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ELCAllowedNot stated in the judgment as extracted

Softclans Technology Limited v Nextgen Mall Management Company Limited & 2 others (Enviromental and Land Originating Summons E004 of 2024) [2025] KEELC 4950 (KLR)

Environment and Land Court
20 June 2025
3,237 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that legal fees must be based on the actual amount disputed at judgment, not the full value of the property involved.

What this practically means

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Executive summary

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Two Chamber Summons applications by the Applicant sought leave to appeal against, and setting aside of, two rulings of the Deputy Registrar taxing the 1st and 2nd Respondents' bills of costs at Kshs. 1,202,601.67/= and Kshs. 1,200,866.67/= respectively. The Applicant, through its director Stephen Nandasaba Saisi, contended that the taxing officers erred in principle by basing instruction fees on the value of the suit property (Kshs. 45,100,000/=) instead of the outstanding service charge (Kshs. 11,450,989/=) which was the only live issue at judgment delivered on 18th July 2024, and wrongly awarded getting up fees where the suit was canvassed by written submissions. The Respondents countered that ownership of the suit property remained live up to judgment, that the discretion was judiciously exercised, and that getting up fees accrue even where a suit proceeds by written submissions. Relying on Premchand Raichand, Kipkorir Titoo & Kiari, Peter Muthoka v Ochieng and Kamunyori v Development Bank, the court held that since judgment had been entered and ownership was undisputed, the taxing officers ought to have assessed instruction fees on the outstanding service charge; failure to ascertain or correctly value the subject matter is an error of principle. The derivative getting up fees were likewise erroneous. Both applications were allowed, the rulings were set aside and both bills remitted to another taxing officer for fresh taxation, with costs to abide the outcome of the taxation.

Questions the Court framed

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

  1. 1.whether the Taxing Officer erred in taxing the Bill in the manner that she did

Key legal issues

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01

Whether the Taxing Officer erred in principle by basing instruction fees on the value of the suit property rather than the outstanding service charge

Holding

Yes - post-judgment taxation must take the subject matter value from the judgment; ownership of the suit property was not in dispute at judgment, so the true value was the service charge claim of Kshs. 11,450,989/=.

Reasoning

Schedule 6 of the Advocates Remuneration Order permits subject matter value to be drawn from pleadings or judgment. Following Peter Muthoka v Ochieng, once judgment is entered recourse is not had to the pleadings since the judgment conclusively determines the claim's value. Here the court had found ownership undisputed and only the service charge was determined, so the taxing officers erred in principle.

02

Whether getting up fees were properly awarded

Holding

No - getting up fees calculated at one-third of the instruction fee necessarily fall with the erroneous instruction fee.

Reasoning

Paragraph 6(2)(a) of the Advocates Remuneration Order allows getting up fees as not less than one-third of the instruction fee. Since the instruction fee was computed on the wrong subject matter value, the derivative getting up fees were also wrongly assessed and cannot stand.

p. 7
03

Whether the references were filed within time

Holding

Yes - the applications were filed within time as the Court was on vacation, per Order 50 Rule 4 of the Civil Procedure Rules.

Reasoning

The Applicant relied on Order 50 Rule (4) of the Civil Procedure Rules and Kensilver Express Limited v Mugambi to show the references were lodged within the prescribed period given the court vacation; this was not disturbed.

p. 3

Legal principles established

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  • The value of the subject matter for instruction fees is determined by the stage of taxation: pleadings before judgment, the judgment after judgment
  • Failure to ascertain or correctly value the subject matter is an error of principle justifying a judge's interference with taxation
  • Getting up fees, being founded on the instruction fee, fall with an instruction fee erroneously assessed

Court orders

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  1. 1.Both Chamber Summons applications allowed as prayed
  2. 2.Leave to appeal against the rulings of the Deputy Registrar granted
  3. 3.Rulings of the Deputy Registrar dated 11th December 2024 and 29th January 2025 set aside
  4. 4.The 1st Respondent's bill of costs dated 5th August 2024 and the 2nd Respondent's bill of costs dated 23rd August 2024 remitted to another taxing officer for taxation
  5. 5.Costs to abide with the outcome of the taxation

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 50 and 159(2)(d) of the Constitution; Rule 11(2) of the Advocates (Remuneration) Order; Sections 3 and 3A of the Civil Procedure Act

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.

From the foregoing, this court finds and holds that he taxing oficers ought to have assessed the instructions fees based on the outstanding service charge and not on the value of the suit property which was not in dispute at the point of judgement.
p. 6Error of principle in valuing subject matter for instruction fees
Failure to ascertain the correct subject matter in a suit for the purpose of taxation is an error of principle. So too, failure to ascribe the correct value to the subject matter is an error of principle.
p. 6Grounds for judicial interference with taxation (Kamunyori v Development Bank)
Having found that the instruction fee was erroneously arrived at, it follows that the getting up fees which is founded on the instruction fees was also erroneously arrived at.
p. 7Getting up fees follow the instruction fee
In the end, I find that both applications are merited and the same are hereby allowed as prayed. The 1st Respondent’s bill of costs dated 5th August 2024 and the 2nd Respondent’s bill of costs dated 23rd August 2024 is remitted to another taxing oficer for taxation. Costs to abide with outcome of the taxation.
p. 7Disposition

Issues in the judgment

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minor

The judgment inconsistently dates the 1st Respondent's bill of costs, describing it in the prayers as dated 5th August 2024 but in prayer (e) as dated 5th August 2025

minor

The court style is a Chamber Summons seeking leave to appeal but the judge determined it as a reference on the merits, remitting the bills for fresh taxation

minor

A 3rd Respondent appears in the court presence list (Ms Mutonyi for 3rd Respondent) but no 3rd Respondent is named in the body of the judgment

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, "Softclans Technology Limited v Nextgen Mall Management Company Limited & 2 others (Enviromental and Land Originating Summons E004 of 2024) [2025] KEELC 4950 (KLR)", Case Analysis (2025). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4950/eng@2025-06-20

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