Kitur v National Land Commission & another (Environment and Land Case 4 of 2019) [2025] KEELC 7297 (KLR)

Costs be ordered to be taxed before a difierent Taxing Oficer, with appropriate directions on principles of such taxation by way of guidelines. (sic) e. 3. That the costs of this instant application be provided for. The application is based on the grounds on its face and the supporting afidavit of Jude Ragot, counsel for the 2nd Defendant/Applicant. It is sworn on 25th April, 2023. Factual Background. 4. The Plaintifi/Respondent commenced the present proceedings vide a Plaint dated 21st January, 2019 and filed on 1st February 2019. She sought the following prayers; a. An order that the 1st Defendant’s ofier of Kshs. 18,643,575/= dated 4th October, 2018 being compensation for the compulsory acquisition of the portion of the land parcel known as title No. Kericho Municipality Block 2/2 previously known as LR No. Kericho Municipality 691/694 in Kericho measuring 0.1000 hectares, be set aside. b. An order that the Plaintifi be awarded the sum of Kshs. 31,385,085/= as compensation for compulsory acquisition of the portion of the land parcel known as title No. Kericho Municipality Block 2/2 previously known as LR No. Kericho Municipality 691/694, in Kericho, measuring 0.100 hectares. c. Damages for breach of constitutional and statutory duty by the Defendants. d. Costs of this suit. e. Interest on (b), (c) and (d) above. 5. This Court vide its order issued on 30th May, 2022 marked the suit as compromised on conditions stated by counsel appearing. The Court noted that parties had not agreed on costs and directed the Plaintifi/Respondent to tax the Bill of Costs. The Court went on to order that the Defendants to cause the suit land to be degazetted within the next 30 days and directed that the suit be mentioned for further orders on 27th July, 2022. 6. On 27th July, 2022 the matter was mentioned before the Judge who noted that orders of 30th May, 2022 had not been complied with and rescheduled it for mention on 1st November, 2022. 7. On 1st November, 2022, the Court issued directions that the party and party Bill of Costs dated 12th September, 2022 be transmitted to the Deputy Registrar for assessment and taxation. The Court directed that the Plaintifi/Respondent follows up with the 1st Defendant/Respondent on the issue of compliance with the directions issued on 30th May, 2022, the 2nd Defendant/Applicant was released from the proceedings in so far as the issue of compliance with the orders of 30th May, 2022 was concerned and the matter was rescheduled to 14th December, 2022 for compliance. 8. The Court record shows that that the file was subsequently dealt by the Deputy Registrar and he delivered his ruling on taxation on 12th April, 2023. This ruling is the subject of the application under consideration. 9. The Application first came up on 24th October, 2023 for directions when the Court directed that it be served upon the Respondents and that it be heard by way of written submissions. The Court also issued an order that the status quo obtaining as at 24th April, 2023 be maintained. The application was to be mentioned on 23th November, 2023 for a ruling date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 2

page 2 of 19

10. On 23th November, 2023 and 19th December, 2023 the application was mentioned and, on both days, the 2nd Defendant/Applicant was absent. The Court proceeded to reserve the application for ruling which ruling was delivered on 25th April, 2024. The Ruling had the efiect of dismissing the Application dated 25th April, 2023 for want of prosecution. 11. The 2nd Defendant/Applicant filed an application dated 15th May, 2024 to set aside the dismissal. The application was heard and determined in favour of the 2nd Defendant/Applicant. The ruling delivered on 13th February, 2025 allowed the 2nd Defendant/Applicant to file its submissions on the application under consideration. 12. On 19th March, 2025 both parties confirmed having filed submissions. The Plaintifi/Respondent chose to rely on submissions dated 23rd November, 2023 as earlier filed and the 2nd Defendant/Applicant on submissions filed in May 2024. The application was then reserved for ruling. 13. The 1st Defendant/Respondent did not file a response to the application under consideration. The 2nd Defendant/Applicant’s Contention. 14. The afidavit in support of the application is sworn by Jude Ragot; Counsel for the 2nd Defendant/ Applicant. 15. He starts by setting out the prayers sought by the Plaintifi/Respondent against the 1st and 2nd Defendants. These have been set out in preceding paragraph. 16. He contends that the 1st Defendant/Respondent Ms. National Land commission did not enter appearance, file and serve any Statement of Defence to the suit, while the 2nd Defendant/Applicant, filed its Statement of Defence dated 31st May, 2019 in which it averred at paragraphs 4, 5, 6, 7 and 8 as follows: 17. a. That it is the 1st Defendant which is vested, by law, with the sole legal responsibility to undertake the entire process of compulsory acquisition on behalf of any Government agency, like the 2nd Defendant. b. That this sole legal responsibility includes, valuation of the property intended to be compulsorily acquired, and determination of any disputes thereon, before an appeal is subsequently lodged against any such determination with the Environment & Land Court. c. Any dispute between the Plaintifi and the 1st Defendant on such valuation, is a matter entirely between the two parties, without any legal liability bestowed, by law, upon the 2nd Defendant, on the general principles of agency, unless there is an agreement between the Plaintifi and the 1st Defendant on the valuation, in which event, the 2nd Defendant, would be called upon to forward settlement of the agreed valuation to the 1st Defendant to settle the same. d. That that (sic) it had communicated its decision to the 1st Defendant, that it no longer required the Plaintifis portion of land sought to be compulsorily acquired and had requested the 1st Defendant to immediately degazette the said property as not being required for compulsory acquisition. It is his contention that though the Plaintifi/Respondent filed her Reply to the 2nd Defendant/ Applicant's Statement of Defence she did not dispute the 2nd Defendant/Applicant's categorical averments constituting the law on compulsory acquisition and instead opted to fix the case for hearing, on that admission of the legal position. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 3

