1. In this matter, Gerivia Advocates LLP filed the present Chamber Summons application dated 7th September 2022, under rule 11(2) of the Advocates (Remuneration) Order seeking to set aside the decision of the Taxing Master delivered on 28th July 2022, which struck out the firm’s bill of costs dated 10th March 2022. The Applicant asked that the matter be referred back for taxation with proper directions.
2. The application was based on the grounds that the taxing master erred in finding that no advocate–client relationship existed between the Applicant and the Respondent, Yangguang Property Design & Manufacturing Limited. The Applicant argued that the issue of the existence of such a relationship had not been raised by the Respondent and therefore the taxing master acted without jurisdiction in determining it suo moto.
3. It was contended that where the question of whether an advocate was instructed arises, it is the court, not the taxing officer, that should first determine the issue, and only if it is established that an advocate–client relationship exists should taxation proceed. The Applicant maintained that the taxing officer failed to appreciate that the existence of instructions is a factual issue requiring evidence, and that it was denied an opportunity to demonstrate that the relationship indeed existed.
4. The Application was supported by an affidavit sworn by Susan Wairimu Munene, a partner in the law firm, on 7th September 2022.
5. The Reference was opposed by the Respondent through a preliminary objection dated 21/2/2023 in which it asserted that the court lacked jurisdiction as the reference had been filed out of time. The court dismissed the objection through a ruling delivered on 5th November 2024. The matter now falls for determination on merits.
Analysis and determination
6. The Applicant filed written submissions dated 18th November 2024 in support of the instant application while the Respondent did not file any submissions in opposition.
7. A background of this dispute is that the Applicant filed an Advocate-Client Bill of Costs dated 10th March 2022 claiming Kshs.7,081,467.05 as his legal fees. Subsequently, the taxing officer delivered a ruling on the bill of costs on 28th July 2022 striking it out for the reason that the Applicant did not demonstrate that there existed Advocate-Client relationship between the Applicant and the Respondent.
8. The primary issue for determination in the present application is whether the Reference has merit.
9. I have carefully considered at the Ruling of the taxing officer which was produced as ‘SWM 6’ in the Applicant’s supporting affidavit. I note that in the Ruling, the taxing officer stated that: “A look at the Applicant’s supporting documents together with all the items on the bill of costs shows no instructions other than the items that were drawn by the Advocate.”
10. The Deputy registrar then proceeded and struck out the bill of costs on the basis that there were no instructions from the client.
11. The Applicant submits that the Respondent did not raise as a preliminary issue, any question as to whether an dvocate-client relationship existed between them. The Applicant contended that it was never alleged by the Respondent that the Applicant acted without instructions and therefore the taxing officer erred when it struck out the bill of costs.
12. Instruction from a client could be in written form or may be implied by his/her conduct. This was stated in the case of Ochieng Onyango Kibet and Ohaga Advocates vs. Akiba Bank Ltd [2007] eKLR where it was stated:
“The act of authorizing an advocate to act on behalf of a client constitutes the advocate’s retainer by the client. It is not the law that an advocate must obtain a written authority from the client before he commences a matter. The participation and authority of an advocate in a matter can be implied or discerned from the conduct of the client. In my view retainer is no more than an authority given to an advocate to act in a particular matter and manner. It may be restrictive; it may be wide. And nevertheless it can be implied from the conduct of the client/advocate relationship.”
13. In GS Law LLP Advocates v Wilbur Khasilwa Ottichilo [2021] eKLR, the Court at Paragraph 15 thereof stated that:
“The starting point, of course, ought to be whether or not there exist an advocate and client relationship, and where none existed, and before a bill for taxation between an advocate and his alleged client is taxed, the taxing officer ought to deal with the matter of the existence of that relationship, should the same arise as a preliminary issue, for taxation goes to jurisdiction, and that jurisdiction arises only where a relationship between advocate and client existed.”
