Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Miscellaneous Application Nos. 26, 27, 28 & 29 of 2018 (Consolidated); Reference against Taxing Officer's ruling of 25th March 2024· [2025] KEELC 7933 (KLR)

Kanai t/a A. Thuo Kanai Advocates v Talwar & another (Miscellaneous Application 26 of 2018) [2025] KEELC 7933 (KLR)

Environment and Land Court
13 November 2025
4,618 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a reference by an advocate under Paragraph 11 of the Advocates (Remuneration) Order and Section 44 of the Advocates Act against the ruling of Deputy Registrar Hon. V. Kiplangat delivered on 25th March 2024 on the advocate's advocate-client Bills of Costs dated 18th February 2018, filed in consolidated ELC Miscellaneous Application Nos. 26, 27, 28 and 29 of 2018. The Bills concerned non-contentious conveyancing involving four properties each valued at Kshs. 25,000,000, registered in December 2011. The advocate had previously succeeded in a reference before Mwangi J., who on 6th July 2023 set aside an earlier taxation and directed a fresh taxation before a different taxing officer, with guidance on applying Schedule V as elected under Paragraph 22, the Schedule I minimum scale, Paragraph 29 dual fees, and incorporation fees. Kullow J. found that the second taxing officer disregarded those directions: rather than conducting a de novo taxation, he endorsed the set-aside figures with nominal uplifts, failed to identify the basic instruction fee, ignored Paragraph 29 and the incorporation component, retained sub-minimum time-based charges contrary to Schedule V Part II paragraph 4, and reduced service fees without considering distance and time. These were held to be errors of principle. The court allowed the reference, set aside the taxation of 25th March 2024 in its entirety, remitted the four Bills of Costs for fresh taxation before a different taxing officer, awarded the Applicant the costs of the reference, and ordered each party to bear its own costs in the subsequent taxation proceedings.

Key legal issues

#
01

Whether the court should interfere with the Taxing Master's decision of 25th March 2024

Holding

Yes - the court's role is supervisory, and errors of principle were demonstrated, warranting interference.

Reasoning

The court reiterated that it does not sit on appeal over a Taxing Master's discretion; interference is limited to error of principle or manifestly excessive/low fees amounting to injustice. The Applicant demonstrated that the taxing officer failed to conduct the directed de novo taxation and disregarded binding directions of Mwangi J., satisfying the threshold for interference.

p. 7
02

Whether the Taxing Officer erred in principle in taxing items 1, 3, 5, 6, 8, 18 and 21

Holding

Yes - multiple errors of principle were found in respect of all impugned items.

Reasoning

The taxing officer failed to apply the Schedule I minimum instruction fee of Kshs. 325,000, ignored Paragraph 29 dual fees and incorporation fees, retained sub-minimum time charges contrary to Schedule V Part II paragraph 4, and reduced service fees without considering distance and time. These cumulative missteps rendered the taxation unsustainable in law.

p. 8
03

What remedy and costs should follow

Holding

The taxation is set aside in its entirety and the four Bills of Costs remitted for fresh taxation before a different Taxing Officer; the Applicant gets the costs of the reference.

Reasoning

Following Mwangi J.'s earlier ruling, where a taxing officer errs in principle the proper course is remittal for fresh taxation. Because the decision cannot be salvaged by variation, it was wholly set aside. Costs follow the event under Section 27 of the Civil Procedure Act, but each party bears own costs in the ensuing taxation to ensure proportionality.

p. 8

Legal principles established

#
  • A judge on a reference will not interfere with a Taxing Officer's discretion unless the taxing officer erred in principle in assessing costs.
  • A taxing officer must first set out the basic instruction fee before considering whether to increase or reduce it, and must give reasons.
  • An advocate who elects to charge under Schedule V may not charge less than the scale fee under the appropriate schedule, and is entitled to dual fees when acting for both vendor and purchaser, each reduced by one-sixth.
  • Where a taxation is set aside and a de novo taxation directed, a taxing officer who merely endorses the set-aside figures commits an error of principle.

Court orders

#
  1. 1.The Taxing Officer's ruling dated 25th March 2024 is set aside in its entirety.
  2. 2.The Bills of Costs dated 18th February 2018 in ELC Miscellaneous Application Nos. 26, 27, 28 and 29 of 2018 are remitted for taxation afresh before a different Taxing Officer.
  3. 3.The Applicant shall have the costs of this Reference.
  4. 4.Each party shall bear its own costs in the subsequent taxation proceedings.

Authorities

#

Legislation

  • Advocates (Remuneration) Order, 2009Paragraph 11(1) and (2)
  • Advocates ActSection 44
  • Advocates (Remuneration) Order, 2009Paragraph 22 and 22(2)
  • Advocates (Remuneration) Order, 2009Paragraph 29
  • Advocates (Remuneration) Order, 2009Schedule V Part II paragraph 4
  • Advocates (Remuneration) Order, 2009Schedule VI paragraph 9
  • Advocates (Remuneration) Order, 2009Schedule I; Schedule III paragraph 1; Schedule V Part II
  • Civil Procedure ActSection 27

Cases cited (9)

  • Muthoga Gaturu & Company Advocates -Vs- Corporate Insurance Company Limited
    Nairobi HC Misc. Application No. 433 of 2000
  • Mwangi Kengara & Company Advocates v Invesco Assurance Company Limited
    [2021] eKLR
  • Kagwimi Kang'ethe & Company Advocates -Vs- A.A. Kawir Transporters Limited
    [2014] eKLR
  • First American Bank of Kenya Limited -Vs- Gulab P. Shah & 2 Others
    [2002] 1 EA 64
  • Kipkorir, Tito & Kiara Advocates -Vs- Deposit Protection Fund Board
    [2005] eKLR
  • Arthur -Vs- Nyeri Electricity Undertaking
    [1961] EA 497
  • Peter Muthoka & Another -Vs- Ochieng & 3 Others
    [2019] eKLR
  • Republic -Vs- Competition Authority of Kenya Ex parte Ukwala Supermarket Ltd & Another
    [2017] eKLR
  • Republic -Vs- Minister for Agriculture & 2 Others ex parte Samuel Muchiri W'Njuguna
    [2006] eKLR
Jurisdiction invoked
Paragraph 11(1) and (2) of the Advocates (Remuneration) Order and Section 44 of the Advocates Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kanai t/a A. Thuo Kanai Advocates v Talwar & another (Miscellaneous Application 26 of 2018) [2025] KEELC 7933 (KLR)", Case Analysis (2025). ELC Miscellaneous Application Nos. 26, 27, 28 & 29 of 2018 (Consolidated); Reference against Taxing Officer's ruling of 25th March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7933/eng@2025-11-13

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