Introduction
1. Before this Court for determination are the following two applications: -
i. The Advocate’s Application dated 4th November 2024, seeking entry of judgment for Kshs. 472,760/= being taxed costs, together with interest at 14% from 21st January 2024.
ii. The Respondent’s (“Client’s”) Reference dated 11th November 2024, seeking to set aside the Taxing Officer’s decision dated 22nd October 2024, which allowed taxation of the Advocate-Client Bill of Costs.
2. Both applications are opposed. The Client, in response to the Advocates’ application, filed a replying affidavit and a supplementary affidavit, both sworn on 5th March 2025, by Charles Wanjau, the 1st Respondent herein. The Advocate, on his part, also opposed the Client’s reference vide his replying affidavit dated 14th November 2024, and a supplementary affidavit sworn on 10th March 2025.
3. The background of the matter is that the 1st Respondent (“Client”) sold property identified as TITLE NUMBER NAIROBI/BLOCK 180/2024 to Emmeline Investment Ltd, a company associated with the Advocate. In the transaction, the Advocate prepared various documents, including the sale agreement dated 5th December 2022, an addendum dated 13th September 2023, the instrument of transfer dated February 27, 2023, and an affidavit of spousal consent dated 11th July 2023. The transfer was completed via the Ardhisasa portal, and the client received the full sale price for the property.
4. In support of the application for entry of judgment on the taxed costs, the Advocate avers that although there was no formal written retainer, the conduct of the 1st Respondent implied the existence of an Advocate-Client relationship.
5. The Advocate outlines various services rendered to the 1st Respondent, including drafting and procuring execution of the sale agreement and transfer documents, liaising with the buyer’s financier, accepting the 1st Respondent’s request on 6th July 2023 to act as his advocate on the Ardhisasa platform for the online property transfer, uploading transfer documents, and following up with financiers for payment.
6. The Advocate submits that a retainer need not be in writing and may be inferred from the parties' conduct. In this regard, he relies on Ochieng Onyango Kibet & Ohaga Advocates v Akiba Bank Ltd [2007] eKLR. He also annexes email correspondence dated 6th July 2023, in which the 1st Respondent requested him to act on his behalf on the Ardhisasa platform, as well as extracts from the portal evidencing his role in the transaction for both the transferor and transferee.
7. Further, the Advocate cites the 1st Respondent’s own admission in paragraph 19 of his affidavit sworn on 9th July 2024, wherein he acknowledges that the Advocate "drew the sale agreement dated 5th December 2022 and subsequently the transfer."
8. In the circumstances, the Advocate prays for judgment in the sum of the taxed costs, together with the costs of the application and interest at 14% from 21st January 2024.
9. The Respondents argue that no advocate-client relationship existed between the Advocate and the 1st Respondent. Consequently, they submit that the Taxing Officer lacked jurisdiction to assess the Advocate’s Bill of Costs. They contend that the Advocate failed to produce any proof of a retainer—whether express or implied—such as a letter, email, or other communication.
10. The Respondents further assert that the Taxing Officer erred by purporting to determine the issue of retainer, a matter which, under Section 2 of the Advocates Act, should have been referred to the Court. In support of this position, they rely on AGN Kamau Advocates v Chabrin Agencies Limited [2021] eKLR.
11. Additionally, the Respondents challenge the Taxing Officer’s finding that the 1st Respondent admitted to the existence of an advocate-client relationship in paragraph 12 of his Replying Affidavit. They maintain that no such admission was made, and that paragraph 12 merely acknowledged a buyer-seller relationship.
12. In light of the foregoing, the Respondents seek orders setting aside the Taxing Officer’s decision and dismissing the Advocate’s application for judgment, with costs.
13. The matter proceeded by way of written submissions. The Advocate/Applicant filed its submissions dated 1st April 2025, whilst the Respondent filed their submissions dated 21st March 2025.
