RULING
Concurrent jurisdiction
1. The issue before the court is which court has jurisdiction to determine the advocate-client bill of costs dated 28.1.2025, arising from the legal services rendered in Court of Appeal Civil Application No. E179 of 2023 originating from Environment and Land Court (ELC).
2. The issue flows from the chamber summons dated 27.5.2025 by the advocate seeking a declaration that the Commercial and Tax Division of the High Court has the jurisdiction over the subject matter. Alternatively, the advocate seeks a determination of whether the ELC has jurisdiction over the subject matter.
3. The application is brought under Paragraph 11 of the Advocates Remuneration Order (ARO) and Sections 1A, 1B, & 3A of the Civil Procedure Act. It is supported by the affidavit sworn by the firm’s principal, Harry Karanja on 27.5.2025 and written submissions dated 24.9.2025.
4. The advocate asserted that the jurisdiction over the subject matter lies in the High Court generally; that the Court of Appeal’s jurisdiction over party and party costs does not extend to advocate-client remuneration; advocate-client bills are contractual and subject to the Advocates Act and the Remuneration Order.
5. To support the position that the advocate-client costs are to be taxed by the High Court under para. 10 of the ARO, the advocate relied on: -
(1) John Kinyanjui Theuri & Kariuki Njuguna t/a Kinyanjui Njuguna & Co. Advocates v Board of Trustees National Social Security Fund [2023] KEHC 19238 (KLR)
(2) Tom Ojienda & Associates v County Government of Narok [2021] KEHC 452
6. The client/ respondent opposed the application through a replying affidavit sworn on 9.10.2025 and written submissions dated 6.3.2026.
7. The client’s case is that the work performed by the advocate emanates from proceedings touching on matters falling within the jurisdiction of the ELC and subsequent appellate proceedings. Therefore, he contended that the bill of costs ought to be taxed before the ELC.
8. To support the argument that costs are incidental to substantive proceedings, the client relied on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR and Party of Independent Candidate of Kenya & Another v Mutula Kilonzo & 2 Others [2013] eKLR.
9. The client relied on Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989 KLR 1 on jurisdiction and Republic v Karisa Chengo & 2 Others [2017] eKLR on the distinct and specialized jurisdiction of courts of equal status to the High Court under Article 162 (2) of the Constitution.
10. The client relied on Phoenix of East Africa Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR to the effect that jurisdiction must exist at the time that a suit is instituted; Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR that a court’s jurisdiction flows from either the Constitution or legislation; and Suzanne Achieng Butler & 4 Others v Redhill Heights Investments Limited & Another [2016] eKLR, that in determining jurisdiction, a court mist examine the predominant purpose and true substance of a dispute.
11. The client further relied on Kenya Commercial Bank Limited & Another v Muiri Coffee Estate Limited & 3 Others [2016] eKLR on res judicata.
12. The client submitted that in John Kinyanjui Theuri & Kariuki Njuguna t/a Kinyanjui Njuguna & Co. Advocates v Board of Trustees National Social Security Fund [supra] and Tom Ojienda & Associates v County Government of Narok [supra], the court did not purport to establish that the Commercial and Tax Division has exclusive jurisdiction over all advocate-client bill of costs.
Analysis and Determination
13. On 16.5.2025, the Deputy Registrar of this court delivered a ruling striking out the advocate’s bill of costs and directed its transfer to the ELC.
14. Previously, on 7.11.2024, the Deputy Registrar of the ELC previously declined jurisdiction and struck out the advocate’s bill of costs dated 12.1.2024.
15. Quite a back and forth scenario. Making thorny the issue; where should the advocate seek remedy? Or in a formal way; which court has jurisdiction to tax advocate client bill of costs arising from legal services rendered in Court of Appeal for a matter originating from the ELC.
16. Where does legal help come from?
17. Paragraph 10 of the ARO provides: -
“10. Taxing officer
The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks.
18. Article 162 (2) (b) of the Constitution provides for the establishment of courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.
19. Under Article 165(3) (a) of the Constitution, the High Court has the unlimited original jurisdiction in criminal and civil matters. However, under Article 165 (5) (b), the High Court does not have jurisdiction over matters falling within the jurisdiction of the courts contemplated in Article 162 (2) (a) & (b).
