Cheruiyot v Ngeno & 5 others (Environment and Land Miscellaneous Case E024 of 2025) [2026] KEELC 2320 (KLR)
The bottom line
#The court mostly upheld a taxing master's fee award in a Kenyan land case, confirming separate instruction fees per party but sending one fee item back for review.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing master erred in principle in ascertaining instruction fees from the minimum pecuniary jurisdiction of the ELC (Kshs.20,000,000) rather than from the pleadings
No error of principle; the value of the subject matter was not ascertainable from the pleadings and there was no judgment or settlement, so reliance on the minimum value under Schedule VI(i)(b) was proper
Applying the Joreth Ltd v Kigano Associates principles, the value of the subject matter for taxation ought to be determined from the pleadings, judgment or settlement. Where the same is not ascertainable, the taxing officer may use his discretion to assess instruction fees as considered just. Here the bill of costs disclosed no ascertainable value, no judgment and no settlement, so the taxing officer rightly adopted the minimum subject value of Kshs.20,000,000 being the ELC's minimum pecuniary jurisdiction.
Whether instruction fees should have been multiplied for each of the Respondents who retained one counsel
No error of principle; an advocate is entitled to a separate fee for every party represented notwithstanding a single suit
The court agreed with the Respondents' advocates, following Nguraman Limited v Kenya Civil Aviation and Kithi & Co. Advocates v Greenwood Limited as quoted in Desai, Sarvia and Pallan Advocates v Tausi Assurance Company Limited, that an advocate is entitled to a separate fee in respect of every party represented even in a single suit. The advocate here filed a single bill of costs, and the taxing master applied the ascertained instruction fees to each party; that was not an error of principle.
Whether getting up fees were payable where the suit against the Respondents was discontinued by amendment and never certified ready for hearing
Remitted to the taxing master to confirm whether the matter was ready for hearing and to tax getting up fees accordingly
Authorities (Republic v KEMSA Ex parte Nairobi Enterprises; Republic v Egerton University Exparte Patel Maulik Prausun) show getting up fees need not await full hearing; it suffices that the matter is ready for and confirmed for hearing, and denial of liability triggers payable fees. The reference, being commenced by miscellaneous application, could not verify whether the underlying matter was indeed ready for trial, so the court remitted that single item for fresh consideration.
Legal principles established
#- Where the value of the subject matter is not ascertainable from the pleadings, judgment or settlement, the taxing officer may in his discretion use the minimum value under the applicable schedule of the Advocates Remuneration Order, such as the minimum pecuniary jurisdiction of the superior court
- An advocate is entitled to a separate instruction fee in respect of every party that he represents in a suit notwithstanding that he acts for them only in a single suit or proceeding
- Getting up fees are payable where liability is denied and the matter is ready for and confirmed for hearing; the matter need not proceed to full hearing
Court orders
#- 1.The reference does not succeed in respect of the assessment of instruction fees and the multiplication of instruction fees to each party; the court does not interfere with the taxing master's decision on those grounds
- 2.The Bill of costs is remitted to the taxing master only in respect of getting up fees, for the taxing master to confirm whether or not the matter was ready for hearing and to tax the same in that respect
- 3.Each party shall bear its own costs in respect of the reference
- On appeal from
- Taxing Master (Environment and Land Court, Kilgoris)
- Kilgoris ELC No. E006 of 2023
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v Ngeno & 5 others (Environment and Land Miscellaneous Case E024 of 2025) [2026] KEELC 2320 (KLR)", Case Analysis (2026). Miscellaneous Application (Reference against decision of the taxing master dated 6th February 2025 in Kilgoris ELC No. E006 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2320/eng@2026-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.