KAIRU & McCOURT ADVOCATES VS DIRECTLINE ASSURANCE LTD

1. The application before me is a Chamber Summons dated 10th December, 2020 brought under the provisions of Rules 7 and 11(1) & (2) of the Advocates Remuneration Order, 2009 and 2014, Section 51(2) of the Advocates Act, Cap 16, Sections 1A & 1B of the Civil Procedure Act and Order 21 Rule 9(1)(D) of the Civil Procedure Rules, 2010. The applicant/objector seeks the following orders -
i) That the reference against the decision of Honourable Stephany Wambui Githogori made on 27th November, 2020 be and is hereby allowed;
ii) That the entire ruling delivered by the Taxing Officer, Honourable Stephany Wambui Githogori on 27th November, 2020 dismissing the applicant’s bill of costs dated 10th March, 2020 be and is hereby set aside;
iii)  That the Honourable Court be pleased to make a determination that the applicant was at all material times fully retained by the respondent to render legal services to and for the benefit of the respondent;
iv)  That items 1 to 5 of the applicant’s bill of costs dated 10th March, 2020 be allowed as drawn in the said bill of costs or assessed by this Honourable Court in such other sums as may appear to be reasonable;
v) That this Honourable Court be pleased to enter judgment for the applicant against the respondent together with interest at 14% per annum and issue a decree;
vi)  That in the alternative, this Honourable Court do remit the applicant’s bill of costs dated 10th March, 2020 to another Taxing Officer for taxation; and
vii) That the costs of and occasioned by this reference be provided for.
2. The application has been brought on the grounds on the face of the Summons and is supported by an affidavit sworn on 10th December, 2020 by Christine Kirimi, learned Counsel for the applicant. The application is also supported by A supplementary affidavit sworn on 12th November, 2021 by the said Christine Kirimi and other supplementary affidavits sworn by Joyce Wamucii Ndumia, an Advocate of the High Court of Kenya practicing as a partner in the applicant firm of Advocates and Terry Kiarie-Wijenje, a member of the Board of Directors in the respondent company.
3. In opposition thereto, the respondent filed a replying affidavit sworn on 9th June, 2021 by Evans Nyagah, the Chief Executive/Principal Officer of the respondent company. The said deponent also filed a further affidavit sworn on 15th December, 2021. The respondent filed a third replying affidavit sworn by Alice Gacheru, the Finance Manager of the respondent company.
4. The application herein was canvassed by way of written submissions which were highlighted on 3rd May, 2023. The applicant’s submissions and further submissions were filed by the law firm of Kairu & McCourt Advocates on 1st March, 2022 and 23rd May, 2022, respectively, while the respondent’s submissions were filed on 7th April, 2022 by the law firm of Orenge J & Associates.
5. Mrs. Wanyoike, learned Counsel for the applicant submitted that in dismissing the bill of costs dated 10th March, 2020, the Taxing Officer held that she had no jurisdiction to tax the said bill of costs until the issue of Advocate-client instructions was determined by a Judge. Counsel stated that the respondent neither filed grounds of objection nor a replying affidavit in opposition to the bill of costs dated 10th March, 2020 before the Taxing officer as its Advocates chose to cross-examine the applicant. It was as such submitted that the bill of costs herein was unopposed and it ought to have been allowed.
6. The applicant’s Counsel relied on the case of Philmark Systems Co. Ltd v Andermore Enterprises [2018] eKLR and stated that in an adversarial system, parties are strictly bound by their pleadings thus the Court only relies on the pleadings and evidence in support of the said pleadings in making a determination. She stated that the issue of instructions was raised for the first time by the respondent’s Advocates in their submissions and that the Taxing Officer erred in making a finding that there existed an issue on instructions when in fcat no such issue was raised before her. Mrs. Wanyoike submitted that the proper channel for the respondent to challenge the Advocate-client relationship was through a Preliminary Objection before the Deputy Registrar and a reference to that effect before the Judge.