page 3 of 19

18. He further contends that at the hearing of the main suit, before any proceedings could be taken on 4th March, 2021, upon the 2nd Defendant/Applicant's observation to the Court and the Plaintifi/ Respondent, that it had communicated its decision to the 1st Defendant/Respondent, that it no longer required the Plaintifi’s portion of land sought to be compulsorily acquired, the Plaintifi/Respondent conceded and withdrew the suit, and that the Honourable Court, vide its Order dated 30th May, 2022 directed that the suit be marked as withdrawn or settled, subject to the 1st Defendant/Respondent degazetting the Plaintifi/Respondent’s portion of land for compulsory acquisition. He goes on to state that the Plaintifi/Respondent was awarded costs of the suit. 19. Counsel for the 2nd Defendant/Applicant contends that parties did not address the Court on the issue of costs of the suit, and who was to bear it, either as between the two Defendants to the Plaintifi/ Respondent, or the Plaintifi/Respondent to the 2nd Defendant/Applicant. 20. It is his contention that the said order did not specify which of the two Defendants, was liable to settle the costs and that the Court in the said Order, was silent on the issue of the 2nd Defendant/Applicant's costs of the suit or whose liability had given rise to the instant suit on the disputed valuation of the property. He adds that the 2nd Defendant/Applicant appears to be an innocent party in the entire dispute before the Court and whether the 2nd Defendant/Applicant was liable to bear the costs of the suit or was a proper entity to have been sued by the Plaintifi/Respondent, owing to the undisputed state of the pleadings. (sic) 21. Counsel for the 2nd Defendant/Applicant also contends that it is necessary, for the Court to reach a determination on which of the parties, including the Plaintifi/Respondent, and the two Defendants, ought to bear the costs of this suit, whether it is the costs of the suit for the Plaintifi/Respondent and that of the 2nd Defendant/Applicant, or whether it is the Plaintifi/Respondent and the 1st Defendant/ Respondent who ought to bear the costs of the 2nd Defendant/Applicant. He reiterates that this is owing to the fact that the 2nd Defendant/Applicant appears to be an innocent party in the entire dispute before the Court, and adds that the 1st Defendant/Respondent and the Plaintifi/Respondent’s dispute commenced at valuation. 22. It is his contention that notwithstanding the determination of who bears either the Plaintifi/ Respondent's costs of the suit, or the 2nd Defendant/Applicant's costs of the suit, or both their costs, the Taxing Oficer's Ruling on taxation of the Plaintifi/Respondent’s Bill of Costs dated 22nd September, 2022, ought to be set aside in its entirety on the grounds that; a. The learned Taxing Oficer erred in law and in fact, in failing to appreciate the nature of the dispute leading to the filing of the suit, by adopting the Plaintifi/Respondent’s disputed value of the subject of the suit of Ksh.31,385,085, which was not proved to be the correct value of the suit, since there was no trial and determination of the same, and instead ignored the correct and undisputed value of the subject matter of the suit, admitted by all parties to have been the basis of determination of instruction fees. b. The learned taxing oficer erred in law and in fact in failing to appreciate that the suit having been settled or withdrawn before trial in a summary manner, instruction fees ought to have been reduced to only 75% of the sum computed under paragraph 1 of schedule 6 of the Advocates’ Remuneration Order. c. On the rest of the items the learned Taxing oficer erred in law and in fact in i. Failing to appreciate that the Plaintifi had charged her claim for costs on the Higher scale, on other services rendered, like attendances, without any order of the learned https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 4

page 4 of 19

Judge permitting the same, as contemplated under Rule 50A of the Advocates Remuneration Rules, and instead awarded the same as drawn. 23. ii. Awarding costs of alleged grant of Letters of Administration, which were not the subject the}} instant suit, and which were not otherwise proved, and whose nature could only have been awarded, if at all, at the trial by this Court, and. not otherwise by the Taxing Oficer, sitting as a Deputy Registrar, without conducting the trial himself, suit having been settled and or withdrawn before trial. iii. In relation to disbursements, he awarded the same without the benefit of any proof of expenditure by way of receipts issued or shown to him, at all, contrary to the express and mandatory provisions of Rule 74A of the Advocates Remuneration Rules. He ends his deposition by stating that unless orders of stay of execution are granted immediately by this Honourable Court while pending the hearing and determination of the instant application, inter partes, the Plaintifi/Respondent is likely to execute the Judgment of the Court on the aspect of costs against the 2nd Defendant/Applicant which would render this application nugatory and of academic value. He adds that the determinations sought in the instant application, would give appropriate direction, as to which Party between the 1st and 2nd Defendants ought to bear the costs of the Plaintifi/ Respondent, and in addition, whether the 2nd Defendant/Applicant's costs of the suit ought not to be borne by the Plaintifi/Respondent and the 1st Defendant/Respondent or either of them. The Plaintifi/Respondent’s Response. 24. The Plaintifi/Respondent filed a Replying Afidavit sworn on 26th October, 2023. 25. She deposes that she instructed her advocates on record to file the present proceedings against the 1st Defendant/Respondent and the 2nd Defendant/Applicant seeking compensation. She adds that the Plaint in this matter was filed on 1st February, 2019. 26. She also deposes that she is advised by her advocates on record that the 1st Defendant/Respondent was sued on account of its quest to compulsorily acquire her parcel of land known as Kericho Municipality Block 2/2 previously known as Kericho Municipality Block 691/694 at the behest of the 2nd Defendant/Applicant. 27. She further deposes that she is advised by her advocates on record that for the 1st Defendant/ Respondent to undertake compulsory acquisition, it ought to have received a request from the 2nd Defendant/Applicant. She goes on to state that the 2nd Defendant/Applicant admits to this in its pleadings. 28. It is her deposition that in the said circumstances, the Defendants were acting in concert and cannot be divorced from each other. 29. It is also her deposition that both the 1st and 2nd Defendants are jointly and severally liable for their actions. 30. It is further her deposition that the 2nd Defendant/Applicant did not disclose in its Statement of Defence that it immediately requested the 1st Defendant/Respondent to degazette the Plaintifi/ Respondent’s property upon reaching the decision that it no longer required the land. 31. She deposes that costs follow the event and therefore she is entitled to costs as assessed by the Court. She goes on to state that she cannot therefore be said to be liable for the 2nd Defendant/Applicant’s legal fees. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 5