14. In this case, the deputy registrar relied on the case of Wilfred N. Konosi t/a Konosi & Co. Advocates vs Flamco Limited (2017) eKLR in dismissing the Applicant’s bill of costs. However, having read the decision, I note that unlike in the present matter, the client in that case alleged that an advocate-client relationship did not exist and the court gave the advocate an opportunity to prove to the contrary. The judgement stated:
“The background to this litigation shows that when the Bill of Costs by the appellant came up for taxation before the Deputy Registrar (W. Kagendo), the Respondent client, Flamco Ltd, filed an application dated 21st December 2010 seeking to dismiss it on the ground that Page Flamco Ltd had never instructed the appellant to act for it whereupon the Deputy Registrar gave directions on the hearing of the objection and the appellant filed a bundle of correspondence in an attempt to show that it was instructed by Flamco Ltd to draw a Discharge of Charge in a conveyancing transaction. The Deputy Registrar also directed the appellant and Flamco Ltd to file written submissions, documents and authorities on the issue whether there was an advocate/client relationship between the appellant and the Respondent. On 4th May 2011, the Deputy Registrar struck out the Bill of Costs with costs to Flamco Ltd, on the ground that the appellant had failed to show the existence of an advocate client relationship.”
15. The situation here is different. Proceedings reveal that the deputy registrar acted suo motto in finding that an advocate-client relationship did not exist. Further, she did not accord the Applicant an opportunity to prove that indeed an advocate client relationship existed. It is well known that instruction from a client could be in written form or may be implied by his/her conduct and therefore the deputy registrar deprived the advocate of the opportunity to prove that such a relationship existed.
16. In any evet, having perused the instant application and the annextures thereto, I note that the record before the taxing officer included: the Verifying Affidavit of Chen Lejia (the Respondent’s director) signed in JR E094 of 2021; pleadings in the PPARB matter and the judicial review prepared and filed by the Applicant; and correspondence authored by the Applicant on the Respondent’s behalf, copied to and stamped as received by the Respondent. These materials, coupled with the Respondent’s appointment of counsel in the taxation and participation without disowning instructions, are, at minimum, sufficient to raise a prima facie case that the Applicant acted under a retainer—whether written, oral, or implied by conduct.
17. As pointed out under the preceding paragraphs, the existing jurisprudence in Kenya is that retainer need not be in writing; instructions can be oral or inferred from conduct, including a client swearing affidavits drawn by the advocate, signing pleadings, participating in proceedings led by the advocate, or engaging with the advocate’s correspondence concerning the case. Where the client disowns instructions, the onus shifts to the advocate to prove the retainer. But where the client does not disown the relationship, and a taxing officer nevertheless perceives doubt, the officer ought to call for and consider the parties’ evidence rather than summarily strike out the bill.
18. It therefore follows that apart from the procedural misstep of finding that there existed no advocate-client relationship where non was raised by the Client/Respondent, the Deputy Registrar also misdirected herself by overlooking probative materials and by not calling for submissions and further evidence on a factual question not raised by the client. The reliance on Konosi v Flamco as a basis for a summary striking out was misplaced, because as pointed out earlier in this judgment, the Konosi case turned on an objection raised and ventilated with directions and evidence
19. Finally, the Applicant pointed out that the matter taxed in E194 of 2022 emanated from High Court judicial review proceedings (JR E094 of 2021) and that the Bill was drawn under Schedule 6 of the Advocates (Remuneration) Order, not Schedule 11. To the extent the ruling conflated E194 with E193 and/or applied the wrong schedule, that was a further error. Taxation must proceed under the schedule applicable to the forum and nature of work done; judicial review proceedings in the High Court fall under Schedule 6.
20. Accordingly, the Ruling of the Deputy Registrar (Hon. E.M. Nyakundi) dated 28th July 2022 striking out the Applicant’s Advocate–Client Bill of Costs dated 10th March 2022 is set aside in its entirety.
21. In the circumstances, the appropriate order is to remit the Bill of Costs for taxation before a different taxing officer with directions safeguarding procedural fairness and clarifying the applicable framework
Final Orders
22. In light of the above, the Court issues the following Orders:
i. The Applicant’s Advocate–Client Bill of Costs dated 10th March 2022 is remitted for taxation before a different taxing officer other than Hon. E.M. Nyakundi.
ii. Prior to taxation, if the Respondent contests the existence of an advocate–client relationship or instructions, that preliminary issue shall be addressed first. The taxing officer shall issue directions for the filing of affidavits, documents, and submissions limited to that issue, and hear both parties before making a reasoned determination.
iii. If no contest is raised by the Respondent within the timelines set, taxation shall proceed on the Bill as drawn, under Schedule 6 of the Advocates (Remuneration) Order (High Court proceedings), with liberty to the taxing officer to adjust items in accordance with law and principle.