20. In John Kinyanjui Theuri & Kariuki Njuguna t/a Kinyanjui Njuguna & Co. Advocates v Board of Trustees National Social Security Fund [supra], the court held that the Deputy Registrar of this court has jurisdiction to tax an advocate-client bill of costs for work done was at the Court of Appeal.
21. The court reasoned that the advocate client relationship is regulated by the Advocates Act as it is a contractual relationship whose remuneration is guided by the ARO.
22. The court also reasoned that The Court of Appeal (Organization and Administration Act) and Rule 116(1) of the Court of Appeal Rules regulate the Registrar of the Court in taxing party and party costs arising from the court’s award of costs.
23. The client argued that the court did not purport to establish that the Commercial and Tax Division has exclusive jurisdiction over all advocate-client bill of costs.
24. In Mulandi ta Mulandi Mulandi Company Advocates v Mutisya another [2026] KEELC 4531 (KLR), the ELC considered whether ELC Court is clothed with the necessary jurisdiction to tax an advocate client bill of cost arising from a matter determined by that court. The ELC observed that: -
“Registrars and Deputy Registrars of the specialized Courts were appointed to perform similar administrative and judicial functions in their respective courts as their counterparts in the High Court. To this end, Section 9 and 11 of the Environment and Land Court Act, provides for the appointment and functions of a Registrar of this Court. Among the functions of the Deputy Registrar of the Environment and Land Court is the taxation of Advocates/ Client bill of cost that relates to matters heard by the court.”
25. The ELC employed a purposive approach to the interpretation of paragraph 10 of the ARO. It reasoned that taking a literal approach, to demand that such bills be filed in the High Court and taxed by the Deputy Registrar high court would be an absurdity that the provision could not have anticipated within the context of the prevailing post 2010 circumstances where we have specialized courts of equal status with the High Court.
26. I agree with the reasoning in John Kinyanjui Theuri & Kariuki Njuguna t/a Kinyanjui Njuguna & Co. Advocates v Board of Trustees National Social Security Fund [supra] that the advocate client relationship is regulated by the Advocates Act as it is a contractual relationship whose remuneration is guided by the ARO.
27. It is also significant that the Advocates Act and the ARO are existing law which ‘shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.’ Transitional and Consequential Provisions, Art.262 of the Constitution.
28. In light thereof, I also agree with the ELC court’s reasoning in Mulandi ta Mulandi Mulandi Company Advocates v Mutisya another [supra] that ELC Court is clothed with the necessary jurisdiction to tax an advocate client bill of cost arising from a matter determined by that court. Sections 11 and 13 (5) (h) of the Environment and Land Court Act.
29. It is also reinforcing the recommendation by the Court of Appeal in Daniel N Mugendi v Kenyatta University & 3 others [2013] eKLR, that when the High Court and courts of equal status come across a matter that ought to be litigated in any of the other courts, it should be prudent to have the matter transferred to that court for hearing and determination.
30. This is a case of concurrent jurisdiction by the two courts on the subject matter. There may be no normative criteria that may strictly or exactly resolve such jurisdictional interface. In practice however, we need to pay attention to the evolution of an understanding and provide a pragmatic approach that emerge from changes in the national adjudication of cases by the various superior courts established by the Constitution. The changes have been gradual— but radical— and referenced to justify instances of deference to the proximate rule on the subject, cause of action or issue so that there will be some consistency in interpretations and approach and, more generally, to further the mutual interaction and smooth functioning of courts within our legal regime.
31. To some, the counterbalancing is necessary to solve jurisdictional conflicts. To others, it takes what I call distributional prudence based on the proximity of the subject matter and the facts of the case. The bill relates to a matter that was litigated and determined in ELC. Hence, without laying down a general rule, prudence demands that it be taxed by ELC Registrar.
32. Therefore, I direct the transfer of the advocate client bill of costs to the Deputy Registrar Environment and Land Court for hearing and determination. I hope this ends the back and forth.
33. I make no orders as to costs.
Dated, signed and delivered through Microsoft Teams online application this 3th day of July, 2026
--------------------
F. Gikonyo M
Judge
In the presence of: -
Mumo for Karanja for Applicant
No appearance by Respondent
CA- Ivan/Aggrey
Concurrent jurisdiction
1. The issue before the court is which court has jurisdiction to determine the advocate-client bill of costs dated 28.1.2025, arising from the legal services rendered in Court of Appeal Civil Application No. E179 of 2023 originating from Environment and Land Court (ELC).
