Tuguta Enterprises Ltd v Kenya Agricultural Research Institute & 3 others (Environment and Land Case 454 of 2009) [2026] KEELC 4837 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a counterclaim earns separate legal fees, and a taxing officer must base fees on the case's actual value.
What this practically means
#Executive summary
#Key legal issues
#Whether the counterclaim should have attracted separate instruction fees
The Taxing Officer erred in principle in failing to award instruction fees for the counterclaim as a separate item
A counterclaim is a separate and independent suit for all purposes including costs. Where a defendant is awarded costs of both the main suit and a successful counterclaim, separate instruction fees are payable for each. This principle, recognised in Kenya Commercial Bank Ltd v James Karanja and applied in later authorities, means denying a fee for the counterclaim is an error of principle. The same property being involved does not require identical fees.
Whether the Taxing Officer erred in assessing instruction fees at Kshs 900,000 without ascertaining the value of the subject matter
The Taxing Officer failed to identify the basis for assessing instruction fees and thus fell into error
Where the value of the subject matter is ascertainable from the pleadings, judgment or settlement, the taxing officer must use that value as the mandatory starting point. Discretion applies only where the value is not discernible. Here the pleadings and judgment permitted ascertainment of value, yet the Taxing Officer neither engaged with the mandated starting point nor gave reasons for the award.
Legal principles established
#- A counterclaim is treated as a separate and independent suit for all purposes including costs, attracting its own instruction fee
- The taxing officer must first determine the basic instruction fee from the pleadings, judgment or settlement before exercising discretion; failure to identify the basis of assessment is an error of principle
Court orders
#- 1.The ruling of the taxing officer delivered on 29th August 2024 in so far as it relates to the reasoning and determination pertaining to Items I & I(a) of the 2nd Defendant/Applicant's Party and Party Bill of Costs dated 8th March 2024 is set aside
- 2.The matter is referred back for re-taxation of Items I & I(a) of the Bill of Costs before a different taxing officer with the directions contained in the ruling
- 3.Costs of the application to be borne by the Plaintiff/Respondent
- Jurisdiction invoked
- Paragraph 11(1) & (2) of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Trust Land Developers Limited v Kenya Agricultural Research Institute & 3 others (Civil Suit 455 of 2009) [2025] KEELC 7645 (KLR)[2025] KEELC 7645 (KLR)6 Nov 2025
Cite this brief
#Cite this brief
Caselaw, "Tuguta Enterprises Ltd v Kenya Agricultural Research Institute & 3 others (Environment and Land Case 454 of 2009) [2026] KEELC 4837 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4837/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.