REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
MISC. APPLICATION NO. E099 OF 2023
BRUCE ODENY & CO. ADVOCATES……………………..…APPELLANT
VERSUS
PRIDE KINGS SERVICES LIMITE.……………………….RESPONDENT
(Under Schedule 6 & Paragraph 11(2) of the Advocates Remuneration Order, and all other enabling provisions of the law.)
RULING
A. Introduction
1. This ruling determines the Advocate’s Chamber Summons dated 10th July 2024. It is premised under Schedule 6 & Rule 11(2) of the Advocates (Remuneration)Order. In it, the Advocate seeks the setting aside of the ruling of the Taxing Master delivered on 3rd July 2024, and the bill of costs dated 28th August 2023 to be substituted with and order taxing the Applicant’s bill in the sum of Kshs. 688,431.50/= as sought in the bill of costs. With due consideration to the sum of Kshs. 100,000/= paid to the Applicant vide cheque number 000866 and dated 29th May 2020.
2. The application was based on the grounds on the face of the application and the supporting affidavit sworn by Bruce Odeny on 10th July 2024. In his affidavit, he stated that the taxing master made an error in principle and disregarded the evidence of the Applicant as presented in his affidavit dated 6th February 2024.
3. It was alleged that the taxing master failed to regard that the Applicant provided detailed narration of how the funds availed to him were spent as some were expended vide filing fees for the client’s matters in various law Courts, others settled legal fees in other matters and others were deposited in a joint-interest earning account as security for costs in matters on appeal.
4. The application was opposed by Maurice Kajina Osano, the Director of the Respondent, vide a replying affidavit sworn on 22nd April 2025. The Director stated that the application is incompetent as the Applicant sought for an order that the ruling of the taxing master be substituted with a taxing bill of Kshs. 688,431.00/=. That the taxing master correctly arrived at his decision by dismissing in its entirety the Applicant’s bill of costs dated 28th August 2023.
5. Fredrick Mashuke, the Human Resource Manager at the Respondent, swore a further affidavit on 24 March 2024, in response to the replying affidavit wherein he averred that the Applicant is guilty of misrepresentation of facts since as he failed to indicate in its bill of costs that it was paid some money as legal fees and the allegations of a consensus of a monthly flat fees of Kshs. 50,000/= as a debt collection fee in respect to the issued demand letters is baseless and a lie. He insisted that there was no agreement between the Respondent and the Applicant as alleged and prayed that this Court upholds the decision of the trial Court.
6. Vide Court directions, the Chamber Summons application was canvassed by way of written submissions. On my perusal of the Court record indicted that only the Applicant complied with this directive.
B. Analysis and determination.
7. The primary issue is whether the Applicant has established a valid case for setting aside the ruling of the taxing master. On 3rd July 2024, the taxing master disallowed in its entirety the bill of costs dated 28th August 2023.
8. In First American Bank of Kenya v Shah & others [2002]1EA64, RingeraJ expressed himself as follows:-
“I find that on authorities this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision on taxation was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an interference that it was based on an error of principle.”
9. The same principles were reiterated by the Court of Appeal in the case of Joreth Ltd v Kigano & Associates Civil Appeal No.66 of 1999 [2002] 1 EA 92, [2002] eKLR where it was held that, unless the taxing officer had misdirected himself on a matter of principle, the judge sitting on a reference against the assessment ought not to interfere with the findings.
10. Finally, in Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR, the Court held that: -
“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other. … The court cannot interfere with the taxing officer’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. Of course, it would been error of principle to take into account irrelevant factors or to omit to consider relevant factors. Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any
direction by the trial judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment …A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved … Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorizing clause in the law, or a particularized justification of the mode of exercise of any discretion provided for….The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must
be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs…”
11. Having reviewed the impugned decision by the taxing master, I note that the Applicant alluded to a retainer of Kshs. 50,000/= which was allegedly agreed between it and the Respondent; that as per the bill of costs the Respondent simply made a payment of Kshs. 100,000/= in settlement; that the Applicant represented the Respondent herein in other matters in other Courts; that the Respondent drew several cheques in favour of the Applicant which the Respondent alleged they were to be utilized in settlement of legal fees in the suit, Bungoma CMCC No. 69 of 2017. My review of the Applicant’s written submissions there was no clear indications of the purpose of the payments and my perusal of the cheque register annexed to its affidavit there is only a cheque indicted B-2 which represents payment with regards to the suit Bungoma CMCC No. 69 of 2017 and the other annexures are several demand letters.
