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ELCDismissedELCMISC NO. E053 OF 2025· [2026] KEELC 4996 (KLR)

Export Processing Zones Authority v Tanathi Water Services Board & another (Environment and Land Miscellaneous Case E053 of 2025) [2026] KEELC 4996 (KLR)

Employment and Labour Relations Court
29 July 2026
NMN. A. Matheka
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a challenge to a taxed legal fee because the objector skipped the mandatory steps for disputing a Taxing Officer's decision.

What this practically means

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Executive summary

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This was a reference under paragraph 11 of the Advocates (Remuneration) Order by an Objector/Applicant seeking to set aside the decision of a Taxing Officer dated 25th September 2024 on the Applicant's Bill of Costs dated 7th October 2023, on grounds that the Taxing Officer erred in principle by basing the instruction fee on the minimum where the subject matter was allegedly discernible and valued at Kshs. 700,000,000/=, misapplied the law and principles of taxation, awarded manifestly low costs, and failed to consider Section 11 of the Advocates (Remuneration) (Amendment) Order 2014 or to administer oaths and direct production of documents. Alternatively, the Applicant sought remission of the Bill of Costs to a different Taxing Officer. The court held that under paragraphs 11(1) and 11(2) of the ARO, an objector must first give written notice of the objected items to the Taxing Officer, who must then furnish reasons; only then may a reference be filed. There was no indication the Applicant complied, and without the reasons the court had no basis for reviewing the exercise of the Taxing Master's discretion, rendering the reference defective. On the merits, the court found the underlying matter (Water Tribunal Appeal No. 13 (WS) of 2012) was one in which the plaintiff sought only declarations, a permanent injunction and accounts, with no relief based on any valued subject matter, and the suit was concluded at a preliminary stage; the court cannot make orders outside the pleadings. The reference was found both incompetent and lacking in merit, and was dismissed with no orders as to costs.

Key legal issues

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01

Compliance with paragraph 11(1) and (2) of the Advocates (Remuneration) Order

Holding

The reference was incompetent because the Applicant did not give notice of objection to the Taxing Officer or obtain and attach the reasons for the decision before filing the reference

Reasoning

Paragraph 11(1) obliges an objecting party to give written notice of the objected items within fourteen days, and paragraph 11(2) obliges the taxing officer to record and forward reasons. Without the reasons, the court has no basis to determine whether the taxing master's discretion was exercised on sound principles. There was no indication the Applicant complied, rendering the reference defective.

p. 5
02

Pegging of instruction fee on the value of the subject matter

Holding

No relief in the underlying suit was based on any valued subject matter; the pleadings sought only declarations, permanent injunction and accounts, so the instruction fee could not be enhanced on an assumed value of Kshs. 700,000,000/=; the matter was also concluded at the preliminary stage

Reasoning

The function of pleadings is to alert the other party to the case they must meet and define the issues for determination. The court cannot make orders outside the pleadings. Since the Appellant's pleaded case sought declaratory and injunctive reliefs only, and the suit was concluded preliminarily, there was no discernible subject matter value on which a higher instruction fee could be founded.

p. 7

Legal principles established

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  • Failure to seek reasons from the Taxing Officer and to file the reference in accordance with paragraphs 11(1) and (2) of the Advocates (Remuneration) Order renders a reference defective
  • A court has no power to make an order, unless by consent, which is outside the pleadings; instruction fees cannot be pegged on unpleaded subject matter value

Court orders

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  1. 1.The application (reference) dated 29th October 2024 is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Civil Procedure ActSections 1A, 1B and 3A
  • Advocates (Remuneration) OrderRule 11, paragraphs 11(1) and 11(2)
  • Advocates (Remuneration) (Amendment) Order 2014Section 11
  • Civil Procedure Rules 2010Order 51 Rule 10

Cases cited (4)

  • Elijah Ireri t/a Ireri & Company Advocates vs County Government of Embu
    (2021) eKLR
  • Evan Thiga Gaturu Advocate vs Kenya Commercial Bank Ltd
    (2012) eKLR
  • World Explorers Safaris Limited vs Cosmopolitan Travel Limited & another
    (2021) eKLR
  • Chalicha FCS Ltd vs Odhiambo & 9 others
    (1987) KLR 182
Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; Rule 11 of the Advocates (Remuneration) Order; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 10 of the Civil Procedure Rules 2010

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, "Export Processing Zones Authority v Tanathi Water Services Board & another (Environment and Land Miscellaneous Case E053 of 2025) [2026] KEELC 4996 (KLR)", Case Analysis (2026). ELCMISC NO. E053 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4996/eng@2026-07-29

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