Analysis and Determination
14. Upon careful consideration of the two applications, the replies thereto, and submissions filed by the parties in support of their respective positions, the Court is of the view that the following three issues arise for determination: -
i. Whether there existed an advocate-client relationship between the Advocate and the 1st Respondent.
ii. Whether the Taxing Officer’s decision dated 22nd October 2024 should be set aside for lack of jurisdiction.
iii. Whether judgment should be entered for the Advocate as prayed in the Application dated 4th November 2024.
Whether an Advocate-Client Relationship Existed
15. It is settled that the jurisdiction of the Taxing Master to entertain & consider an Advocate/Client Bill of Costs is premised on the existence of an Advocate-Client relationship. The Court of Appeal in the case of Wilfred N. Konosi T/A Konosi & Co. Advocates v Flamco Ltd, [2017] eKLR, stated as follows on the matter: -
“The nexus between the Advocate and his/her client is the Advocate/Client relationship which springs from instructions by the Client to the Advocate. Absent such relationship, the Taxing Officer would be bereft of jurisdiction to tax a bill”.
16. It therefore goes without saying that the issue of whether or not there was a retainer must first be determined by a Taxing Officer before he embarks on taxing the bill.
17. In the circumstances, I find the submissions by the Respondents that the Taxing Officer had no jurisdiction to determine the question of retainer unmeritorious. In as much as the primary duty of a Taxing Officer is to tax the Bill of Costs, it is my considered view that as part of discharging that mandate, a Taxing Officer is inherently clothed with the power and indeed the jurisdiction to determine whether the Bill of Costs as presented is properly before the court. A determination of whether or not there exists an Advocate-Client relationship is what provides an entry point for a Taxing Officer to tax a Bill of Costs. Where no such relationship exists, the court cannot move an inch.
18. The second question for determination is the argument by the Advocate/Applicant that instructions need not necessarily be in writing. That instructions can be inferred through the parties’ conduct.
19. It is indeed true, as correctly submitted by the Advocate/Applicant, that instruction to an Advocate need not be in writing. This is the position that has been adopted by the courts, including in the case of Mereka & Company Advocates v Zakhem Construction (Kenya) [2014] eKLR where Ougo J states as follows; -
“From the email correspondence between the parties, the emails dated 2/8/2010 and 25/8/2010 from Albert Zakhem to Mr. Mereka, Mr. Zakhem acknowledges that he had gone through the proposal and further calls for financial proposal which he indicates was not provided in the said proposal. While in the later email he has indicated the extent of the intended project; from these it can implied that the client was agreeable to the process and the steps taken by the advocate in realizing the said project. It would then be superfluous for the client to claim that no instructions had been given or any retainer obtained.
It is trite law that a retainer need not only be in writing but can be implied from the parties' conduct on this am guided by the case of OHAGA –vs- AKIBA BANK LIMITED [2008] 1 EA 300, where it was held that, “a retainer may be implied where: (i) the client acquiesces in and adopts the proceedings; or (ii) the client is estopped by his conduct from denying the right of the advocate to act or from denying the existence of the retainer; or (iii) the client has by his conduct performed part of the contract; or (iv) the client has consented to a consolidation order.”
20. However, the burden of proof must be on the Advocate to establish and demonstrate that there was a retainer. See the case of Ochieng Onyango, Kibet & Ohaga Advocates, v Akiba Bank Ltd [2007] eKLR, where the court in agreeing with the decision in the Mereka case (supra), also endorsed the position that “a retainer need not be written, it can be oral and can even be inferred from the conduct of parties. However, if there is no evidence of retainer, except a statement from the Advocate, which a client contradicts, the Court will treat the Advocate as having acted without authority from the client.”
21. In the present case, having carefully reviewed the entire record, I am unable to find any evidence to warrant a conclusion that the Respondent, by their conduct, instructed the Advocate/Applicant to act for them in the purchase of the land in question.
22. While it is evident from the record that the Advocate prepared documents necessary for the transfer of the property, the same cannot, in the unique circumstances of this case, conclusively establish a professional advocate-client relationship between the Advocate and the Vendor (1st Respondent). It is critical to note that the Advocate was not only acting in a legal capacity but was also the purchaser of the property in question and was also a director of the transferee company.