page 5 of 19

32. She also deposes that the Court in its ruling on costs states that the Defendants were to bear costs of the suit. She goes on to state that this can only be interpreted to mean that the Defendants were to jointly and severally be liable to cater for her (Plaintifi/Respondent) costs. 33. She further deposes that the Taxing Oficer gave suficient reasons why he found that the value of the suit property was kshs. 31,385,085/= as opposed to Kshs. 18,643,575/=. 34. It is her deposition that the portion of her parcel of land that the 1st Defendant/Respondent was intending to compulsorily acquire measures 0.0972 Ha. 35. It is also her deposition that if the 2nd Defendant/Applicant was to use a portion of her property; the remaining portion would have been rendered unviable. 36. It is further her deposition that the Taxing Oficer exercised his discretion judiciously and on the right principles in taxing the said bill of costs. She goes on to state that the said bill of costs was drawn to scale and it was therefore not true that it was taxed on a higher scale. 37. She ends her deposition by stating that the application under consideration is frivolous, designed to deny her costs and it ought to be dismissed. Issues for Determination. 38. The 2nd Defendant/Applicant filed its submissions on 14th May, 2024 while the Plaintifi/Respondent filed her submissions on 23rd November, 2023. 39. The 2nd Defendant/Applicant submits on the following issues; a. Who should bear the costs of the Plaintifi’s suit. b. Whether this Court is entitled (sic) to interfere with the taxation of the Deputy Registrar. 40. On the first issue, the 2nd Defendant/Applicant reiterates the averments in its afidavit in support of the application. The 2nd Defendant/Applicant also reiterates that on 30th May, 2022, the suit herein was withdrawn and the Plaintifi/Respondent awarded costs. 41. The 2nd Defendant/Applicant further reiterates that the parties did not address the Court on who was to bear the costs. 42. The 2nd Defendant/Applicant submits that given that the Court did not make a determination on who was to bear costs, it was premature for the Plaintifi/Respondent to file her bill of costs. 43. The 2nd Defendant/Applicant relies on Sections 107 to 128 of the Land Act and submits that the Plaintifi/Respondent’s cause of action was with respect to the 1st Defendant/Respondent and that it (2nd Defendant/Applicant) ought not have been sued. 44. The 2nd Defendant/Applicant relies on the judicial decision of Five Star Agencies Limited & another v National Land Commission & 2 others [2024] KECA 439 (KLR) in support of its submissions. 45. The 2nd Defendant/Applicant submits that it was wrongly sued in the present matter and therefore the Plaintifi/Respondent ought to bear its costs. The 2nd Defendant/Applicant relies on Section 27 of the Civil Procedure Act in support of its submissions. 46. The 2nd Defendant/Applicant also submits that the Plaintifi/Respondent cannot seek to have costs be borne by the 1st Defendant/Respondent and yet it (1st Defendant/Respondent) did not play any role in the Plaintifi/Respondent’s decision to erroneously sue the 2nd Defendant/Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 6

page 6 of 19

47. The 2nd Defendant/Applicant further submits that there is therefore no basis for this Court to consider any of the items of the bill of costs that it is challenging. 48. It is the 2nd Defendant/Applicant’s submissions that the Plaintifi/Respondent should bear its costs while the Plaintifi/Respondent’s costs should be borne by the 1st Defendant/Respondent. 49. Despite the 2nd Defendant/Applicant submitting that there is no basis for this Court to consider the items of the bill of costs it is challenging, it nonetheless proceeded to submit on the said items under the second issue identified for determination. 50. The 2nd Defendant/Applicant relies on Mwiti & another v Viljoen & another (Civil Case E002 of 2022) [2023] KEHC 24906 (KLR) (8 November 2023) and submits that the Taxing Oficer made an error of principle in the ruling delivered on 12th April, 2023 and the disputed items should therefore be set aside. 51. The 2nd Defendant/Applicant submits that the Taxing Oficer awarded the Plaintifi/Respondent instruction fees of Kshs. 600,000/= and getting up fees of kshs. 200,000/=. 52. The 2nd Defendant/Applicant also submits that the Taxing Oficer relied on the valuation report filed by the Plaintifi/Respondent which stated that the value of the suit property was Kshs. 31,385,085/= instead of the value stated in the Plaint which was Kshs. 18,643,575/=. 53. The 2nd Defendant/Applicant further submits that the sum of Kshs. 18,643,575/= stated in the Plaint was the 1st Defendant/Respondent’s valuation of the portion of the suit parcel that was to be compulsorily acquired. 54. The 2nd Defendant/Applicant relies on Paragraph 1(a) of Schedule 6 of the Advocates Remuneration Order and submits that the Taxing Oficer ought to have relied on the value as provided for in the Plaint. 55. It is the 2nd Defendant/Applicant’s submissions that if the Taxing Oficer intended to rely on the valuation report, he ought to have exercised his powers under Paragraph 13A of the Advocates Remuneration Order and given the parties the opportunity to test the veracity of the said valuation report. 56. The 2nd Defendant/Applicant relies on Articles 47 and 50 of the Constitution of Kenya, the judicial decision of Mwiti & another v Viljoen & another (supra) in support of its submissions. 57. The 2nd Defendant/Applicant submits that the Court should set aside the Taxing Oficer’s decision on item No’s 3, 4 and 5 as they were with respect to succession proceedings and not the present proceedings. 58. The 2nd Defendant/Applicant also submits that the succession Court ought to have awarded costs in the said matter and in any event, no such orders for costs were granted. 59. The 2nd Defendant/Applicant further submits that the Taxing Oficer ought to have applied the ratio of 75% on the instruction fees in order to establish the correct amount of instruction fees as provided for under Paragraph 1(a) of Schedule 6 of the Advocates Remuneration Order. 60. It is the 2nd Defendant/Applicant’s submissions that it raised the said issue before the Taxing Oficer but it was not addressed. 61. The 2nd Defendant/Applicant relies on the judicial decision of Danson Mutuku Muema vs Julius Muthoka Muema & Others Machakos High Court Civil Appeal No, 6 of 1991 as was cited in Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’njuguna & 6 Others [2006] eKLR in support of its submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 7

