Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedChamber Summons Application/Reference dated 22nd August, 2025 arising from Kabarnet ELC Petition No. E005 of 2024· [2025] KEELC 8480 (KLR)

Kibet & 5 others v Cheboi & 9 others (Constitutional Petition E005 of 2024) [2025] KEELC 8480 (KLR)

Environment and Land Court
3 December 2025
LWL. N. Waithaka
3,067 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court threw out a Kshs 1 million legal fee award as excessive, ruling that rejected pleadings and preliminary dismissals cannot justify tenfold fee increases.

What this practically means

#

Executive summary

#
This ruling determines a reference under Rule 11 of the Advocates Remuneration Order filed by the applicants, who were petitioners in Kabarnet ELC Petition No. E005 of 2024, challenging the taxing master's ruling of 30th July 2025 in which the 1st, 4th and 6th respondents' party and party bill of costs dated 24th April 2025 was taxed at Kshs. 1,106,700/-, including Kshs. 1,000,000/- as instruction fees. The applicants contended the petition was effectively undefended, that the taxing master's award was manifestly excessive, and that only the 6th respondent was properly on record. The respondents objected that the reference was premature, having been filed before the taxing master furnished reasons, and defended the award citing the doctrine of constitutional avoidance and the complexity of the matter. Waithaka J found the petition, though opposed by a preliminary objection, was disposed of preliminarily and raised no complex or novel questions of law. The court held that increasing the basic instruction fees tenfold from the minimum of Kshs. 100,000/- under Schedule 6 paragraph (j) was an excessive and improper exercise of discretion, relying on Biko v DPP, William Kabogo Gitau v Waititu and Mark Kubai Kariuki. The court further held that pleadings and submissions by the 1st and 4th respondents filed out of time and rejected could not ground costs. The taxing master's ruling was set aside and the bill ordered re-taxed by another taxing master, with costs of the reference awarded to the applicants.

Key legal issues

#
01

Quantum of instruction fees for a defended constitutional petition determined preliminarily

Holding

The award of Kshs. 1,000,000/- as instruction fees, ten times the minimum of Kshs. 100,000/- under Schedule 6 paragraph (j), was excessive and an error in principle; the ruling was set aside

Reasoning

The petition was disposed of on a preliminary objection without a hearing on the merits, raised no complex, difficult or novel questions of law, and consumed little time. The trend of awards in comparable cases (Biko v DPP; William Kabogo Gitau v Ferdinand Waititu; Mark Kubai Kariuki) shows that increments of ten times or more are unfair and unjust. The taxing master therefore failed to exercise her discretion properly and judiciously.

p. 5
02

Whether parties whose pleadings were filed out of time and rejected can be awarded costs

Holding

No; the 1st and 4th respondents' pleadings and the respondents' submissions, having been rejected as out of time, cannot form a basis for costs

Reasoning

At the time the court gave directions only the 6th respondent had filed a response; no directions were given on the preliminary objection by the 1st and 4th respondents. Documents rejected for lateness cannot ground an award of costs, a matter to be considered on re-taxation.

p. 7

Legal principles established

#
  • Where a constitutional petition is struck out preliminarily and raises no complex or novel questions of law, a ten-fold increment in instruction fees above the scale amount is excessive and an error in principle
  • Pleadings and submissions filed out of time and rejected by the court cannot form a basis for an award of costs
  • The High Court may interfere with a taxing officer's discretion on taxation where there is good reason, such as an error in principle or an excessive award

Court orders

#
  1. 1.Setting aside the ruling of the taxing master delivered on 30th July, 2025
  2. 2.Ordering that the respondents' bill of costs be re-taxed by another taxing master of the court taking into account the enumerated circumstances (preliminary determination, non-participation/rejected pleadings, absence of complex or novel issues, limited time expended)
  3. 3.Awarding the costs of the application to the applicants
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order; Sections 1A, 1B, 3A and 27 of the Civil Procedure Act; Article 50 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kibet & 5 others v Cheboi & 9 others (Constitutional Petition E005 of 2024) [2025] KEELC 8480 (KLR)", Case Analysis (2025). Chamber Summons Application/Reference dated 22nd August, 2025 arising from Kabarnet ELC Petition No. E005 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8480/eng@2025-12-03

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