Lupe Contractors Co. Limited v Kariuki (Environment and Land Appeal 31 of 2018) [2025] KEELC 8224 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata of the Reference
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.
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.
Getting up fees
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.
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.
Costs on an application compromised by consent
Awarding costs of an application compromised by consent does not vary the consent; costs remain within the court's discretion.
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.
Costs to a party who lost an application
The Taxing Officer erred in principle in awarding costs to the Respondent on his application dated 1.3.2019 which was dismissed.
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.
Stay of execution of warrants of attachment
Stay of execution pending re-taxation is granted as the Applicant would suffer substantial loss if warrants were executed before the errors are corrected.
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
#- 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
#- 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.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.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.Each party shall bear their own costs.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.