Kihiu & 3 others v Muugano Wa Wanavijji /Akiba Mashinani Trust (Environment and Land Case Civil Suit 1112 of 2013) [2026] KEELC 880 (KLR)

3. According to Ms. Kihiu, in taxing ofi Item 1 and 2 of the bill of costs, the taxing oficer failed to take into account the subject matter of the suit as disclosed in the pleadings, being the sum of Kenya Shillings 900,000,000 contrary to the established principles under Schedule 6 of the Advocates (Remuneration) (Amendment) Order, which requires instruction fees to be assessed with reference to the value of the subject matter. 4. She deponed that by substantially reducing the instruction fees and the getting-up fees, the taxing oficer failed to appreciate that the matter was complex and required considerable time and resources to prepare. Unless properly taxed, she urged, they stand to sufier irreparable loss. She urged that the interests of justice dictate that the summons be allowed. 5. The Defendant, vide its Deputy Director, Patrick Njoroge, opposed the application through a replying afidavit dated 24th October 2025. He deponed that the Plaintifis filed a party-to-party bill of costs dated 1st July 2024 in the sum of Kshs. 18,692,016.67 and that vide a Ruling delivered on 8th May 2025, the Deputy Registrar taxed ofi Kshs 17,600,000 and awarded the Plaintifis the sum of Kshs. 1,092,016.67. 6. The Defendant’s Deputy Director stated that the taxing oficer reduced the instruction fees claimed under Item 1 by Kes 13,700,000 and taxed the getting up fee claimed under item 2 at Kshs. 4,566,666.67; that in arriving at this decision, the taxing master relied on the principles set out in Joreth Ltd v Kigano & Associates [2002] 1 EA 92 and found that no valuation report had been provided to support the alleged subject matter value of Kshs. 900 million and that there was no clear computation in the pleadings or the judgment to enable proper ascertainment of the value of the subject matter. 7. Mr. Njoroge deponed that the figure of Kshs. 900,000,000 relied on by the Plaintifis/Applicants had no basis in the pleadings or judgment and was therefore fictitious. It was the Defendant’s position, and which according to him the taxing oficer rightfully accepted, that the figure had been introduced solely for purposes of infiating the instruction fees. 8. He argued that the Plaintifis ought to be restricted to the claim placed before the trial court in the sum of Kshs. 27,212,450 as that was the only figure pleaded and considered by the court. He contended that the Plaintifis could not claim to sufier irreparable loss, as the sums sought were exorbitant and unsupported, and would result in unjust enrichment to the detriment of the Defendant. 9. Mr Njoroge, the Defendant’s Deputy Director urged the court to uphold the decision by the taxing oficer, contending that the bill of costs had been taxed to scale, with due regard to the nature of the matter and the work undertaken by Counsel, and to restrain the Plaintifis from imposing excessive and unjustified fees. Submissions 10. The Plaintifis through Counsel filed submissions on 5th November, 2025. Counsel submitted that the taxing master erred in not making a determination as to whether the value of the subject matter was ascertainable from the pleadings and not giving reasons for the award made for the instruction fee. 11. Counsel urged that if this court is able to ascertain the value of the suit property from the pleadings, it should set aside the ruling and reasons for taxation dated 8th May 2025 and proceed to make an appropriate award. 12. Reference was made to paragraph 4(a) of the Plaint, which disclosed that the suit property comprised of two parcels of land within Nairobi County, namely L.R. No. 7109/88 (Original No. 7109/82) measuring 7.658 hectares and L.R. No. 7109/89 (Original No. 7109/83) measuring 1.619 hectares, with a combined acreage of approximately 22.92 acres. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/880/eng@2026-02-19 2

