Mbugua v Wanjohi (Enviromental and Land Originating Summons E006 of 2020) [2026] KEELC 4171 (KLR)

plaintifi/respondent had filed the current suit (ELC suit no. E006 of 2020) without having served him thereby, attempting to claim his prime land along the Thika superhighway through adverse possession. 3. He further deposed that his advocates entered an appearance and applied for an order that compelled the plaintifi/respondent to deposit security for costs of Kshs.500,000. He deposed that the plaintifi/ respondent failed to deposit the funds within the stipulated 45 days and the court dismissed the suit on 3rd November 2022, awarding him costs. He went on to depose that he filed a party and party bill of costs seeking Kshs.56,255,100 which figure was based on a 2016 valuation report by Crystal Valuers Ltd which valued the suit land at Kshs.1.6 billion. The defendant/ pplicant deposed that since the suit was dismissed before he had filed a substantive defense, the exact value of the property could not be readily ascertained from the pleadings alone. 4. The defendant/applicant deposed that on 15th April, 2025 he was granted leave by the taxing oficer to file the valuation report to help determine the property's value for taxation purposes. He added that the plaintifi/respondent never contested an alternative valuation. He deposed that despite the valuation, the taxing oficer taxed the instruction fees at only Kshs.400,000/- and the entire bill at Kshs.435,495/-. 5. The defendant/applicant contended that the ruling was fiawed when the taxing oficer concluded that the valuation report did not constitute part of the pleadings and could not be used to ascertain the property's value. He deposed that the same was erroneous since the taxing oficer had granted him leave to file the said report under Paragraph 13A of the Advocates Remuneration Order to aid in her assessment. Further, that the taxing oficer failed to provide any formula, computation or reasoning that justified the Kshs.400,000 instruction fees. In conclusion, he deposed that the final taxed figure of Kshs.435,495/- was manifestly low and grossly disproportionate to both the Kshs.1.6 billion value of the subject matter and the gravity of the prejudice he faced. 6. The application was opposed vide the replying afidavit of the plaintifi/respondent sworn on 13th November, 2025. She deposed that the taxing oficer exercised her discretion judiciously and provided cogent reasons for the assessment. She went on to depose that the taxing oficer was actually generous in awarding the defendant/ applicant Kshs.400,000/- as instruction fees since the suit was undefended and was terminated at the pre-trial stage. 7. She further deposed that the defendant/applicant had not filed a defense or a response to the originating summons but only filed a single application seeking security for costs. She added that the suit was dismissed summarily when she failed to deposit Kshs.500,000/- for security. She deposed that awarding the amounts sought in the bill of costs is unmerited and amounted to unjust enrichment which would cause her immeasurable financial sufiering. Further, that the valuation report was introduced on 15th April, 2025 nearly three years after the suit was dismissed in November 2022. 8. The plaintifi/respondent deposed that the valuation report referred to a foreign property known as L.R. NO. 28/1 while the actual properties she sought adverse possession over in the originating summons were IR 3329 volume N19 and IR 19305 volume N60. She contended that no value could be attached to a non-existent property for the purpose of calculating legal costs. 9. The application was canvassed by way of written submissions. The defendant/applicant filed his written submissions dated 4th March, 2026 while the plaintifi/respondent filed her submissions dated 9th March, 2026. 10. I have considered the chamber summons, the response thereto and the written submissions filed by both parties. In my view, the issue for determination is whether the application has merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4171/eng@2026-07-06 2

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11. The circumstances under which this court may or can interfere with the taxing oficer’s exercise of discretion are now well known. The taxing master must be guided by the principles governing taxation as was held in the leading case of Premchand Raichand Ltd Another -vs- Quarry services of East Africa Ltd and Another No. 3 (1972) EA 162. The principles laid out are:i. The instruction fee should cover the advocates work including taking instructions and preparing the case for trial or appeal; ii. The taxing master was expected to tax each bill on its merits; iii. The value of the subject matter had to be taken into account; iv. The taxing master’s discretion was to be exercised judicially and not whimsically or capriciously; v. Though the successful litigant was entitled to a fair reimbursement, the taxing master had to consider the public interest such that costs were not allowed to rise to a level that would confine access to the courts to the wealthy. vi. No appeal or reference can be allowed unless the appellant can show or demonstrate that above mentioned principles have been breached because judges on appeal as a principle do not like to interfere with an assessment of costs by the taxing oficer unless the oficer has misdirected himself or herself in a matter of principle, but if the quantum of an assessment is manifestly extravagant, a misdirection of principle may be a necessary inference.” 12. In applying the above principles to the circumstances of this case, the defendant/applicant filed the party and party bill of costs dated 1st October, 2024 seeking costs amounting to Kshs.56,255,100. Being dissatisfied with the ruling by the taxing oficer delivered on 24th September, 2025 the defendant/ applicant seeks that the ruling is set aside based on the fact that the taxing oficer did not consider the valuation report in taxing item 1. He further claimed that the taxing oficer failed to also consider the size of the suit property and its prime location and was thus contrary with the provisions of Schedule 6 Clause 7(d) of the Advocates Remuneration (Amendment) Order 2014. 13. In opposition, the plaintifi/respondent contended that the costs were not to be based on a property valuation since the value of the property was never captured in the original pleadings. Further, that the defendant/applicant had not filed any defense or a response to the originating summons but only an application seeking security for costs. 14. It is not in dispute that the suit was dismissed before the defendant/applicant had filed a substantive defense. Further, that while in the course of proceedings, the taxing oficer granted the defendant/ applicant leave to file the valuation report for the suit property. In her ruling, the taxing oficer found that the value of the suit property could not be ascertained from the pleadings, and further, that the valuation report as filed did not form part of the pleadings and therefore she proceeded to exercise her discretion in taxing item 1 of the bill of costs. 15. In the case of Joreth Ltd V Kigano & Associates (Civil Appeal 66 of 1999) [2002] KECA 153 (KLR) the court held as follows: a. The value of the subject matter of the case for purposes of determining the instruction fees is wholly dependent on the stage at which the fees are being taxed. Where taxation happens before judgment, it is the pleadings that form the basis for determining subject value. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4171/eng@2026-07-06 3

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b. However, once judgment has been entered, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter. If the final judgment does not indicate the value of the subject matter of the suit, just as in the instant case, it is left for the taxing oficer to exercise his/her discretion in assessing the instructions fees payable guided by the principles of taxation and formula provided 5 for in Schedule 6 of the Advocates Remuneration (Amendment) Order 2014.” 16. Guided by the above authorities, it is not in dispute that the valuation report as filed did not form part of the judgment and therefore the taxing oficer was right in applying her discretion. There was no response filed to the originating summons, thus there was no basis upon which the valuation report could be used to determine the value of the suit property. 17. From the above, I find that the taxing oficer properly exercised her discretion in awarding instruction fees, and there is no reason to disturb the findings. The chamber summons dated 8th October, 2025 lacks merit, and it is hereby dismissed with no orders as to costs. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 6TH DAY OF JULY, 2026. HON. MBOGO C.G. JUDGE 06/07/2026. In the presence of: Ms. Benson Agunga - Court assistant Mr. Wamai for the Defendant/Applicant Ms. Ndinda holding brief for Mr. Mbaabu for the Plaintifi/Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4171/eng@2026-07-06 4

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