12. The Court of Appeal in the case of Omulele & Tollo Advocates –vs- Mount Holdings Limited (2016) eKLR placed the onus of proving the existence of a Retainer Agreement on the party who alleges its existence. The Court stated –
“As with any other agreement, the onus of proving the existence of the retainer agreement lies with he that wishes to enforce it. This is in line with the ordinary rules of contracts and evidence. (See Kenya National Captial Corporation Limited v. Albert Mario Cordeiro & Another [2014] eKLR and Section 107 of the Evidence Act ..…………..
The same onus of proof applies to a retainer. As said earlier, where a client disowns an oral retainer or even the existence of a retainer relationship, it is for the advocate who claims under that retainer to prove to court that such a relationship indeed existed, otherwise the court will deem that he acted without instructions.”
13. Ochieng J (as he then was) in Ahmednasir Abdikadir & Co. Advocates –vs- National Bank of Kenya Limited (2) [2006] 1 EA 5, held stated that a reading of section 45(1) of the Advocates Act reveals that the agreements in respect of remuneration would be valid and binding on the parties thereto provided that the agreements were in writing and signed by the client or his agent duly authorized in that behalf.
14. My understanding of the above provisions and as interpreted in the cited authorities is that a retainer agreement between an advocate and a client has to be signed by the Client to be valid and enforceable.
15. In the instant case, the Client/Respondent asserts that there was no Retainer Agreement. The Advocate/Applicant on the other hand contends that there was a retainer agreement, therefore the Bill of Costs ought to be taxed. The burden of proof was on the Advocate/Applicant to prove existence of a valid agreement. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which 88he asserts must prove that those facts exist.”
16. In the case of Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
17. There is no doubt that the parties herein were engaged for some time in the suit subject of this reference, but no retainer agreement was availed by the parties, especially the Applicant, showcasing the exact amount agreed upon as payment to the Appellant for its services.
18. An advocate-client relationship can be inferred from conduct or an oral agreement, even without a formal written retainer. It is clear that the Applicant herein was issued instructions by the Respondent herein to act on their behalf to litigate their suit Bungoma CMCC No. 69 of 2017. In the Applicant’s Replying Affidavit dated 6th February 2024, he acknowledged that he was in receipt of a cheque no. 0008666 of Kshs. 100,000/= from the Respondent herein towards legal fees vide a correspondence dated 30th May 2020. The same was annexed and marked as BO-2.
19. Further, the Further Affidavit sworn by the Human Resource Manger alluding to the misrepresentation of facts since it was the Replying Affidavit sworn by the Director of the Respondent that divulged a prompt payment was made to the Applicant as legal fees. This cements the Applicants argument he had a retainer agreement with the Respondent herein and even received upfront legal fees for the institution and litigation of their suit Bungoma CMCC No. 69 of 2017 and the correspondence dated 30th May 2020, by the Respondent herein shows he was acting on their behalf in the same matter.
20. Evidently from the correspondence adduced above, the Retainer Agreement was existed between the Applicant and the Respondent for the litigation of the suit Bungoma CMCC No. 69 of 2017 and the human resource manager, Vincent Atong’ categorically acknowledged the same.
21. The upshot of the foregoing is that the Court find and holds that the taxing master erred in dismissing the applicant’s bill of costs dated 28th September 2023. The Advocate is therefore entitled to tax his bill of costs. Accordingly, set aside the trial Court ruling of the3rd July 2024 and I order that the said bill be taxed afresh by a different taxing master.
22. The Advocate/Applicant shall have the costs of this application.
23, Mention on 15. 4.2026 before the Deputy Registrar for directions on the applicant’s bill of costs dated 28. 9. 2023
It is so ordered.
Delivered, Signed and Dated at Bungoma this 18th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A FOR APPLICANT
N/A FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
MISC. APPLICATION NO. E099 OF 2023
BRUCE ODENY & CO. ADVOCATES……………………..…APPELLANT
VERSUS
PRIDE KINGS SERVICES LIMITE.……………………….RESPONDENT
(Under Schedule 6 & Paragraph 11(2) of the Advocates Remuneration Order, and all other enabling provisions of the law.)
RULING
A. Introduction
1. This ruling determines the Advocate’s Chamber Summons dated 10th July 2024. It is premised under Schedule 6 & Rule 11(2) of the Advocates (Remuneration)Order. In it, the Advocate seeks the setting aside of the ruling of the Taxing Master delivered on 3rd July 2024, and the bill of costs dated 28th August 2023 to be substituted with and order taxing the Applicant’s bill in the sum of Kshs. 688,431.50/= as sought in the bill of costs. With due consideration to the sum of Kshs. 100,000/= paid to the Applicant vide cheque number 000866 and dated 29th May 2020.
2. The application was based on the grounds on the face of the application and the supporting affidavit sworn by Bruce Odeny on 10th July 2024. In his affidavit, he stated that the taxing master made an error in principle and disregarded the evidence of the Applicant as presented in his affidavit dated 6th February 2024.
3. It was alleged that the taxing master failed to regard that the Applicant provided detailed narration of how the funds availed to him were spent as some were expended vide filing fees for the client’s matters in various law Courts, others settled legal fees in other matters and others were deposited in a joint-interest earning account as security for costs in matters on appeal.
4. The application was opposed by Maurice Kajina Osano, the Director of the Respondent, vide a replying affidavit sworn on 22nd April 2025. The Director stated that the application is incompetent as the Applicant sought for an order that the ruling of the taxing master be substituted with a taxing bill of Kshs. 688,431.00/=. That the taxing master correctly arrived at his decision by dismissing in its entirety the Applicant’s bill of costs dated 28th August 2023.
5. Fredrick Mashuke, the Human Resource Manager at the Respondent, swore a further affidavit on 24 March 2024, in response to the replying affidavit wherein he averred that the Applicant is guilty of misrepresentation of facts since as he failed to indicate in its bill of costs that it was paid some money as legal fees and the allegations of a consensus of a monthly flat fees of Kshs. 50,000/= as a debt collection fee in respect to the issued demand letters is baseless and a lie. He insisted that there was no agreement between the Respondent and the Applicant as alleged and prayed that this Court upholds the decision of the trial Court.
6. Vide Court directions, the Chamber Summons application was canvassed by way of written submissions. On my perusal of the Court record indicted that only the Applicant complied with this directive.
B. Analysis and determination.
7. The primary issue is whether the Applicant has established a valid case for setting aside the ruling of the taxing master. On 3rd July 2024, the taxing master disallowed in its entirety the bill of costs dated 28th August 2023.
8. In First American Bank of Kenya v Shah & others [2002]1EA64, RingeraJ expressed himself as follows:-
“I find that on authorities this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision on taxation was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an interference that it was based on an error of principle.”
9. The same principles were reiterated by the Court of Appeal in the case of Joreth Ltd v Kigano & Associates Civil Appeal No.66 of 1999 [2002] 1 EA 92, [2002] eKLR where it was held that, unless the taxing officer had misdirected himself on a matter of principle, the judge sitting on a reference against the assessment ought not to interfere with the findings.
10. Finally, in Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR, the Court held that: -
“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other. … The court cannot interfere with the taxing officer’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. Of course, it would been error of principle to take into account irrelevant factors or to omit to consider relevant factors. Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any
direction by the trial judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment …A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved … Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorizing clause in the law, or a particularized justification of the mode of exercise of any discretion provided for….The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must
be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs…”
11. Having reviewed the impugned decision by the taxing master, I note that the Applicant alluded to a retainer of Kshs. 50,000/= which was allegedly agreed between it and the Respondent; that as per the bill of costs the Respondent simply made a payment of Kshs. 100,000/= in settlement; that the Applicant represented the Respondent herein in other matters in other Courts; that the Respondent drew several cheques in favour of the Applicant which the Respondent alleged they were to be utilized in settlement of legal fees in the suit, Bungoma CMCC No. 69 of 2017. My review of the Applicant’s written submissions there was no clear indications of the purpose of the payments and my perusal of the cheque register annexed to its affidavit there is only a cheque indicted B-2 which represents payment with regards to the suit Bungoma CMCC No. 69 of 2017 and the other annexures are several demand letters.