23. Costs of this reference are awarded to the Applicant, to be borne by the Respondent.
24. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
2. The application was based on the grounds that the taxing master erred in finding that no advocate–client relationship existed between the Applicant and the Respondent, Yangguang Property Design & Manufacturing Limited. The Applicant argued that the issue of the existence of such a relationship had not been raised by the Respondent and therefore the taxing master acted without jurisdiction in determining it suo moto.
3. It was contended that where the question of whether an advocate was instructed arises, it is the court, not the taxing officer, that should first determine the issue, and only if it is established that an advocate–client relationship exists should taxation proceed. The Applicant maintained that the taxing officer failed to appreciate that the existence of instructions is a factual issue requiring evidence, and that it was denied an opportunity to demonstrate that the relationship indeed existed.
4. The Application was supported by an affidavit sworn by Susan Wairimu Munene, a partner in the law firm, on 7th September 2022.
5. The Reference was opposed by the Respondent through a preliminary objection dated 21/2/2023 in which it asserted that the court lacked jurisdiction as the reference had been filed out of time. The court dismissed the objection through a ruling delivered on 5th November 2024. The matter now falls for determination on merits.
Analysis and determination
6. The Applicant filed written submissions dated 18th November 2024 in support of the instant application while the Respondent did not file any submissions in opposition.
7. A background of this dispute is that the Applicant filed an Advocate-Client Bill of Costs dated 10th March 2022 claiming Kshs.7,081,467.05 as his legal fees. Subsequently, the taxing officer delivered a ruling on the bill of costs on 28th July 2022 striking it out for the reason that the Applicant did not demonstrate that there existed Advocate-Client relationship between the Applicant and the Respondent.
8. The primary issue for determination in the present application is whether the Reference has merit.
9. I have carefully considered at the Ruling of the taxing officer which was produced as ‘SWM 6’ in the Applicant’s supporting affidavit. I note that in the Ruling, the taxing officer stated that: “A look at the Applicant’s supporting documents together with all the items on the bill of costs shows no instructions other than the items that were drawn by the Advocate.”
10. The Deputy registrar then proceeded and struck out the bill of costs on the basis that there were no instructions from the client.
11. The Applicant submits that the Respondent did not raise as a preliminary issue, any question as to whether an dvocate-client relationship existed between them. The Applicant contended that it was never alleged by the Respondent that the Applicant acted without instructions and therefore the taxing officer erred when it struck out the bill of costs.
12. Instruction from a client could be in written form or may be implied by his/her conduct. This was stated in the case of Ochieng Onyango Kibet and Ohaga Advocates vs. Akiba Bank Ltd [2007] eKLR where it was stated:
“The act of authorizing an advocate to act on behalf of a client constitutes the advocate’s retainer by the client. It is not the law that an advocate must obtain a written authority from the client before he commences a matter. The participation and authority of an advocate in a matter can be implied or discerned from the conduct of the client. In my view retainer is no more than an authority given to an advocate to act in a particular matter and manner. It may be restrictive; it may be wide. And nevertheless it can be implied from the conduct of the client/advocate relationship.”
13. In GS Law LLP Advocates v Wilbur Khasilwa Ottichilo [2021] eKLR, the Court at Paragraph 15 thereof stated that:
“The starting point, of course, ought to be whether or not there exist an advocate and client relationship, and where none existed, and before a bill for taxation between an advocate and his alleged client is taxed, the taxing officer ought to deal with the matter of the existence of that relationship, should the same arise as a preliminary issue, for taxation goes to jurisdiction, and that jurisdiction arises only where a relationship between advocate and client existed.”