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13. Counsel further referred to paragraph 6 of the Plaint, which stated that the Plaintifi purchased the suit property on 6th January 2010 at a consideration of Kenya Shillings 81,000,000 and which property was valued at Kshs 900,000,000 at the time of filing the suit. Counsel submitted that the Defendant did not specifically traverse that paragraph in its Defence and that the value of the subject matter was therefore admitted. 14. The Defendant filed submissions on 14th November, 2025. Counsel submitted that as correctly acknowledged by the taxing oficer, the matter proceeded to full trial and to its logical conclusion with the court delivering its judgement on 5th May 2022 and that the pleadings thereof and the said judgement did not have any ascertainable value of the subject matter. 15. Counsel asserted that the sum of Kshs 900,000,000 claimed by the Plaintifi was not settled or confirmed by the court, hence the same cannot be used for taxing any legal fees by the Plaintifi/ Applicant's herein. 16. In addressing computation of the party-to-party bill of costs, Counsel submitted that reliance should be placed on Schedule 6 Part A (i) of the Advocate (Remuneration) Order which provides that instruction fees are to be assessed based on the value of the subject matter where such value can be determined from the pleadings, judgment, or settlement. 17. Counsel cited the Supreme Court decision in Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR) for the principle that the value of the subject matter must first be identified from the pleadings, judgement or settlement of the parties. Also cited were the Court of Appeal decisions of Joreth Ltd. v Kigano & Associates [2002] E.A. and Peter Muthoka & Another v Ochieng & Others, Civil Appeal No. 328 of 2017; [2019] eKLR. 18. According to Counsel, in view of the foregoing, the taxing oficer properly exercised his discretion in awarding the instruction fees and getting-up fees as taxed. Reference was made to Peter Muthoka & another v Ochieng & 3 others [2019] eKLR, and D. Njogu and Co. Advocates v Kenya National Capital Authority, HC Misc. Appl. No. 21 of 2003; [2005] eKLR. Analysis and Determination 19. Having considered the Summons, the response and the submissions, the sole issue for determination whether the decision of the Taxing Master delivered on 8th May, 2025 in respect to the Party-Party Bill of Costs dated 1st July, 2024 should be set aside? 20. The procedure for the challenge of a taxation decision is provided under Paragraph 11 of the Advocates (Remuneration) Order which provides that: 21. “ (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 to 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.” The legal parameters within which the court can interfere with a taxing master’s decision are well settled. The Court of Appeal in Joreth Ltd v Kigano & Associates Civil Appeal No. 66 of 1999 [2002] https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/880/eng@2026-02-19 3

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eKLR was categorical that a judge sitting on a reference against the taxing oficer ought not to interfere with the assessment of costs unless the taxing oficer had misdirected himself on a matter of principle. 22. Similarly, the Ugandan Supreme Court in Bank of Uganda v Banco Arabe Espanol SC Civil Application No. 23 of 1999 (Mulenga JSC) stated: “ Save in exceptional cases, a judge does not interfere with the assessment of what the taxing oficer considers to be a reasonable fee. This is because it is generally accepted that questions which are solely of quantum of costs are matters with which the taxing oficer is particularly fitted to deal, and in which he has more experience than the judge. Consequently a judge will not alter a fee allowed by the taxing oficer, merely because in his opinion he should have allowed a higher or lower amount. Secondly, an exceptional case is where it is shown expressly or by inference that in assessing and arriving at the quantum of the fee allowed, the taxing oficer exercised, or applied a wrong principle. In this regard, application of a wrong principle is capable of being inferred from an award of an amount which is manifestly excessive or manifestly low. Thirdly, even if it is shown that the taxing oficer erred on principle, the judge should interfere only on being satisfied that the error substantially afiected the decision on quantum and that upholding the amount allowed would cause injustice to one of the parties.” 23. More recently, the Apex Court in Non- Governmental Organizations Coordination Board v EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 102 (KLR) (Civ) (8 December 2023) (Ruling) noted: “ A certificate of taxation would be set aside, and a single judge could only interfere with the taxing oficer’s decision on taxation if: There was an error of principle committed by the taxing oficer. The fee awarded was shown to be manifestly excessive or was so high as to confine access to the court to the wealthy; (and conversely, if the award was so manifestly deficient as to amount to an injustice to one party).The court was satisfied that the successful litigant was entitled to fair reimbursement for the costs he had incurred, (and the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party). The award proposed was so far as practicable, consistent with previous awards in similar cases. There was no mathematical formula to be used by the taxing oficer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances. Although the taxing oficer exercised unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically. The single judge would normally not interfere with the decision of the taxing oficer merely because the judge believed he would have awarded a difierent figure had he been in the taxing oficer’s shoes” 24. By way of brief background, the Plaintifis instituted this suit against the Defendant seeking, inter-alia, a transfer of L.R 7109/88 Nairobi and L.R 7109/89, Nairobi to Mukuru Makao Bora Trust and an order that the Defendant discloses and pays to Mukuru Makao Bora Trust interest earned on Kshs 27,212,450 which it deposited in a fixed deposit account on or about the 28th May, 2009 and 16th October, 2009. 25. The Plaintifis’ case was that they, together with 2221 members originally operated as a self-help group (Sisal Settlement/Savings). They sought to purchase property but lacking the legal capacity to do, asked the Defendant to purchase it on their behalf. They asserted that despite having fulfilled their https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/880/eng@2026-02-19 4

