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ELCDismissedNotice of motion dated 18th July 2025 (Eldama Ravine/Kabarnet ELCA matter; case number not stated in judgment)

Makomere t/a Wambeyi Makomere & Company Advocates v Boit (Environment and Land Miscellaneous Application E006 of 2025) [2026] KEELC 1502 (KLR)

Environment and Land Court
10 March 2026
LWL. N. Waithaka
2,588 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan judge cannot assess advocate-client fees; only the taxing master can, so advocates must follow the correct taxation process.

What this practically means

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Executive summary

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The applicant advocate filed a notice of motion dated 18th July 2025 seeking to have the court adopt an amended certificate of costs dated 15th January 2025 (taxed party-party costs of Kshs. 372,650/- in a matter in Eldama Ravine/Kabarnet) raised by one-half, declare the resulting fees of Kshs. 558,975/- as advocate-client costs, add 16% VAT of Kshs. 89,436/-, enter judgment against the respondent for Kshs. 648,411/-, and award interest from the date of taxation. The application was brought under Schedule 7 of the Advocates (Remuneration) Order, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The respondent opposed, contending that the advocate-client relationship was still alive, that he had paid the advocate approximately Kshs. 350,000/- plus a further Kshs. 120,000/-, that the advocate had received Kshs. 336,909.22/- being costs in Kabarnet ELCA E003 of 2023, and that in any event a judge is not a taxing officer and cannot assess costs; he relied on the Court of Appeal decision in Kiiru v Kenya Ferry Services. The court applied the Supreme Court's decision in Kenya Airports Authority v Otieno Ragoti & Company Advocates, which held that assessment of advocate-client fees under Schedule VI Part B is for the Taxing Officer, who must exercise discretion guided by the prescribed scale rather than apply a mathematical formula to taxed party-party costs. Holding that the jurisdiction to assess advocate-client fees vests in the taxing master and not the court, the judge found the application to be based on a misapprehension of law and dismissed it with costs to the respondent on 10th March 2026.

Questions the Court framed

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

  1. 1.Whether the court (as opposed to the taxing master/Deputy Registrar) has jurisdiction to assess advocate-client costs by adopting the amended certificate of costs, raising it by one-half and adding VAT
  2. 2.Whether the application dated 18th July 2025 should be allowed as prayed

Key legal issues

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01

Whether a judge can assess advocate-client costs by raising taxed party-party costs by one-half and adding VAT

Holding

No. Assessment of advocate-client costs is for the taxing master, who must exercise judicial discretion guided by the prescribed scale; the application was based on a misapprehension of law and was dismissed.

Reasoning

The court relied on the Supreme Court's decision in Kenya Airports Authority v Otieno Ragoti & Company Advocates, which held that under Schedule VI Part B a Taxing Officer must exercise discretion guided by the Part A scale and, where instruction fees in a party-party certificate are disputed, subject them to evaluation and judicial determination. It followed that assessment of advocate-client fees cannot be done by the judge through a notice of motion by simply multiplying the taxed party-party figure by one-half, as the applicant proposed.

p. 6

Legal principles established

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  • The jurisdiction to assess advocate-client fees vests in the taxing master and not the judge; in assessing fees under Schedule VI Part B the Taxing Officer exercises discretion guided by the prescribed scale in Part A rather than applying a mathematical formula to taxed party-party instruction fees

Court orders

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  1. 1.The notice of motion application dated 18th July 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.

LW
majority

Wrote the judgment

Jurisdiction invoked
Schedule 7 of the Advocates (Remuneration) Order, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Adoption of the amended certificate of costs dated 15th January 2025 raised by one-half, declaration as advocate-client costs, addition of 16% VAT, entry of judgment for Kshs. 648,411/-, and interest

The jurisdiction to assess advocate-client fees vests in the taxing master, not the judge; the taxing master exercises judicial discretion and does not simply multiply party-party costs by one-half

p. 6

Costs

The application was 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 jurisdiction to assess or determine the fees payable to an advocate as advocate-client fees vests with the taxing master and not this court
p. 6Jurisdiction over advocate-client costs
the instant application is found to be based on a misapprehension of law and is hereby dismissed with costs to the respondent
p. 6Final orders - dismissal

Issues in the judgment

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minor

The applicant's supporting documents and grounds refer to 'Eldama Ravine MCC 85 of 2024' and 'Eldama Ravine EMCC No. 85 of 2014', while the respondent's affidavit refers to 'Kabarnet CMCC 85 of 2014' - the suit number and station are inconsistently stated.

minor

The case number of the present application is not stated anywhere in the judgment.

minor

The names of the parties are not given in the judgment body; the parties are referred to only as 'the applicant' and 'the respondent'.

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, "Makomere t/a Wambeyi Makomere & Company Advocates v Boit (Environment and Land Miscellaneous Application E006 of 2025) [2026] KEELC 1502 (KLR)", Case Analysis (2026). Notice of motion dated 18th July 2025 (Eldama Ravine/Kabarnet ELCA matter; case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1502/eng@2026-03-10

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