Ben & another v Lukongo & 2 others (Miscellaneous Application E006 of 2025) [2026] KEELC 213 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is sufficient material before the court to justify interference with the decision of the Taxing Officer
Key legal issues
#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
No error established; the applicants failed to avail the pleadings, judgment or settlement from which the value could be discerned
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.
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
Complaints baseless; applicants did not explain the alleged miscalculation nor prove the CTS was not checked
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.
Whether item 24 (attendance fees) was underassessed
The award of Kshs. 1,900 was consistent with Schedule 6 of the Advocates Remuneration Order; no interference justified
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.
Legal principles established
#- 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
#- 1.The Chamber Summons application dated 20th February 2025 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Setting aside the certificate of costs
Fell with the main application; no material justified interference
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
Costs
Application dismissed with costs to the respondent
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 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.
It is so ordered.
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.
A party who moves a court challenging a Taxing oficer’s decision, ought to avail material in support for his or her complaint.
Issues in the judgment
#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
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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.