1. By a Chamber Summons dated 24th March, 2026 brought under sections 45(2), 46 and 47 of the Advocates Act and all enabling provisions of the law, the Applicants pray for the following orders:
a. Spent.
b. THAT pending the inter partes hearing of this application, the 1st Respondent be restrained from enforcing or relying upon the instructions not dated 2nd January 2017 purporting to deduct one-third of the Decretal sum or collecting monies from the judgment debtors in Kitale ELRC JR No.004 of 2019; the county government workers’ union =versus= County Secretary County Government of Trans Nzoia and Chief Officer Finance. County government of Trans-Nzoia
c. THAT at the hearing of this application, the Court be pleased to restrain the 1st Respondent from enforcing or relying upon the Instruction Note purporting to deduct one-third of the Decretal sum or collecting the monies from the judgment debtor in Kitale
d. THAT instruction note dated 2nd January, 2017 authorizing the 1st Respondent to deduct a third of the Decretal Sum arising in Kitale ELRC JR NO.4 OF 2019 be declared as null and void or the same be set aside or varied for reason of either lack of proper authority or resolution or written consent of all 145 members.
e. THAT in furtherance, at the hearing of this application, the Decretal Sums due to the Applicants be preserved and not subjected to deductions under the impugned document.
f. THAT the honourable court be pleased to issue an order directing 1st Respondent to appropriately file the bill before Taxing master or deputy Registrar of the Employment and Employment Labour Relation Court.
g. THAT costs be provided for.
2. The grounds in support of the application, which I reproduce verbatim, are that: -
a) The Applicants are the former employees of the defunct Kitale Municipal Council who were unlawful dismissed by the in the year, 2001 and upon such dismissal, thereafter They initiated the case via their entrusted bearers known as county government workers' union previously having been known as Kenya local government workers union purposely to claim their benefits arises from such dismissal and retirement.
b) In 2005 the Applicants’ bearers/Representative instituted the suit against the Kitale municipal council for claiming their benefits in which the decision was thereafter delivered in their favour. The award was made by Hon Stewart M Madzayo, Judge in industrial cause no. 23 of 2005, Nairobi, on 1st December, 2005 was later compelled by initiating another case, that is judicial Review case No. 4 of 2019 at Kitale.
c) Therefore, the Applicants have the substantive beneficial interest to the Decree and ruling issued in May 2021 in Kitale ELRC JR No.004 of 2019: the county government workers union =versus= county Secretary County Government of Trans Nzoia and chief Officer Finance. County government of Trans Nzoia & 1 others and they are desirous to protect their Employment decretal benefits from unlawful deductions.
d) In the meantime, after Judgment of the case, in Kitale ELRC JR NO.004 OF 2019, the 1st Respondent introduced an Instruction Note dated 2nd January, 2017 allegedly authorizing deduction of one-third of the Decretal sum; and the said document was signed by only three persons and not by the Applicants hereof.
e) In the said ELRC proceedings, the County Government Workers Union acted as the representative for the Applicants and others who are not in this case and was expected to pursue the matter for their collective benefit.
f) However, after judgment or award in the Industrial Cause No.23 Of 2005 Nairobi, the Union failed and/or refused to grant the Applicants’ authority or a structured mechanism to follow up or enforce payment of applicants' individual entitlements.
g) Despite of persuading the said bearer/representative, for quite some time, in fact had blatantly declined to alternatively issue the Applicants with an authority to undertake follow up and initiate the suit;
h) Due to that failure, the Applicants were forced to individually intervene to safeguard their interests, which led to our interaction with the 1st Respondent;
i) The present dispute has arisen because an instruction Note dated 2nd January, 2017 was later introduced purporting to bind all beneficiaries without their authority, knowledge, or participation and the said Instruction Note was never presented to all affected members for discussion or approval.
j) In any event, no meeting of beneficiaries was convened to pass a resolution authorizing deduction of one-third of the Kshs.56,984,866, Decretal sum, and even the Union's office bearers did not issue any mandate authorizing the three individuals to execute such an agreement.
k) The persons who signed the Instruction Note were not legally appointed representatives of the members and had no authority to bind the Applicants, the fact that the Applicants never authorized those persons to enter into any agreement concerning the aforementioned matter thus process was unlawful.
l) It is iterated that the Applicants were never informed of the existence of the said document the time it was allegedly executed and only discovered it later when deductions were being justified on its basis
m) Additionally, had the matter been disclosed to all members or Applicants, they would have participated in determining lawful and reasonable legal fees transparently.
n) The Applicants never executed any advocate-client fee agreement with the 1st Respondent and the Applicants later discovered deductions being justified on the basis of that document.
o) The Applicants had already lodged a complaint before the Advocates Complaints Commission and later were advised to seek the Court’s determination on the validity of the said Instruction Note by filing an appropriate application before this honourable court.
p) As per the substance of the said impugned Instruction Note, the said document was issued and prepared by the Advocate Nyamwega Osoro and the same having been signed by 2nd ,3rd and 4th Respondent on behalf of 142 others who never even issued any prove of representation or written consent, permitting them to undertake such agreement.
q) It appears that the said instruction Note authorized deductions amounting to approximately Kshs.18,994,995 in the favour of 1st Respondent from the applicants’ Decretal sums Kshs.56,984,866 without lawful authority, consent, or union resolution.
r) As to date, the said Instruction Note had already been partially executed in which more than 7,000,000 or thereabout has been deducted from the applicants’ Decretal sum.
s) It is proper and for the interest of the justice that the honourable Court to consider that the Applicants were not parties to the alleged agreement, the authority of the three signatories is disputed and unproven, the said Instruction Note purports to bind persons who never consented and Continued enforcement will occasion irreparable financial prejudice.
t) The Honourable Court has jurisdiction to entertain this application on the issues raised herein concerning argument of protecting applicants' Employment Decretal Benefit (Decretal Sum Kshs.56,984,866,) arising from KITALE ELRC JR NO.4 OF 2019 (which suit having been earlier handled by this honourable court), thus ELRC is the proper forum to invalidate the said instruction note.