23. The dual role played by the Advocate in this matter makes it difficult to tell whether, in the circumstances of the case, the Advocate was acting in his own interest as a purchaser, or his own interest as a director of the transferee company, or in the interest of the vendor, the 1st Respondent herein. This ambiguity of roles, obviously blurs the distinction between personal and professional roles.
24. Further, there is no clear evidence that the Client consented to dual representation, nor any record of conflict disclosure and waiver as required under the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct. While the email dated 6th July 2023 invited the Advocate to accept the role of advocate for the transferor, this was at the behest of the Advocate himself during the transaction, not initiated independently by the Client. The Advocate controlled the process, and his acceptance of the role on the portal does not cure the conflict of interest nor amount to unequivocal consent from the Client.
Whether the Taxing Officer’s Decision Should Be Set Aside
25. From the foregoing, the Court finds that the Taxing Officer erred in finding that there was a retainer, thereby assuming jurisdiction over the Advocate-Client Bill of Costs. As explained above, the taxation of costs was based on a non-existent retainer. Consequently, the Taxing Officer’s decision of 22nd October 2024 is set aside for want of jurisdiction.
26. The Taxing Officer’s decision of 22nd October 2024 on the Bill of Costs having been set aside, all the ensuing processes, including the Advocate's instant application seeking entry of judgment on taxed costs, therefore crumble.
27. Accordingly, I make and issue the following final orders: -
i. The Respondents’ Reference dated 11th November 2024 is allowed.
ii. The Taxing Officer’s decision dated 22nd October 2024 is set aside.
iii. The Advocate’s Application dated 4th November 2024 for entry of judgment is dismissed.
iv. The Respondents are awarded the costs of both the Reference and the Advocate’s application. Assessed at Kshs. 50,000/-.
28. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Kisotu……………for the Applicant
N/A …………………..for Respondent
1. Before this Court for determination are the following two applications: -
i. The Advocate’s Application dated 4th November 2024, seeking entry of judgment for Kshs. 472,760/= being taxed costs, together with interest at 14% from 21st January 2024.
ii. The Respondent’s (“Client’s”) Reference dated 11th November 2024, seeking to set aside the Taxing Officer’s decision dated 22nd October 2024, which allowed taxation of the Advocate-Client Bill of Costs.
2. Both applications are opposed. The Client, in response to the Advocates’ application, filed a replying affidavit and a supplementary affidavit, both sworn on 5th March 2025, by Charles Wanjau, the 1st Respondent herein. The Advocate, on his part, also opposed the Client’s reference vide his replying affidavit dated 14th November 2024, and a supplementary affidavit sworn on 10th March 2025.
3. The background of the matter is that the 1st Respondent (“Client”) sold property identified as TITLE NUMBER NAIROBI/BLOCK 180/2024 to Emmeline Investment Ltd, a company associated with the Advocate. In the transaction, the Advocate prepared various documents, including the sale agreement dated 5th December 2022, an addendum dated 13th September 2023, the instrument of transfer dated February 27, 2023, and an affidavit of spousal consent dated 11th July 2023. The transfer was completed via the Ardhisasa portal, and the client received the full sale price for the property.
4. In support of the application for entry of judgment on the taxed costs, the Advocate avers that although there was no formal written retainer, the conduct of the 1st Respondent implied the existence of an Advocate-Client relationship.
5. The Advocate outlines various services rendered to the 1st Respondent, including drafting and procuring execution of the sale agreement and transfer documents, liaising with the buyer’s financier, accepting the 1st Respondent’s request on 6th July 2023 to act as his advocate on the Ardhisasa platform for the online property transfer, uploading transfer documents, and following up with financiers for payment.
