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ELCOtherAdvocate/Client Bill of Costs dated 10/07/2023 with Preliminary Objection dated 29/11/2023 and Notice of Motion dated 3/04/2024

Muthengi t/a Mutisya & Company Advocates v Mbuvi & another (Miscellaneous Application E007 of 2023) [2025] KEELC 4901 (KLR)

Environment and Land Court
26 June 2025
2,777 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled it cannot tax an advocate's fees for a company shareholding dispute; such matters belong to the High Court.

What this practically means

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Executive summary

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Before the Environment and Land Court at Thika were three applications: the Applicant's Advocate/Client Bill of Costs dated 10/07/2023, the 2nd Respondent's Preliminary Objection dated 29/11/2023 challenging the Court's jurisdiction, and a Notice of Motion dated 3/04/2024 seeking joinder of intended Interested Parties, all beneficiaries of the Estate of Kyale Mwendwa (Deceased). The parties agreed to canvass the applications by written submissions. The Court first determined the Preliminary Objection, applying the Mukisa Biscuits formulation and holding that the jurisdictional challenge was a pure point of law. The Applicant's Bill of Costs arose from instructions to represent the deceased in High Court proceedings concerning shares and shareholding in family companies (Muvokanza Limited, Academic Service Limited and Riverside Investments Co. Limited). Relying on Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, and on the Peter Kangethe decision, the Court held that the ELC's jurisdiction over contractual disputes extends only to contracts incidental to the use of land. The instructions here involved no proprietary rights in land; taxation of fees for shareholding matters lies with the High Court, which enjoys unlimited original jurisdiction in civil matters. The Court therefore upheld the Preliminary Objection, declined to entertain the joinder application and the Bill of Costs, downing its tools for want of jurisdiction, and awarded costs to the Respondents in the Preliminary Objection. Judgment delivered virtually at Thika on 26 June 2025 by Mogeni J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has the jurisdiction to hear and determine a taxation for proceedings that took place before the High Court
  2. 2.Whether the intended Interested Parties should be joined as Interested Parties to the proceedings
  3. 3.Whether the Advocate/Client Bill of Costs should be taxed and judgment entered thereon

Key legal issues

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01

Whether the ELC has jurisdiction to tax an Advocate/Client Bill of Costs arising from proceedings before the High Court concerning shareholding in family companies

Holding

The Court has no jurisdiction; the matter falls outside Article 162(2)(b) and Section 13 of the ELC Act as the services related to shares and shareholding, not proprietary rights in land

Reasoning

The Court traced its jurisdiction to Article 162(2)(b) and Sections 4 and 13 of the ELC Act, which confine it to disputes relating to environment and land. Relying on the Peter Kangethe decision, it noted that contractual disputes are within ELC jurisdiction only if incidental to the use of land. The instructions here concerned shares in family companies valued at Kshs 2 billion, with no proprietary land rights involved. Taxation of such fees falls within the High Court's unlimited original jurisdiction in civil matters.

p. 6
02

Whether the Preliminary Objection was properly raised as a pure point of law

Holding

Yes, the jurisdictional objection was a pure point of law

Reasoning

The Court applied the Mukisa Biscuits test and allied authorities, holding that a preliminary objection must rest on a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. It was satisfied the objection to jurisdiction met this threshold and dealt with it first, as jurisdiction is everything.

p. 4
03

Whether the intended Interested Parties should be joined

Holding

Not determined, as the point was rendered moot by the lack of jurisdiction

Reasoning

The joinder application was dependent on the fate of the Bill of Costs. Since the Court found it lacked jurisdiction over the Bill of Costs, it declined to engage with the joinder application, holding that a court without jurisdiction cannot make any further step.

p. 6

Legal principles established

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  • Where a court lacks jurisdiction it must down its tools and take no further step in the matter
  • The jurisdiction to tax fees for services relating to corporate shareholding lies with the High Court, not the ELC
  • A preliminary objection must be a pure point of law not dependent on ascertaining facts

Court orders

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  1. 1.The Preliminary Objection filed by the 2nd Respondent is upheld as merited
  2. 2.The other two applications (the joinder application and the Bill of Costs) are not attended to as the Court lacks jurisdiction and downs its tools
  3. 3.Costs are awarded to the Respondents in the Preliminary Objection

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution; Environment and Land Court Act, No. 19 of 2011, Sections 4 and 13

Relief refused

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Taxation of the Advocate/Client Bill of Costs and entry of judgment for Kshs. 17,451,804.24/-

The Court lacks jurisdiction as the underlying matter concerned shareholding in a family company, not proprietary rights in land

p. 6

Joinder of Intended Interested Parties

Tied to the Bill of Costs over which the Court has no jurisdiction

p. 6

Costs

The costs are awarded to the Respondents in the Preliminary Objection.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Given the foregoing I do hold that the Preliminary Objection is merited and in so doing it settles the other applications filed herein since the Court not having jurisdiction it downs its tools and moves no further.
p. 6Final orders - lack of jurisdiction disposes of all applications
The jurisdiction for taxation of matters related to shareholding in a Company generally lies with the High Court, not the Environment and Land Court (ELC).
p. 6Allocation of jurisdiction over shareholding fee disputes
The costs are awarded to the Respondents in the Preliminary Objection.
p. 6Costs order
Jurisdiction is everything. Without it, a Court has no powers to make one more step.
p. 4Jurisdiction (quoting Owners of Motor Vessel 'Lilian S')

Issues in the judgment

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minor

The Court refers to an 'Application dated 10/07/2023' seeking judgment for Kshs. 17,451,804.24/-, but the Bill of Costs itself is dated 10/07/2023, creating uncertainty whether a separate Notice of Motion of that date existed

minor

The introduction identifies the third application as dated 3/04/2024, but paragraph 23 refers to an application dated 10/07/2023, an internal inconsistency

minor

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muthengi t/a Mutisya & Company Advocates v Mbuvi & another (Miscellaneous Application E007 of 2023) [2025] KEELC 4901 (KLR)", Case Analysis (2025). Advocate/Client Bill of Costs dated 10/07/2023 with Preliminary Objection dated 29/11/2023 and Notice of Motion dated 3/04/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4901/eng@2025-06-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.