3. The Application is further supported by the affidavit of KENEDY OJIAMBO ODWORY, the 2nd Applicant. He substantially reiterates the grounds in support of the application.
4. The 1st Respondent opposed the application through a replying affidavit of GLADYS N. NYAMWEYA, advocate, in which she states that the application has been drawn in reference to Kitale Employment and Labour Relations Court Judicial Review Application Number 4 of 2019: County Government Workers Union versus the County Secretary, County Government of Trans Nzoia as 1st Respondent; The Chief Officer Finance/County Treasurer, County Government of Trans Nzoia as the 2nd Respondent and The County Executive Committee Member for Finance, County Government of Trans Nzoia as the 3rd Respondent.
5. Ms. Osoro deposes that the Applicants have come to court in bad faith as they previously instructed Jeji & Associates Advocates to come on record on their behalf through instructions given by the 2nd and 4th Respondents herein. She annexed a copy of the said application made in JR Application Number 4 of 2019 dated 14th February, 2024 and the ruling in respect thereof dated 4th February, 2025.
6. Ms. Nyamwega deposes that the Applicants are being mischievous by filing the instant application and joining the 2nd, 3rd and 4th Respondents. Ms. Nyamwega deposes that this application is an abuse of court process, and that the 2nd to 4th Respondents are working together with the Applicants.
7. She further deposes that the 1st Applicant and the 10th Applicant represent the same deceased employee John Gilbert K’Odwory (deceased) and cannot act separately.
8. Ms. Nyamwega deposes that the Applicants have been receiving their money in installments whenever the County Government of Trans Nzoia pays the decretal sum.
9. It is deposed that the Applicants have filed multiple applications in JR No. 4 of 2019 over the same subject matter including an application dated 13th November, 2025 which was withdrawn by Notice of Withdrawal dated 21st January, 2026.
10. She prays that the Application be dismissed with costs.
11. Upon being served with the replying affidavit the Applicants filed a Supplementary Affidavit of KENNEDY OJIAMBO ODWORY sworn on 21st May, 2026 in which he deposes that the issues raised in the Replying affidavit are hearsay and speculative, that the 2nd to 4th Respondents have been joined to the application as they are the only ones who participated in the signing of the impugned instruction note without the knowledge, consent, resolution or authority of the Applicants.
12. He deposes that the applicants do not deny that the 1st Respondent was instructed in Kitale JR ELRC No. E004 of 2019 and therefore ought to be paid for her service up to the time the final decision was made.
13. He further states the Applicants are aware that partial payments have been made to some of them. That the instant application only seeks to invalidate instruction note and deduction of one-third of decretal sum.
14. He states that the Applicants facilitated the 1st Respondent to the tune of Kshs. 112,000 or thereabouts as legal fees, that they only learned about the instruction note between the year 2022 and 2024.
15. He further deposes that their instructions to the advocate was to pursue about Kshs. 95,145,995 but the 1st Respondent only pursued Kshs. 56,984,866.
16. He deposes that due to their dissatisfaction with the 1st Respondent they approached Jeji & Associates Advocates to pursue their rights but the said advocates remained uncooperative forcing them to proceed independently by filing the instant proceedings.
17. He deposes that it is in the interest of justice to grant the orders sought in their application.
18. The 2nd, 3rd and 4th Respondents did not file any response to the application or participate in the proceedings.
19. The application was disposed of by way of written submissions.
20. The Applicants filed submissions dated 21st May, 2026 and Supplementary Submissions dated 13th June, 2026. The 1st Respondent filed submissions dated 9th June, 2026.
Applicants’ Submissions
21. In their submissions the Applicants have distilled the issues for determination to be:
a. Whether the instruction note dated 2nd January, 2017 was validly executed and binds the Applicants and all 145 beneficiaries;
b. Whether the 1st Respondent is entitled to deduct one-third of the decretal sum on the basis of the impugned instruction note;
c. Whether the instruction note should be declared null and void, set aside or varied;
d. Whether the decretal sum due to the Applicants ought to be preserved and protected from further deductions under the impugned document; and,
e. Whether the 1st Respondent should be directed to file a bill of costs before the taxing master.
22. On the first issue the Applicants submit that section 45(2) of the Advocates Act provides that a court may inquire into and where it is just and reasonable to do so, set aside or vary any agreement relating to costs entered into by an advocate with a client, while section 46 provides that no agreement shall be enforceable unless it is fair and reasonable and section 47 confers on the court broad powers to supervise such agreements and protect the interests of clients.
23. Relying on the decision in Aineah Liluyani Njira v Aga Khan Health Services [2013] KECA 481 (KLR) in which the Court restated the principles in Dunlop Pneumatic Tyre v Selfridge and Co. Ltd [1915] AC 847, 853 the Applicants submit that an agreement binds only those who are party to it or who have authorized another to enter into it on their behalf. That any purported agreement executed without the informed consent of all persons it seeks to bind is unenforceable against those who did not consent.
24. The Applicants submit that the 2nd, 3rd and 4th Respondents appended their signatures in their purported capacity of Chairman, Secretary and Treasurer of the Applicants of the beneficiaries. They aver that no resolution was passed by the 145 beneficiaries authorizing the three to enter into a fee agreement on their behalf, that the Union Office bearers did not issue any mandate to the three signatories to execute such agreement and that the remaining signatories were never informed of the existence of the agreement.
25. On the 2nd issue the Applicants submit that even if the instruction note was deemed to be valid, which they submit it is not, the fee stated therein being one-third of the decretal sum is manifestly excessive and contrary to the requirements of section 46 of the Advocates Act. that according to the fees prescribed in the Act the Advocate is entitled to Kshs. 1,020,537 inclusive of VAT. Relying on the decision in Mburu & another v Tilu [2026] KEHC 1751 (KLR) and Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] EA the Applicants submit that costs should not be punitive.
26. They further submit that the instruction note was prepared in the format ordinarily used for motor accident claims which is irrelevant to employment matters. That the 1st Applicant exploited the vulnerability of the Applicants to secure an unconscionable agreement. That the agreement is therefore voidable as held in Dhiman v Shah [2025] KECA 1264.
27. On the 3rd issue whether the instruction note should be declared null and void, set aside or varied, the Applicants submit they are elderly retirees, some of them ailing and over 50 already deceased. That they have waited 20 years since their dismissal in 2001 to receive the fruits of their judgment. They submit that a successful litigant should not be deprived of the fruits of judgment without lawful justification as was held in Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR).
28. On the issue whether the decretal sum due to the Applicants ought to be preserved and protected from further deduction under the impugned instruction note, the Applicants submitted that the proper and lawful mechanism for determination of an advocate’s fees in contentious matters is taxation before a Taxing Master in accordance with section 51 of the Advocates Act and the Advocates (Remuneration) Order, 2014 as was held in BS Advocates LLP v Makokha & 2 others [2023] KEHC 2311 (KLR).
29. On the final issue whether the 1st Respondent should be directed to file a bill of costs the Applicants submit that the only way to determine an advocate’s fees in the absence of a valid, collective fee agreement is through taxation under section 48 of the Advocates Act. they urge the court to direct the 1st Respondent to file a bill of costs in Kitale JR No. 4 of 2019.
30. In the Supplementary Submissions filed in response to the 1st Respondents submissions, the Applicants submit on 3 issues whether a concealed, unauthorized document can be protected by statutory time limits under section 45(2A) of the Advocates Act; whether res judicata applies when the underlying agreement was actively hidden from the primary beneficiaries; and, whether the 1st Respondent can lawfully use an outstanding, disputed fee agreement to block the incoming advocate, Jeji & Associates.
31. On the of statutory time limits the Applicants submit that the one-year limitation period under section 45(2A) of the Advocates Act is not applicable as the Applicants were in the dark through deliberate concealment. They submit that the Applicants were excluded from the negotiation, execution and discussion in the 2017 instruction note. That the trigger event was the delivery of the court ruling on 4th February, 2025 as the 1st Respondent kept the document hidden for eight years.
32. They submit that the argument that they never appealed against the ruling of 4th February, 2025 in Kitale JR No. 4 of 2019 is not valid as they were not the applicants in the application dated 14th February, 2024 which the ruling was in respect of. That as such they proceeded to file a complaint with the Advocates Complaint Commission which advised them to file the instant application.
33. They further submit that section 45(2A) allows an application within three months after demand of fees. That they filed the instant application on 24th March, 2026 and the application is therefore timely, proper and within the jurisdiction of this court. They rely on the decision in Gathoni v Central Kenya Automobile Services Ltd (1982) KLR where the court held that time begins to tick only when the affected party discovers the truth or could have discovered the truth with reasonable diligence. They further rely on section 26 of the Limitation of Actions Act.
34. On the issue of res judicata and estoppel the Applicants submit that contracts do not bind parties where fraud, coercion or undue influence are present as was held in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd. They further submit that no estoppel is applicable where the agreement is harsh, unconscionable exorbitant are unreasonable, relying on the decision in Wachira Waweru & Company v Bell Point Limited (2018) eKLR; Independent Electoral and Boundaries Commission v Maina Kiai & 5 others (2017) eKLR; and Nduati & Company Advocates v Mugo.
35. On the issue whether the 1st Respondent can lawfully use an outstanding, disputed fee agreement to block the incoming advocate, Jeji & Associates, the Applicants submitted that the conditions set by the 1st Respondent for handing over the file to Jeji & Associates has created an impossible financial barrier to block the incoming counsel. That to resolve the deadlock the court must order taxation of the 1st Respondent’s fees as provided in section 45(2) (d) of the Advocates Act.
1st Respondents submissions
36. The 1st Respondent submitted that the only issue for determination by the court is whether the Chamber Summons dated 24th March, 2026 is merited.
37. The 1st Respondent submits that issue is multipronged and can be addressed first, on the basis of the principles set out in the case of Printing and Numerical Registering Co. v Sampson where the court held that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. That this principle was applied locally in the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd where the court expressed itself thus:
“A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.
As was stated by Shah JA in the case of Fina Bank Limited vs Spares &Industries Limited (Civil Appeal No 51 of 2000) (unreported):
“It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain".
In Mura (suing on behalf of others) v Oluoch t/a at Oluoch and Co advocates & 2 others [2024] KEELRC 111 (KLR), the court pronounced itself as follows:
21. This is not an ordinary civil dispute but is one that is specifically provided for under the Advocates Act. Section 45(2) of the Advocates Act provides for variation or setting aside of agreement on Advocates' fees on the grounds that it is harsh and unconscionable, exorbitant or unreasonable.
22. Section 45(2A) of the Act requires that an application in this regard be made within one year after the making of the agreement or within three months after a demand in writing by the Advocate for payment of fees under the agreement.
23. In the submissions filed on behalf of the 1st and 3rd Respondents, reference was made to the decision in D.N. Njogu & Co. Advocates v National Bank of Kenya Limited [2007] eKLR where it was held:
“If two parties willingly agree to conceive an idea and the same is put into writing, signed, accepted and executed by the parties, then the court can only be called to intervene in distinct situations...it is not the duty of the courts to write or rather rewrite the contracts for parties...An agreement made between parties on fees and the same evidenced in writing is valid and binding. Such an agreement can only be set aside if an application is made within one year of the making of the agreement.”
24. In this case, the Applicants completely circumvented the procedure set out in the Advocates Act and instead chose to proceed as if this were an ordinary civil dispute. There is good reason why this specific procedure exists, in view of the special relationship between an Advocate and their client. I do not think a party is at liberty to depart from it without justifiable cause.”
38. It is submitted that the impugned agreement was made on 2nd July, 2017 while the instant application is dated 24th March, 2026, which is 8 years after the execution of the agreement. That there is no order made by this court extending time for filing the application out of time. Further, that there is no prayer for extension of time or for the court to deem the application as filed properly. That for this reason this court lacks jurisdiction to determine the application.
39. Secondly, the 1st Respondent submits that on 4th February 2025, the court pronounced itself on the instruction note in Kitale ELRCJR No. 4 of 2019 at paragraphs 29 to 34 of the ruling. That the Applicants did not appeal against the ruling and the decision has never been reviewed or set aside.
40. The 1st Respondent further submits that the instant application is intended to circumvent the ruling in Kitale ELRCJR No. 4 of 2019 delivered on 4th February, 2025, a clear case of abuse of court process. That the court having pronounced itself on the issue, the Applicants are estopped from raising the same issue as it is res judicata. That the court also lacks jurisdiction to pronounce itself on the issue as this would amount to an appeal against its own decision. The 1st Respondent relied on the decision in Doge v Kenya Canners Ltd (1989) KLR 127.
41. The 1st Respondent further submits that the Applicants want to benefit from the judgment in Kitale ELRCJR No. 4 of 2019, the product of the impugned instructions note. That the 2nd to 4th Respondents who signed the instruction note have not responded to the application, a clear indication that they are hiding behind the Applicants and disguising themselves as victims.
42. The 1st Respondent prays that the application be dismissed with costs relying on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR.
Analysis and Determination
43. Having considered the application and affidavits on record and the submissions, the issues for determination are:
a) whether the application is time barred,
b) whether the application is res judicata, and,
c) If the Applicants are entitled to the orders sought.
whether the application is time barred
44. The 1st Respondent submits that under the Advocates Act an application for setting aside or varying an agreement for fees between an advocate and a client on grounds that it is harsh and unconscionable is required to be filed within one year from the date of making the agreement or within three months from the date of a demand in writing by the advocate for payment under the agreement by way of rendering a fee-note, whichever is later as provided in section 45(2A) of the Advocates Act.
45. The Applicants have responded to the effect that the details of the fee note were not disclosed to them until the date of delivery of this court’s ruling on their application in Kitale ELRCJR No. 4 of 2019 on 4th February, 2025
46. According to section 25C of the Limitation of Actions Act, where a party wishes to extend the limitation period on grounds of fraud, mistake or ignorance of material facts, an application should be made as provided under section 26 of the Act which provides:
Extension of limitation period in case of fraud or mistake
26. Where, in the case of an action for which a period of limitation is prescribed, either—
a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or
b) the right of action is concealed by the fraud of any such person as aforesaid; or
c) the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:
47. In the instant case it is not contested that the agreement was signed in January, 2017 by the 1st Respondent and the 2nd, 3rd and 4th Respondent representing the Applicants, a period of about 8 years. The Applicants have not prayed for extension of time for the filing of the application.
48. They are thus time barred from bringing the application which according to section 45(2A) of the Advocates Act is time barred after 1 (one) year from the date of the agreement.
49. Secondly, the Applicants claim that the agreement was concealed from them. The Applicants have not mentioned in their application that there was any fraud, mistake or ignorance of material facts.
50. Further, they have not stated that it is the 1st Respondent who concealed the information from them. They blame the 1st Respondent and the 2nd, 3rd and 4th Respondents who are their fellow beneficiaries and who have not responded to the application. Such fraudulent concealment, even if it were pleaded and proved, can only be used against the person who is guilty of the fraudulent concealment. The Applicants did not plead in the application that it is the 1st Respondent who fraudulently concealed the material facts or the particulars of such fraudulent concealment.
51. I find that the Applicants have not proved fraudulent concealment against the 1st Respondent or any fraudulent concealment. I further find that they did not seek extension of limitation period for filing an application under section 45 of the Advocates Act which requires that the application is made within one year from the date of the agreement.
Whether the application is res judicata
52. The Applicants acknowledge that they instructed Jeji and Associates advocates to come on record in 45(2A) of the Advocates Act Kitale ELRCJR No. 4 of 2019 and the said advocates applied for leave to come on record through the application dated 14th February, 2024. In the ruling delivered on 4th February, 2025 the issue of validity of the agreement for fees between the Applicants and the 1st Respondent was substantially the addressed.
53. In the ruling the court held as follows-
29. From the above instruction note, I am satisfied that in the instant case, there was an agreement for payment of legal fees as envisaged by section 45(1) of the Advocates Act.
30. Having determined that there was an agreement for fees between the parties, it is important that the court interrogates the terms therein so as to satisfy itself as to what fees the outgoing counsel is entitled to before granting the incoming counsel leave to come on record for the Claimants.
31. The bone of contention as can be deduced from the rival arguments by the parties is that, on one hand, the outgoing advocates contends that the instruction note provided that she would be entitled to 1/3 of the decretal sum. On the other hand, the Applicants aver that the outgoing advocate was entitled to only 1/3 of the amount recovered as stipulated by paragraph 3 (Payment/Advocate Fees) of the Instruction note which amount she has recovered so far.
32. In the case of Nzaku & Nzaku Advocates v Tabitha Waithera Mararo as Trustee of Tracy Naserian Kaaka (minor) & others [2020] eKLR, the court pointed out as follows:
“An agreement for fees contemplated under section 45, is a contract whose terms and conditions must be clear and unambiguous. There must be consensus or meeting of the mind between the parties and it must also be entered into freely without undue influence or promise.”
33. The wording of the agreement herein is not what I would consider as ambiguous. At paragraph 3 of the instruction note the parties agreed that the Claimants would pay the firm of M/s Nyamwega Osoro & Company Advocates fees equivalent to One Third (1/3) as shall be arrived from the amount recovered.
34. My interpretation of the wording “amount recovered”, is the decretal sum. I do not agree with the Claimant
[...truncated]
a. Spent.
b. THAT pending the inter partes hearing of this application, the 1st Respondent be restrained from enforcing or relying upon the instructions not dated 2nd January 2017 purporting to deduct one-third of the Decretal sum or collecting monies from the judgment debtors in Kitale ELRC JR No.004 of 2019; the county government workers’ union =versus= County Secretary County Government of Trans Nzoia and Chief Officer Finance. County government of Trans-Nzoia
c. THAT at the hearing of this application, the Court be pleased to restrain the 1st Respondent from enforcing or relying upon the Instruction Note purporting to deduct one-third of the Decretal sum or collecting the monies from the judgment debtor in Kitale
d. THAT instruction note dated 2nd January, 2017 authorizing the 1st Respondent to deduct a third of the Decretal Sum arising in Kitale ELRC JR NO.4 OF 2019 be declared as null and void or the same be set aside or varied for reason of either lack of proper authority or resolution or written consent of all 145 members.
e. THAT in furtherance, at the hearing of this application, the Decretal Sums due to the Applicants be preserved and not subjected to deductions under the impugned document.
f. THAT the honourable court be pleased to issue an order directing 1st Respondent to appropriately file the bill before Taxing master or deputy Registrar of the Employment and Employment Labour Relation Court.
g. THAT costs be provided for.
2. The grounds in support of the application, which I reproduce verbatim, are that: -
a) The Applicants are the former employees of the defunct Kitale Municipal Council who were unlawful dismissed by the in the year, 2001 and upon such dismissal, thereafter They initiated the case via their entrusted bearers known as county government workers' union previously having been known as Kenya local government workers union purposely to claim their benefits arises from such dismissal and retirement.
b) In 2005 the Applicants’ bearers/Representative instituted the suit against the Kitale municipal council for claiming their benefits in which the decision was thereafter delivered in their favour. The award was made by Hon Stewart M Madzayo, Judge in industrial cause no. 23 of 2005, Nairobi, on 1st December, 2005 was later compelled by initiating another case, that is judicial Review case No. 4 of 2019 at Kitale.
c) Therefore, the Applicants have the substantive beneficial interest to the Decree and ruling issued in May 2021 in Kitale ELRC JR No.004 of 2019: the county government workers union =versus= county Secretary County Government of Trans Nzoia and chief Officer Finance. County government of Trans Nzoia & 1 others and they are desirous to protect their Employment decretal benefits from unlawful deductions.
d) In the meantime, after Judgment of the case, in Kitale ELRC JR NO.004 OF 2019, the 1st Respondent introduced an Instruction Note dated 2nd January, 2017 allegedly authorizing deduction of one-third of the Decretal sum; and the said document was signed by only three persons and not by the Applicants hereof.
e) In the said ELRC proceedings, the County Government Workers Union acted as the representative for the Applicants and others who are not in this case and was expected to pursue the matter for their collective benefit.
f) However, after judgment or award in the Industrial Cause No.23 Of 2005 Nairobi, the Union failed and/or refused to grant the Applicants’ authority or a structured mechanism to follow up or enforce payment of applicants' individual entitlements.
g) Despite of persuading the said bearer/representative, for quite some time, in fact had blatantly declined to alternatively issue the Applicants with an authority to undertake follow up and initiate the suit;
h) Due to that failure, the Applicants were forced to individually intervene to safeguard their interests, which led to our interaction with the 1st Respondent;
i) The present dispute has arisen because an instruction Note dated 2nd January, 2017 was later introduced purporting to bind all beneficiaries without their authority, knowledge, or participation and the said Instruction Note was never presented to all affected members for discussion or approval.
j) In any event, no meeting of beneficiaries was convened to pass a resolution authorizing deduction of one-third of the Kshs.56,984,866, Decretal sum, and even the Union's office bearers did not issue any mandate authorizing the three individuals to execute such an agreement.
k) The persons who signed the Instruction Note were not legally appointed representatives of the members and had no authority to bind the Applicants, the fact that the Applicants never authorized those persons to enter into any agreement concerning the aforementioned matter thus process was unlawful.
l) It is iterated that the Applicants were never informed of the existence of the said document the time it was allegedly executed and only discovered it later when deductions were being justified on its basis
m) Additionally, had the matter been disclosed to all members or Applicants, they would have participated in determining lawful and reasonable legal fees transparently.
n) The Applicants never executed any advocate-client fee agreement with the 1st Respondent and the Applicants later discovered deductions being justified on the basis of that document.
o) The Applicants had already lodged a complaint before the Advocates Complaints Commission and later were advised to seek the Court’s determination on the validity of the said Instruction Note by filing an appropriate application before this honourable court.
p) As per the substance of the said impugned Instruction Note, the said document was issued and prepared by the Advocate Nyamwega Osoro and the same having been signed by 2nd ,3rd and 4th Respondent on behalf of 142 others who never even issued any prove of representation or written consent, permitting them to undertake such agreement.
q) It appears that the said instruction Note authorized deductions amounting to approximately Kshs.18,994,995 in the favour of 1st Respondent from the applicants’ Decretal sums Kshs.56,984,866 without lawful authority, consent, or union resolution.
r) As to date, the said Instruction Note had already been partially executed in which more than 7,000,000 or thereabout has been deducted from the applicants’ Decretal sum.
s) It is proper and for the interest of the justice that the honourable Court to consider that the Applicants were not parties to the alleged agreement, the authority of the three signatories is disputed and unproven, the said Instruction Note purports to bind persons who never consented and Continued enforcement will occasion irreparable financial prejudice.
t) The Honourable Court has jurisdiction to entertain this application on the issues raised herein concerning argument of protecting applicants' Employment Decretal Benefit (Decretal Sum Kshs.56,984,866,) arising from KITALE ELRC JR NO.4 OF 2019 (which suit having been earlier handled by this honourable court), thus ELRC is the proper forum to invalidate the said instruction note.
3. The Application is further supported by the affidavit of KENEDY OJIAMBO ODWORY, the 2nd Applicant. He substantially reiterates the grounds in support of the application.
4. The 1st Respondent opposed the application through a replying affidavit of GLADYS N. NYAMWEYA, advocate, in which she states that the application has been drawn in reference to Kitale Employment and Labour Relations Court Judicial Review Application Number 4 of 2019: County Government Workers Union versus the County Secretary, County Government of Trans Nzoia as 1st Respondent; The Chief Officer Finance/County Treasurer, County Government of Trans Nzoia as the 2nd Respondent and The County Executive Committee Member for Finance, County Government of Trans Nzoia as the 3rd Respondent.
5. Ms. Osoro deposes that the Applicants have come to court in bad faith as they previously instructed Jeji & Associates Advocates to come on record on their behalf through instructions given by the 2nd and 4th Respondents herein. She annexed a copy of the said application made in JR Application Number 4 of 2019 dated 14th February, 2024 and the ruling in respect thereof dated 4th February, 2025.
6. Ms. Nyamwega deposes that the Applicants are being mischievous by filing the instant application and joining the 2nd, 3rd and 4th Respondents. Ms. Nyamwega deposes that this application is an abuse of court process, and that the 2nd to 4th Respondents are working together with the Applicants.
7. She further deposes that the 1st Applicant and the 10th Applicant represent the same deceased employee John Gilbert K’Odwory (deceased) and cannot act separately.
8. Ms. Nyamwega deposes that the Applicants have been receiving their money in installments whenever the County Government of Trans Nzoia pays the decretal sum.
9. It is deposed that the Applicants have filed multiple applications in JR No. 4 of 2019 over the same subject matter including an application dated 13th November, 2025 which was withdrawn by Notice of Withdrawal dated 21st January, 2026.
10. She prays that the Application be dismissed with costs.
11. Upon being served with the replying affidavit the Applicants filed a Supplementary Affidavit of KENNEDY OJIAMBO ODWORY sworn on 21st May, 2026 in which he deposes that the issues raised in the Replying affidavit are hearsay and speculative, that the 2nd to 4th Respondents have been joined to the application as they are the only ones who participated in the signing of the impugned instruction note without the knowledge, consent, resolution or authority of the Applicants.
12. He deposes that the applicants do not deny that the 1st Respondent was instructed in Kitale JR ELRC No. E004 of 2019 and therefore ought to be paid for her service up to the time the final decision was made.
13. He further states the Applicants are aware that partial payments have been made to some of them. That the instant application only seeks to invalidate instruction note and deduction of one-third of decretal sum.
14. He states that the Applicants facilitated the 1st Respondent to the tune of Kshs. 112,000 or thereabouts as legal fees, that they only learned about the instruction note between the year 2022 and 2024.
15. He further deposes that their instructions to the advocate was to pursue about Kshs. 95,145,995 but the 1st Respondent only pursued Kshs. 56,984,866.
16. He deposes that due to their dissatisfaction with the 1st Respondent they approached Jeji & Associates Advocates to pursue their rights but the said advocates remained uncooperative forcing them to proceed independently by filing the instant proceedings.
17. He deposes that it is in the interest of justice to grant the orders sought in their application.
18. The 2nd, 3rd and 4th Respondents did not file any response to the application or participate in the proceedings.
19. The application was disposed of by way of written submissions.
20. The Applicants filed submissions dated 21st May, 2026 and Supplementary Submissions dated 13th June, 2026. The 1st Respondent filed submissions dated 9th June, 2026.
Applicants’ Submissions
21. In their submissions the Applicants have distilled the issues for determination to be:
a. Whether the instruction note dated 2nd January, 2017 was validly executed and binds the Applicants and all 145 beneficiaries;
b. Whether the 1st Respondent is entitled to deduct one-third of the decretal sum on the basis of the impugned instruction note;
c. Whether the instruction note should be declared null and void, set aside or varied;
d. Whether the decretal sum due to the Applicants ought to be preserved and protected from further deductions under the impugned document; and,
e. Whether the 1st Respondent should be directed to file a bill of costs before the taxing master.
22. On the first issue the Applicants submit that section 45(2) of the Advocates Act provides that a court may inquire into and where it is just and reasonable to do so, set aside or vary any agreement relating to costs entered into by an advocate with a client, while section 46 provides that no agreement shall be enforceable unless it is fair and reasonable and section 47 confers on the court broad powers to supervise such agreements and protect the interests of clients.
23. Relying on the decision in Aineah Liluyani Njira v Aga Khan Health Services [2013] KECA 481 (KLR) in which the Court restated the principles in Dunlop Pneumatic Tyre v Selfridge and Co. Ltd [1915] AC 847, 853 the Applicants submit that an agreement binds only those who are party to it or who have authorized another to enter into it on their behalf. That any purported agreement executed without the informed consent of all persons it seeks to bind is unenforceable against those who did not consent.
24. The Applicants submit that the 2nd, 3rd and 4th Respondents appended their signatures in their purported capacity of Chairman, Secretary and Treasurer of the Applicants of the beneficiaries. They aver that no resolution was passed by the 145 beneficiaries authorizing the three to enter into a fee agreement on their behalf, that the Union Office bearers did not issue any mandate to the three signatories to execute such agreement and that the remaining signatories were never informed of the existence of the agreement.
25. On the 2nd issue the Applicants submit that even if the instruction note was deemed to be valid, which they submit it is not, the fee stated therein being one-third of the decretal sum is manifestly excessive and contrary to the requirements of section 46 of the Advocates Act. that according to the fees prescribed in the Act the Advocate is entitled to Kshs. 1,020,537 inclusive of VAT. Relying on the decision in Mburu & another v Tilu [2026] KEHC 1751 (KLR) and Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] EA the Applicants submit that costs should not be punitive.
