Lilian Nyaboke Ondari v The Chief Magistrate, Naivasha & 3 others; Settlement Fund Trustees (Now the Directorate of Land Adjudication and Settlement) & 2 others (Interested Parties)

Court do make such orders as it deems just and necessary in the circumstances. ii. THAT this Honourable Court be pleased to stay the execution of any order or certificate of taxation emanating from the ruling dated 9th March 2026. iii. THAT costs of this application be provided for. 2. The Application is premised on its grounds and the Supporting Affidavit of equal date, sworn by Lilian N. Ondari, the Applicant herein, who deposed that on 3rd October 2024 this Court delivered its judgment dismissing her Petition against the ODPP and OCS, Kongoni Police Station, where the 4 th Respondent was a party as the complainant. 3. That the judgment did not touch on the rights of the 4th Respondent as it challenged the decision to charge by the state authorities, instead of deferring the matter to the Environment and Court. That the 4 th Respondent immediately took cue from the Petition and filed Naivasha CM ELC number E028 of 2024, which matter was pending before the court, apart from the Criminal matter which was the subject of this Petition, that is also pending determination. 4. She deponed that the 4th Respondent, who has taxed his bill, was not served with the Petition herein as he was not a principal party to the questions of law raised in respect of the Petition and therefore it was a misdirection on the part of the taxing master to take into consideration the orders sought in determining the compensation to the Respondent. 5. THAT the said amount was excessive owing to the fact that the matter herein was determined by written submissions with minimal attendance and therefore the Court should determine whether getting up fees was applicable to proceedings that are determined by submissions with no trial of fact. 6. That the Taxing Officer erred in law and in fact in awarding a sum of Kshs. 200,000/= as instruction fees, a figure which was excessive in the circumstances of the Petition herein, its principal parties and the outcome. NAIVASHA ELCL PET No. E001/2024 RULING Page 2 of 15

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7. Further, the Taxing Officer erred in law and in principle by failing to consider the principles applicable to the determination of instruction fees, and thus exercised his discretion wrongly without giving any reasons. That, in taxing the bill and awarding a sum of money that was against the principles of natural justice, which provide that legal fee should not be exorbitant to the extent that they drive away a party from the seat of justice, was an error in law. 8. That other parties who were awarded costs had not taxed their bills; therefore, the amount taxed was not justifiable. 9. She deponed that the civil matter filed by the 4 th Respondent was still pending in court and so was the Criminal matter (since 2023) and therefore the legal issues and rights between her and the 4th Respondent were far from being determined. The current Reference was therefore merited as she was apprehensive that the 4th Respondent may move at any time to execute the said costs. 10. That should the Reference succeed, they would not be able to recover the said costs if executed, as the interested party herein was a person of unknown means and assets. 11. The 4th Respondent’s grounds of opposition to the application were that it was incompetent, bad in law, and an abuse of the court process, as the Applicant had not demonstrated any error of principle on the part of the taxing officer warranting interference by this Honourable Court. That the taxing officer properly exercised his discretion in taxing the bill of costs in accordance with the Advocates (Remuneration) Order (as amended) and relevant judicial precedents, and that the decision was reasonable, just, and not manifestly excessive. 12. That the Applicant failed to show that the taxing officer took into account irrelevant considerations or failed to take into account relevant factors when assessing the instruction fees, drawing fees, attendances, or disbursements wherein the application was a mere dissatisfaction with the quantum taxed NAIVASHA ELCL PET No. E001/2024 RULING Page 3 of 15

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and amounts to an invitation to this Court to sit as a court of first instance on taxation, which is not the function of the Court on review/ reference. 13. His position was that the Court could only interfere where there was a clear error of principle or the taxed amount was so exorbitant as to imply an error of principle. 14. The Applicant had been afforded a full and fair opportunity to be heard during the taxation proceedings, where she had even filed detailed submissions which were given due consideration before delivering the ruling. The Applicant could not now seek to re-argue the same points on review. 15. He argued that the taxed costs were fair and reasonable having regard to: i. The nature, complexity, and importance of the matter; , ii. The amount or value of the subject matter; iii. The time and labour expended by the Respondent’s advocates; and iv. 16. The skill, specialised knowledge, and responsibility involved. That allowing the application would thus cause him grave prejudice and injustice, since he was a successful party entitled to costs that follow the event under Section 27 of the Civil Procedure Act, Cap 21. 17. That the application was brought in bad faith, intended to delay payment of the taxed costs and frustrate the fruits of the judgment, where the Applicant had not offered any sufficient or credible grounds to warrant retaxation before a different taxing officer or any variation of the certificate of taxation. 18. By consent, the parties took directions to have the application disposed of by way of written submissions herein summarised as under: 19. The Applicant’s submissions dated 30th April 2026 were to the effect that Party-to-party costs are intended solely to compensate a party for reasonable expenses incurred in prosecuting or defending a matter before the court. 20. The main issue in the Constitutional Petition was the decision of the Director of Public Prosecutions (ODPP) to initiate criminal charges, an NAIVASHA ELCL PET No. E001/2024 RULING Page 4 of 15

