Lilian Nyaboke Ondari v The Chief Magistrate, Naivasha & 3 others; Settlement Fund Trustees (Now the Directorate of Land Adjudication and Settlement) & 2 others (Interested Parties)
The bottom line
#A Kenyan court cut a legal costs bill by over Kshs 66,000, ruling lawyers cannot charge 'getting-up fees' when a case ends without a trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is a proper Reference on taxation or an improper attempt to have the Court act as a court of first instance to re-evaluate evidence and review the Taxing Officer's exercise of discretion
- 2.Whether the Taxing Officer erred in principle or took into account irrelevant considerations (such as the main reliefs sought in the dismissed Petition) when assessing costs against a party who claimed not to be a primary party and was not served with the Petition
- 3.Whether the awarded instruction fee of Kshs. 200,000/= was manifestly excessive, unjust, or calculated without due regard to the nature, complexity, time, labour, and mode of determination (written submissions vs full trial)
- 4.Whether getting up fees or similar trial-based fees apply to proceedings concluded purely on written submissions without a trial of fact
- 5.Whether an order for stay of execution is warranted
Key legal issues
#Whether the Reference was a proper reference on taxation
The application was partially a proper Reference: it raised genuine questions of principle (accrual of getting-up fees in submission-only proceedings; subject-matter misdirection) but was improper to the extent it sought re-assessment of minor attendances out of general dissatisfaction.
The court distinguished challenges to specific legal determinations, which fall within a reference's jurisdiction, from invitations to re-evaluate evidence and re-try facts, which would convert the court into a court of first instance on taxation. The applicant's grounds on attendances and general quantum dissatisfaction were rejected as improper.
Whether the instruction fee of Kshs. 200,000/= was manifestly excessive or based on irrelevant considerations
No error of principle; the award was defensible and reasonable because the Petition's reliefs directly targeted the 4th Respondent's land possession and his counsel undertook substantial work.
The court balanced the taxation principles against the record of the main Petition, finding the 4th Respondent had filed a comprehensive replying affidavit defending 30-year land rights against an eviction prayer. The taxing officer doubled the scale minimum with stated reasons considering the nature, importance, conduct, time, research and skill involved.
Whether getting-up fees apply to proceedings concluded purely on written submissions
They do not automatically attach; awarding Kshs. 66,666/= as getting-up fees was an error in principle and the sum was struck off.
Schedule 6 paragraph 2 of the Advocates (Remuneration) Order requires the case to be confirmed for hearing and prepared for trial. The classical rule confines getting-up fees to suits set down for hearing with oral evidence. In submission-only petitions, research and drafting are already compensated under the instruction and drawing fees, so a separate getting-up fee is double recovery.
Whether stay of execution pending Reference was warranted
The prayer was competent but became moot upon delivery of the ruling on the substantive Reference.
The stay was sought alongside the substantive challenge under the court's inherent powers under Section 3A of the Civil Procedure Act, but once the Reference itself was determined there was nothing left to preserve.
Legal principles established
#- A court cannot interfere with a taxing officer's discretion unless an error of principle is shown or the fee awarded is manifestly excessive; the normal practice on error is remission for reassessment
- Getting-up fees do not automatically attach where a case is disposed of on written submissions without a trial of fact; no fee is chargeable until the case is confirmed for hearing
- Awarding getting-up fees in submission-only proceedings amounts to double recovery since the research and drafting are compensated under the instruction fee
Court orders
#- 1.The Taxing Officer's Ruling dated 9th March 2026 varied by setting aside and striking off Item 2 (Getting-Up Fees) awarded at Kshs. 66,666/=
- 2.The Instruction Fees of Kshs. 200,000/= and all other itemized taxed figures in the ruling affirmed and upheld
- 3.The 4th Respondent's Party-to-Party Bill of Costs dated 14th October 2024 recalculated and finally taxed at Kshs. 220,350/= (being Kshs. 287,016/= less Kshs. 66,666/=)
- 4.Each party to bear their own costs of the Reference
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Reference against a taxing officer's decision under Paragraph 11(2) of the Advocates (Remuneration) Order, with Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules 2010
Relief refused
#Remission of the bill dated 14th October 2024 for fresh taxation before another Taxing Officer
No error of principle established on instruction fees or subject-matter valuation; only the getting-up fee was erroneous
Stay of execution of the certificate of taxation pending Reference
Prayer rendered moot by delivery of the ruling on the substantive Reference
Costs
Each party shall bear their own costs of this Reference.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the application is partially a proper Reference because the application challenges specific legal determinations—namely, whether getting-up fees legally accrue in a matter determined strictly on written submissions without oral testimony
the Court cannot interfere with the Taxing Master's discretion on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference
where a case is disposed of by way of preliminary objection, notice of motion, or purely on written submissions without witness testimony, getting up fees will not automatically attach.
awarding getting-up fees in the absence of a trial, I hold, was double recovery or unjust enrichment.
The Taxing Officer's Ruling dated 9 th March, 2026, is hereby varied by setting aside and striking off Item 2 (Getting-Up Fees) awarded at Kshs. 66,666/=.
Consequently, the 4th Respondent's Party-to-Party Bill of Costs dated 14th October 2024 is hereby recalculated and finally taxed at Kshs. 220,350/= (being Kshs. 287,016/= less Kshs. 66,666/=).
Each party shall bear their own costs of this Reference.
Issues in the judgment
#Final taxed award figure inconsistent: Kshs. 287,018/= earlier, Kshs. 287,016/= in the orders
Getting-up fee figure inconsistent: Kshs. 66,000/= in submissions summary, Kshs. 66,666/= in holdings and orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lilian Nyaboke Ondari v The Chief Magistrate, Naivasha & 3 others; Settlement Fund Trustees (Now the Directorate of Land Adjudication and Settlement) & 2 others (Interested Parties)", Case Analysis (2026). ELCL Petition No. E001 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6094/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.