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ELCPartially AllowedChamber Summons dated 18th December, 2024 (in the principal suit)

Aly Enterprises Limited v Absa Bank Kenya Plc & 4 others; Mafuta Products Limited & another (Interested Parties) (Environment and Land Case E039 of 2024) [2026] KEELC 2252 (KLR)

Environment and Land Court
23 April 2026
1,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that advocate fees cannot be based on a disputed Kshs.150 million property value when the case was withdrawn before trial, and ordered fees to be recalculated.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by chamber summons dated 18th December 2024 under Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11(2) of the Advocates Remuneration Order, seeking to set aside the ruling of taxing officer Hon. Judith Omollo delivered on 4th December 2024, taxing the 4th defendant's bill of costs dated 26th September 2024 at Kshs.1,866,123/=. The applicant, through the affidavit of its director Yusuf Motha, complained that the taxing officer ignored its written submissions, erroneously adopted Kshs.150,000,000/= (the price in the impugned sale agreement) as the value of the subject matter, and awarded instruction fees that were manifestly high and punitive, given that the 4th defendant never filed a defence and the suit was withdrawn after a preliminary objection on jurisdiction. The 4th defendant filed neither a response nor submissions. The court framed a single issue: whether the taxing officer erred in taxing the bill as alleged. Relying on Joreth v Kigano & Associates, Kenya Airports Authority v Otieno Ragot and Moronge & Company Advocates v Kenya Airports Authority, the court held that where a suit ends at a preliminary stage without a hearing, the value of the subject matter cannot be ascertained from the pleadings and the taxing officer must exercise discretion, considering the work actually done. Finding the Kshs.150,000,000/= figure unproven, the court set aside the taxation and remitted the bill for taxation afresh by a different taxing officer, with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the taxing officer erred in taxing the bill of costs as alleged by the plaintiff/applicant

Key legal issues

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01

Whether the taxing officer erred in adopting Kshs.150,000,000/- (the sale agreement price) as the value of the subject matter for instruction fees

Holding

The taxing officer erred; the value could not be ascertained from the pleadings as the suit was withdrawn and never proved at a hearing

Reasoning

The suit was withdrawn after the 4th defendant's preliminary objection, so the Kshs.150,000,000/= sale figure was never established by hearing and determination. Applying Joreth v Kigano and Kenya Airports Authority v Otieno Ragot, value must come from pleadings, judgment or settlement, failing which the taxing officer must use discretion considering the work done, the interest of the parties and the conduct of proceedings. The 4th defendant never filed a defence, only the preliminary objection, so the taxed instruction fees of Kshs.1,866,123/= were unreasonable.

p. 3

Legal principles established

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  • Where a suit is concluded without a hearing (e.g. by withdrawal), the value of the subject matter cannot be ascertained from the pleadings and the taxing officer must exercise discretion to assess instruction fees justly

Court orders

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  1. 1.The ruling of the taxing officer, Hon. Judith Omollo, delivered on 04th December, 2024 on the 4th defendant's bill of costs dated 26th September, 2024 is set aside and remitted for taxation afresh by a different taxing officer
  2. 2.No orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11(2) of the Advocates Remuneration Order

Relief refused

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Costs of the application

The court made no orders as to costs

p. 4

Costs

No orders as to costs; each party to bear their own costs of the application.

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.

Since the matter was concluded at the preliminary stage by withdrawal of the suit, the sum of Kshs.150,000,000/- cannot be said to be the value of the subject matter, since that was not established by way of hearing and determination by the court.
p. 3Valuation of subject matter for taxation where suit withdrawn
The ruling of the taxing officer, Hon. Judith Omollo, delivered on 04th December, 2024 on the 4th defendant’s bill of costs dated 26th September, 2024 is set aside and remitted for taxation afresh by a difierent taxing oficer.
Final orders - setting aside taxation
We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not so ascertainable the taxing oficer is entitled to use his discretion to assess such instruction fee as he considers just
p. 2Joreth v Kigano principles on instruction fees

Issues in the judgment

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minor

The numbering of paragraphs repeats; the paragraph discussing Moronge and the paragraph recording the court's disagreement are both numbered '8.'

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, "Aly Enterprises Limited v Absa Bank Kenya Plc & 4 others; Mafuta Products Limited & another (Interested Parties) (Environment and Land Case E039 of 2024) [2026] KEELC 2252 (KLR)", Case Analysis (2026). Chamber Summons dated 18th December, 2024 (in the principal suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2252/eng@2026-04-23

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