26. They further submit that the instruction note was prepared in the format ordinarily used for motor accident claims which is irrelevant to employment matters. That the 1st Applicant exploited the vulnerability of the Applicants to secure an unconscionable agreement. That the agreement is therefore voidable as held in Dhiman v Shah [2025] KECA 1264.
27. On the 3rd issue whether the instruction note should be declared null and void, set aside or varied, the Applicants submit they are elderly retirees, some of them ailing and over 50 already deceased. That they have waited 20 years since their dismissal in 2001 to receive the fruits of their judgment. They submit that a successful litigant should not be deprived of the fruits of judgment without lawful justification as was held in Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR).
28. On the issue whether the decretal sum due to the Applicants ought to be preserved and protected from further deduction under the impugned instruction note, the Applicants submitted that the proper and lawful mechanism for determination of an advocate’s fees in contentious matters is taxation before a Taxing Master in accordance with section 51 of the Advocates Act and the Advocates (Remuneration) Order, 2014 as was held in BS Advocates LLP v Makokha & 2 others [2023] KEHC 2311 (KLR).
29. On the final issue whether the 1st Respondent should be directed to file a bill of costs the Applicants submit that the only way to determine an advocate’s fees in the absence of a valid, collective fee agreement is through taxation under section 48 of the Advocates Act. they urge the court to direct the 1st Respondent to file a bill of costs in Kitale JR No. 4 of 2019.
30. In the Supplementary Submissions filed in response to the 1st Respondents submissions, the Applicants submit on 3 issues whether a concealed, unauthorized document can be protected by statutory time limits under section 45(2A) of the Advocates Act; whether res judicata applies when the underlying agreement was actively hidden from the primary beneficiaries; and, whether the 1st Respondent can lawfully use an outstanding, disputed fee agreement to block the incoming advocate, Jeji & Associates.
31. On the of statutory time limits the Applicants submit that the one-year limitation period under section 45(2A) of the Advocates Act is not applicable as the Applicants were in the dark through deliberate concealment. They submit that the Applicants were excluded from the negotiation, execution and discussion in the 2017 instruction note. That the trigger event was the delivery of the court ruling on 4th February, 2025 as the 1st Respondent kept the document hidden for eight years.
32. They submit that the argument that they never appealed against the ruling of 4th February, 2025 in Kitale JR No. 4 of 2019 is not valid as they were not the applicants in the application dated 14th February, 2024 which the ruling was in respect of. That as such they proceeded to file a complaint with the Advocates Complaint Commission which advised them to file the instant application.
33. They further submit that section 45(2A) allows an application within three months after demand of fees. That they filed the instant application on 24th March, 2026 and the application is therefore timely, proper and within the jurisdiction of this court. They rely on the decision in Gathoni v Central Kenya Automobile Services Ltd (1982) KLR where the court held that time begins to tick only when the affected party discovers the truth or could have discovered the truth with reasonable diligence. They further rely on section 26 of the Limitation of Actions Act.
34. On the issue of res judicata and estoppel the Applicants submit that contracts do not bind parties where fraud, coercion or undue influence are present as was held in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd. They further submit that no estoppel is applicable where the agreement is harsh, unconscionable exorbitant are unreasonable, relying on the decision in Wachira Waweru & Company v Bell Point Limited (2018) eKLR; Independent Electoral and Boundaries Commission v Maina Kiai & 5 others (2017) eKLR; and Nduati & Company Advocates v Mugo.
35. On the issue whether the 1st Respondent can lawfully use an outstanding, disputed fee agreement to block the incoming advocate, Jeji & Associates, the Applicants submitted that the conditions set by the 1st Respondent for handing over the file to Jeji & Associates has created an impossible financial barrier to block the incoming counsel. That to resolve the deadlock the court must order taxation of the 1st Respondent’s fees as provided in section 45(2) (d) of the Advocates Act.
1st Respondents submissions
36. The 1st Respondent submitted that the only issue for determination by the court is whether the Chamber Summons dated 24th March, 2026 is merited.
37. The 1st Respondent submits that issue is multipronged and can be addressed first, on the basis of the principles set out in the case of Printing and Numerical Registering Co. v Sampson where the court held that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. That this principle was applied locally in the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd where the court expressed itself thus:
“A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.
As was stated by Shah JA in the case of Fina Bank Limited vs Spares &Industries Limited (Civil Appeal No 51 of 2000) (unreported):
“It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain".
In Mura (suing on behalf of others) v Oluoch t/a at Oluoch and Co advocates & 2 others [2024] KEELRC 111 (KLR), the court pronounced itself as follows:
21. This is not an ordinary civil dispute but is one that is specifically provided for under the Advocates Act. Section 45(2) of the Advocates Act provides for variation or setting aside of agreement on Advocates' fees on the grounds that it is harsh and unconscionable, exorbitant or unreasonable.
22. Section 45(2A) of the Act requires that an application in this regard be made within one year after the making of the agreement or within three months after a demand in writing by the Advocate for payment of fees under the agreement.
23. In the submissions filed on behalf of the 1st and 3rd Respondents, reference was made to the decision in D.N. Njogu & Co. Advocates v National Bank of Kenya Limited [2007] eKLR where it was held:
“If two parties willingly agree to conceive an idea and the same is put into writing, signed, accepted and executed by the parties, then the court can only be called to intervene in distinct situations...it is not the duty of the courts to write or rather rewrite the contracts for parties...An agreement made between parties on fees and the same evidenced in writing is valid and binding. Such an agreement can only be set aside if an application is made within one year of the making of the agreement.”
24. In this case, the Applicants completely circumvented the procedure set out in the Advocates Act and instead chose to proceed as if this were an ordinary civil dispute. There is good reason why this specific procedure exists, in view of the special relationship between an Advocate and their client. I do not think a party is at liberty to depart from it without justifiable cause.”
