Kibusia v Chemjor & another (Environment and Land Miscellaneous Case E010 of 2025) [2026] KEELC 916 (KLR)
The bottom line
#A Kabarnet court partly upheld a challenge to legal costs, ordering instruction fees to be re-assessed because the taxing officer gave no valid basis for valuing the land dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Master erred in applying Schedule 6/6A of the Advocates Remuneration Order to items 1–9
The Taxing Master's approach was justified because the suit was originally filed in the ELC at Eldoret before transfer to the Subordinate Court; costs were apportioned according to work done at each level
The suit was filed at the Eldoret Environment and Land Court as Case No. 43 of 2020 before transfer to Kabarnet Magistrate's Court as ELC Case No. E035 of 2020. The Taxing Master explained in her ruling that items 1 to 9 were taxed under Schedule 6 and items 10 to 38 under Schedule 7. The court saw no reason to interfere with that exercise of discretion since it reflected the work done in the respective courts.
Whether the instruction fees (item No. 1) were properly taxed 'as drawn'
The court interfered: there was no proper basis for the valuation of the subject matter used by the Taxing Master, who gave no reasons for taxing item 1 as drawn
The Taxing Master calculated the subject matter as 15.5 acres x Ksh 500,000 and taxed instruction fees at Ksh 225,000, holding item 1 'taxed as drawn'. However, perusal of the plaint, defence, counter-claim and judgment revealed no mention of the value of the subject matter. Relying on Peter Muthoka, the court held the Taxing Officer must first engage with the proper basis (pleadings, judgment or settlement) before exercising discretion, and here no reasons were given. The court therefore interfered and remitted the Bill for re-taxation.
Whether the Respondents should be allowed to amend the Bill to include mesne profits
The prayer was declined because the trial court never awarded mesne profits and this reference is not an appeal against the judgment
The 1st Respondent sought leave to file an amended Bill of Costs claiming an oversight in omitting mesne profits. The court perused the judgment of the trial court delivered on 9th December 2024 by Hon Caroline Rose Tabuche Ateya and found that only a permanent injunction in the counter-claim was awarded; mesne profits though pleaded were not awarded. Since a reference on taxation cannot revisit the judgment, the remedy was unavailable.
Legal principles established
#- A court will not interfere with the Taxing Master's discretion unless it was not exercised judiciously - e.g. where extraneous matters were considered, wrong principles applied, or the award is manifestly excessive or deficient
- The value of the subject matter for instruction fees is determined from the pleadings, judgment or settlement; the Taxing Officer's discretion only arises where the value is not discernible from those sources
Court orders
#- 1.The Bill is remitted to the Deputy Registrar/Taxing Master for re-taxing
- 2.The prayer to amend and include an item on mesne profits is declined
- 3.Each party shall meet their own costs
- Jurisdiction invoked
- Rule 11 of the Advocates (Remuneration) Order and Order 21 Rule 9D of the Civil Procedure Rules (reference against a Taxing Master's assessment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibusia v Chemjor & another (Environment and Land Miscellaneous Case E010 of 2025) [2026] KEELC 916 (KLR)", Case Analysis (2026). ELC Case No. 035 of 2020 (Reference dated 7th October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/916/eng@2026-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.