Softclans Technology Limited v Nextgen Mall Management Company Limited & 2 others (Enviromental and Land Originating Summons E004 of 2024) [2025] KEELC 4950 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Taxing Officer erred in taxing the Bill in the manner that she did
Key legal issues
#Whether the Taxing Officer erred in principle by basing instruction fees on the value of the suit property rather than the outstanding service charge
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/=.
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.
Whether getting up fees were properly awarded
No - getting up fees calculated at one-third of the instruction fee necessarily fall with the erroneous instruction fee.
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.
Whether the references were filed within time
Yes - the applications were filed within time as the Court was on vacation, per Order 50 Rule 4 of the Civil Procedure Rules.
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.
Legal principles established
#- 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
#- 1.Both Chamber Summons applications allowed as prayed
- 2.Leave to appeal against the rulings of the Deputy Registrar granted
- 3.Rulings of the Deputy Registrar dated 11th December 2024 and 29th January 2025 set aside
- 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.Costs to abide with the outcome of the taxation
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
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.
Issues in the judgment
#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
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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.