Mbatia & another v National Environmental Management Authority (NEMA) & 102 others (Environment and Land Appeal 34 of 2019) [2025] KEELC 7638 (KLR)
The bottom line
#Kenya's Environment and Land Court raised a lawyer's fee award from Kshs. 25,200 to Kshs. 1 million, ruling that taxing the bare minimum in a complex case is an error of principle.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether sufficient grounds have been established to warrant this Court's interference with the decision of the taxing master delivered on 11th February 2025 in respect of the 2nd Respondent's Party and Party Bill of Costs dated 19th January 2024
Key legal issues
#Whether reasons for the taxation ruling were sufficiently provided
The taxing master incorporated her reasons into the ruling itself, amounting at least to substantial compliance with Paragraph 11(2) of the Advocates (Remuneration) Order
Relying on Kipkorir Titoo & Kiara Advocates and Evans Thiga Gaturu, the Court held that where reasons appear on the face of the taxation ruling, it is unnecessary to demand additional reasons. The ruling showed the formula applied, the treatment of individual items, and the basis for disallowances, satisfying the requirement.
Whether the value of the subject matter (land allegedly valued at over Kshs. 2 billion) was ascertainable for purposes of instruction fees
No - the proceedings concerned the legality of the EIA licensing process, not a proprietary claim over the land, so the subject matter was not amenable to monetary valuation
The Court found the gravamen of the dispute was whether due process was followed in granting the EIA licence, not the value of the land. The pleadings disclosed no quantifiable value, so the minimum prescribed fee under Schedule Six paragraph on Appeals applied. The Taxing Master was correct to so find.
Whether the award of the minimum instruction fee of Kshs. 25,200 was an error of principle
Yes - the award of the bare minimum did not fairly reimburse the 2nd Respondent given the matter's complexity, four-year duration and multiple interlocutory applications
Although the Taxing Master was entitled to apply the minimum fee under Schedule Six, the Court held that she failed to consider the duration of pendency, complexity, and effort expended. The award of the bare minimum thus amounted to an error in principle, justifying the Court's exercise of discretion to reassess the instruction fee itself at Kshs. 1,000,000.
Whether disallowance of Items 70, 72 and 75 (commissioning of affidavits) was warranted
No - the affidavits are on file bearing clear commissioning endorsements, so the disallowance was unwarranted and the items were allowed
Upon perusal of the record the Court observed that the relevant affidavits are on file and bear clear endorsement of commissioning; it would have been prudent for the Taxing Master to allow those modest disbursements. The Court therefore allowed them as reasonable disbursements.
Legal principles established
#- A Judge will not interfere with a taxing officer's discretion unless it is shown that the officer acted on a wrong principle or the award resulted in manifest injustice
- Instruction fees are to be determined from the value of the subject matter ascertained from the pleadings, judgment or settlement; where none is discernible, the taxing officer's discretion to assess a reasonable fee applies
- Awarding the bare statutory minimum instruction fee in a complex, long-pending matter, without considering duration, complexity and effort, is an error of principle warranting interference
- Instruction fees are charged once upon receipt of instructions and encompass all work necessary for the conduct of the matter, including interlocutory motions, unless separate proceedings requiring fresh instructions are shown
Court orders
#- 1.The taxation of Item 1 (Instruction Fees) in the ruling of the Taxing Master dated 11th February 2025 is set aside and substituted with an award of Kshs. 1,000,000
- 2.The disallowance of Items 70, 72 and 75, relating to commissioning of affidavits, is set aside, and the said items are allowed as reasonable disbursements
- 3.Save for the foregoing amendments, all other items taxed by the Taxing Master shall stand as taxed
- 4.Each party shall bear its own costs of this Reference
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Paragraph 11 of the Advocates (Remuneration) Order - reference to a Judge from taxation by the Taxing Officer, invoking Sections 1A and 3A of the Civil Procedure Act and Regulation 11 of the Advocates Remuneration Order
Relief refused
#Setting aside the entire ruling of 11th February 2025 and referring the Bill back for re-assessment by a different Deputy Registrar
The Court found errors only in the instruction fee and the disallowed commissioning items and chose to reassess itself rather than remit
Interference with taxation of attendances (Items 45 to 68)
No contemporaneous record or supporting note proving attendances exceeded thirty minutes was provided
Claim that Items 10, 14, 21 and 26 warranted separate instruction fees
Instruction fees are charged once and encompass all work necessary for the conduct of the matter, including interlocutory motions, absent separate proceedings requiring fresh instructions
Costs
Each party shall bear its own costs of this Reference.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The taxation of Item 1 (Instruction Fees) in the ruling of the Taxing Master dated 11th February 2025 is hereby set aside and substituted with an award of Kshs. 1000,000.
The disallowance of Items 70, 72 and 75, relating to commissioning of affidavits, is hereby set aside, and the said items are allowed as reasonable disbursements.
Each party shall bear its own costs of this Reference.
the subject of the proceedings was not a proprietary claim amenable to valuation in monetary terms, but an environmental compliance dispute governed by statutory standards and administrative procedures.
an award of the minimum instruction fee does not achieve fair reimbursement for professional work done and thus constitutes an error of principle warranting this Court's interference.
On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.
Issues in the judgment
#Inconsistent figure for instruction fee awarded in the body of the judgment versus the final orders (Kshs. 1,000,000 stated as 'taxed at Kshs. 1,000,000' and as 'Kshs. 1000,000')
Counsel identified as 'Mr. Betty Mbugua' in the appearance list while Betty Mbugua is elsewhere described as the deponent of the supporting affidavit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbatia & another v National Environmental Management Authority (NEMA) & 102 others (Environment and Land Appeal 34 of 2019) [2025] KEELC 7638 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC appeal reference from NET Appeal No. 177 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7638/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.