Humphrey & Company Advocates v Rural Electrification Authority

154,000,000.00 increased by ½, that is Kshs. 77,000,000.00 hence a total of Kshs. 231,000,000.00 for those two items alone. 4. Aggrieved, the Client through the Attorney General led a reference and, in an application dated 23rd April 2019 sought the setting aside of the taxation and a re-assessment of the two stated items awarded at a total of Kshs. 231,000,000.00. It was contended for the Client that the taxing ocer made errors of principle in arriving at those amounts; failed to consider the submissions tendered on behalf of the Client by the Attorney General; and failed to give reasons for the exceptionally high gures. The Advocates opposed that application maintaining that there was no basis for interfering with the decision of the taxing ocer. 5. In a ruling delivered on 20th June 2019 (the subject of this appeal) the learned Judge of the ELC (E. C. Cherono, J.) allowed the reference, set aside the awards of Kshs. 154,000,000.00 and Kshs. 77,000,000.00 respectively and substituted there for a total award of Kshs. 5,452,500.00. In doing so, the learned Judge held that the taxing ocer failed to properly exercise his discretion based on set principles; that despite expressing that the value of the subject matter was not clearly ascertainable from the proceedings, the taxing ocer went on to apply undened criteria to arrive at the award that he made. 6. Aggrieved, the Advocates lodged this appeal on four grounds set out in the Memorandum of Appeal, namely that the Judge of the ELC erred in: nding that the taxing ocer did not provide reasons for the taxation; determining the value of the land and taking judicial notice of value of land in Garissa; and in erroneously assessing fees under the Advocates Remuneration Order 2014. 7. Urging the appeal before us on 7th May 2025, learned counsel for the Advocates Mr. Eddie Omondi in his written and oral submissions submitted that contrary to the nding by the learned Judge that the taxing ocer did not give reasons for the taxed amounts, the taxing ocer had indeed done so; that the taxing ocer had factored in the importance of the case; the importance of the project to the community; and the size and market value of the land and the project. That notwithstanding the perception of inadequacy of those reasons by the Client, they were reasons, nonetheless. In support of that proposition, counsel referred to the decision in Johnson Kibunja Njoka & Another vs. Joseph Njuguna & 2 Others [2017] eKLR. 8. Counsel submitted that while the learned Judge correctly stated that the subject matter of the suit was the 210 acres property, the Judge failed to appreciate the developments on the land and failed to consider that on that land is a 50MW solar plant and that the dispute related to that project; that based on the project contract, the value of the project was the equivalent of Kshs. 12,627,789,472.40 which should be the basis for computing instruction fees. Furthermore, the base value of Kshs. 1 million per acre which the Judge applied in assessing the value of the subject matter was unfounded absent a valuation by land valuers and the Judge misdirected himself in taking in that regard. 9. In opposing the appeal, Mr. Eredi learned counsel for the Client relied on written and oral submissions. Referring to Section 72(1) of the Civil Procedure Act and precedents of the Court including the case of Kenya Breweries Limited vs. Godfrey Odoyo [2010] eKLR, counsel submitted that in a second appeal such as this, the Court must conne itself to matters of law; that the only basis on which the decision of the ELC can be challenged is if the same is contrary to law and it is shown that there was failure to consider matters that should have been considered or considered matters the court should not have, or looking at the entire decision, it is perverse. 10. It was submitted that in the present case, the learned Judge was right that the taxing ocer failed to state or furnish well explained reasons how he arrived at the value for the instruction fee and the Judge was therefore entitled to interfere. The decisions in KANU National Elections Board & 2 Others vs. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1758/eng@2026-09-25 2

page 2 of 5

Salah Yakub Farah [2018] eKLR and Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board [2005] 1 KLR 528 were cited in support. 11. Regarding determination of the value of the subject matter, it was submitted that the gure of Kshs. 12,627,789,472.40 which the appellant proposed should be considered represents the contract price in the commercial agreement between the Government of Kenya and China Jiangxi Corporation, the contractor which was to undertake the solar project; that the project was at its nascent stage of implementation and the suit before the ELC was on compensation for land as the learned Judge correctly found and not the project. 12. It was submitted that where, as here, the value of the subject matter is not discernible or determinable from either the pleadings, the judgment or settlement, the court exercises its discretion to determine the same; that in the present case the taxing ocer erred in law and in principle in determining the value of the subject matter based on the value of the project as opposed to the value of the land. 13. Regarding the complaint that the value of Kshs. 1 million per acre applied by the Judge was a random value, it was submitted that the Judge was entitled to take judicial notice of land value in Garissa and that the Judge properly did so in accordance with Section 59 and 60 of the Evidence Act the value of land in Garissa having been a matter of general or local notoriety. Reference was made to the decision of the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2015] eKLR and the Judge cannot be faulted for taking judicial notice of the value of land to ascertain the value of the subject matter the suit, which was the land. 14. It was submitted that there is no basis for this Court to interfere with the decision of the learned Judge, that there is no demonstration that the Judge exercised his discretion whimsically; that the Advocates should and ought to be paid for work they did and in this case only a defence was led and that in accordance with the Supreme Court decision in Kenya Airports Authority vs. Otieno Ragot, only reasonable fees should be payable and fees should not be a fetter to access to justice and there was no justication at all for the amount the taxing ocer had awarded. 15. We have considered the appeal and the submissions. As stated by the Court in the case of Edward Njane Ng’ang’a & Another vs. Damaris Wanjiku Kamau & Another [2019] KECA 13 (KLR): “ In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, connes itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” 16. The issue for determination in this appeal therefore is whether the learned Judge erred in faulting the exercise of discretion by the taxing ocer and in interfering with his decision and basing the computation of instruction fees on the value of the land without regard to the value of the project. 17. As the Supreme Court of Kenya stated in the case of Kenya Airports Authority vs. Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) under the Schedule VIA of the Advocates Remuneration Order the assessment of instruction fees is based on the value of the subject matter. In that regard the Supreme Court cited with approval the decision in Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 that “the value of the subject matter of a suit for the purposes of taxation https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1758/eng@2026-09-25 3

page 3 of 5

of a Bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case).” In the present case, the taxing ocer after citing the Joreth decision went on to state as follows: In the present case, the value of the subject matter is not clearly ascertainable from the pleadings. Therefore, in exercise of my discretion, I have considered the importance of the case, being compensation for community land, the interest of the parties, the importance of the project to the community, the size and market value of the land involved and the value of the project itself. In my view, the instruction fee is somewhat exaggerated, therefore, I tax o Kshs. 50,000,000/= leaving a balance of Kshs. 154,000,000/= increased by ½, that is Kshs. 77,000,000/= adds up to Kshs.231,000,000/=.” 18. It is evident from that passage that the taxing ocer, took as a base, the gure computed by the advocates as instruction fees based on the project cost of Kshs.12,627,789,472 from which the taxing ocer, in a whim, knocked o Kshs. 50,000,000 to arrive at the gure of Kshs. 154,000,000 which he awarded. Yet, and as the learned Judge correctly stated, the subject matter of the suit was “compensation to the community for the value of the land being 210 acres” or in the alternative cancellation or revocation of the grant of the land. As the Supreme Court stated in Kenya Airports Authority vs. Otieno Ragot and Company Advocates (above), “in exercising such unfettered discretion, the Taxing Ocer is required to do so judiciously and not whimsically.” The Supreme Court cited with approval pronouncement by Ojwang J (as he then was) in the case of Republic vs. Ministry of Agriculture & 2 others, Ex Parte Muchiri W’Njuguna & 6 others, HC Misc 621 of 2000; [2006] eKLR, that costs: “ …cannot be served out without either a specic statement of the authorising clause in the law, or a particularised justication of the mode of exercise of any discretion provided for… The complex elements in the proceedings which guide the exercise of the Taxing Ocer’s discretion, must be specied cogently and with conviction.… …It was necessary to specify clearly and candidly how she had exercised her discretion. Discretion, as an aspect of judicial decision-making, is to be guided by principles, the elements of which are clearly stated and which are logical and conscientiously conceived. It is not enough to set out by attributing to oneself discretion originating from legal provision, and thereafter merely cite wonted rubrics under which that discretion may be exercised, as if these by themselves could permit of assignment of mystical gures of taxed costs.” [Emphasis added] 19. Based on the foregoing, the appellant has not demonstrated that the learned Judge considered matters he should not have considered or failed to consider matters he should have considered or looking at the entire decision, it is perverse to warrant this Court to interfere with the decision. 20. As regards the complaint that the Judge erred in taking judicial notice of land values in Garissa and not basing his decision on professional valuation, counsel for the Advocates had submitted before the Judge that the value of the project contract, and the value of the land, combined, should be considered in arriving at the value of the subject matter. Regarding the value of the project, the advocates had referred to a copy of the project contract to support the value of Kshs.12,627,789,472. Similarly, it was incumbent on them to place material before the taxing ocer regarding the value of the land. No doubt a professional valuation report would have provided a more objective basis for determination of the land value. Absent that we are unable to fault the learned Judge for taking judicial notice of land values in Garissa where the Court was sitting. In that regard, in the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others (above) the Supreme Court cited with approval dictum of Lord Sumner in the English case of Commonwealth Shipping https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1758/eng@2026-09-25 4

page 4 of 5

Representative vs. P.& O. Branch Service [1923] A.C. 210 that judicial notice refers to facts which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer. Therefore, there is no basis for interfering with the decision of the Judge in that regard. 21. In concluding, we echo the sentiments expressed by the Supreme Court of Kenya in Kenya Airports Authority vs. Otieno Ragot and Company Advocates (above) that the objective of the Advocates Remuneration Order which prescribes and regulates the remuneration of advocates in respect of professional business undertaken: … is to prevent exploitation of parties to a suit/transaction with regard to remuneration of advocates and compensation of costs or expenses incurred by a successful party as well as maintain the standards of the legal profession. Dierently put, it is to ensure that fees/ costs paid to an advocate and a successful party are reasonable. Of importance, is that what amounts to reasonable costs can only be determined on a case-by-case basis.” 22. The appeal lacks merit and is dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU, C.Arb, FCIArb. …………………………………… JUDGE OF APPEAL JAMILA MOHAMMED ………………………………… JUDGE OF APPEAL A.O. MUCHELULE ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1758/eng@2026-09-25 5

page 5 of 5