12. The Court of Appeal in the case of Omulele & Tollo Advocates –vs- Mount Holdings Limited (2016) eKLR placed the onus of proving the existence of a Retainer Agreement on the party who alleges its existence. The Court stated –
“As with any other agreement, the onus of proving the existence of the retainer agreement lies with he that wishes to enforce it. This is in line with the ordinary rules of contracts and evidence. (See Kenya National Captial Corporation Limited v. Albert Mario Cordeiro & Another [2014] eKLR and Section 107 of the Evidence Act ..…………..
The same onus of proof applies to a retainer. As said earlier, where a client disowns an oral retainer or even the existence of a retainer relationship, it is for the advocate who claims under that retainer to prove to court that such a relationship indeed existed, otherwise the court will deem that he acted without instructions.”
13. Ochieng J (as he then was) in Ahmednasir Abdikadir & Co. Advocates –vs- National Bank of Kenya Limited (2) [2006] 1 EA 5, held stated that a reading of section 45(1) of the Advocates Act reveals that the agreements in respect of remuneration would be valid and binding on the parties thereto provided that the agreements were in writing and signed by the client or his agent duly authorized in that behalf.
14. My understanding of the above provisions and as interpreted in the cited authorities is that a retainer agreement between an advocate and a client has to be signed by the Client to be valid and enforceable.
15. In the instant case, the Client/Respondent asserts that there was no Retainer Agreement. The Advocate/Applicant on the other hand contends that there was a retainer agreement, therefore the Bill of Costs ought to be taxed. The burden of proof was on the Advocate/Applicant to prove existence of a valid agreement. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which 88he asserts must prove that those facts exist.”
16. In the case of Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
17. There is no doubt that the parties herein were engaged for some time in the suit subject of this reference, but no retainer agreement was availed by the parties, especially the Applicant, showcasing the exact amount agreed upon as payment to the Appellant for its services.
18. An advocate-client relationship can be inferred from conduct or an oral agreement, even without a formal written retainer. It is clear that the Applicant herein was issued instructions by the Respondent herein to act on their behalf to litigate their suit Bungoma CMCC No. 69 of 2017. In the Applicant’s Replying Affidavit dated 6th February 2024, he acknowledged that he was in receipt of a cheque no. 0008666 of Kshs. 100,000/= from the Respondent herein towards legal fees vide a correspondence dated 30th May 2020. The same was annexed and marked as BO-2.
19. Further, the Further Affidavit sworn by the Human Resource Manger alluding to the misrepresentation of facts since it was the Replying Affidavit sworn by the Director of the Respondent that divulged a prompt payment was made to the Applicant as legal fees. This cements the Applicants argument he had a retainer agreement with the Respondent herein and even received upfront legal fees for the institution and litigation of their suit Bungoma CMCC No. 69 of 2017 and the correspondence dated 30th May 2020, by the Respondent herein shows he was acting on their behalf in the same matter.
20. Evidently from the correspondence adduced above, the Retainer Agreement was existed between the Applicant and the Respondent for the litigation of the suit Bungoma CMCC No. 69 of 2017 and the human resource manager, Vincent Atong’ categorically acknowledged the same.
21. The upshot of the foregoing is that the Court find and holds that the taxing master erred in dismissing the applicant’s bill of costs dated 28th September 2023. The Advocate is therefore entitled to tax his bill of costs. Accordingly, set aside the trial Court ruling of the3rd July 2024 and I order that the said bill be taxed afresh by a different taxing master.
22. The Advocate/Applicant shall have the costs of this application.
23, Mention on 15. 4.2026 before the Deputy Registrar for directions on the applicant’s bill of costs dated 28. 9. 2023
It is so ordered.
Delivered, Signed and Dated at Bungoma this 18th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A FOR APPLICANT
N/A FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT