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ELCPartially AllowedNot stated in judgment (reference arising from judicial review proceedings; Bill of Costs dated 31st August 2023)· [2026] KEELC 2484 (KLR)

Erdermann Property Limited v London Distillers (K) Limited (Environment and Land Judicial Review Case 41 of 2019) [2026] KEELC 2484 (KLR)

High Court of Kenya
29 April 2026
NMN.A. Matheka
3,176 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 KSh 29 million legal fees, ruling that judicial review costs cannot be calculated from claimed financial losses.

What this practically means

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Executive summary

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This was a reference under Rule 11(2) of the Advocates (Remuneration) Order 2014 by the ex parte applicant in judicial review proceedings, challenging the Taxing Officer's ruling of 26th November 2024 taxing the Respondent's Bill of Costs dated 31st August 2023 at KShs. 29,187,390/=, of which KShs. 29,000,000/= was instruction fees. The applicant argued the fees were grossly disproportionate - over 644 times the basic allowable fee - and that the Taxing Master erred in principle by pegging the instruction fee to pleaded financial losses of about KShs. 2 billion, in a judicial review matter that raised a solitary public-law issue (whether the National Environment Tribunal could apply a suspended provision of section 129(4) of EMCA) and whose leave was withdrawn within a month, with no substantive motion heard. The court set out the settled principles from First American Bank v Shah, Joreth Ltd v Kigano, Kipkorir Titoo & Kiara and Muchiri W'Njuguna, namely that interference lies only on error of principle or manifestly excessive awards. The judge disagreed with the Taxing Master's finding of complexity, held that judicial review costs should be analysed as such, that no substantive motion was dealt with, and that the fees were excessively high, disclosing an error of principle. The court set aside the ruling of 26th November 2024, remitted the bill for taxation by a different Taxing Master, and made no order as to costs.

Key legal issues

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01

Whether the award of instruction fees of KShs. 29,000,000/= for a judicial review application disclosed an error of principle

Holding

Yes - the Taxing Master erred in principle by pegging instruction fees on the pleaded financial losses in a judicial review matter where no substantive motion was heard and the value of the subject matter was not properly the measure of fees

Reasoning

The court noted that judicial review is a public law remedy and that the Taxing Master based her calculation on the ex parte applicant's pleaded losses of up to KShs. 2 billion despite the matter being a routine judicial review application whose leave was withdrawn within a month. The court found the fees excessively high and an error in principle, warranting remittal to a different Taxing Master.

p. 6
02

The applicable principles for interference with a Taxing Master's decision

Holding

The court restates that interference is warranted only on an error of principle, capricious exercise of discretion, or fees manifestly excessive as to amount to an injustice

Reasoning

Relying on First American Bank of Kenya v Shah, Joreth Ltd v Kigano, Kipkorir Titoo & Kiara Advocates and Muchiri W'Njuguna, the court reaffirmed that taxation is a matter of opinion based on experience and the court interferes only where the award is so high or so low as to amount to an injustice or where an error of principle is shown.

p. 4

Legal principles established

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  • A court can only interfere with a Taxing Master's decision where an error of principle is established or the fee awarded is manifestly excessive as to justify an inference of error of principle
  • On a reference from taxation, a judge will not normally interfere unless the taxing officer erred in principle

Court orders

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  1. 1.That the Ruling of the Taxing Officer delivered on 26th November 2024 be set aside/vacated
  2. 2.That the bill of costs be remitted back to be taxed by a different Taxing Master
  3. 3.That there will be no order as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 1B, 3A & 63(c)
  • Advocates ActSection 51
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Advocates (Remuneration) Order, 2014Rule 11(2); Schedule 6 (1)(j)(i) and Schedule 6(1)(b)
  • Environment Management and Coordination Act, 1999Section 129(4)

Cases cited (8)

  • First American Bank of Kenya vs Shah and Others
    (2002) EA 64
  • Joreth Ltd vs Kigano and Associates
    (2002) 1 EA 92
  • Thomas James Artur v Nyeri Electricity Undertaking
    [1969] EA 64
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR
  • Republic vs Minister for Agriculture & 2 Others ex parte Samuel Muchiri W'Njuguna
    (2006) eKLR
  • President of the Republic of South Africa and Others v Gauteng Lions Rugby Union and Another
  • Republic v Commissioner of Domestic Taxes Ex Parte Ukwala Supermarket Limited & 2 Others
    (2018) eKLR
  • Okiya Omtata & anor v National Assembly of Kenya and others
    High Court Constitutional Petition No. 251 of 2017
Jurisdiction invoked
Section 1A, 1B, 3A & 63(c) of the Civil Procedure Act, Section 51 of the Advocates Act, Order 22 Rule 22 of the Civil Procedure Rules 2010, and Rule 11(2) of the Advocates (Remuneration) Order 2014

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, "Erdermann Property Limited v London Distillers (K) Limited (Environment and Land Judicial Review Case 41 of 2019) [2026] KEELC 2484 (KLR)", Case Analysis (2026). Not stated in judgment (reference arising from judicial review proceedings; Bill of Costs dated 31st August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2484/eng@2026-04-29

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