2. The issue flows from the chamber summons dated 27.5.2025 by the advocate seeking a declaration that the Commercial and Tax Division of the High Court has the jurisdiction over the subject matter. Alternatively, the advocate seeks a determination of whether the ELC has jurisdiction over the subject matter.
3. The application is brought under Paragraph 11 of the Advocates Remuneration Order (ARO) and Sections 1A, 1B, & 3A of the Civil Procedure Act. It is supported by the affidavit sworn by the firm’s principal, Harry Karanja on 27.5.2025 and written submissions dated 24.9.2025.
4. The advocate asserted that the jurisdiction over the subject matter lies in the High Court generally; that the Court of Appeal’s jurisdiction over party and party costs does not extend to advocate-client remuneration; advocate-client bills are contractual and subject to the Advocates Act and the Remuneration Order.
5. To support the position that the advocate-client costs are to be taxed by the High Court under para. 10 of the ARO, the advocate relied on: -
(1) John Kinyanjui Theuri & Kariuki Njuguna t/a Kinyanjui Njuguna & Co. Advocates v Board of Trustees National Social Security Fund [2023] KEHC 19238 (KLR)
(2) Tom Ojienda & Associates v County Government of Narok [2021] KEHC 452
6. The client/ respondent opposed the application through a replying affidavit sworn on 9.10.2025 and written submissions dated 6.3.2026.
7. The client’s case is that the work performed by the advocate emanates from proceedings touching on matters falling within the jurisdiction of the ELC and subsequent appellate proceedings. Therefore, he contended that the bill of costs ought to be taxed before the ELC.
8. To support the argument that costs are incidental to substantive proceedings, the client relied on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR and Party of Independent Candidate of Kenya & Another v Mutula Kilonzo & 2 Others [2013] eKLR.
9. The client relied on Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989 KLR 1 on jurisdiction and Republic v Karisa Chengo & 2 Others [2017] eKLR on the distinct and specialized jurisdiction of courts of equal status to the High Court under Article 162 (2) of the Constitution.
10. The client relied on Phoenix of East Africa Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR to the effect that jurisdiction must exist at the time that a suit is instituted; Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR that a court’s jurisdiction flows from either the Constitution or legislation; and Suzanne Achieng Butler & 4 Others v Redhill Heights Investments Limited & Another [2016] eKLR, that in determining jurisdiction, a court mist examine the predominant purpose and true substance of a dispute.
11. The client further relied on Kenya Commercial Bank Limited & Another v Muiri Coffee Estate Limited & 3 Others [2016] eKLR on res judicata.
12. The client submitted that in John Kinyanjui Theuri & Kariuki Njuguna t/a Kinyanjui Njuguna & Co. Advocates v Board of Trustees National Social Security Fund [supra] and Tom Ojienda & Associates v County Government of Narok [supra], the court did not purport to establish that the Commercial and Tax Division has exclusive jurisdiction over all advocate-client bill of costs.
Analysis and Determination
13. On 16.5.2025, the Deputy Registrar of this court delivered a ruling striking out the advocate’s bill of costs and directed its transfer to the ELC.
14. Previously, on 7.11.2024, the Deputy Registrar of the ELC previously declined jurisdiction and struck out the advocate’s bill of costs dated 12.1.2024.
15. Quite a back and forth scenario. Making thorny the issue; where should the advocate seek remedy? Or in a formal way; which court has jurisdiction to tax advocate client bill of costs arising from legal services rendered in Court of Appeal for a matter originating from the ELC.
16. Where does legal help come from?
17. Paragraph 10 of the ARO provides: -
“10. Taxing officer
The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks.
18. Article 162 (2) (b) of the Constitution provides for the establishment of courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.
19. Under Article 165(3) (a) of the Constitution, the High Court has the unlimited original jurisdiction in criminal and civil matters. However, under Article 165 (5) (b), the High Court does not have jurisdiction over matters falling within the jurisdiction of the courts contemplated in Article 162 (2) (a) & (b).