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exercise in which the 4th Respondent played no role. The 4th Respondent, having admitted they were never served with the Petition, neither attended the directions on how to proceed nor attended court, as the matter proceeded purely on written submissions. 21. The Taxing Master had therefore exercised discretion wrongly by awarding inordinate and unreasonable compensation to a party who had failed to attend court proceedings. 22. The Applicant generally challenged the specific awards of Kshs 200,000/= for instruction fees and Kshs 66,000/= for getting-up fees, arguing that the Taxing Master erred by attaching the value of the Constitutional Petition to land allegedly owned by the 4th Respondent, even though the land itself was not the subject of taxation. 23. She submitted on the key Questions Submitted for Resolution as follows: i. Whether Kshs 200,000/= is correct under the Advocates Remuneration Order. ii. Whether Kshs 66,000/= for getting up fees is reasonable given the 4th Respondent’s absence during directions. iii. Whether the 4th Respondent was actually a party affected by the proposed orders in the Petition. iv. Whether it was proper to base taxation on the value of contested property that was not the subject matter of the dispute. 24. The Applicant relied on the decision Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR) to submit on whether a Taxing Master can extrapolate the subject matter value from the pleadings and sought that the Court resolve these issues in her favour, overturn the Taxing Master's decision, and set aside or adjust the awarded costs accordingly. 25. The 4th Respondent’s Submissions dated 21st April 2026, on the other hand, disputed the Applicant’s claim of his non-involvement, stating that they were served with the Petition, wherein they filed a Memorandum of NAIVASHA ELCL PET No. E001/2024 RULING Page 5 of 15

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Appearance, submitted a Response and written submissions, and fully participated in the suit. 26. That the underlying suit was a Constitutional Petition seeking to halt criminal prosecution for alleged illegal occupation of the 4th Respondent’s 5acre land, which Petition was dismissed with costs awarded to the 4th Respondent. After the dismissal, the 4th Respondent claimed Kshs 767,866/=, which the Taxing Officer reduced by Kshs 480,848/=, issuing a final taxed award of Kshs 287,018/= on 9th March, 2026. 27. He submitted that under Paragraph 11 of the Advocates (Remuneration) Order, 2014, a judge will only interfere with a Taxing Officer’s discretion if there was an explicit error of principle or if the award is manifestly excessive or inadequate, as was held in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR. 28. He argued that the Applicant’s Reference was merely a disagreement over quantum, which did not constitute a ground for setting aside a taxation. That the Instruction Fees of Kshs 200,000/= was taxed reasonably in accordance with the applicable scale, considering the subject matter, nature, complexity, and value of the 5-acre land involved. He relied on the Joreth Ltd v. Kigano & Associates (sic) case. 29. That further, attendances & disbursements were properly scrutinized and reduced by disallowing duplicate or excessive items while retaining only reasonable fees supported by the court record. Indeed, the Taxing Officer’s 9-page ruling comprehensively addressed each line-item objection with detailed justifications. 30. He framed the issues for determination as follows: i. Whether the Reference is competent and properly before the Court. ii. Whether the Taxing Officer erred in principle or acted manifestly unreasonably. iii. Whether the Reference is an impermissible appeal on quantum alone. NAIVASHA ELCL PET No. E001/2024 RULING Page 6 of 15