7. Counsel submitted that even if the issue of jurisdiction was properly raised before the Deputy Registrar, the right action for her was to direct the respondent to file a reference in the High Court as it is clothed with the requisite jurisdiction to handle such issues hence the Deputy Registrar misdirected herself in dismissing the bill of costs in issue. To this end, Counsel relied to the case of Mugambi & Company Advocates v John Okal Ogwayo & another [2013] eKLR. She contended that the case of Charles M. Karweru T/A Karweru & Co. Advocates [2019] eKLR relied on by the Deputy Registrar in arriving at her decision is distinguishable from the instant matter as in the said case, there was no dispute on retainer and the respondent therein had raised a Preliminary Objection before the Taxing Officer.
8. Mrs. Wanyoike contended that the applicant represented the respondent for the issuance of a loan facility to Harbour Capital Limited pursuant to instructions issued vide an email from the Finance Director of the respondent to one of the applicant’s associates. She asserted that Ms. Terry Wijenje in a supplementary affidavit confirmed that the applicant had instructions to prepare a loan agreement between the respondent and Harbour Capital Limited in September, 2016. Mrs. Wanyoike indicated that Mr. Evans Nyagah was not working with the respondent at the time of the transaction and as a result, his affidavit is not only irrelevant but also adds no probative value to the proceedings before this Court. In submitting that a retainer need not to be in writing but may be implied by the conduct of the parties, she referred to the case of George Ndungu Kimani T/A George N. Kimani and Company Advocates v Ronald Schaich [2013] eKLR.
9. She concluded her submissions by stating that there cannot be any doubt that an Advocate-client relationship existed between the applicant and the respondent since the loan agreement was prepared by the applicant as instructed and forwarded to the parties but the executed copy was never shared with the applicant. She also submitted that the value of the subject matter is Kshs. 150,000,000/= thus the bill of costs in issue should be taxed at Kshs. 5,349,920.00, comprising Kshs. 4,500,000/= instruction fees and the balance being disbursements, other incidental fees and VAT.
10.  Mr. Orenge, learned Counsel for the respondent submitted that the Taxing Officer did not tax the bill of costs in issue as she dismissed it on account of want of jurisdiction. He submitted that the provisions of Order 11(1) & (2) of the Advocates Remuneration Order which form the basis of this reference herein cannot come to the aid of the applicant since the objection/reference is in respect to a bill of costs, with emphasis on items of the bill being objected to, which renders the application herein incompetent and for dismissal in limine. He further submitted that the application herein in so far as it relates to Section 51(2) of the Advocates Act must fail because there is no certificate of taxation that was issued by the Taxing Officer as the bill of costs was not taxed.
11.  He cited the case of Wilfred Konosi T/A Konosi & Company Advocates v Framco Ltd. [2017] eKLR and stated that a Taxing Officer must determine if she has jurisdiction if the issue of the Client-Advocate relationship is raised. He stated that in this case, it was agreed by consent that the respondent would file issues for determination and the applicant through its Partners/Advocates would appear in person for cross-examination. That thereafter, the respondent filed and served a list of issues dated 29th September, 2020 and the Partners/Advocates from the applicant’s law firm were cross-examined. He submitted that the said issues were in nature of legal grounds challenging the taxation of the bill of costs. He stated that all through the proceedings before the Deputy Registrar, the applicant never objected to the cross-examination of its Partners/Advocates, and it did not raise the issue of the respondent having not filed grounds of opposition or a replying affidavit. Mr. Orenge contended that the said issues cannot be raised before this Court since they ought to have been raised before the Taxing Officer in the first instance.
