Kariankei v Nkoitiko (Environment and Land Miscellaneous Case E001 of 2025) [2025] KEELC 7938 (KLR)
The bottom line
#Kenya's Environment and Land Court at Narok cut a taxed legal costs award, striking out getting-up fees and VAT while keeping the main instruction fees intact.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 50 Rule 4 of the Civil Procedure Rules applies to computation of time for filing a taxation reference
It does not; the time frame is governed solely by Paragraph 11 of the Advocates (Remuneration) Order
The court held that Order 50 deals with summary proceedings and is not the correct rule for objections to taxation. The relevant law is Paragraph 11 of the Advocates (Remuneration) Order, which requires notice of objection within 14 days. However, since para 11 uses the word 'may', failure to give the notice is discretionary and does not render the reference defective, and the taxing master's detailed ruling could substitute for reasons. The 10-day delay over the Christmas break was not inordinate under Article 159(2)(d) of the Constitution.
Whether the Respondent's advocate was unqualified for want of a practicing certificate
The allegation was dismissed for want of confirmation from the LSK
The Applicant relied on a printout from the LSK Advocates Portal, but the Respondent's advocates did not respond to the allegation. The court found the printout insufficient because it was not produced or confirmed by the LSK and it was unclear whether it came from an updated portal, so the allegation could not stand.
Whether the instruction fees of Kshs. 1,000,000/= were properly assessed given the pleaded purchase price of Kshs. 850,000/=
Yes; the value of the subject matter was unascertainable at the time of taxation, and the taxing master properly exercised discretion
Relying on Peter Muthoka v Ochieng, the court noted that subject matter value depends on the stage of taxation. Although the purchase price was Kshs. 850,000/= for 85 acres in 2004, by the time of taxation in 2022/2024 the value had appreciated and was unascertainable, entitling the taxing master to award reasonable instruction fees of Kshs. 1,000,000/= against a claim of Kshs. 3,000,000/=.
Whether the award of getting up fees of Kshs. 333,333/33 was proper
No; it exceeded the pleaded amount of Kshs. 300,000/= and no certification for getting up fees was made
The court found the bill pleaded getting up fees at Kshs. 300,000/= but the taxing master awarded Kshs. 333,333/33 without reasons for exceeding the pleaded amount, contrary to the rule that parties are bound by their pleadings. Further, under Schedule 6(3), getting up fees on an appeal require certification by the court, which was absent.
Whether VAT of Kshs. 534,245.60 was properly awarded on a party-and-party bill
No; VAT is not chargeable on party-and-party costs
Following Pyramid Motors v Langata Gardens, the court held that party-and-party costs compensate the winning party rather than payment for a taxable supply by the losing party; VAT applies only to advocate-client bills or where evidence shows VAT was actually paid. The award was therefore an error of law and was struck out.
Legal principles established
#- A court will not interfere with a taxing master's decision unless it is based on an error of principle or the fee awarded is manifestly excessive as to justify an inference of error of principle
- The value of the subject matter for instruction fees is determined at the stage at which fees are taxed; where taxation is post-judgment, the pleadings do not govern
- VAT is not chargeable on a party-and-party bill of costs
- Getting up fees for an appeal are payable only where the court certifies the appeal as proper for consideration of getting up fees
- A taxing master should not award more than the amount pleaded in the bill of costs
Court orders
#- 1.The Preliminary Objection dated 24th January 2025 is dismissed (with no orders as to costs)
- 2.The allegation that the Respondent's advocate lacked a valid practicing certificate is dismissed
- 3.The award of Kshs. 333,333/33 as Getting up Fees is set aside and struck out
- 4.The award of Kshs. 534,245.60 as 16% VAT is struck out from the taxed amount
- 5.The instruction fees of Kshs. 1,000,000/= and the other items remain as assessed by the taxing master
- 6.The Certificate of Costs, if already issued, to be amended accordingly to reflect the reduced amounts
- 7.No stay of execution of the taxing master's decision of 18th December 2024 is granted
- 8.Each party to bear its own costs of the application
- Jurisdiction invoked
- Rule 11(2) of the Advocates (Remuneration) Order 1962 - reference from a Taxing Master's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariankei v Nkoitiko (Environment and Land Miscellaneous Case E001 of 2025) [2025] KEELC 7938 (KLR)", Case Analysis (2025). Chamber Summons Application dated 10th January 2025 (arising from Narok ELCA E009 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7938/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.