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iv. 31. Who should bear the costs of the Reference. The 4th Respondent then sought the dismissal of the Applicant’s Reference Application with costs, submitting that the Taxing Officer’s Ruling dated 9 th March, 2026, be upheld in its entirety. Determination. 32. I have considered the Applicant’s Application dated 23rd March, 2026, where she seeks to have the Taxing Master’s Ruling dated 9th March 2026 set aside so that the Bill of Costs dated 14 th October 2024 can be remitted for fresh taxation before another Taxing Officer and, in the meantime, there be stay of execution of the resulting taxation certificate. Her application is grounded on the arguments that the 4th Respondent was not a primary party to the core legal issues raised in the Petition (which challenged decisions by state authorities) and was not served, making it an error to consider the main orders sought when setting compensation. 33. That the awarded instruction fee of Kshs. 200,000/= was therefore exorbitant, given the context of the Petition, the principal parties involved, and the minimal court attendances required for a matter determined purely by written submissions without a trial of fact. 34. Her argument was that the Taxing Officer exercised discretion wrongly without providing reasons, breaching natural justice principles by awarding fees so high they restrict access to justice, more so given that the other parties who were awarded costs had not taxed their bills, and related civil and criminal disputes between the parties remain pending in court. She thus feared execution of the costs, noting that the interested party is a person of unknown means, making recovery impossible should the Reference succeed. 35. In opposition to the application, the 4 th Respondent’s argument was that the same was incompetent, bad in law, and an abuse of court process for the reasons that the Taxing Officer properly applied the Advocates (Remuneration) Order and relevant precedents to arrive at a reasonable, just, and non-excessive award. The Applicant failed to demonstrate any clear error NAIVASHA ELCL PET No. E001/2024 RULING Page 7 of 15

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of principle or reliance on irrelevant considerations. The application reflected mere dissatisfaction with the taxed amount and improperly invited the court to act as a court of first instance on taxation. The Applicant actively participated in the taxation proceedings and filed detailed written submissions that the court duly considered before the ruling. 36. Further, the taxed costs were fair considering the nature, complexity, subject matter value, time, labour, and specialised skill required. As a successful party, he was entitled to costs under Section 27 of the Civil Procedure Act; setting aside the ruling would cause grave prejudice and would be a bad-faith attempt to delay execution. 37. From the above summary, I find the issues arising for my determination as being; i. Whether the application is a proper Reference on taxation or an improper attempt to have the Court act as a court of first instance to re-evaluate evidence and review the Taxing Officer’s exercise of discretion. ii. Whether the Taxing Officer erred in principle or took into account irrelevant considerations (such as the main reliefs sought in the dismissed Petition) when assessing costs against a party who claimed not to be a primary party and was not served with the Petition. iii. Whether the awarded instruction fee of Kshs. 200,000/= was manifestly excessive, unjust, or calculated without due regard to the nature, complexity, time, labour, and mode of determination (written submissions vs full trial). iv. Whether getting up fees or similar trial-based fees apply to proceedings concluded purely on written submissions without a trial of fact. v. 38. Whether an order for stay of execution is warranted. The often-cited case of First American Bank of Kenya vs Shah & Others [2002] 1 EA 64 sets out the circumstances under which a Judge of NAIVASHA ELCL PET No. E001/2024 RULING Page 8 of 15

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the High Court (read: Environment and Land Court) can interfere with the Taxing Master’s exercise of discretion. These principles are also to be found in the old Court of Appeal decisions in Premchand Raichand Limited & Another vs Quarry Services of East Africa Limited and Another [1972] E.A 162 and Arthur vs Nyeri Electricity Undertaking [1961] E.A 492. The Court of Appeal also reaffirmed these principles in Joreth Limited v Kigano and Associates [2002] 1 E.A 92. These principles include i. that the Court cannot interfere with the Taxing Master’s discretion on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle; ii. it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Remuneration order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge; iii. if the Court considers that the decision of the Taxing Master discloses errors of principle, the normal practice is to remit it back to the Taxing Master for reassessment unless the judge is satisfied that the error cannot materially have affected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high; iv. it is within the discretion of the Taxing Master to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary.” NAIVASHA ELCL PET No. E001/2024 RULING Page 9 of 15

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39. From the above stated, it can be discerned that there is thus a general caveat on judicial review of quantum of taxation unless there is a clear error of principle or the sums awarded are either manifestly high or low so as to lead to an injustice, see Premchand’s case (supra) 40. A close examination of the Applicant’s grounds demonstrates grounds of principle and elements of improper re-evaluation and therefore the application is partially a proper Reference because the application challenges specific legal determinations—namely, whether getting-up fees legally accrue in a matter determined strictly on written submissions without oral testimony, and secondly whether the Taxing Officer misdirected himself on the true subject-matter exposure of a non-principal Respondent; hence the Court has proper jurisdiction to entertain the Reference on those distinct questions of principle. However, to the extent that the Applicant asks the Court to re-assess basic attendances or lower fees based on general dissatisfaction, I find it is an improper attempt to treat the Court as a court of first instance. 41. The legal principles governing interference with a Taxing Officer’s exercise of discretion having been well established, this Court will not interfere with a taxation simply because it would have awarded a different figure. Interference is only justified where the Taxing Officer committed an error of principle, considered irrelevant matters, ignored relevant factors, or awarded a sum so manifestly excessive or absurdly low as to imply an error of principle. 42. To the extent that the Applicant seeks a wholesale re-evaluation of minor attendances and disbursements already actively adjusted by the Taxing Officer (who struck off client correspondence and non-attendances), the application is an improper invitation to re-try facts. 43. On the second and third issues for determination as to whether the Taxing Officer erred in principle or took into account irrelevant considerations (such as the main reliefs sought in the dismissed Petition) when assessing costs NAIVASHA ELCL PET No. E001/2024 RULING Page 10 of 15

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against a party who claimed not to be a primary party and was not served with the Petition and whether the awarded instruction fee of Kshs. 200,000/= was manifestly excessive, unjust, or calculated without due regard to the nature, complexity, time, labour, and mode of determination (written submissions vs full trial); 44. The Applicant’s core argument was that not only was the 4th Respondent a peripheral party who was not served and whose rights were not directly touched by the Petition, but that the Taxing Officer inflated the instruction fee to Kshs. 200,000/= by relying on the substantial prayers in the Petition— such as the declaration of land ownership and prohibition of criminal charges —which were directed primarily at state agencies (ODPP, Inspector General/OCS), not the 4th Respondent directly. 45. Under Item 1(j) of Schedule 6 of the Advocates (Remuneration) Order, instruction fees in Constitutional Petitions are assessed based on: 46. i. The nature and importance of the Petition. ii. The complexity and novelty of the questions raised. iii. The amount or value of the subject matter. iv. The time expended, care, and labour required. The Applicant’s primary ground for review was that the 4 th Respondent was a peripheral party who was not served and whose rights were not directly touched by the Petition. In evaluating whether the Taxing Officer erred in principle or took into account irrelevant considerations regarding the 4th Respondent’s status and service, the court must balance the principles of taxation against the record of the main Petition herein reported as Ondari v Chief Magistrate, Naivasha Law Court & 3 others; Settlement Fund Trustees (Now the Directorate of Land Adjudication and Settlement) & 2 others (Interested Parties) [2024] KEELC 6360 (KLR). At paragraphs 17 to 28 of the judgement the court summarised the 4 th Respondent’s response to the Petition through a comprehensive Replying Affidavit, supported by third-party neighbour affidavits directly defending his land rights of 30 years over parcel Naivasha/Moi Ndabi/739. NAIVASHA ELCL PET No. E001/2024 RULING Page 11 of 15

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47. When a Taxing Officer assesses instruction fees, the core inquiry under Schedule 6(j)(ii) of the Advocates (Remuneration) Order is the care, labour, skill, responsibility, and risk involved in defending the client’s interest. 48. The Applicant had explicitly asked the court to evict the 4th Respondent who filed a response defending against an eviction order and challenging the land ownership; I find that the Applicant can no longer credibly argue that the 4th Respondent’s involvement was minor or unprompted. 49. The Taxing Officer set the instruction fee at Kshs. 200,000/= (double the scale minimum of Kshs. 100,000/=) and gave his reason for so awarding at para 25 as follows: ‘’Considering the nature and importance of the matter; the general conduct of the parties; The time, research and skill expended in brief and how far the matter had proceeded, legal authorities referred to, it is my considered opinion that the sum of Kshs 200,000/= will be appropriate as instruction fee which is double what has been provided for in the ARO Amendment 2014.’’ 50. Given that the 4th Respondent’s Counsel had to peruse complex land history dating back to 1994, analyze criminal charge sheets, forged green cards, and cross-transfer agreements, draft detailed replying affidavits covering statutory land law, constitutional avoidance, and police powers, and protect his client facing complete loss of possession and eviction, I find that the Taxing Officer did not rely on "irrelevant considerations." The main reliefs in the Petition directly targeted the 4 th Respondent’s land possession; thus, evaluating that risk was entirely proper and the award of Kshs. 200,000/= was fully defensible and reasonable in law and cannot be characterised as "manifestly excessive" or "so exorbitant as to imply an error of principle."This Court finds no error of principle on these items. 51. On the fourth issue for determination as to whether "getting up fees" or similar trial-based fees were applicable to proceedings concluded purely on written submissions without a trial of fact, schedule 6 paragraph 2 of the NAIVASHA ELCL PET No. E001/2024 RULING Page 12 of 15