12.  It was submitted by Counsel that the issue of whether the applicant had instructions was the cornerstone of the cross-examination hence it was not raised for the first time in the respondent’s submissions. He maintained that the Taxing Officer was right in making a finding that the issue of instructions was in dispute. He relied on the Black’s Law Dictionary’s definition of the word pleading and the provisions under Order 2 of the Civil Procedure Rules, 2010 and stated that neither the Advocate’s Act nor the Advocates Remuneration Order refers to a bill of costs as a pleading and as such, a bill of costs cannot be equated to a pleading or a law suit. Mr. Orenge asserted that as explained hereinabove, the bill of costs in issue was opposed and neither the Advocates Act nor the Advocates Remuneration Order make provisions for a party to file a reference before a Judge for determination of a dispute on retainer. Counsel submitted that a Preliminary Objection is limited to and can only raise points of law, whereas a dispute on retainer is purely an issue of fact and does not constitute a point of law.
13.  On the issue of instructions, Mr. Orenge stated that there were no written or implied instructions that were given by the respondent to the applicant, and since the bill of costs was heard via viva voce evidence, the applicant’s witnesses admitted on oath that they received instructions from Harbour Capital. In addition, there is no evidence and/or letter of instructions attached to the supplementary affidavit of Terry Wijenje in proof of the allegation that the said Terry Wijenje and John Macharia instructed the applicant. The respondent’s Counsel stated that the said affidavit of Terry Wijenje was filed too late in the day as it contains allegations that were not tendered before the Taxing Officer, thus amounting to introducing new issues. Counsel contended that Terry Wijenje has a personal vendetta against the respondent on account of various cases against her and associated companies for theft of Millions of shillings.
14.  Mr. Orenge submitted that the respondent demonstrated that the applicant was instructed by Harbour Capital Limited and the applicant had not tendered any evidence to the effect that Harbour Capital was an agent of the respondent and/or that it was charged with the respondent’s investment business and as a result, no Advocate-Client relationship existed between the applicant and the respondent and none could be implied. He also submitted that if this Court finds that there existed an Advocate-Client relationship between the parties herein, it can only remit the bill of costs back to any Deputy Registrar for taxation, because taxation of bill of costs is a preserve of the Taxing Officer hence before taxation is done by a Taxing Officer, this Court cannot usurp the jurisdiction to do so.
15.  In a rejoinder, Mrs. Wanyoike submitted that the affidavits sworn by Evans Nyagah, the current Chief Executive Officer of the respondent should be struck out as the depositions therein comprise hearsay, as at all material times, the said Evans Nyagah was not in the employment of the respondent. She further submitted that at all material times the Chief Executive Officer of the respondent was Terry Wijenje, who confirmed through her affidavit that the respondent’s Finance Director. Farzana Sayed instructed the applicant to represent the respondent in the transaction in issue.
16.  The applicant’s Counsel submitted that instructions to an Advocate do not require authorization from the Board, as it is not only the directors of a company that have the authority to issue instructions to an Advocate to represent the company. She stated that in this case, there was a letter of instructions and work was done and completed.

ANALYSIS AND DETERMINATION.
17.  I have considered the application filed herein, the grounds on its face and the affidavits filed in support thereof, the replying and further affidavits by the respondent, as well as the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the provisions of Rule 11(1) & (2) of the Advocates (Remuneration) Order are applicable herein;
ii) Whether the Taxing Officer was wrong in finding that the respondent disputed instructing the applicant to act for it;
iii)  Whether the Taxing Officer erred in dismissing the bill of costs with costs in light of her finding that there existed a dispute on retainer; and
iv)  Whether there existed an Advocate-Client relationship between the applicant and the respondent.
18.  In the affidavit filed by the applicant, Ms. Kirimi deposed that on 1st September, 2016, she received instructions from one Farzana Sayed, the then Finance Director of the respondent instructing her to prepare a loan agreement between the respondent and Harbour Capital Limited for Kshs. 150 Million. Ms Kirimi averred that she completed the assignment and forwarded the final document to both the respondent and Harbour Capital and they acknowledged receipt and asked for her fee note which she forwarded to them.
