Barclays Bank of Kenya Limited v National Land Commission & another

in the taxation; that the taxing ocer applied the correct provisions of the law by stating the value of the subject matter was Kshs.68,541,182 that was in the originating summons; that as the plainti has not provided an alternative value for the subject matter, their application is without merit and should be dismissed with costs. 3. The learned counsel for the plainti and 2nd defendant led their submissions dated 8th October 2025 and 30th October 2025 respectively that the court has considered. 4. The issues arising from the reference for the court’s determinations are as follows: 5. a. Whether the plainti has established any error, misapplication or misapprehension of the taxation principles by the taxing ocer in taking the value of the subject matter from the pleadings. b. Who pays the costs? The court has carefully considered the grounds on the reference, adavit evidence, submissions by the learned counsel, superior court decisions cited thereon, the record and come to the following determinations: a. The 2nd defendant’s Bill of Costs dated the 21st January 2025, that was taxed vide the taxing ocer’s ruling delivered on 9th July 2025, was according to the 2nd defendant served upon the plainti without enlisting a response. That fact was captured by the taxing ocer, at paragraph 2 of the said ruling and the plainti has not disputed it throughout the chamber summons. The taxing ocer cannot therefore be faulted for proceeding to tax the said bill of costs, and even though it was undefended, Kshs.6,006 was taxed o. b. The taxing ocer ruling clearly shows that he correctly took note that the suit was led in the year 2018, and the applicable Order was Advocates Remuneration Order 2014. The learned counsel for the 2nd defendant has correctly submitted that contrary to the plainti’s contention that the taxing ocer erred in taking the value of the subject matter from the pleadings, clause 1(b) of Schedule 6 of the Advocates Remuneration Order, actually provides that the value for purposes of calculating the instruction fees can be determined from pleadings, judgement or settlement between the parties. c. I have perused the court’s judgement delivered on 10th May 2023, and it is as the 2nd defendant submitted that the plainti’s suit was dismissed with costs. The court’s decision did not contain a value that can be construed to be the value of the subject matter. There is no agreed value of the subject matter agreed by the parties herein as this suit was not settled through the parties consent, but through a merit hearing. Under the circumstances, the only recourse the taxing ocer had to establish the value of the subject matter so as to calculate the instruction fees was the pleadings. I have perused the record and noted the plainti’s originating summons dated the 25th June 2018 had two dierent gures that can be taken as the value of the subject matter, that is Kshs.68,541,182 that the plainti had been awarded, and Kshs.132,050,000 that in its view was the amount it was entitled to. The plainti should count itself lucky that the 2nd defendant it not pursue its Bill of Costs based on the higher claim, and the taxing ocer opted for the amount awarded as the value of the subject matter. d. From the foregoing, the claim by the plainti that the taxing ocer erred by relying on the value of the subject matter on the plainti’s own pleadings, is not only misplaced but also misleading as the judgment it claims the value should have come from had no award capable https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18326/eng@2025-12-17 2

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to be construed as the value of the subject matter. The reference is therefore without merits and is for dismissal. e. 6. The plainti having failed in its reference should under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, that provides that costs follow the event unless where otherwise directed on good reasons, meet the 2nd defendant’s costs. Flowing from the foregoing determinations, the court nds and orders as follows: a. That the plainti’s chamber summons/reference dated the 18th July 2025 is without merit. b. The said chamber summons/reference is dismissed. c. The plainti to meet the 2nd defendant’s costs. It is so ordered. DATED, SIGNED, AND VIRTUALLY DELIVERED ON THIS 17TH DAY OF DECEMBER 2025. S. M. KIBUNJA, J. ELC MOMBASA. In the Presence of: Plainti : Mr. Kongere Defendants : Mr Mumu for 1st Defendant Kalekye-Court Assistant. S. M. KIBUNJA, J. ELC MOMBASA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18326/eng@2025-12-17 3

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