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Advocates Remuneration Order, 2014 under sub heading of “fees for getting up or preparing for trial” provides that: ‘In any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall be not less than one-third of the instruction fee allowed on taxation: Provided that — i)……. ii) no fee under this paragraph is chargeable until the case has been confirmed for hearing, but an additional sum of not more than 15% of the instruction fee allowed on taxation may, if the judge so directs, be allowed against the party seeking the adjournment in respect of each occasion upon which a confirmed hearing is adjourned…….’ 52. It is clear that no fee is chargeable for getting up and preparing for trial until the case is confirmed for hearing and in case where the case is not heard, the taxing officer must be satisfied that the case has been prepared for trial. 53. The Classical Rule is that getting up fees would accrue only where a suit was actually set down for hearing, where oral evidence is to be taken, or a trial of fact occurs. Under a strict interpretation, therefore, where a case is disposed of by way of preliminary objection, notice of motion, or purely on written submissions without witness testimony, getting up fees will not automatically attach. 54. Indeed, the courts have recognized that Constitutional Petitions and judicial review matters rarely involve live witness testimony or full trial crossexaminations. Instead, they are decided on rival affidavit evidence and extensive written legal submissions and therefore, taking a strict statutory approach, to hold that awarding getting-up fees in submission-only proceedings constitutes an error of principle: NAIVASHA ELCL PET No. E001/2024 RULING Page 13 of 15

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55. When a matter is decided on written submissions, the research, drafting, and legal analysis are already fully compensated under the Instruction Fee which covers taking instructions, researching the law, and drafting the petition or response) and the Drawing/Perusal Fees and therefore awarding getting-up fees in the absence of a trial, I hold, was double recovery or unjust enrichment. 56. In Paragraphs 26–28 of the Ruling, the Taxing Officer explicitly awarded Kshs. 66,666/= (calculated as standard 1/3 of the Kshs. 200,000/= instruction fee) as getting-up fees, which was an error in principle because Schedule 6, Item 1(j) of the Advocates (Remuneration) Order provides for instruction fees to cover the entire presentation or defence of the Petition. Item 2 (Getting Up) explicitly requires the matter to be set down for trial or heard on merits with witnesses. 57. The Taxing Officer had already doubled the instruction fee from Kshs. 100,000/= to Kshs. 200,000/= specifically citing ‘the time, research and skill expended in brief... and legal authorities referred to’. Adding a separate getting-up fee of 1/3 for the exact same written submission preparation effectively compensated the advocate twice for the same intellectual work. To this effect the Taxing Officer’s decision to award Kshs. 66,666/= as getting-up fees is herein varied and the sum of Kshs. 66,666/= must be taxed off. 58. Lastly, on whether an order for stay of execution pending Reference is warranted, there is no dispute that the said prayer was sought competently alongside the substantive challenge pursuant to the Court’s inherent powers under Section 3A of the Civil Procedure Act. However, with the delivery of this Ruling on the substantive Reference, the interlocutory prayer for a stay pending Reference is now spent and rendered moot. 59. In the end, I hold as follows: NAIVASHA ELCL PET No. E001/2024 RULING Page 14 of 15

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i. The Taxing Officer’s Ruling dated 9 th March, 2026, is hereby varied by setting aside and striking off Item 2 (Getting-Up Fees) awarded at Kshs. 66,666/=. ii. The Instruction Fees of Kshs. 200,000/= and all other itemized taxed figures in the ruling are hereby affirmed and upheld. iii. Consequently, the 4th Respondent’s Party-to-Party Bill of Costs dated 14th October 2024 is hereby recalculated and finally taxed at Kshs. 220,350/= (being Kshs. 287,016/= less Kshs. 66,666/=). iv. Each party shall bear their own costs of this Reference. Dated and delivered via Microsoft Teams at Naivasha this 1st day of October 2026. M.C. OUNDO ENVIRONMENT & LAND COURT – JUDGE NAIVASHA ELCL PET No. E001/2024 RULING Page 15 of 15

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