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obligations in this regard, the Defendant refused to transfer the properties to them necessitating the suit. 26. In its Defence, the Defendant conceded that it purchased the suit properties on behalf of the group. It nevertheless contended that the deposits made by the members were insuficient to meet the full purchase price together with interest, and that it sourced additional funds from third parties which, in its view, the Plaintifis were obliged to refund. 27. In determining the matter, the court found that it was not in dispute that the suit properties had been discharged and that the loan had been cleared. The central issue for determination was whether the loan had been fully repaid by the Plaintifis’ members, or whether the Defendant had instead applied its own funds towards the discharge of the loan and was therefore entitled to reimbursement. 28. The court found in favour of the Plaintifis and was satisfied that they had fully discharged their obligations to the Defendant under the informal arrangement entered into for the purchase of the suit properties. Consequently, judgment was entered for the Plaintifis, and the Defendant was ordered to unconditionally transfer L.R. No. 7109/88 and L.R. No. 7109/89, Nairobi, to the Plaintifis to hold in trust for the members of Mukuru Makao Bora Trust. 29. Following the judgment, the Plaintifis filed a party-to-party bill of costs dated 1st July, 2024, which was taxed at Kshs. 1,092,016.67 vide a ruling delivered on 8th May, 2025. The Plaintifis contend that in taxing the bill of costs, the taxing oficer failed to take into account the value of the subject matter of the suit as disclosed in the pleadings, namely Kshs. 900,000,000, and thereby erred in principle in the assessment of instruction fees and getting-up fees. 30. It is trite that instruction fees are to be determined from the value of the subject matter of a suit. It is also trite that the value of the subject matter of a suit is to be ascertained from the pleadings, judgment or settlement. It is only where the value of the subject matter cannot be ascertained from the pleadings, judgment or settlement, that the taxing oficer has discretion to assess the instruction fees. Speaking to this, the Court of Appeal in Peter Muthoka & Another v Ochieng & 3 others NRB CA Civil Appeal No. 328 of 2017 [2019] eKLR noted as follows: “ It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court. It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the taxing oficer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement. He has no leeway to disregard the statutorily commanded starting point. And we think, with respect, that the starting point can only be one of the three. It is not open to the taxing oficer to choose one or the other or to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/880/eng@2026-02-19 5

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31. Vide its bill of costs dated 1st July 2024 and, under instruction fees, the Plaintifis sought the sum of Kshs. 13,700,000 being: “ Advocates’ fees for receiving instructions to prosecute the Plaint dated 18th September 2013 in respect of the suit properties pleaded under clause 4(a) of the Plaint as being worth Kshs. 900,000,000/=, calculated in accordance with the Advocates (Remuneration) (Amendment) (No. 2) Order, 2014.” 32. In his taxation of the bill, the taxing oficer noted thus: “ The 2nd Defendant claim a sum Kshs. Kshs. 13,700,000 as instruction fees. I note that the matter proceeded to full trial and to its logical conclusion. The Court of Appeal in the case of Otieno, Ragot & Company Advocates v Kenya Airports Authority [20211 eKLR Murgor JA cited the case of Joreth Ltd -v - Kigano & Associates [2002] 1 EA 92 where it was stated that….” This court in taking into account the activities and processes that culminate to instruction Fees sought and taking into account the subject matter, its value, nature, importance and dificulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings. This court is taking into account the industry taken by the advocate in sifting through documents in the present case. For the applicants bill of cost, I will therefore proceed to tax Item1 at Kshs. 500,000/= As a result, I tax ofi Kshs. 13,200,000 Having considered the instruction fees as Kshs. 500,000/= the get up fees ought to be 1/3 of the instruction fees therefore I proceed to tax item 2 as 166,666.67 and tax ofi 4,4000,000.” 33. In determining whether the taxing oficer committed an error in principle, the starting point is whether he correctly appreciated and identified the subject matter of the suit and its value as disclosed in the pleadings and the record. The subject matter of the suit was the properties, L.R. No. 7109/88 and L.R. No. 7109/89, Nairobi, together with a claim relating to interest allegedly earned on a fixed deposit of Kshs. 27,212,450. 34. A perusal of the Plaint shows that the Plaintifis expressly pleaded the value of the suit properties. It was averred that the properties were purchased at a consideration of Kshs. 81,000,000 and that at the time of filing suit, the value of the properties was Kshs. 900,000,000. This was not a speculative figure introduced at the stage of taxation but a pleaded fact forming part of the Plaintifis’ cause of action. 35. Significantly, the pleaded purchase price of Kshs. 81,000,000 was expressly admitted by the Defendant and was further acknowledged by the court in its judgment. In these circumstances, the value of the subject matter was plainly ascertainable from both the pleadings and the court record. 36. It therefore fell upon the taxing master to determine which of the pleaded figures would properly constitute the basis for instruction fees. The taxing master thus fell into error in principle by treating the value of the subject matter as incapable of ascertainment and by resorting to a discretionary assessment of instruction fees, contrary to the mandatory statutory framework. 37. The position adopted by this court is fortified by the reasoning in Masore Nyang’au & Co Advocates v Kensalt Ltd (Misc. Application No. 196 of 2015) [2019] KEELC 2712 (KLR), where the court held that even where the plaint discloses the purchase price, and subsequent documents on record point to a higher or more realistic value, the taxing oficer is entitled, and indeed obliged, to rely on such material in the record to ascertain the value of the subject matter, rather than defaulting to discretion. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/880/eng@2026-02-19 6

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38. In that case, the court stated that there was no justification for ignoring a value disclosed in the documents on record, and that nothing barred the taxing oficer from making reference to such material in determining the value of the subject matter for purposes of instruction fees. The court accordingly found that failure to adopt an ascertainable value constituted an error of principle. 39. Accordingly, this court finds that the taxing master erred in principle in declining to adopt the pleaded value of the subject matter and in assessing instruction fees on a discretionary basis. 40. As the only contested item in the bill of costs relates to instruction fees, the court will accordingly proceed to re-tax this item. As earlier noted, the subject matter of the Plaintifis’ suit comprised two parcels of land, namely L.R. No. 7109/88 and L.R. No. 7109/89, Nairobi. A review of the Plaint reveals that the Plaintifis expressly pleaded that the suit properties were purchased at a consideration of Kshs. 81,000,000 and that at the time of filing suit, their value stood at Kshs. 900,000,000. 41. The claim of Kshs 900,000,000 was however unsupported and the court will instead rely on the conceded sum of Kshs 81,000,000. The court will adopt this sum as the value of the subject matter. 42. Schedule 6 provides for instruction fees at the following rates where there is a defence or other denial of liability: (b) To sue in any proceedings described in paragraph (a) where a defense or other denial of liability is filed; or to have an issue determined arising out of inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and— That value exceeds Kshs. But does not exceed Kshs. Kshs. - 500,000 75,000 500,000 750,000 90,000 750,000 1,000,000 120,000 1,000,000 20,000,000 fees as for Kshs. 1,000,000 plus an additional 2%. Over 20,000,000 fees as for 20,000,000 plus an additional 1.5%. 43. Applying the foregoing scale to the present case where the value of the subject matter is Kshs. 81,000,000, the instruction fees are computed as follows: the fee for Kshs. 1,000,000 is Kshs. 120,000; for the excess between Kshs. 1,000,000 and Kshs. 20,000,000 (being Kshs. 19,000,000 an additional 2% is chargeable, amounting to Kshs. 380,000, bringing the fee at Kshs. 20,000,000 to Kshs. 500,000. For the excess of over Kshs. 20,000,000 (being Kshs. 61,000,000/=), an additional 1.5% is chargeable, amounting to Kshs. 915,000. The total instruction fees therefore payable is Kshs. 1,415,000. 44. Corresponding to the instruction fees is the getting-up fee which, under the Advocates (Remuneration) Order, shall not be less than one-third of the instruction fee allowed on taxation. Given that the instruction fees has been assessed at Kshs. 1,415,000, the applicable get-up fees is therefore one-third thereof, amounting to Kshs. 471,666.67. 45. In the result, the court finds the Summons to be merited and re-assesses the party-and-party bill of costs dated 1st July 2024 as follows: i. The Taxing Master’s award of Kshs. 500,000 in respect of Item No. 1 (instruction fees) is hereby set aside and substituted with an award of Kshs. 1,415,000. ii. The Taxing Master’s award of Kshs. 166,666.67 in respect of Item No. 2 (getting-up fees) is hereby set aside and substituted with an award of Kshs. 471,666.67. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/880/eng@2026-02-19 7

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iii. The remainder of the items in the Bill of Costs shall remain as taxed by the Taxing Oficer. iv. Each party shall bear its costs of the reference. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 19TH DAY OF FEBRUARY, 2026. O. A. ANGOTE JUDGE In the presence of: Ms Mageya for the Plaintifis Mr. Thuo for the Respondents Court Assistant – Tracy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/880/eng@2026-02-19 8

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