Gatimu v Kenya National Highways Authority (Environment and Land Case 106 of 2020) [2025] KEELC 7151 (KLR)
The bottom line
#Kenya's High Court ruled a Taxing Officer misapplied the fee formula and sent the legal costs back for recalculation by a different officer.
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 Applicant is entitled to leave to file an objection and taxation reference against the Taxing Master's ruling of 7 November 2024
- 2.Whether the Taxing Officer erred in principle in assessing the instruction fees on the party and party Bill of Costs dated 6 October 2023
- 3.Whether the Bill of Costs should be remitted for fresh taxation before a different Taxing Officer
Key legal issues
#Whether the Taxing Officer erred in principle in computing the instruction fees
Yes - the Taxing Officer recognised the value of the property from the valuation report (Kesh 54,000,000) but made an error in applying the Schedule 6 Section 1(b) formula, adopting a subject value that was not the value of the subject matter
The court applied the settled principle from First American Bank v Shah, Joreth Ltd v Kigano and Kipkorir, Titoo & Kiara that interference is warranted only on an error of principle. Per Peter Muthoka v Ochieng, the Taxing Officer must start from the value ascertained from the pleadings, judgment or settlement and may not disregard that statutorily commanded starting point. Having recognised the value from the valuation report yet arriving at Kesh 130,000 instead of the amount the formula yields, the Taxing Officer misapplied the formula - an error of principle - justifying remittal for fresh assessment before a different Taxing Officer.
Legal principles established
#- A judge on a reference will not interfere with a Taxing Officer's discretion unless there is an error of principle; questions solely of quantum are for the Taxing Officer save in exceptional cases
- The value of the subject matter for taxation is to be determined from the pleadings, judgment or settlement; only if not ascertainable may the Taxing Officer use discretion to assess a just instruction fee
- Once ascertained, the instruction fee in the party and party bill is the basis of computing instruction fees in the advocate/client bill
Court orders
#- 1.The Application is allowed in so far as Item 1 (instruction fees) is concerned
- 2.The Bill of Costs be and is hereby remitted for fresh assessment before a completely different Taxing Officer
- 3.Costs are awarded to the Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order (reference from a Taxing Officer's decision to a judge)
Relief refused
#Interference with taxation of all items other than the instruction fees (Item 1)
The Applicant was only dissatisfied with the taxation of the instruction fees; the court found merit only insofar as Item 1 was concerned
Costs
Costs are awarded to the Applicant.
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 Bill of Cost be and is hereby remitted for fresh assessment before a completely difierent Taxing Officer.
The upshot of the forgoing is that the Application is merited in so far as Item 1 is concerned.
the Taxing Officer did recognize the value of the property as was provided for in the valuation report but seems that in calculating the instruction fees the Taxing Officer seem to have made an error in the calculations.
a Taxing Officer does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the Judgment or the settlement.
Issues in the judgment
#Conflicting figures for the instruction fee the Applicant contends the formula should yield - variously Kesh 1,010,000, Kesh 1,310,000 and Kesh 1,508,120 (the total bill)
Paragraph numbering restarts after paragraph 21 (the quoted extract from W'Njuguna), with subsequent paragraphs numbered 18 to 31
Date of the Bill of Costs appears inconsistently as 16/10/2023 and 6/10/2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatimu v Kenya National Highways Authority (Environment and Land Case 106 of 2020) [2025] KEELC 7151 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7151/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.