19.  She averred that on 12th August, 2020, the respondent’s Advocate wrote to the applicant and at paragraph 3 of the said letter, they stated that the respondent did not have the document and that the applicant’s fees should be paid by Harbour Capital. She deposed that the applicant filed a bill of costs dated 10th March, 2020 and the respondent filed a list of issues but never filed any document challenging the said bill of costs.
20.  Ms. Kirimi stated that the bill of costs came up for hearing on 30th September, 2020 when the respondent’s Advocates cross examined her and Kevin McCourt on the same. She further stated that the respondent did not file any document or produce any evidence signaling that it was challenging the retainer and/or instructions to the applicant in this matter. That on 27th November, 2020, the Taxing Officer delivered her ruling dismissing the bill of costs in issue.
21.  Counsel averred that being dissatisfied with the Taxing Officer’s decision, the applicant filed a Notice of Objection as provided for under Rule 11(1) of the Advocates Remuneration Order. She asserted that with the respondent’s failure to discharge the evidentiary burden to challenge the existence of a retainer, the Taxing Officer should have proceeded to tax the bill of costs in issue as prayed, since no alternative amounts to the items were proposed by the respondent. She stated that if the said evidentiary burden had been discharged, the Taxing Officer ought to have directed the parties to present the issue before the Court for determination rather than dismiss the bill of costs.
22.  In the replying affidavit filed by the respondent, Mr. Nyagah deposed that the applicant’s bill of costs was dismissed for want of jurisdiction and that this Court lacks original jurisdiction to tax the said bill of costs. He averred that the Taxing Officer’s ruling is founded on issues filed by the respondent on account of the applicant’s case against the respondent as pleaded in the bill of costs and the subsequent cross-examination of the applicant’s witnesses.
23.  Mr. Nyagah also averred that the annexures attached to the applicant’s supporting affidavit are evidence to the fact that instructions were given by Harbour Capital and not the respondent thus the applicant ought to pursue its fees against Harbour Capital. He deposed that since the alleged agreement was between Harbour Capital and the respondent, the applicant was under a legal duty to join Harbour Capital in the taxation. He averred that other than the purported draft agreement, no formal and final agreement was forwarded to the parties for execution and witnessing by the applicant as a matter of practice and contract law.
24.  It was stated by Mr. Nyagah that on 30th September, 2020, the applicant’s witnesses were cross-examined and they admitted that they received instructions from Harbour Capital, and there was no evidence confirming that the loan was disbursed. It was also stated the draft loan agreement and the final and formal loan agreement are not among the documents put in evidence by the applicant. He further stated that from the applicant’s annexures, it is clear that they sought a Board resolution but none had been annexed.
25.  Mr. Nyagah asserted that the persons who were instructing the applicant did not have the authority/mandate to do so as they were not employees/agents of the respondent. He contended that the bill of costs having been dismissed on account of jurisdiction, this Court cannot be called upon to tax the said bill of costs. He deposed that the orders sought in the instant application seek to rest original jurisdiction to tax a bill of costs on this Court and not the Taxing Officer.
26.  In the supplementary affidavit by Ms. Kirimi, she deposed that the respondent had not stated that it did not issue instructions to the applicant or that the applicant did not perform services for or on behalf of the respondent. She averred that the internal affairs of the respondent company have no bearing on the issue at hand and they should be canvassed at the appropriate forum. Counsel further averred that this Court is seized with the power and jurisdiction to grant all the prayers sought herein.
27.  In the supplementary affidavit by Ms. Terry Kiarie-Wijenje she deposed that she is a member of the Board of Directors of the respondent company and also a shareholder and director in Janus Limited, which is a shareholder in the respondent company. She averred that the instructions for the preparation of a loan agreement between the respondent and Harbour Capital Limited were issued in September 2016 by the then Finance Director, Ms. Farzana Sayed to the applicant.
