Mbugua v Kerre & 2 others
The bottom line
#Kenya's Environment and Land Court upheld a Kshs. 500,000 instruction fee award, confirming judges rarely disturb a taxing officer's costs decision.
What this practically means
#Executive summary
#Key legal issues
#Threshold for interference with a taxing officer's discretion on instruction fees
The reference failed; no error of principle was demonstrated and the award of Kshs. 500,000/= was not shown to be manifestly excessive
The court applied the First American Bank principles as restated in National Oil: interference requires an error of principle or a manifestly excessive award. The Taxing Officer had found the subject matter value unascertainable because the 2010 sale was declared unlawful, considered the work done, and gave reasons. The appellant identified no principle omitted or misapplied.
Ascertainment of subject matter value for instruction fees post-judgment
Taxation having occurred after judgment, the Taxing Officer was entitled to consider the judgment; finding the sale unlawful, she properly held the value unascertainable and exercised discretion
Relying on Joreth Ltd v Kigano and Peter Muthoka v Ochieng, the court held that post-judgment the judgment, not the pleadings, informs subject matter value. Since the court below had declared the 2010 sale unlawful, the sale agreement could not ground valuation, justifying a discretionary assessment.
Whether separate reasons from the taxing officer were required
The requirement was obviated because the taxing officer's detailed ruling itself contained the reasons for the decision
Citing Evans Thiga Gaturu and National Oil, the court held that a comprehensive taxing ruling dispenses with the need for separate reasons. The reference, filed 9 days after the ruling, was also within the 14-day window under Section 11 of the ARO.
Legal principles established
#- A Judge may interfere with a taxing officer's decision only where it is based on an error of principle or the fee awarded is manifestly excessive so as to justify an inference of error of principle
- Where the value of the subject matter is not ascertainable from the pleadings, judgment or settlement, the taxing officer may exercise discretion to assess a just instruction fee considering the nature and importance of the matter and other relevant circumstances
- Where taxation occurs after judgment, recourse may be had to the judgment rather than the pleadings to determine subject matter value
- Where the taxing officer delivers a comprehensive ruling setting out reasons, the necessity to furnish separate reasons is obviated
Court orders
#- 1.The Appellant's Chamber Summons dated 7th July 2026 is dismissed
- 2.No orders as to costs
- On appeal from
- Taxing Officer, Deputy Registrar (ELC Kwale)
- Party & Party Bill of Costs dated 19th July 2023
- Jurisdiction invoked
- Section 11 of the Advocates (Remuneration) Order - reference to a Judge against a taxing officer's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua v Kerre & 2 others", Case Analysis (2026). Environment and Land Appeal E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6016/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.