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ELCPartially Allowed· [2026] KEELC 4837 (KLR)

Tuguta Enterprises Ltd v Kenya Agricultural Research Institute & 3 others (Environment and Land Case 454 of 2009) [2026] KEELC 4837 (KLR)

Environment and Land Court
23 July 2026
3,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This is a reference under paragraph 11 of the Advocates Remuneration Order by the 2nd Defendant in a land suit, challenging the taxing officer's ruling of 29th August 2024 which taxed instruction fees at Kshs 900,000 (against a claim of Kshs 10,000,000) and getting-up fees at Kshs 300,000 (against Kshs 3,333,330) under Items 1 and 1(a) of the Party and Party Bill of Costs dated 8th March 2024. The Applicant argued the fees covered both the defence of the main suit and prosecution of a successful counterclaim, which should attract separate instruction fees, and that the taxing officer ignored the ascertainable value of the subject matter, failed to set a basic fee, and gave no reasons. The Respondent contended the value was not ascertainable in a land dispute and that the taxation was a proper exercise of discretion consistent with access to justice under Article 48. The Court framed two issues: whether the counterclaim should have been taxed as a separate item, and whether the instruction fees were properly assessed. Holding that a counterclaim is a separate and independent suit for all purposes including costs, the Court found an error of principle in the failure to award separate instruction fees for the counterclaim. It further found the taxing officer failed to engage with the mandatory starting point of the pleadings, judgment or settlement in ascertaining the value of the subject matter, contrary to Joreth Ltd v Kigano and Peter Muthoka. The Court set aside the taxation of Items I and I(a), remitted the Bill for re-taxation before a different taxing officer with directions, and awarded the Applicant costs of the application against the Plaintiff/Respondent. The alternative prayer for the Court to re-tax itself was not granted, the Court reserving its own re-taxation for exceptional cases.

Key legal issues

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01

Whether the counterclaim should have attracted separate instruction fees

Holding

The Taxing Officer erred in principle in failing to award instruction fees for the counterclaim as a separate item

Reasoning

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.

02

Whether the Taxing Officer erred in assessing instruction fees at Kshs 900,000 without ascertaining the value of the subject matter

Holding

The Taxing Officer failed to identify the basis for assessing instruction fees and thus fell into error

Reasoning

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

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  • 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

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  1. 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. 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. 3.Costs of the application to be borne by the Plaintiff/Respondent

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1) & (2)
  • Advocates Remuneration OrderSchedule 6A, paragraph 1 and Item 1(b)
  • Advocates ActNot specified
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder IX A

Cases cited (20)

  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    [2005] KECA 325 (KLR)
  • First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others
    [2002] eKLR; [2002] 1 EA 64
  • Ngatia & Associates Advocates v Interactive Gaming & Lotteries Ltd
    [2017] eKLR
  • Peter Muthoka & Another v Ochieng & 3 Others
    [2019] eKLR
  • Presbyterian Foundation, Trustees of P.C.E.A. Kitengela Township Church v Export Processing Zones Authority
    [2025] KEELC 2998
  • Project Innovations Ltd v Aziza Residential Suites Ltd & Another
    [2025] KEHC 722 (KLR)
  • Agricultural Society of Kenya v C.W. Wanjihia & Co. Advocates
    [2008] KEHC 2880 (KLR)
  • Kagwimi Kang'ethe & Co. Advocates v Penelope Combos & Another
    [2012] KEHC 1976 (KLR)
  • Machakos County Government v Kabaka t/a Kabaka & Associates Advocates
    [2024] KEELC 151 (KLR)
  • Tahir Sheikh Said Investments Ltd v KCB Bank Kenya Ltd & Another
    [2024] KEHC 15861
  • Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others
    [1972] EA 162
  • PZ Cussons East Africa Ltd v Kenya Revenue Authority
    [2014] KEHC 8462 (KLR)
  • Zachary Olum & Another v Attorney General
    Civil Appeal No. 1 of 2004
  • Joreth Ltd v Kigano & Associates
    [2002] 1 EA 92
  • Prof. Tom Ojienda & Associates v County Government of Nairobi
    (Environment and Land Misc. Application E115 of 2023) [2025] KEELC 3383 (KLR)
  • M/S Oduk & Co. Advocates v Mideny
    (Misc. Civil Application E054 of 2021) [2025] KEHC 6825 (KLR)
  • Republic v Ministry of Agriculture & 2 Others ex parte Muchiri W'Njuguna & 6 Others
  • Kenya Commercial Bank Ltd v James Karanja
    [1981] eKLR
  • Kinyariri & Associates Advocates v Salama Beach Hotel Ltd & 4 Others
    [2014] KEELC 214 (KLR)
  • Republic v Minister of Agriculture & 2 others
    (2016) Eklr
Jurisdiction invoked
Paragraph 11(1) & (2) of the Advocates Remuneration Order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.