page 7 of 19

62. The 2nd Defendant/Applicant relies on Paragraph 74A of the Advocates Remuneration Order and submits that the Court should set aside the award on disbursements as they were awarded without proof of expenditure. 63. The 2nd Defendant/Applicant concludes its submissions by urging the Court to allow its application as prayed. 64. The Plaintifi/Respondent submits on the following issues; a. Which party between the 1st and 2nd Defendants ought to bear the Plaintifi/Respondent’s costs. b. Whether the Learned Taxing Master applied the right principles in taxing the Plaintifi/ Respondent’s bill of costs dated 25th April, 2023. 65. On the first issue, the Plaintifi/Respondent reiterates her averments in the Replying Afidavit and submits that the Defendants are jointly liable to cater for her costs. 66. On the second issue, the Plaintifi/Respondent submits that the figure of kshs. 18,643,575/= was not justified as there was no valuation report stating the said amount. 67. The Plaintifi/Respondent also submits that she filed a valuation report that was attached to her list of documents and urges the Court to dismiss the 2nd Defendant/Applicant’s application as the Taxing Oficer cannot be faulted for relying on a valuation report whose contents were not controverted. 68. The Plaintifi/Respondent relies on the judicial decision of Masore Nyangau & Co. Advocates vs Kensalt Ltd ELC Nakuru Misc Application No. 196 of 2015 as was cited in Tom Ojienda & Associates Advocates v County Government of Narok (Miscellaneous Application E608 of 2019) [2021] KEHC 452 (KLR) (Commercial and Tax) (16 June 2021) (Ruling) in support of her submissions. 69. The Plaintifi/Respondent submits that the Taxing Oficer taxed the instruction fees at kshs. 600,000/ = upon taking into consideration the fact that the matter had not proceeded for hearing. 70. The Plaintifi/Respondent also submits that the Taxing Oficer therefore complied with the provision of Paragraph 7(d) of Schedule 6 of the Advocates Remuneration Order. 71. The Plaintifi/Respondent further submits that even though the 2nd Respondent sought for reasons, it failed to disclose whether the said reasons were availed. 72. The Plaintifi/Respondent concludes her submissions by urging the Court to dismiss the 2nd Defendant/Applicant’s application. Analysis and Determination. 73. I have considered the 2nd Defendant/Applicant’s application, the response thereto and the rival submissions. It is my view that the following issues arise for determination; a. Whether the Defendants should bear the Plaintifi/Respondent’s costs. b. Whether the Plaintifi/Respondent should bear the 2nd Defendant/Applicant’s costs. c. Whether the Taxing Oficer’s decision delivered on 12th April, 2023 should be set aside. d. Who should bear costs of the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 8

page 8 of 19

A. Whether the Defendants should bear the Plaintifi/Respondent’s costs. 74. The 2nd Defendant/Applicant is seeking that the Court makes a determination on who between the 1st Defendant/Respondent and itself should bear the Plaintifi/Respondent’s costs of the suit. 75. The 2nd Defendant/Applicant contends that on 30th May, 2022 the present suit was withdrawn and the Plaintifi/Respondent awarded costs. 76. The 2nd Defendant/Applicant submits that it was not liable to pay costs because it was sued without any justification as the Plaintifi/Respondent’s cause of action lay with the 1st Defendant/Respondent. 77. The Plaintifi/Respondent in response contends that since the Court did not state who between the Defendants should bear the costs, this should be interpreted to mean that both Defendants were to bear costs. 78. Section 27(1) of the Civil Procedure Act provides as follows; “ (1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the Court or Judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the Court or Judge shall for good reason otherwise order.” (Emphasis mine) 79. The Supreme Court in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) held as follows; “ 18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the efiect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.” 80. In the above cited judicial decision, the Supreme Court held that if a party files a suit and the suit fails, then the party instituting the suit bears the costs of the suit. In the event the suit succeeds, then the Defendant bears the costs. The Supreme Court also held that costs are awarded at the discretion of the Court and the Court is guided by the ends of justice. 81. It is not disputed that the present suit was withdrawn with Costs to the Plaintifi/Respondent. What is disputed is who, as between the 1st Defendant/Respondent and the 2nd Defendant/Applicant, should bear the costs. 82. The 2nd Defendant/Applicant submits that the Plaintifi/Respondent’s cause of action lay with the 1st Defendant/Respondent and it therefore ought not to have been sued. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 9