20. In John Kinyanjui Theuri & Kariuki Njuguna t/a Kinyanjui Njuguna & Co. Advocates v Board of Trustees National Social Security Fund [supra], the court held that the Deputy Registrar of this court has jurisdiction to tax an advocate-client bill of costs for work done was at the Court of Appeal.
21. The court reasoned that the advocate client relationship is regulated by the Advocates Act as it is a contractual relationship whose remuneration is guided by the ARO.
22. The court also reasoned that The Court of Appeal (Organization and Administration Act) and Rule 116(1) of the Court of Appeal Rules regulate the Registrar of the Court in taxing party and party costs arising from the court’s award of costs.
23. The client argued that the court did not purport to establish that the Commercial and Tax Division has exclusive jurisdiction over all advocate-client bill of costs.
24. In Mulandi ta Mulandi Mulandi Company Advocates v Mutisya another [2026] KEELC 4531 (KLR), the ELC considered whether ELC Court is clothed with the necessary jurisdiction to tax an advocate client bill of cost arising from a matter determined by that court. The ELC observed that: -
“Registrars and Deputy Registrars of the specialized Courts were appointed to perform similar administrative and judicial functions in their respective courts as their counterparts in the High Court. To this end, Section 9 and 11 of the Environment and Land Court Act, provides for the appointment and functions of a Registrar of this Court. Among the functions of the Deputy Registrar of the Environment and Land Court is the taxation of Advocates/ Client bill of cost that relates to matters heard by the court.”
25. The ELC employed a purposive approach to the interpretation of paragraph 10 of the ARO. It reasoned that taking a literal approach, to demand that such bills be filed in the High Court and taxed by the Deputy Registrar high court would be an absurdity that the provision could not have anticipated within the context of the prevailing post 2010 circumstances where we have specialized courts of equal status with the High Court.
26. I agree with the reasoning in John Kinyanjui Theuri & Kariuki Njuguna t/a Kinyanjui Njuguna & Co. Advocates v Board of Trustees National Social Security Fund [supra] that the advocate client relationship is regulated by the Advocates Act as it is a contractual relationship whose remuneration is guided by the ARO.
27. It is also significant that the Advocates Act and the ARO are existing law which ‘shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.’ Transitional and Consequential Provisions, Art.262 of the Constitution.
28. In light thereof, I also agree with the ELC court’s reasoning in Mulandi ta Mulandi Mulandi Company Advocates v Mutisya another [supra] that ELC Court is clothed with the necessary jurisdiction to tax an advocate client bill of cost arising from a matter determined by that court. Sections 11 and 13 (5) (h) of the Environment and Land Court Act.
29. It is also reinforcing the recommendation by the Court of Appeal in Daniel N Mugendi v Kenyatta University & 3 others [2013] eKLR, that when the High Court and courts of equal status come across a matter that ought to be litigated in any of the other courts, it should be prudent to have the matter transferred to that court for hearing and determination.
30. This is a case of concurrent jurisdiction by the two courts on the subject matter. There may be no normative criteria that may strictly or exactly resolve such jurisdictional interface. In practice however, we need to pay attention to the evolution of an understanding and provide a pragmatic approach that emerge from changes in the national adjudication of cases by the various superior courts established by the Constitution. The changes have been gradual— but radical— and referenced to justify instances of deference to the proximate rule on the subject, cause of action or issue so that there will be some consistency in interpretations and approach and, more generally, to further the mutual interaction and smooth functioning of courts within our legal regime.
31. To some, the counterbalancing is necessary to solve jurisdictional conflicts. To others, it takes what I call distributional prudence based on the proximity of the subject matter and the facts of the case. The bill relates to a matter that was litigated and determined in ELC. Hence, without laying down a general rule, prudence demands that it be taxed by ELC Registrar.
32. Therefore, I direct the transfer of the advocate client bill of costs to the Deputy Registrar Environment and Land Court for hearing and determination. I hope this ends the back and forth.
33. I make no orders as to costs.
Dated, signed and delivered through Microsoft Teams online application this 3th day of July, 2026
--------------------
F. Gikonyo M
Judge
In the presence of: -
Mumo for Karanja for Applicant
No appearance by Respondent
CA- Ivan/Aggrey