Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Petition 25 of 2021) [2026] KEELC 127 (KLR)
The bottom line
#The Environment and Land Court struck out two companies' challenge to taxed legal costs because they missed the mandatory 14-day reference procedure under the Advocates Remuneration Order.
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 Notice of Preliminary Objection herein is legally sound
- 2.If so, what are the effects of the preliminary objection
- 3.Whether the Chamber Summons application meritoriously stood a chance before this court
- 4.Who bears the costs of the application herein
Key legal issues
#Whether the preliminary objection on jurisdiction was legally sound
The objection was merited because the court lacked jurisdiction to entertain an application that was not a properly filed reference under paragraph 11 of the Advocates Remuneration Order.
The court adopted the Mukisa Biscuit test and the Mary Wambui Munene dictum that jurisdiction is a pure question of law. Under paragraph 11(2), an objector must, within 14 days of receipt of the Taxing Master's reasons, apply to a judge by chamber summons by way of a reference setting out grounds of objection. The Petitioners filed a chamber summons application not initiated by or accompanied by a reference, and out of time without leave, so the objection on jurisdiction succeeded.
Whether Article 159 of the Constitution could cure the non-compliance with paragraph 11
No - the failure to file a reference was a mandatory requirement not curable under Article 159.
Relying on the Supreme Court's decision in Moses Mwicigi v IEBC, the court held that procedure is the handmaiden of justice and that where a procedural requirement bears on the just determination of a case and is overlooked, the pleadings may be declared incompetent. The court found this to be a mandatory default, not a mere technicality, and thus outside the saving reach of Article 159(2)(d).
Whether the court could tax the Bills of Costs afresh or substitute its own figures
No - taxation afresh is a preserve of the Taxing Master and judicial interference is limited to errors of principle.
Citing Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board, the court held that on a reference a judge will not normally interfere with the Taxing Officer's discretion unless there was an error of principle, or the award was manifestly excessive or low as to amount to an injustice. No proper reference was before the court, so the Chamber Summons could not survive.
Legal principles established
#- A party aggrieved by a Taxing Master's decision must file a proper reference by way of chamber summons under paragraph 11 of the Advocates Remuneration Order within 14 days of receiving the reasons; failure to do so is a mandatory requirement not curable by Article 159 of the Constitution.
- The jurisdiction of the High Court to interfere with a Taxing Officer's decision is limited to instances where the Taxing Officer erred in principle in assessing the costs.
- Certain procedural defaults that go to the competence of pleadings cannot be cured by Article 159(2)(d) of the Constitution.
Court orders
#- 1.The Chamber Summons application dated 8th June 2025 be and is hereby found to lack merit and thus it is hereby struck out
- 2.Costs of the application awarded to the 1st Respondent to be borne by the 1st & 2nd Petitioners
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 2014
Relief refused
#Setting aside the Certificate of Taxation dated 25th September 2024 and taxation of the Bills of Costs afresh (or at fixed sums of Kshs 315,868.67 and Kshs 251,583.33)
The application was not a proper reference under paragraph 11 of the Advocates Remuneration Order, was filed out of time without leave, and the power to tax costs afresh is a preserve of the Taxing Master
Costs
Costs of the application awarded to the 1st Respondent, to be borne by the 1st & 2nd Petitioners.
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.
THAT the Chamber Summons application dated 8th June 2025 be and is hereby found to lack merit and thus it is hereby struck out.
THAT costs of the application to be awarded to the 1st Respondent to be borne by 1st & 2nd Petitioners.
The Petitioners proceeded to file the chamber summons application on its own without it being accompanied by or initiated by way of a Reference as it is envisaged in Law. This is not a technicality but a mandatory requirement.
Having found that there is no proper reference before this court, the court finds that the Chamber Summons application is devoid of any merit.
So far as I'm aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.
Issues in the judgment
#Conflicting dates for the Certificate of Taxation - the supporting affidavit and application refer to 25th September 2024 but paragraph 31 refers to a Certificate of Costs dated 25th September 2025
Conflicting dates for when the Taxing Master rendered the reasons for taxation - the 1st Respondent's affidavit says 27th May 2025 while the Petitioners state the reasons were issued on 23rd May 2025 and received on 2nd June 2025, and the court itself refers to 27th May 2025
The judgment recites that paragraph 11 'bears the clause that the process is mandatory' but does not quote any such mandatory clause from the provision
Discrepancy in the instruction fees figures said to be supported by Schedule 6[1][j][i] - the Petitioners propose Kshs 200,000 and Kshs 100,000 but describe the alternative taxation sums elsewhere as Kshs 315,868.67 and Kshs 251,583.33
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Petition 25 of 2021) [2026] KEELC 127 (KLR)", Case Analysis (2026). Chamber Summonses application dated 8th June 2025 (within the Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/127/eng@2026-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.