page 9 of 19

83. Further, the 2nd Defendant/Applicant states that it communicated the fact that it no longer required the suit parcel to the 1st Defendant/Respondent but not to the Plaintifi/Respondent save for the statements contained in its statement of defence. 84. It is important to note that at the time the suit was being withdrawn, the 2nd Defendant/Applicant was a party to the suit. The 2nd Defendant/Applicant did not file any application seeking to be struck out from the suit and neither did the Court make a determination on whether or not the 2nd Defendant/ Applicant was a necessary party to the proceedings. 85. On 1st November, 2022, the Court issued directions that the party and party Bill of Costs dated 12th September, 2022 be transmitted to the Deputy Registrar for assessment and taxation. The Court directed that the Plaintifi/Respondent follows up with the 1st Defendant/Respondent on the issue of compliance with the directions issued on 30th May, 2022, the 2nd Defendant/Applicant was released from the proceedings in so far as the issue of compliance with the orders of 30th May, 2022 was concerned and the matter was rescheduled to 14th December, 2022 for compliance with the orders of 30th May, 2022. 86. Nothing would have been easier than the Learned Judge stating that the 2nd Defendant/Applicant be released from the proceedings entirely. In the absence of such express statements, I am not persuaded, therefore, that costs of the suit were meant to be borne by the 1st Defendant/Respondent alone. 87. I find that the 2nd Defendant/Applicant has not laid a basis for this Court to exclude it from bearing the costs of the suit. The costs of this suit shall be borne by both the 1st Defendant/Respondent and the 2nd Defendant/Applicant. B. Whether the Plaintifi/Respondent should bear the 2nd Defendant/Applicant’s costs. 88. The 2nd Defendant/Applicant contends that it was not a necessary party to the suit and therefore the Plaintifi/Respondent should bear its costs. 89. In response, the Plaintifi/Respondent submits that costs follow the event and since she is entitled to costs, she cannot be held liable to pay the 2nd Defendant/Applicant costs. 90. In the judicial decision of Muhammad & another v Kenya Copyright Board & 2 others; Kenya Association of Music Producers & 2 others (Interested Parties) [2025] KEHC 4229 (KLR) the Court held as follows; “ 16. Section 27(1) of the Civil Procedure Act provides that the award of costs is in the discretion of the Court, with the general principle being that "costs follow the event" unless the Court, for good reason, orders otherwise. This discretion must, however, be exercised judiciously. 17. In Rai & 3 others v. Rai & 4 others [2014] KESC 31 (KLR), the Supreme Court emphasized that while costs normally follow the event, Courts have the discretion to depart from this principle for compelling reasons, including the conduct of the parties and the stage at which the withdrawal occurs. 18. Costs are in the discretion of the Court, yet, follows the event. See the Halsbury’s Laws of England; 4th Edition (Re-issue), [2010], Vol.10. para 16 that: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 10

page 10 of 19

“The Court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the Court, a party has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice” (Emphasis added). 19. In Judicial Hints on Civil Procedure, 2nd Edition, (Nairobi) Law Africa) 2011, page 94 Justice (Retired) Kuloba observes that:“Costs are {awarded at} the unfettered discretion of the Court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the Court has good reason to order otherwise…” 20. .“Good reasons” that justifies departure from the general rule that ‘costs follow the event” will vary from case to case. The Court in Rai & 3 others v. Rai & 4 others supra observed that: “There was no prescribed definition of any set of good reasons that can justify a Court’s departure, in awarding costs, from the general rule, costs-follow-theevent. In the classic common law style, the Courts have proceeded on a caseby-case basis, to identify good reasons for such a departure. An examination of evolving practices on that question show that, as an example, matters in the domain of public-interest litigation tend to be exempted from the award of costs.” (Emphasis mine) 91. In the above cited judicial decision, the Court held that costs follow the event unless the Court for good reasons orders otherwise. The Court also held that the good reasons that justify the departure from the general rule, vary from case to case. 92. The Plaintifi/Respondent was awarded costs and the 2nd Defendant/Applicant is now seeks to be awarded costs. 93. I note that the 2nd Defendant/Applicant’s argument is primarily premised on the contention that it was not a necessary party to the present proceedings. However, no determination was made by this Court on whether or not the 2nd Defendant/Applicant was a necessary party to this suit. 94. As mentioned before, nothing would have been easier than for the learned Judge to state expressly why it would depart from the general rule that costs follow the event ( the event here being the settlement of the suit in favour of the Plaintifi) and therefore make a finding that the 2nd Defendant/Applicant’s costs shall be borne by the Plaintifi/Respondent. 95. The 2nd Defendant/Applicant has failed to persuade this court that it is entitled to costs and even importantly, that those costs should be borne by the Plaintifi/Respondent. 96. There were numerous options available to the 2nd Defendant/Applicant in respect of whatever claim it might have had against the 1st Defendant/Respondent including and not limited to issuing a notice against a co-defendant and seek to be indemnified. It failed to pursue those options during the life of the suit. As it were, there is no determination or settlement of any claim against the 1st Defendant/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 11

