of Costs, and awarded the Applicant the costs of the Reference.

Key legal issues

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01

Principles governing interference with a Taxing Master's decision

Holding

The jurisdiction is supervisory, not appellate; interference only upon error of principle or manifest injustice, with the burden on the Applicant.

Reasoning

The Court relied on Kipkorir, Tito & Kiara, Arthur v Nyeri Electricity Undertaking and Peter Muthoka, holding that quantum is the province of the taxing officer and the High Court will be slow to intervene unless the discretion was improperly exercised. The Applicant bears the burden of demonstrating misapplication of law, irrelevant considerations, omission of relevant factors, or a wrong schedule.

p. 3
02

Whether the Taxing Master erred in principle on instruction, getting-up and other fees

Holding

Yes. The Kshs. 75,000/= instruction fee under 'other matters' lacked reasoning; getting-up fees were wrongly disallowed; other items were disallowed without reasons.

Reasoning

No analysis of the value of the subject matter (about 1.415 hectares) was undertaken despite the Joreth Ltd principle requiring consideration of nature, importance and the parties' interest. Since a defence was filed and the matter proceeded to full judgment, getting-up fees under Paragraph 2 of Schedule 6A were payable. Disallowances of drawings, copies and attendances ignored supporting affidavits of service.

p. 4
03

Entitlement to the reliefs sought

Holding

Partially granted: inadequate reasons declared, ruling set aside to the extent of disputed items, Bill remitted to a different Taxing Officer with directions, execution of the Certificate stayed.

Reasoning

Because the ruling reproduced figures without analytical justification, the Court could not interrogate the exercise of discretion. The appropriate remedy was remittal with directions to supply comprehensive reasons within 30 days, after which a substantive reference may lie if the Applicant remains aggrieved.

p. 5

Legal principles established

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  • A judge on a reference will not interfere with a Taxing Officer's discretion unless there is an error of principle or the amount awarded is manifestly excessive or inordinately low.
  • A Taxing Officer must give reasons demonstrating the factors considered in arriving at instruction fees; the absence of such reasoning is an error of principle.

Court orders

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  1. 1.Declaration that the Taxing Officer did not furnish adequate reasons as required under Paragraph 11(2) of the Advocates (Remuneration) Order
  2. 2.Remittal of the matter to a different Taxing Officer to provide full and reasoned justification for each disputed item within thirty (30) days
  3. 3.Stay of execution of the Certificate of Costs pending compliance
  4. 4.Costs of the Reference to the Applicant

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1) & (2); Paragraph 2 of Schedule 6A
  • Advocates (Remuneration) (Amendment) Order, 2014Paragraph 2 of Schedule 6A
  • Civil Procedure ActSections 1A, 1B & 3A
  • Constitution of KenyaArticles 159 & 165

Cases cited (7)

  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Joreth Ltd v Kigano & Associates
    [2002] eKLR
  • Republic v Minister for Agriculture & 2 Others ex parte Samuel Muchiri W'Njuguna & 6 Others
    [2006] eKLR
  • Kamunyori & Co. Advocates v Development Bank of Kenya Ltd
    2015
  • Arthur v Nyeri Electricity Undertaking
    [1961] EA 497
  • Peter Muthoka & Another v Ochieng & 3 Others
    [2019] eKLR
  • Kagwimi Kang'ethe & Co Advocates v Nairobi Mamba Village Limited
    [2015] KEHC 8276 (KLR)
On appeal from
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null
Jurisdiction invoked
Rule 11(1) & (2) of the Advocates (Remuneration) Order; Sections 1A, 1B & 3A of the Civil Procedure Act; Articles 159 & 165 of the Constitution

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, "Orago v Adede (Environment and Land Case 52 of 2017) [2025] KEELC 7552 (KLR)", Case Analysis (2025). ELC Case No. 52 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7552/eng@2025-10-31

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