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ELCPartially AllowedELCA No. 31 of 2018 (Reference)· [2025] KEELC 8224 (KLR)

Lupe Contractors Co. Limited v Kariuki (Environment and Land Appeal 31 of 2018) [2025] KEELC 8224 (KLR)

High Court of Kenya
26 November 2025
2,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court threw out a flawed taxation of legal costs and stopped property attachment until the bill is recalculated by a different officer.

What this practically means

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Executive summary

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This ruling of the High Court at Thika (J. M. Onyango, J) determines two applications by the Appellant in a reference under Rule 11(2) of the Advocates Remuneration Order: a Chamber Summons dated 25.10.24 seeking to set aside the Taxing Officer's ruling of 24.5.23 on the parties' Party and Party Bills of Costs in ELCA No. 31 of 2018, and an application dated 19.12.24 seeking stay of execution of warrants of attachment dated 30.10.24. The Respondent filed a Notice of Preliminary Objection arguing the reference was res judicata following a ruling of 16.9.24 striking out an earlier reference. The court rejected the objection, holding that a matter not heard on merit is not res judicata, and that the reference was filed within the timelines set when time was enlarged on 22.10.24. On the merits, the court found errors of principle: a getting up fee was awarded without the certification required by Schedule 6 paragraph 3; costs were awarded on an application that the Respondent lost; although a consent compromising an application did not preclude a costs award, the award of costs to the losing party was erroneous. The court set aside the taxation ruling, referred both bills for re-taxation by an officer other than Hon. M. Kurumbu P.M., granted a stay of execution of the warrants of attachment pending re-taxation, and ordered each party to bear their own costs. The Appellant's contention that instruction fees of Kshs. 120,000 were excessive was left for the re-taxing officer, who must consider the pleadings and Record of Appeal.

Key legal issues

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01

Res judicata of the Reference

Holding

The preliminary objection fails because the reference was never heard on merit; the prior order merely struck it out for being time-barred, and time was subsequently enlarged.

Reasoning

The court noted that after the reference was struck out on 16.9.24 for being filed outside the 14-day limitation period, the Appellant successfully applied on 26.9.24 for enlargement of time, allowed on 22.10.24. The Notice of Objection dated 25.10.24 was filed on 28.10.24 and the reference on 4.11.24, both within the extended timelines, so the reference was properly on record and not res judicata.

p. 4
02

Getting up fees

Holding

The Taxing Officer erred in awarding a getting up fee where there was no certificate from the court that the appeal was proper for one.

Reasoning

Schedule 6 paragraph 3 of the Advocates Remuneration Order permits a getting up fee only where the court, at the conclusion of the hearing, certifies that in view of the extent or difficulty of the work required, the case is proper for a getting up fee. No such certification existed, so the award was an error of principle justifying interference.

p. 4
03

Costs on an application compromised by consent

Holding

Awarding costs of an application compromised by consent does not vary the consent; costs remain within the court's discretion.

Reasoning

The Appellant argued that taxing costs on an application compromised by consent re-wrote the parties' agreement contrary to privity, relying on Flora N. Wasike v Destimo Wamboko. The court rejected this, holding that costs are discretionary and a consent on the substantive application does not preclude an award of costs already incurred.

p. 4
04

Costs to a party who lost an application

Holding

The Taxing Officer erred in principle in awarding costs to the Respondent on his application dated 1.3.2019 which was dismissed.

Reasoning

Following Alice Muthoni Wahome v James Maina Kamau, costs follow the event on interlocutory applications; where the suit involves separate issues, the costs of a particular issue go to the party who succeeds on it. Awarding costs to the losing party on the dismissed application was an error of principle warranting setting aside of the taxation.

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Stay of execution of warrants of attachment

Holding

Stay of execution pending re-taxation is granted as the Applicant would suffer substantial loss if warrants were executed before the errors are corrected.

Reasoning

The court found that execution of the warrants of attachment dated 30.10.24 before re-taxation would render the reference nugatory and cause substantial loss; the ends of justice required a stay pending the re-taxation of both party and party bills of costs.

Legal principles established

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  • A matter that has not been heard on merit is not res judicata.
  • A getting up fee on appeal requires certification by the court at the conclusion of the hearing that the case is a proper one for such a fee.
  • A consent order does not preclude the court from awarding costs incurred by the parties, as costs are within the court's discretion.
  • A Taxing Officer errs in principle by awarding costs to a party who lost the application.

Court orders

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  1. 1.The Ruling of the Taxing Officer issued on 24.5.23 in ELCA 31 of 2018 in reference to the Appellant's and Respondent's Party and Party Bills of Costs dated 30th November 2022 and 24th June 2022 is set aside.
  2. 2.The said Bills of Costs are referred for re-taxation by an officer other than Hon. M. Kurumbu P.M., with the Taxing Officer to take into account the areas highlighted in the ruling.
  3. 3.Stay of execution of the warrants of attachment issued herein pending re-taxation of the Bills of Costs dated 24th June 2022 and 30th November 2022.
  4. 4.Each party shall bear their own costs.

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(2); Schedule 6 Paragraph 1(b); Schedule 6 paragraph 3; paragraph 11
  • Civil Procedure ActSections 3 and 3A

Cases cited (4)

  • Flora N. Wasike v Destimo Wamboko
    (1988) eKLR
  • Alice Muthoni Wahome v James Maina Kamau & 2 Others
    (2017) eKLR
  • Jiwan Singh Rugnath
    (1945) 12 EACA 21
  • DGM v EWG
    Nyahururu Civil Case No. E002 of 2021
On appeal from
Taxing Officer (Principal Magistrate's Court)
ELCA No. 31 of 2018
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order; Sections 3 and 3A of the Civil Procedure Act

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, "Lupe Contractors Co. Limited v Kariuki (Environment and Land Appeal 31 of 2018) [2025] KEELC 8224 (KLR)", Case Analysis (2025). ELCA No. 31 of 2018 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8224/eng@2025-11-26

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