38. It is submitted that the impugned agreement was made on 2nd July, 2017 while the instant application is dated 24th March, 2026, which is 8 years after the execution of the agreement. That there is no order made by this court extending time for filing the application out of time. Further, that there is no prayer for extension of time or for the court to deem the application as filed properly. That for this reason this court lacks jurisdiction to determine the application.
39. Secondly, the 1st Respondent submits that on 4th February 2025, the court pronounced itself on the instruction note in Kitale ELRCJR No. 4 of 2019 at paragraphs 29 to 34 of the ruling. That the Applicants did not appeal against the ruling and the decision has never been reviewed or set aside.
40. The 1st Respondent further submits that the instant application is intended to circumvent the ruling in Kitale ELRCJR No. 4 of 2019 delivered on 4th February, 2025, a clear case of abuse of court process. That the court having pronounced itself on the issue, the Applicants are estopped from raising the same issue as it is res judicata. That the court also lacks jurisdiction to pronounce itself on the issue as this would amount to an appeal against its own decision. The 1st Respondent relied on the decision in Doge v Kenya Canners Ltd (1989) KLR 127.
41. The 1st Respondent further submits that the Applicants want to benefit from the judgment in Kitale ELRCJR No. 4 of 2019, the product of the impugned instructions note. That the 2nd to 4th Respondents who signed the instruction note have not responded to the application, a clear indication that they are hiding behind the Applicants and disguising themselves as victims.
42. The 1st Respondent prays that the application be dismissed with costs relying on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR.
Analysis and Determination
43. Having considered the application and affidavits on record and the submissions, the issues for determination are:
a) whether the application is time barred,
b) whether the application is res judicata, and,
c) If the Applicants are entitled to the orders sought.
whether the application is time barred
44. The 1st Respondent submits that under the Advocates Act an application for setting aside or varying an agreement for fees between an advocate and a client on grounds that it is harsh and unconscionable is required to be filed within one year from the date of making the agreement or within three months from the date of a demand in writing by the advocate for payment under the agreement by way of rendering a fee-note, whichever is later as provided in section 45(2A) of the Advocates Act.
45. The Applicants have responded to the effect that the details of the fee note were not disclosed to them until the date of delivery of this court’s ruling on their application in Kitale ELRCJR No. 4 of 2019 on 4th February, 2025
46. According to section 25C of the Limitation of Actions Act, where a party wishes to extend the limitation period on grounds of fraud, mistake or ignorance of material facts, an application should be made as provided under section 26 of the Act which provides:
Extension of limitation period in case of fraud or mistake
26. Where, in the case of an action for which a period of limitation is prescribed, either—
a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or
b) the right of action is concealed by the fraud of any such person as aforesaid; or
c) the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:
47. In the instant case it is not contested that the agreement was signed in January, 2017 by the 1st Respondent and the 2nd, 3rd and 4th Respondent representing the Applicants, a period of about 8 years. The Applicants have not prayed for extension of time for the filing of the application.
48. They are thus time barred from bringing the application which according to section 45(2A) of the Advocates Act is time barred after 1 (one) year from the date of the agreement.
49. Secondly, the Applicants claim that the agreement was concealed from them. The Applicants have not mentioned in their application that there was any fraud, mistake or ignorance of material facts.
50. Further, they have not stated that it is the 1st Respondent who concealed the information from them. They blame the 1st Respondent and the 2nd, 3rd and 4th Respondents who are their fellow beneficiaries and who have not responded to the application. Such fraudulent concealment, even if it were pleaded and proved, can only be used against the person who is guilty of the fraudulent concealment. The Applicants did not plead in the application that it is the 1st Respondent who fraudulently concealed the material facts or the particulars of such fraudulent concealment.
51. I find that the Applicants have not proved fraudulent concealment against the 1st Respondent or any fraudulent concealment. I further find that they did not seek extension of limitation period for filing an application under section 45 of the Advocates Act which requires that the application is made within one year from the date of the agreement.
Whether the application is res judicata
52. The Applicants acknowledge that they instructed Jeji and Associates advocates to come on record in 45(2A) of the Advocates Act Kitale ELRCJR No. 4 of 2019 and the said advocates applied for leave to come on record through the application dated 14th February, 2024. In the ruling delivered on 4th February, 2025 the issue of validity of the agreement for fees between the Applicants and the 1st Respondent was substantially the addressed.
53. In the ruling the court held as follows-
29. From the above instruction note, I am satisfied that in the instant case, there was an agreement for payment of legal fees as envisaged by section 45(1) of the Advocates Act.
30. Having determined that there was an agreement for fees between the parties, it is important that the court interrogates the terms therein so as to satisfy itself as to what fees the outgoing counsel is entitled to before granting the incoming counsel leave to come on record for the Claimants.
31. The bone of contention as can be deduced from the rival arguments by the parties is that, on one hand, the outgoing advocates contends that the instruction note provided that she would be entitled to 1/3 of the decretal sum. On the other hand, the Applicants aver that the outgoing advocate was entitled to only 1/3 of the amount recovered as stipulated by paragraph 3 (Payment/Advocate Fees) of the Instruction note which amount she has recovered so far.
32. In the case of Nzaku & Nzaku Advocates v Tabitha Waithera Mararo as Trustee of Tracy Naserian Kaaka (minor) & others [2020] eKLR, the court pointed out as follows:
“An agreement for fees contemplated under section 45, is a contract whose terms and conditions must be clear and unambiguous. There must be consensus or meeting of the mind between the parties and it must also be entered into freely without undue influence or promise.”
33. The wording of the agreement herein is not what I would consider as ambiguous. At paragraph 3 of the instruction note the parties agreed that the Claimants would pay the firm of M/s Nyamwega Osoro & Company Advocates fees equivalent to One Third (1/3) as shall be arrived from the amount recovered.
34. My interpretation of the wording “amount recovered”, is the decretal sum. I do not agree with the Claimant
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