Kilundo v Ndiso (Environment and Land Miscellaneous Application E014 of 2024) [2026] KEELC 907 (KLR)

5. The only issue for determination is whether the Applicant has demonstrated that there are grounds to warrant the court to interfere with the discretion of the taxing oficer. 6. The Court of Appeal in the case of Joreth Ltd –vs- Kigano & Associates (2002) KELA 153 (KLR) stated 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 importance of the cause of matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances”. 7. In the instant case the Applicant had filed originating summons seeking removal of a caution which had been registered against the title number Konza South/Konza South Block 5 (Konza) 2592 measuring two acres. The Applicant had sold this property to Pistis Destiny Limited for Kshs.2,170,000/= but he could not transfer it as there was a caution. 8. The parties compromised the suit before hearing but they could not agree on the costs. The value of the suit property was therefore ascertainable from the pleadings from annexture “WNK 4” under paragraph 5. 9. According to schedule six of the advocates Remuneration (Amendment Order) 2014, instruction fees should have been Kshs.98,400. Having the instruction fees in mind, assessment of getting up fees should not have been an issue. Given that this suit was settled by the parties without a hearing and given the fact that the value of the subject matter was ascertainable from the pleadings, I find that the taxing master committed an error of principle by awarding instruction fees of Kshs.250,000/= which was excessive in the circumstances. 10. I therefore set aside the ruling of Hon. Elizabeth Kemei on instruction fees and getting fees up and remit the bill of costs to be taxed by another taxing oficer other than Hon. Elizabeth Kemei strictly in compliance with the Remuneration Order based on the value as clearly shown in the pleadings. The Applicant shall have the costs of this reference. It is so ordered. HON. E. O. OBAGA JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 19TH DAY OF FEBRUARY, 2026. In the presence of: Mr. Munyasya for Respondent Court assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/907/eng@2026-02-19 2

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