6. The Advocate submits that a retainer need not be in writing and may be inferred from the parties' conduct. In this regard, he relies on Ochieng Onyango Kibet & Ohaga Advocates v Akiba Bank Ltd [2007] eKLR. He also annexes email correspondence dated 6th July 2023, in which the 1st Respondent requested him to act on his behalf on the Ardhisasa platform, as well as extracts from the portal evidencing his role in the transaction for both the transferor and transferee.
7. Further, the Advocate cites the 1st Respondent’s own admission in paragraph 19 of his affidavit sworn on 9th July 2024, wherein he acknowledges that the Advocate "drew the sale agreement dated 5th December 2022 and subsequently the transfer."
8. In the circumstances, the Advocate prays for judgment in the sum of the taxed costs, together with the costs of the application and interest at 14% from 21st January 2024.
9. The Respondents argue that no advocate-client relationship existed between the Advocate and the 1st Respondent. Consequently, they submit that the Taxing Officer lacked jurisdiction to assess the Advocate’s Bill of Costs. They contend that the Advocate failed to produce any proof of a retainer—whether express or implied—such as a letter, email, or other communication.
10. The Respondents further assert that the Taxing Officer erred by purporting to determine the issue of retainer, a matter which, under Section 2 of the Advocates Act, should have been referred to the Court. In support of this position, they rely on AGN Kamau Advocates v Chabrin Agencies Limited [2021] eKLR.
11. Additionally, the Respondents challenge the Taxing Officer’s finding that the 1st Respondent admitted to the existence of an advocate-client relationship in paragraph 12 of his Replying Affidavit. They maintain that no such admission was made, and that paragraph 12 merely acknowledged a buyer-seller relationship.
12. In light of the foregoing, the Respondents seek orders setting aside the Taxing Officer’s decision and dismissing the Advocate’s application for judgment, with costs.
13. The matter proceeded by way of written submissions. The Advocate/Applicant filed its submissions dated 1st April 2025, whilst the Respondent filed their submissions dated 21st March 2025.
Analysis and Determination
14. Upon careful consideration of the two applications, the replies thereto, and submissions filed by the parties in support of their respective positions, the Court is of the view that the following three issues arise for determination: -
i. Whether there existed an advocate-client relationship between the Advocate and the 1st Respondent.
ii. Whether the Taxing Officer’s decision dated 22nd October 2024 should be set aside for lack of jurisdiction.
iii. Whether judgment should be entered for the Advocate as prayed in the Application dated 4th November 2024.
Whether an Advocate-Client Relationship Existed
15. It is settled that the jurisdiction of the Taxing Master to entertain & consider an Advocate/Client Bill of Costs is premised on the existence of an Advocate-Client relationship. The Court of Appeal in the case of Wilfred N. Konosi T/A Konosi & Co. Advocates v Flamco Ltd, [2017] eKLR, stated as follows on the matter: -
“The nexus between the Advocate and his/her client is the Advocate/Client relationship which springs from instructions by the Client to the Advocate. Absent such relationship, the Taxing Officer would be bereft of jurisdiction to tax a bill”.
16. It therefore goes without saying that the issue of whether or not there was a retainer must first be determined by a Taxing Officer before he embarks on taxing the bill.
17. In the circumstances, I find the submissions by the Respondents that the Taxing Officer had no jurisdiction to determine the question of retainer unmeritorious. In as much as the primary duty of a Taxing Officer is to tax the Bill of Costs, it is my considered view that as part of discharging that mandate, a Taxing Officer is inherently clothed with the power and indeed the jurisdiction to determine whether the Bill of Costs as presented is properly before the court. A determination of whether or not there exists an Advocate-Client relationship is what provides an entry point for a Taxing Officer to tax a Bill of Costs. Where no such relationship exists, the court cannot move an inch.
18. The second question for determination is the argument by the Advocate/Applicant that instructions need not necessarily be in writing. That instructions can be inferred through the parties’ conduct.