page 11 of 19

Respondent or Plaintifi/Respondent in favour of the 2nd Defendant/Applicant so as to entitle it (the 2nd Defendant/Applicant) to costs. 97. I find no basis for awarding the 2nd Defendant/Applicant costs to be borne by the 1st Defendant/ Respondent or Plaintifi/Respondent. C. Whether the Taxing Oficer’s decision delivered on 12th April, 2023 should be set aside. 98. The principles for setting aside the decisions of Taxing Oficers were established by the Court of Appeal in the case of Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR. It was found as follows; “ On reference to a Judge from the Taxation by the Taxing Oficer, the Judge will not normally interfere with the exercise of discretion by the Taxing Oficer unless the Taxing Oficer, erred in principle in assessing the costs.” 99. In Kamunyori & Company Advocates v Development Bank of Kenya Limited [2015] Civil Appeal 206 of 2006, the Court of Appeal gave instances where discretion cannot be deemed to have been exercised properly as follows; “ …Failure to ascertain the correct subject matter in a suit for the purpose of taxation is an error of principle. So too, failure to ascribe the correct value to the subject matter is an error of principle. Authorities on taxation show that a Judge will normally not interfere with the Taxing Oficer’s decision on taxation unless it is based on an error of principle. Where it is shown that the sum awarded was so manifestly excessive as to justify interference, an error of principle can be inferred. If instructions fee is arrived at on the wrong principles, it will be set aside.” (Emphasis mine) 100. The 2nd Defendant/Applicant is seeking that the Court sets aside the Taxing Oficer’s decision on all the items in the bill of costs except for item No’s 7, 8, 10, 11, 14 – 19 and 25 of the bill of costs dated 12th September, 2022. 101. In response, the Plaintifi/Respondent contends that the Taxing Oficer exercised his discretion judiciously in the taxation of the bill of costs dated 12th September, 2022. 102. The procedure for filing a reference is provided for by Paragraph 11 of the Advocates Remuneration Order as follows; “ 1) Should any party object to the decision of the Taxing Oficer, he may within fourteen days after the decision give notice in writing to the Taxing Oficer of the items of taxation which he objects. 2) The Taxing Oficer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a Judge by Chamber Summons, which shall be served on all the parties concerned, setting out the grounds of his objection. 3) Any person aggrieved by the decision of the Judge upon any objection referred to such Judge under subparagraph (2) may, with the leave of the Judge but not otherwise, appeal to the Court of Appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 12

page 12 of 19

4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by Chamber Summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have expired.” 103. The Plaintifi/Respondent contends that even though the 2nd Defendant/Applicant sought reasons for the Taxing Oficer’s decision, it did not place before the Court the reasons given by the Taxing Oficer. 104. The Taxing Oficer delivered his ruling on 12th April, 2023. A perusal of the Court record shows that the 2nd Defendant/Applicant wrote the letter dated 13th April, 2023 requesting reasons. The letter was received in Court on 20th April, 2023. This Court notes that no reasons were availed by the Taxing Oficer. 105. The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR) held as follows; “ It is true that the taxing oficer did not record the reasons for the decision on the items objected to after receipt of the respondent’s notice. It seems that the taxing oficer decided to rely on the reasons in the ruling on taxation dated 23rd February, 2004. That ruling at least indicated the formula that the taxing oficer applied to assess the instructions fees. Although there was no strict compliance with Rule 11 (2) of the Order, we are nevertheless, satisfied that there was substantial compliance. The adequacy or otherwise of the reasons in the ruling is another matter. Indeed, we are of the view, that if a taxing oficer totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference.” (Emphasis mine) 106. It is this Court’s view that the 2nd Defendant/Applicant cannot be faulted for failing to avail reasons from the Taxing Oficer when no such further reasons were given. 107. The 2nd Defendant/Applicant contends that the Taxing Oficer erred in relying on the valuation report which stated that the value of the suit parcel was kshs. 31,385,085/= instead of the value of Kshs. 18,643,575/= that was stated in the Plaint in taxing item No. 1 on instructions fees. 108. The 2nd Defendant/Applicant submits that the Taxing Oficer should not have relied on the said valuation report as it was not proved in evidence. 109. The 2nd Defendant/Applicant also submits that the Taxing Oficer ought to have exercised his power under Paragraph 13A of the Advocates Remuneration Order and give the parties an opportunity to test the veracity of the valuation report. 110. The Plaintifi/Respondent on the other hand submits that the Taxing Oficer did not err in relying on the valuation report dated 28th August, 2018 which stated that the value of the suit parcel was Kshs. 31,385,085/=. 111. The Plaintifi/Respondent also submits that the 2nd Defendant/Applicant’s contention that the value of the suit parcel was kshs. 18,643,575/= was not supported by any valuation report. 112. The Plaintifi/Respondent further submits that the Taxing Oficer did not therefore err in relying on the said valuation report. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 13

page 13 of 19

113. The Taxing Oficer in his ruling delivered on 12th April, 2023 held as follows; “ I have carefully considered the application above and submissions by both advocates. It is noteworthy that paragraph 1(a) and (b) of Schedule 6 applies only where the value of the subject matter can be determined from the pleadings/judgement or settlement between parties. The suit did not proceed to full trial. The valuation report by the Plaintifi presented in this case has a figure of kshs. 31,386,085. The Defendant indicated that the value of the said property was Kshs. 18,643,575 which figure is not supported by a valuation report to that efiect. The Taxiing (sic) Master however has discretion to award a reasonable sum, however he ought and must exercise his discretion judicially… It is therefore clear to me that the value of the said piece of land is Kshs. 31,385,085 and this is supported by the valuation report. There is no any other valuation report to oppose the one presented in Court by the Applicant herein. The alleged value of kshs. 18,643,575 is not supported by any valuation report and was an estimate by the Defendants which is not supported by any other evidence hence Kshs. 18,643,575 by the Respondents, to me is a figure that this Court will note (sic) be considered to be the value of the suit land but later (sic) the value of the land is hereby determined as per the valuation report to be Kshs. 31,386,085 (sic). I take note also that this matter did not proceed to full hearing with a judgement. In using my discretion, I proceed to tax it as per schedule 6 of the Advocates (Remuneration) Amendment] Order 2014 (sic) as follows; Item 1 – Instruction fees Kshs. 600,000 Item 2 Kshs. 200,000…” 114. There are several authorities that ofier guidance on the circumstances under which a Judge determining a reference may interfere with the discretion of a Taxing Oficer. 115. In Kipkorir, Titoo & Kiara Advocates Vs Deposit Protection Fund Board NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR the Court of Appeal stated thus; “ On a reference to a Judge from the taxation by the Taxing Oficer, the Judge will not normally interfere with the exercise of discretion by the Taxing Oficer, unless the Taxing Oficer, erred in principle in assessing the costs.” [Emphasis Mine] 116. In Premchand Raichand Ltd Vs Quarry Services of East Africa Ltd (1972) EA 162 the Court outlined the principles of taxation as follows: “ (a) That costs should not be allowed to rise to a level as to confine access to justice as to the wealthy. (b) That a successful litigant ought to be fairly reimbursed for the cost he has had to incur. (c) that the general level of remuneration of Advocates must be such as to attract recruits to the profession. (d) so far as practicable there should be consistency in the award made and (e) The Court will only interfere when the award of the Taxing Oficer is so high or so low as to amount to an injustice to one party.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 14

