REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ELC MISC. NO. E009 OF 2026 AGRICULTURAL DEVELOPMENT CORPORATION----APPLICANT VERSUS STEPHEN OCHIENG--------------------------------------------RESPONDENT RULING 1. The application before me for determination is the Notice of Motion dated 5/3/2026 in which the applicant is seeking orders in the following terms: a)… spent b)That this court does set aside or vacate the decision by Hon. N. Rop in KTL ELC Pet. No. E002 of 2022, delivered on 27/2/2026 and any consequential order or certificate. c) That a different taxing master taxes the said Bill of Costs, or in the alternative, this court to assess or tax the costs lawfully payable to the respondent. d)That this court issues orders or directions fit and just to serve the ends of justice. e)Costs. 2. The applicant, in the grounds on the face of the said application, contends that the taxing officer erred in principle by arriving at a decision which is contrary to KITALE: ELC MISC NO.E009 OF 2026 -D.O.D18/9/2026 1
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the applicable law. Similarly, that the taxing officer misapprehended and misapplied the law on taxation on the nature of the suit from which the taxation arose. 3. According to the applicant, the taxing master failed to apply the formula and principles for assessing the instruction fees provided under Schedule 6 paragraph 1 (b) of the Advocates Remuneration Order. 4. The applicant further contends that the taxing master failed to exercise her powers and discretion under the law reasonably, fairly and judiciously. 5. In addition, the applicant, through a supporting affidavit sworn by its Regional Manager, Edward Ojode, attached copies of the judgment in ELC Pet. No. E002 OF 2022, the bill of costs and ruling as annexures marked EO 1a- 2b. 6. Service was effected on the respondent’s counsel, but there was no response on record at the time of writing this ruling. 7. The applicant filed written submissions dated 23/6/2026. It is submitted that the taxing master erred in law and in fact by holding that the value of the subject matter could not be discerned from the KITALE: ELC MISC NO.E009 OF 2026 -D.O.D18/9/2026 2
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pleadings, even though the judgment indicates that the subject matter in the petition is 175 acres, within Kitale West Municipality. 8. The applicant relied on Section 1(b) of Schedule 6 of the Advocates Remuneration Order, 2014, and urged that if the taxing master considered 175 acres as being the subject matter in dispute, and took judicial notice of the value of a 1 acre piece of land in Kitale within Trans-Nzoia County, the figure would not be Kshs.280,000/=. 9. Learned counsel cited the case of Joreth Ltd -vsKigano & Associates [2002] 1 E.A. 92, for the proposition that the value of the subject matter of a suit for taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement. However, if it cannot be ascertained, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers to be just. The taxing master must also consider the nature and the importance of the matter, the parties’ interests or the general conduct of the proceedings, among others. 10. The applicant submitted that the taxing master failed to take judicial notice of the geographical location of KITALE: ELC MISC NO.E009 OF 2026 -D.O.D18/9/2026 3
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the 175 acres as well as the approximate price of 1 acre of land in Kitale Municipality within Trans-Nzoia County. 11. Suffice it to mention that this reference arises from the party and party bill of costs dated 26/5/2025 filed by the applicant. The Deputy Registrar taxed the said bill and, vide a ruling delivered on 27/2/2026, taxed the same at Kshs.382,150/=. The applicant, being dissatisfied with the taxing master's decision, filed this reference. 12. I have carefully considered this reference and the written submissions. It is evident that the applicant mainly takes issue with the instruction fees awarded at Kshs.280,000/=. According to the applicant, the amount awarded as instruction fees was insufficient. 13. The circumstances in which the High Court and by extension this court may interfere with the decision of a taxing master were set out by the Court of Appeal in Kipkorir Tito & Kiara Advocates -vsDeposit Protection Fund Board [2005] eKLR in which the court rendered itself as follows; “On a reference to a judge from the taxation by the taxing officer, the judge will not normally interfere with the exercise of discretion by the taxing officer, KITALE: ELC MISC NO.E009 OF 2026 -D.O.D18/9/2026 4
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unless the taxing officer erred in principle in assessing the costs. 14. In Arthur -vs- Nyeri Electricity Undertaking [1961] EA 497, the court held that; “ … where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal, and the court will interfere only in exceptional cases.” 15. Further, the principles to be applied when assessing instruction fees in a suit are well settled in Joreth Ltd (supra) wherein the Court of Appeal outlined the principle as follows:“We would at this stage point out that the value of the subject matter of a suit for 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 ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” KITALE: ELC MISC NO.E009 OF 2026 -D.O.D18/9/2026 5
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16. In Peter Muthoka & another -vs- Ochieng & 3 others [2019] eKLR, the court expounded on the principles in Joreth Ltd (supra) and set down the proper basis of taxing the instruction fees 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 the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court.” 17. Turning to the matter before me, the trial court entered judgment on 23/4/2025. As rightly held by the taxing master, the judgment confirms that the alleged purchase price of Kshs.8,750,000/= was not paid in cash or at all by the applicant. Therefore, the value of the subject property was not determined. 18. It follows that the taxing master exercised her discretion, in line with the law, as elucidated in the KITALE: ELC MISC NO.E009 OF 2026 -D.O.D18/9/2026 6
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case analysis above, to award Kshs.280,000/= as instruction fee. 19. I find that the amount awarded as instruction fees was appropriate. I am not inclined to interfere with that award. 20. The upshot is that I find no merit in this reference. The same is dismissed in its entirety. 21. There shall be no orders as to costs given that no response to the application was filed. 22. Orders accordingly. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 18th day of September, 2026. In the presence of: Court Assistant: Matui Ms. Auta for the Applicant Mr. Ashioya holding brief for Mr. Havi SC for the respondent KITALE: ELC MISC NO.E009 OF 2026 -D.O.D18/9/2026 7
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HON. G.M. GITONGA JUDGE, ELC KITALE KITALE: ELC MISC NO.E009 OF 2026 -D.O.D18/9/2026 8
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