19. It is indeed true, as correctly submitted by the Advocate/Applicant, that instruction to an Advocate need not be in writing. This is the position that has been adopted by the courts, including in the case of Mereka & Company Advocates v Zakhem Construction (Kenya) [2014] eKLR where Ougo J states as follows; -
“From the email correspondence between the parties, the emails dated 2/8/2010 and 25/8/2010 from Albert Zakhem to Mr. Mereka, Mr. Zakhem acknowledges that he had gone through the proposal and further calls for financial proposal which he indicates was not provided in the said proposal. While in the later email he has indicated the extent of the intended project; from these it can implied that the client was agreeable to the process and the steps taken by the advocate in realizing the said project. It would then be superfluous for the client to claim that no instructions had been given or any retainer obtained.
It is trite law that a retainer need not only be in writing but can be implied from the parties' conduct on this am guided by the case of OHAGA –vs- AKIBA BANK LIMITED [2008] 1 EA 300, where it was held that, “a retainer may be implied where: (i) the client acquiesces in and adopts the proceedings; or (ii) the client is estopped by his conduct from denying the right of the advocate to act or from denying the existence of the retainer; or (iii) the client has by his conduct performed part of the contract; or (iv) the client has consented to a consolidation order.”
20. However, the burden of proof must be on the Advocate to establish and demonstrate that there was a retainer. See the case of Ochieng Onyango, Kibet & Ohaga Advocates, v Akiba Bank Ltd [2007] eKLR, where the court in agreeing with the decision in the Mereka case (supra), also endorsed the position that “a retainer need not be written, it can be oral and can even be inferred from the conduct of parties. However, if there is no evidence of retainer, except a statement from the Advocate, which a client contradicts, the Court will treat the Advocate as having acted without authority from the client.”
21. In the present case, having carefully reviewed the entire record, I am unable to find any evidence to warrant a conclusion that the Respondent, by their conduct, instructed the Advocate/Applicant to act for them in the purchase of the land in question.
22. While it is evident from the record that the Advocate prepared documents necessary for the transfer of the property, the same cannot, in the unique circumstances of this case, conclusively establish a professional advocate-client relationship between the Advocate and the Vendor (1st Respondent). It is critical to note that the Advocate was not only acting in a legal capacity but was also the purchaser of the property in question and was also a director of the transferee company.
23. The dual role played by the Advocate in this matter makes it difficult to tell whether, in the circumstances of the case, the Advocate was acting in his own interest as a purchaser, or his own interest as a director of the transferee company, or in the interest of the vendor, the 1st Respondent herein. This ambiguity of roles, obviously blurs the distinction between personal and professional roles.
24. Further, there is no clear evidence that the Client consented to dual representation, nor any record of conflict disclosure and waiver as required under the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct. While the email dated 6th July 2023 invited the Advocate to accept the role of advocate for the transferor, this was at the behest of the Advocate himself during the transaction, not initiated independently by the Client. The Advocate controlled the process, and his acceptance of the role on the portal does not cure the conflict of interest nor amount to unequivocal consent from the Client.
Whether the Taxing Officer’s Decision Should Be Set Aside
25. From the foregoing, the Court finds that the Taxing Officer erred in finding that there was a retainer, thereby assuming jurisdiction over the Advocate-Client Bill of Costs. As explained above, the taxation of costs was based on a non-existent retainer. Consequently, the Taxing Officer’s decision of 22nd October 2024 is set aside for want of jurisdiction.
26. The Taxing Officer’s decision of 22nd October 2024 on the Bill of Costs having been set aside, all the ensuing processes, including the Advocate's instant application seeking entry of judgment on taxed costs, therefore crumble.
27. Accordingly, I make and issue the following final orders: -
i. The Respondents’ Reference dated 11th November 2024 is allowed.
ii. The Taxing Officer’s decision dated 22nd October 2024 is set aside.
iii. The Advocate’s Application dated 4th November 2024 for entry of judgment is dismissed.
iv. The Respondents are awarded the costs of both the Reference and the Advocate’s application. Assessed at Kshs. 50,000/-.
28. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Kisotu……………for the Applicant
N/A …………………..for Respondent