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ELCDismissedChamber Summons dated 20th February 2025 (arising from Kakamega ELC Case No. E034 of 2022 / Kakamega ELCA No. E002 of 2023)

Ben & another v Lukongo & 2 others (Miscellaneous Application E006 of 2025) [2026] KEELC 213 (KLR)

Environment and Land Court of Kenya
21 January 2026
1,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed a challenge to a Taxing Officer's ruling, confirming that complaints about legal costs must be backed by concrete evidence.

What this practically means

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Executive summary

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The applicants, who had obtained the dismissal of the respondents' appeal (Kakamega ELCA No. E002 of 2023) with costs, filed a party and party bill of costs for Kshs. 603,790. The Taxing Officer taxed it at Kshs. 153,450 on 12th February 2025, finding the value of the subject matter unascertainable. By chamber summons dated 20th February 2025, the applicants sought setting aside of the ruling and certificate of costs and re-taxation, or in the alternative remission to a different Taxing Officer. They alleged a gross error of principle in the assessment of instruction fees, miscalculation of folios in items 7-10, 12 and 13, failure to check documents on the Court Tracking System under items 17, 18 and 31-33, and underassessment of attendance fees. The 2nd respondent opposed, asserting the value of the subject matter was not ascertainable from the pleadings or judgment and that the bill was properly taxed. The court framed a single issue: whether sufficient material existed to justify interference with the Taxing Officer's decision. Applying the settled principle that a court interferes only where taxation is premised on an error of principle or the award is manifestly excessive or too low, the court found the applicants' complaints generalised and unsupported: they did not avail the pleadings, judgment or settlement from which the value of the subject matter could be discerned, did not explain the alleged folio miscalculations, and did not prove the CTS was unchecked. The attendance fee award was consistent with Schedule 6 of the Advocates Remuneration Order. The chamber summons was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether there is sufficient material before the court to justify interference with the decision of the Taxing Officer

Key legal issues

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01

Whether the Taxing Officer fell into error of principle in assessing instruction fees (item 1) by failing to ascertain the value of the subject matter

Holding

No error established; the applicants failed to avail the pleadings, judgment or settlement from which the value could be discerned

Reasoning

The court reiterated that a Taxing Officer must consider the value of the subject matter, which is discerned from the pleadings, judgment or settlement. The applicants, who bore the burden of demonstrating error, placed no pleading, judgment or settlement before the court. Their complaints about the instruction fees of Kshs. 75,000 were generalised and unsupported, so no basis for interference was made out.

p. 4
02

Whether the Taxing Officer miscalculated folios in items 7-10, 12 and 13 and failed to check documents on the CTS in items 17, 18 and 31-33

Holding

Complaints baseless; applicants did not explain the alleged miscalculation nor prove the CTS was not checked

Reasoning

The applicants did not specify which documents the Taxing Officer ought to have checked on the Court Tracking System, nor demonstrate that she failed to check it. On folios, they did not explain how the miscalculation occurred or what the correct figures should be, and the documents were not before the court for verification. The grievances could not therefore be substantiated.

p. 3
03

Whether item 24 (attendance fees) was underassessed

Holding

The award of Kshs. 1,900 was consistent with Schedule 6 of the Advocates Remuneration Order; no interference justified

Reasoning

The court examined the award for attendance at mention on 15/06/2023 and found it aligned with Schedule 6 of the Advocates Remuneration Order. There being consistency with the applicable scale, there was no justification for disturbing the Taxing Officer's decision on that item.

p. 3

Legal principles established

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  • A court will not interfere with a Taxing Officer's discretionary decision merely because the award is high or low, unless the decision was clearly wrong due to a misdirection or based on an error of principle
  • The value of the subject matter for instruction fees is to be discerned from the pleadings, judgment or settlement
  • A party challenging a Taxing Officer's decision must avail material in support of the complaint

Court orders

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  1. 1.The Chamber Summons application dated 20th February 2025 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority

Wrote the judgment

On appeal from
Taxing Officer, Environment and Land Court, Kakamega
Kakamega ELC Case No. E034 of 2022 (Party to Party Bill of Costs dated 3rd October 2024 filed vide Kakamega ELC Appeal No. E002 of 2023)
Jurisdiction invoked
Reference against a Taxing Officer's decision under the Advocates (Remuneration) Order

Relief refused

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Setting aside in its entirety the Taxing Officer's ruling on the Party to Party Bill of Costs

No error of principle demonstrated; complaints were generalised and unsupported

p. 4

Setting aside the certificate of costs

Fell with the main application; no material justified interference

p. 4

Re-taxation of the Party to Party Bill of Costs or remission to a different Taxing Officer

The court found no error of principle warranting reassessment

p. 4

Costs

Application dismissed with costs to the respondent

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.

The upshot is that I find no merit in the Chamber Summons application dated 20th February 2025, which I hereby dismiss with costs to the respondent.
p. 4Final orders - dismissal of the reference
It is so ordered.
p. 4Closing disposition
The court cannot interfere with the Taxing oficer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle.
p. 3Standard for interference with taxation (quoting First American Bank of Kenya v Shah)
A party who moves a court challenging a Taxing oficer’s decision, ought to avail material in support for his or her complaint.
p. 4Burden on the party seeking retaxation

Issues in the judgment

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minor

Conflicting dates for the Taxing Officer's decision: the application seeks to set aside a ruling 'dated 12th February 2024' while the narrative and prayers state the decision was made on 12th February 2025

minor

Chronological inconsistency: the respondent's appeal (Kakamega ELCA No. E002 of 2023) is said to challenge a judgment in Butali SPMC ELC Case No. 24 of 2024, i.e. a later-numbered and later-year case than the appeal

minor

The header refers to Kakamega ELC Case No. E034 of 2022 while the bill of costs was filed vide Kakamega ELC Appeal No. E002 of 2023; the reference case number itself is not clearly stated

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, "Ben & another v Lukongo & 2 others (Miscellaneous Application E006 of 2025) [2026] KEELC 213 (KLR)", Case Analysis (2026). Chamber Summons dated 20th February 2025 (arising from Kakamega ELC Case No. E034 of 2022 / Kakamega ELCA No. E002 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/213/eng@2026-01-21

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