Gogra v Lahori Jethnand Manghnani t/a Sachdeva & Company Advocates (Environment & Land Miscellaneous Case E073 of 2024) [2025] KEELC 3202 (KLR)
The bottom line
#A Mombasa court ruled that legal fees cannot be calculated using property valuations filed after a case ends, only figures from actual pleadings or judgments.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the taxation of the instructions and getting up fees was based on Kshs 45,000,000 on the valuation report dated and filed on 24th July 2024, and if so, whether the taxing master erred in law and principle
- 2.Whether 1st & 2nd defendants have met the threshold for leave to defend the suit in terms of the draft defence to be granted
- 3.Who pays the costs
Key legal issues
#Whether the taxing master erred in principle by relying on a valuation report filed after judgment to fix instruction and getting up fees
He did err; the report post-dated the striking out of the suit, the order for costs and the bill of costs, and the value was not ascertainable from the pleadings or judgment
The valuation report was filed on 24th July 2024, long after the parent suit was struck out on 15th March 2023 and after the bill of costs was filed on 31st March 2024. The taxing officer nonetheless adopted Kshs 45,000,000 from that report. Superior court authority requires the value to come from pleadings, judgment or settlement, failing which the taxing officer exercises discretion on relevant circumstances. Reliance on a post-judgment report was a misdirection on principle, warranting interference.
Whether the reference was incompetent for having been filed by miscellaneous application instead of in the parent suit
The objection was rejected; no hardship or prejudice was shown and striking out would offend the overriding objective and Article 159(2)(d)
The court accepted the reference ought ideally to have been filed in ELC No E228 of 2021, being a party and party bill reference. However, the respondent demonstrated no prejudice. Upholding the objection would likely result in striking out and a fresh application for leave to file out of time, contrary to sections 1A and 1B of the Civil Procedure Act, section 19 of the Environment and Land Court Act and Article 159(2)(d) of the Constitution, which favour substantive justice over procedural technicalities.
Whether leave should issue for the 1st and 2nd defendants to defend the suit
The prayer was withdrawn by the applicant as a typing error and was not determined
Although framed as an issue, the applicant conceded in submissions that the prayer was included in error and withdrew it. The court therefore did not pronounce itself on the merits of leave to defend, and no order was made on that head.
Legal principles established
#- The value of the subject matter for taxation of instruction fees must be ascertained from the pleadings, judgment or settlement; a valuation report filed after judgment cannot supply that value
- Filing a valuation report solely to guide the taxing officer should be discouraged; if the value of the suit property matters it should be pleaded
Court orders
#- 1.The reference filed through the amended chamber summons dated 28th September 2024 is allowed
- 2.The decision of the taxing master, Hon. Nyariki, delivered on 28th August 2024, on the bill of costs dated 25th March 2024 on instruction and getting up fees is reviewed and set aside
- 3.The party and party bill of costs dated 25th March 2024 is remitted to the current taxing officer for re-taxation on instructions and getting up fees items only
- 4.The contents of the valuation report dated and filed on 24th July 2024 by the respondent shall not be considered during the re-taxation
- 5.The respondent to bear the costs of the reference
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Reference against a taxing master's decision; sections 1A and 1B of the Civil Procedure Act, section 19 of the Environment and Land Court Act and Article 159(2)(d) of the Constitution invoked on substantive justice
Relief refused
#Prayer for leave for the 1st & 2nd defendants to defend the suit in terms of the draft defence
Prayer withdrawn by the applicant as a typing error, so the court made no determination on it
Costs
The respondent to bear the costs of this reference (costs to the applicant under section 27 of the Civil Procedure Act, costs following the event)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The decision of the taxing master, Hon. Nyariki, delivered on 28th August 2024, on the bill of costs dated 25th March 2024 on instruction and getting up fees is hereby reviewed and set aside.
That the party and party bill of costs dated 25th March 2024, is hereby remitted to the current taxing oficer for re-taxation on instructions and getting up fees items only.
The contents on the valuation report dated and filed on 24th July 2024 by the respondent should not be considered during the re-taxation.
the value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement 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
the filing of valuation reports for the purpose of guiding the taxing oficer in taxation ought to be discouraged for the simple reason that such a value was never the basis of the suir in the first place.
Issues in the judgment
#The judgment appears to conflate the bill of costs dates, referring to a bill dated 25th March 2024 in the chamber summons but deposing that the respondent filed the bill of costs dated 31st March 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gogra v Lahori Jethnand Manghnani t/a Sachdeva & Company Advocates (Environment & Land Miscellaneous Case E073 of 2024) [2025] KEELC 3202 (KLR)", Case Analysis (2025). Miscellaneous Application (Amended Chamber Summons dated 28th September 2024), arising from Mombasa ELC No E228 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3202/eng@2025-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.