page 14 of 19

117. The Court of Appeal in Joreth Ltd Vs. Kigano & Associates [2002] 1 E.A. 92 held as follows; “ We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a Bill of costs ought to be determined from the pleadings, Judgment or settlement (if such be the case) but if the same is not so ascertainable the Taxing Oficer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances.” 118. In the above cited judicial decision, the Court held that the value of the subject matter of a suit ought to be determined from the pleadings, Judgement or settlement. 119. In the present matter, both the 2nd Defendant/Applicant and the Plaintifi/Respondent contend that the value of the subject matter can be ascertained from the pleadings. 120. The issue in contention is the value. The 2nd Defendant/Applicant contends that the value of the subject matter is Kshs. 18,643,575/= while the Plaintifi/Respondent contends that the value is Kshs. 31,385,085/=. 121. The Plaintifi/Respondent averred in the Plaint that the 1st Defendant/Respondent ofiered kshs. 18,643,575/= as compensation for compulsory acquisition of a portion of her land. 122. The Plaintifi/Respondent also averred that she caused a valuation of the said portion to be done which showed that its value was Kshs. 31,385,085/=. 123. In the prayers, the Plaintifi/Respondent sought that the Court sets aside the ofier of kshs. 18,643,575/ = and issue an order that she be awarded the sum of Kshs. 31,385,085/=. 124. It is important to note that this matter was withdrawn. Had it proceeded for hearing, the Court would have had to make a determination on whether the value of the said portion was Kshs. 18,643,575/= or Kshs. 31,385,085/=. 125. It is this Court’s view that as it stands, the value of the said portion of the suit parcel cannot be determined from the pleadings. 126. In Joreth Ltd Vs. Kigano & Associates (supra) cited above, the Court held that if the value of the subject matter of a suit cannot be discerned from the pleadings, then the Taxing Oficer exercises his discretion in awarding instruction fees. 127. It is therefore my finding that the Taxing Oficer made an error in principle in making a finding that the value of the subject matter could be ascertained from the pleadings. 128. The Taxing Oficer also erred in relying on the valuation report dated 24th August, 2018 in support of his finding that the value of the suit parcel was Kshs. 31,385,085/=. 129. That being the case, Item No. 1 on instruction fees and by extension Item No. 2 on getting up fees are hereby set aside. 130. The 2nd Defendant/Applicant is also challenging the Taxing Oficer’s decision on Item No’s 3, 4 and 5 of the bill of costs dated 12th September, 2022. 131. The 2nd Defendant/Applicant submits that the said items were in respect of succession proceedings which did not relate to the present suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 15

page 15 of 19

132. The Plaintifi/Respondent did not submit on this issue. 133. The Taxing Oficer taxed item No’s 3, 4 and 5 as drawn. 134. Item No. 3 is dated 10th October, 2018. The Plaintifi/Respondent sought the sum of kshs. 1,100/= for drafting an application for Grant of Letters of Administration Ad Litem limited to instituting a suit for recovery of land. 135. Item No. 4 is dated 12th October 2018. The Plaintifi/Respondent sought a sum of kshs. 500/= for attending the registry to file the Limited Grant of Letters of Administration Ad Litem. 136. Item No. 5 is dated 2nd November, 2018. The Plaintifi/Respondent sought a sum of Kshs. 1,100/= for drawing up another petition for Letters of Administration Ad Litem. 137. In the judicial decision of Michael Ochieng Mbuya v Jacob Ojwang Ojwang [2013] KEHC 5655 (KLR) the Court held as follows; “ Items 1,2,2A and 2B relate to a succession cause – HCC No.722/09 – brought to enable the plaintifi to file this suit. The question that arise is whether costs arising in a difierent case can be visited on a person who was not party to it. The Court thinks that the applicant makes a good point by asserting that he was not party to the succession cause. Looking at it difierently, the plaintifi filed the succession cause in order to get capacity to bring the suit. It is necessary to consider whether the defendant/applicant had contributed to plaintifis lack of capacity. The answer obviously is that he had not. That being the case, why then should he be condemned to pay cost? And why couldn't costs be done in the succession cause itself?” [Emphasis Mine] 138. In the present matter, it is evident that item No’s 3, 4 and 5 relate to succession proceedings that the Plaintifi/Respondent commenced in order to get capacity to institute the present proceedings. 139. It is important to note that the succession cause number was not disclosed and since the 2nd Defendant/ Applicant and 1st Defendant/Respondent did not contribute to the Plaintifi/Respondent’s lack of capacity, they cannot be condemned to pay costs incurred in the succession proceedings. 140. The Taxing Oficer therefore erred in taxing the said items as prayed. Item No’s 3, 4 and 5 are hereby taxed ofi. 141. The 2nd Defendant/Applicant is also challenging the items on disbursements on the bill of costs dated 12th September, 2022. 142. The 2nd Defendant/Applicant submits that the said items were awarded without any proof of expenditure. The 2nd Defendant/ Applicant also submits that no receipts were produced or shown by the Plaintifi/Respondent. 143. The Plaintifi/Respondent did not submit on this issue. 144. The Taxing Oficer taxed item No’s 30 to 40 that were under disbursements as drawn. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 16