28.  She indicated that at that time, she was the Managing Director and Principal Officer of the respondent company. She confirmed that the applicant was the only firm of Advocates that was duly instructed to represent the respondent in the transaction herein. She stated that at the date of the change in the management of the respondent company, the respondent owed the applicant legal fees in respect of the services rendered by the applicant to the respondent in the said transaction.
29.  In the supplementary affidavit sworn by Joyce Wamucii Ndumia, she deposed that on 1st July, 2020, together with her partners Kevin McCourt and Valentine Mwende Wanyoike, they attended a meeting at the offices of the respondent on the invitation of David Ngugi who introduced himself as the new Managing Director of the respondent. She indicated that in attendance was Evans Nyagah who introduced himself as the Operations Manager at the respondent company. That in attendance were also Alice Gacheru and Isabella Nyambura whom she knew as the Finance Manager and the Legal Manager, respectively.
30.  She averred that the issue of the outstanding fees owed to the applicant was discussed extensively at the meeting. That Alice Gacheru confirmed that the applicant was owed fees and she made a proposal to liquidate the same in monthly installments of Kshs. 3,000,000/=, until payment in full, but no steps have ever been taken towards honouring the said promise, thus prompting the applicant to file its bill of costs for taxation.
31.  It was stated by Joyce Wamucii Ndumia that even after filing the said bill of costs, Evans Nyagah wrote two letters dated 20th September, 2020 requesting the applicant to adjourn the taxation to give room for out of Court negotiations.
32.  In the further affidavit by the respondent, Mr. Evans Nyagah deposed that sometime in June 2020, their Finance Manager Alice Gacheru notified him of an alleged demand for payment of legal fees by the applicant firm of Advocates and that she confirmed that there was no record, documentary or otherwise to support any claim for outstanding fees by the Advocates, hence the alleged fees was not payable.
33.  That the said information led to the meeting that was held on 1st July, 2021 where the issue of unpaid fees was discussed but the Advocates were unable to furnish them with proof of instructions and documents in support of alleged services rendered. He averred that in the said meeting the Advocates admitted to have been instructed through a company known as Harbour Capital which is not connected to or related to the respondent company herein. He also averred that at no time did their Finance Manager confirm that the Advocates were owed fees and a proposal for payment by monthly instalments of Kshs. 3,000,000/= made.
34.  Mr. Nyagah deposed that the supplementary affidavit by Terry Kiarie Wijenje is an engineered conspiracy by her and the applicant to defeat the course of justice and it is intended to justify and sanitize lack of instructions and to cure illegalities through the back door. He further deposed that the said Terry Kiarie Wijenje has without supporting evidence to her allegations, resorted to invoking the name of John Macharia (deceased) who cannot speak on the issue,.
35.  In response to the supplementary affidavit by Christine Kirimi, Mr. Nyagah deposed that officers of a company come and go but the company and the records it holds remain thus it is wrong to state that since he was not in employment, he is not privy to records and information held by the company. He stated that the matters deposed to in his affidavit were discussed in the meeting of 1st July, 2021 where he was in attendance.
36.  He contended that any relationship between the applicant and Terry Kiarie Wijenje was personal and the respondent was not a party thus it cannot be bound. He asserted that the case belongs to the applicant, which is under a legal duty to furnish the Court with evidence of services rendered.
37.  In the further affidavit by Alice Gacheru, she deposed that it is false and misleading for the applicant to allege that she confirmed that the applicant was owed fees. The said deponent denied proposing to liquidate the said fees in monthly instalments of Kshs. 3,000,000/= till payment in full and contended that the issue of not honouring the said proposal could not arise. She averred that she has no power/mandate to make any payment without approval/instructions from the Board of Directors or the Chief Executive/Principal Officer.
