Kenya Walking Survivors Safaris & another v NCBA Bank Kenya Ltd & another (Commercial Miscellaneous Application E702 of 2025) [2026] KEHC 9203 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9203 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS) COMMERCIAL AND TAX COMMERCIAL MISCELLANEOUS APPLICATION E702 OF 2025 PM MULWA, J JUNE 25, 2026 BETWEEN KENYA WALKING SURVIVORS SAFARIS ................................... 1ST APPLICANT OTIENO LYSANIASH ONJWAYO .................................................. 2ND APPLICANT AND NCBA BANK KENYA LIMITED ................................................. 1ST RESPONDENT PURPLE ROYAL AUCTIONEERS ............................................. 2ND RESPONDENT RULING 1. Before me is a reference brought by way of a Notice of Motion dated 9th July 2025, seeking to set aside the decision of the Taxing Officer dated 12th June 2025 and the bill of costs dated 29th May 2023 be taxed afresh. The application is premised on the grounds that the suit in the Chief Magistrate MCCC E4923 of 2022 was dismissed for lack of jurisdiction with costs to the 1st Respondent and the bill was taxed as Kshs. 595, 640/=. That the bill as taxed is inordinately high and failed to appreciate the stage at which the matter was dismissed. 2. The principles of setting aside the decisions of a Taxing Officer were well established in the cases of Premchand Raichand Limited & Another v Quarry Services of East Africa Limited and Another [1972] EA 162, First American Bank of Kenya v Shah and Others (2002) EA 64 and Joreth Ltd v Kigano and Associates (2002) 1 EA 92. These include: a. That there was an error of principle b. The fee awarded was manifestly excessive or is so high as to confine access to the court to the wealthy. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9203/eng@2026-06-25 1
page 1 of 2
3. c. That the successful litigant ought to be fairly reimbursed for the costs he has incurred. d. That so far as practicable, there should be consistency in the award. The criteria that guide the superior courts whenever invited to interfere with taxation decisions were summarised in First American Bank of Kenya Ltd v Shash & 2 Others, civil suit 2255 of 2000 (2002) KEHC (KLR) as follows: “ First, I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle…Of course, it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors.” 4. The applicant contends that the suit before the Chief Magistrate's Court did not proceed to a hearing on the merits. The matter was decided on a preliminary issue of jurisdiction and was dismissed before substantive proceedings could be undertaken. 5. In the present case, although the Applicant seeks to set aside the taxation ruling delivered on 12th June 2025, no copy of the impugned ruling has been annexed to the application or filed in the CTS. The Court is therefore unable to ascertain the reasons that informed the taxation or to evaluate the complaints raised by the Applicant, and is left to speculate on the basis upon which the Taxing Officer exercised her discretion. A court cannot infer a decision whose reasons have not been placed before it. 6. Consequently, I find the Notice of Motion dated 9th July 2025 is devoid of merit and the same is dismissed with costs. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026. PETER MULWA JUDGE In the presence of: Parties absent Court Assistant: Lispa https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9203/eng@2026-06-25 2
page 2 of 2