page 16 of 19

145. Paragraph 74 of the Advocates Remuneration Order provides as follows; “ Subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing oficer.” 146. A perusal of the 2nd Defendant/Applicant’s submissions filed on 5th December, 2022 with respect to the bill of costs dated 12th September, 2022 show that the 2nd Defendant/Applicant submitted that item No’s 28 to 32 should only be allowed upon production of receipts. 147. It is therefore evident that the only items that the 2nd Defendant/Applicant was challenging under disbursements were item No’s 28 to 32. 148. It is important to note that items No’s 28 and 29 were with respect to attendances in Court on 4th May, 2021 and 30th May, 2022 respectively and they are not listed under disbursements. Therefore, the disputed items under disbursements are item No’s 30 to 32. 149. In the judicial decision of Wasuna & Company Advocates v Kajulu Holdings Limited & 3 others [2022] KEHC 10994 (KLR) the Court held as follows; “ 23. It was the Respondent/Applicant’s case that the Taxing Oficer erred in law and fact in awarding the Respondent disbursements of Kshs.83, 420 despite the fact that the same had not been supported by any evidence. On the other hand, the Applicant argued that disbursements are awarded at the discretion of the taxing oficer on proof by the drawer of the bill that they were reasonably incurred. 24. To this extent, the Court agrees with the Applicant that disbursements are awarded at the discretion of the Taxing Oficer as provided under Paragraph 74 of the Advocates Remuneration Order which provides; “Vouchers to be produced Subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing oficer.” 25. However, it is imperative to note that the Respondent/Applicant in its submissions to the Bill of Costs had contended that items 50, 51, 52 and 53 relating to disbursements to which no receipts have been furnished should be taxed ofi. 26. The Court observed that the Taxing Oficer in his ruling dated 1st February 2019 did not take into consideration the Respondent’s objection to the taxing of the disbursements. Neither did the Taxing Oficer explain how he arrived at the said figure for the disbursements. The Taxing Oficer simply concluded that the “the unopposed items shall be taxed as drawn”. 27. It is the Court’s considered view that the Taxing Master should have required proof of items under disbursement in consideration of the objection that was raised by the Respondent concerning the items under disbursement… 29. In consideration of the above, this Court is satisfied that it was an error in principle for the Taxing Oficer to award the said items for disbursements in the absence of any supporting receipts when an objection had been raised by the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 17

page 17 of 19

Respondent; it was therefore incumbent that the receipts be produced before such an award be made. 30. The decision of the Taxing Oficer delivered on 1st February 2019 is thus set aside only on the issue of disbursements.”[Emphasis Mine] 150. In the above cited judicial decision, the Respondent raised concerns with regards to some items that were listed under disbursements. The Taxing Oficer did not take into consideration the said objection and the Court held that the Taxing Oficer ought to have required proof of the items under disbursements that were objected to by the Respondent. 151. Similarly, in the present matter, the 2nd Defendant/Applicant objected to item No’s 30, 31 and 32. The Taxing oficer did not take into consideration the 2nd Defendant/Applicant’s objection and he instead taxed the said items as drawn. It is therefore this Court’s view that it was imperative upon the Taxing Oficer to require proof from the Plaintifi/Respondent on item No’s 30, 31 and 32 before taxing them. 152. The Taxing Oficer’s decision on Item No’s 30, 31 and 32 is hereby set aside. 153. In the judicial decision of Meir Mizrahi & another v Nairobi City Council & 2 others [2014] eKLR the Court held as follows; “ The Ruling in Premchand Raichand & Another v Quarry Services E.A Ltd & Others (1972) E.A provided that a Court will not normally interfere with a taxing oficer’s decision on taxation matters, the exception to the same are decisions based on error of principle and manifestly excessive fees awarded to justify an inference that it was based on an error. The Court is granted unfettered power to determine what orders it deems fit and suitable to be made in the circumstances of the determination of a taxing oficer’s ruling as per Section 51(2) of the Advocates Act. In exercise of the aforementioned provisions of the law, and considering all circumstances and issues raised, the application by the Plaintifi dated 20th July, 2006 is allowed and the Bill of Costs dated 6th April 2006 remitted for taxation afresh before a difierent taxing oficer.” D. Who should bear costs of the application. 154. The general rule is that costs shall follow the event in accordance with the Provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 155. 156. Taking the foregoing into consideration, the 2nd Respondent/Applicant’s Chamber Summons application dated 25th April, 2023 partially succeeds and I issue the following orders; a. The Taxing Oficer’s decision on Item No’s 3, 4 and 5 of the bill of costs dated 12th September, 2022 are hereby set aside. b. The bill of costs dated 12th September, 2022 is hereby remitted for fresh taxation of item No’s 1, 2, 30, 31 and 32 before a difierent Taxing Oficer in line with the directions and guidelines set out in this ruling. c. The 2nd Defendant/Applicant shall have costs of the application. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 18

page 18 of 19

DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 23RD DAY OF OCTOBER, 2025. L. A. OMOLLO JUDGE. In the presence of: Mr. Ragot for the 2nd Defendant/Applicant. Mr. Koech for the Plaintifi/Respondent. 1st Defendant/Respondent – Absent Court Assistant; Mr. Joseph Makori. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7297/eng@2025-10-23 19

page 19 of 19