Whether the provisions of Rule 11(1) & (2) of the Advocates (Remuneration) Order are applicable herein;
38.  It is trite that pursuant to the provisions of Rule 11 of the Advocates (Remuneration) Order, the only recourse available to a party who feels aggrieved by a decision of the Taxing Officer is by way of Reference to a Judge. This was well expressed in the case of Machira v Magugu [2002] 2 EA 428, cited by the Court in the case of Twiga Motors Limited v Dalmas Otieno Onyango [2017] eKLR where Ringera, J (as he then was) held as follows-
"...the Advocates Remuneration Order is a complete code and there is no provision for the invocation of the Civil Procedure Rules... any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to the Judge in accordance with paragraph 11 of the Advocates Remuneration Order..."
39.  In this instance, the applicant is challenging the Taxing Officer’s ruling delivered on 27th November, 2020, where she dismissed the applicant’s bill of costs for want of jurisdiction until the issue of whether the applicant was issued with instructions by the respondent is determined by a Judge with jurisdiction.

40.  The procedure for challenging a Taxing Officer’s decision in the High Court is provided for under Rule 11(1) & (2) of the Advocates (Remuneration) Order, which provides that -
“(1) Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection…”
41.  Based on the foregoing, the first step when challenging a Taxing Officer’s decision in the High Court is by giving the Taxing Officer a notice in writing which is commonly referred to as a Notice of Objection within fourteen (14) days of his decision. Thereafter, the Taxing Officer is required to inform the objector in writing, the reason(s) for his decision. The objector may within fourteen (14) days from receipt of the said reasons make an application commonly referred to as a Reference to a Judge by way of Chamber Summons. It is worth noting that the applicant filed a Notice of Objection vide a letter dated 1st December, 2020 seeking reasons for the Taxing Officer’s decision before it filed the instant application.
42.  The High Court’s jurisdiction to deal with a reference is invoked upon compliance with the provisions of Rule 11(1) of the Advocates (Remuneration) Order. This is because, a Notice of Objection serves the same purpose as a Memorandum of Appeal. It is therefore my finding that the provisions of Rule 11 Sub-rules 1 & 2 of the Advocates (Remuneration) Order are applicable herein and this Court’s jurisdiction was properly invoked.
Whether the Taxing Officer was wrong in finding that the respondent disputed instructing the applicant to act for it.
43.  The applicant filed its bill of costs dated 10th March, 2020 for costs incurred from the preparation of a loan agreement between Harbour Capital Limited and the respondent herein. Thereafter, the responder filed a list of issues for determination and the applicant’s Partners/Advocates were cross-examined in line with the list of issues framed by the respondent.
44.  The applicant did not object to the respondent filing a list of issues and cross-examining its Partner/Advocates before the Taxing Officer. A hearing date was set and the applicant availed witnesses to be cross-examined by the respondent’s Advocate. It is trite that the Advocates Remuneration Order gives the Taxing Officer jurisdiction to tax a bill of costs where there is an established Advocate-Client relationship, and where there is no dispute as to retainer. The Court of Appeal in the case of Wilfred N. Konosi T/A Konosi & Co. Advocates v Flamco Limited [2017] eKLR, when dealing with a similar issue held the following-
“The issue whether an advocate-client relationship exists in taxation of a Bill of Costs between an advocate and his/her client is core. The jurisdiction is conferred on the Taxing Officer by law. It is derived from the Advocates Act and the Advocates Remuneration Order. The Taxing Officer sits in taxation as a Judicial Officer. His or her task is to determine legal fees payable for legal services rendered. The jurisdiction cannot arise by implication nor can parties by consent confer it. And inherent jurisdiction cannot be invoked where adequate statutory provision exists. It was held in Taparn vs Roitei [1968] EA 618 that inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case. The Advocates Act and the Advocates Remuneration Order confer on the Taxing Officer jurisdiction to tax bills of costs between advocates and their clients (as well as between party and party in litigation) so as to determine legal fees for legal services rendered. The nexus between the advocate and his or 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.”
45.  In this instance, from the issues for determination framed by the respondent and the cross-examination of the applicant’s Partners/Advocates before the Taxing Officer, it was very clear that an issue arose as to whether or not there existed an Advocate-Client relationship between the applicant and the respondent. The fact that the respondent did not file a replying affidavit challenging the existence of an Advocate-Client relationship between itself and the applicant does not mean that the Court should have ignored an issue that came out clearly from the cross-examination of the applicant’s Partners/Advocates and which was addressed in the parties’ submissions.
46.  A challenge on jurisdiction can also be raised by the Court suo moto if it is apparent from the pleadings and the evidence before the Court, and that the said Court does not have jurisdiction. A decision in taxation where an Advocate-Client relationship does not exist is a nullity for want of jurisdiction. It is therefore my finding that the Trial Magistrate was right in determining whether she had jurisdiction to tax the bill of costs in issue in light of the fact that the respondent disputed retaining the applicant’s services.
Whether the Taxing Officer erred in dismissing the bill of costs with costs in light of her finding that there existed a dispute on retainer.
47.  Dismissing the bill of costs dated 10th March, 2020 for want of jurisdiction was a drastic measure considering the fact that the Taxing Officer did not address her mind and/or exercise her discretion on whether the said bill of costs was drawn to scale or not and whether there existed an Advocate-Client relationship between the applicant and the respondent. It is only after the determination of the aforementioned issues that a decision should have been made as to the dismissal of the bill of costs or otherwise. I agree with Counsel for the applicant that the Taxing Officer erred in dismissing the applicant’s bill of costs for want of jurisdiction before the issue of retainer was determined. In the case of Wilfred N. Konosi T/A Konosi & Co. Advocates v Flamco Limited (supra) the Court of Appeal held that –
“As a Judicial Officer sitting to tax a bill of costs between an advocate and his or her client, a taxing officer must determine the question whether he/she has jurisdiction to tax a Bill if the issue of want of advocate/client relationship is raised. An allegation that the advocate/client relationship does not obtain in taxation of an advocate/client Bill of Costs must be determined at once. The Taxing Officer has jurisdiction to determine that question.” (Emphasis added)
48.  Further paragraph 13A of the Advocates (Remuneration) Order states that -
“For the purpose of any proceeding before him, the taxing officer shall have power and authority to summon and examine witnesses, to administer oaths, to direct the production of books, paper and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him.”
49.  Based on the foregoing, it is evident that the Taxing Officer was clothed with the requisite jurisdiction to determine whether or not there existed an Advocate-Client relationship between the applicant and the respondent. For this reason, I hold that the Taxing Officer erred in finding that she had no jurisdiction to tax the bill of costs dated 10th March, 2020 until the issue of whether the applicant was issued with instructions by the respondent was determined by a Judge with jurisdiction.
50.  Having found that the Taxing Officer is clothed with the requisite jurisdiction to determine the question on retainer, it is my finding that this Court sitting as an appellate Court in so far as taxation of bills of costs is concerned, cannot determine the 4th issue raised in this matter, since the Taxing Officer as the Court of first instance has not exercised her discretion on the same.
51.  It is my finding that the Chamber Summons dated 10th December, 2020 is merited. It is allowed in the following terms-
i) That the ruling delivered by the Taxing Officer, Honourable Stephany Wambui Githogori on 27th November, 2020 is hereby set aside;
ii) That the bill of costs dated 10th March, 2020 is hereby remitted to the Deputy Registrar for taxation by another Taxing Officer who will also determine the issue of whether there existed an Advocate-Client relationship between the applicant and the respondent; and
iii)  Costs are awarded to the applicant
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 7th day of July, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
    In the presence of:
    Ms Kirimi for the applicant
    Ms Achieng h/b for Mr. Orenge for the respondent
    Ms B. Wokabi – Court Assistant.