14. In this case, the deputy registrar relied on the case of Wilfred N. Konosi t/a Konosi & Co. Advocates vs Flamco Limited (2017) eKLR in dismissing the Applicant’s bill of costs. However, having read the decision, I note that unlike in the present matter, the client in that case alleged that an advocate-client relationship did not exist and the court gave the advocate an opportunity to prove to the contrary. The judgement stated:
“The background to this litigation shows that when the Bill of Costs by the appellant came up for taxation before the Deputy Registrar (W. Kagendo), the Respondent client, Flamco Ltd, filed an application dated 21st December 2010 seeking to dismiss it on the ground that Page Flamco Ltd had never instructed the appellant to act for it whereupon the Deputy Registrar gave directions on the hearing of the objection and the appellant filed a bundle of correspondence in an attempt to show that it was instructed by Flamco Ltd to draw a Discharge of Charge in a conveyancing transaction. The Deputy Registrar also directed the appellant and Flamco Ltd to file written submissions, documents and authorities on the issue whether there was an advocate/client relationship between the appellant and the Respondent. On 4th May 2011, the Deputy Registrar struck out the Bill of Costs with costs to Flamco Ltd, on the ground that the appellant had failed to show the existence of an advocate client relationship.”
15. The situation here is different. Proceedings reveal that the deputy registrar acted suo motto in finding that an advocate-client relationship did not exist. Further, she did not accord the Applicant an opportunity to prove that indeed an advocate client relationship existed. It is well known that instruction from a client could be in written form or may be implied by his/her conduct and therefore the deputy registrar deprived the advocate of the opportunity to prove that such a relationship existed.
16. In any evet, having perused the instant application and the annextures thereto, I note that the record before the taxing officer included: the Verifying Affidavit of Chen Lejia (the Respondent’s director) signed in JR E094 of 2021; pleadings in the PPARB matter and the judicial review prepared and filed by the Applicant; and correspondence authored by the Applicant on the Respondent’s behalf, copied to and stamped as received by the Respondent. These materials, coupled with the Respondent’s appointment of counsel in the taxation and participation without disowning instructions, are, at minimum, sufficient to raise a prima facie case that the Applicant acted under a retainer—whether written, oral, or implied by conduct.
17. As pointed out under the preceding paragraphs, the existing jurisprudence in Kenya is that retainer need not be in writing; instructions can be oral or inferred from conduct, including a client swearing affidavits drawn by the advocate, signing pleadings, participating in proceedings led by the advocate, or engaging with the advocate’s correspondence concerning the case. Where the client disowns instructions, the onus shifts to the advocate to prove the retainer. But where the client does not disown the relationship, and a taxing officer nevertheless perceives doubt, the officer ought to call for and consider the parties’ evidence rather than summarily strike out the bill.
18. It therefore follows that apart from the procedural misstep of finding that there existed no advocate-client relationship where non was raised by the Client/Respondent, the Deputy Registrar also misdirected herself by overlooking probative materials and by not calling for submissions and further evidence on a factual question not raised by the client. The reliance on Konosi v Flamco as a basis for a summary striking out was misplaced, because as pointed out earlier in this judgment, the Konosi case turned on an objection raised and ventilated with directions and evidence
19. Finally, the Applicant pointed out that the matter taxed in E194 of 2022 emanated from High Court judicial review proceedings (JR E094 of 2021) and that the Bill was drawn under Schedule 6 of the Advocates (Remuneration) Order, not Schedule 11. To the extent the ruling conflated E194 with E193 and/or applied the wrong schedule, that was a further error. Taxation must proceed under the schedule applicable to the forum and nature of work done; judicial review proceedings in the High Court fall under Schedule 6.
20. Accordingly, the Ruling of the Deputy Registrar (Hon. E.M. Nyakundi) dated 28th July 2022 striking out the Applicant’s Advocate–Client Bill of Costs dated 10th March 2022 is set aside in its entirety.
21. In the circumstances, the appropriate order is to remit the Bill of Costs for taxation before a different taxing officer with directions safeguarding procedural fairness and clarifying the applicable framework
Final Orders
22. In light of the above, the Court issues the following Orders:
i. The Applicant’s Advocate–Client Bill of Costs dated 10th March 2022 is remitted for taxation before a different taxing officer other than Hon. E.M. Nyakundi.
ii. Prior to taxation, if the Respondent contests the existence of an advocate–client relationship or instructions, that preliminary issue shall be addressed first. The taxing officer shall issue directions for the filing of affidavits, documents, and submissions limited to that issue, and hear both parties before making a reasoned determination.
iii. If no contest is raised by the Respondent within the timelines set, taxation shall proceed on the Bill as drawn, under Schedule 6 of the Advocates (Remuneration) Order (High Court proceedings), with liberty to the taxing officer to adjust items in accordance with law and principle.
23. Costs of this reference are awarded to the Applicant, to be borne by the Respondent.
24. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses