1. Before me for determination is the Notice of Motion application dated 31st May 2024 by the Advocate/Applicant, Khayega Chivai & Company Advocates, seeking judgment in terms of the Certificate of Taxation dated 22nd April 2024 for the sum of Kshs. 2,944,552.30 together with interest at 14% per annum from 26th February 2024 until payment in full, against the Respondents, jointly and severally.
2. The Applicant contends that he was duly instructed to act for the Respondents in Milimani HCCCOMM No. 269 of 2016 – Utility Capital Management Ltd v Ekaa Afrika Ltd & Others, where the 1st Respondent and its directors, including the 2nd, 3rd and 4th Respondents, were sued on account of borrowings secured by personal guarantees. That the Applicant/advocate came on record on behalf of the Respondents, filed pleadings, defended the suit, and participated in proceedings until judgment was delivered against the Defendants jointly and severally.
3. Following conclusion of the parent suit, the Applicant lodged a Bill of Costs dated 7th July 2023. The Taxing Master taxed the Bill in the sum of Kshs. 2,944,552.30 and issued a Certificate of Taxation on 22nd April 2024, and that no reference was filed to challenge the taxation.
4. The Applicant now seeks judgment against all the Respondents jointly and severally for the taxed sum.
5. The 2nd Respondent, Christine Achieng Ouko, opposed the application through a Replying Affidavit sworn on 26th June 2025 and submissions dated 20th July 2025. She denied ever instructing the Applicant in her personal capacity or as a director of the 1st Respondent. She asserts that the Board Resolution relied upon by the Applicant (Annexure JK 2) expressly authorized representation of the company (1st Respondent) only, and bears no evidence of her signature or attendance. She further contends that she was never served with fee notes, notices, or pleadings, and was excluded from the taxation process. She invokes the doctrine of corporate personality, arguing that absent veil piercing, she cannot be held personally liable for company debts.
6. The 3rd Respondent, Dennis Mugo, similarly filed a Replying Affidavit sworn on 1st July 2025 and submissions dated 24th July 2025, and maintained that instructions were issued by the 1st Respondent pursuant to a Board Resolution, and not by him personally. He points to payments made by the company to the Applicant as evidence that liability lay with the corporate entity. He contends that holding him personally liable would offend the principle of limited liability.
7. The Applicant, in response, filed a Replying Affidavit on 26th June 2025 and a Supplementary Supporting Affidavit sworn on 3rd July 2025. He insists that he acted for all Respondents in their personal capacities as guarantors in the parent suit, and relies on pleadings filed in HCCCOMM No. 269 of 2016, as well as the affidavit of Dennis Mugo sworn on 10th November 2023, wherein it was stated “we instructed the Applicant to act for us.” He argues that the Certificate of Taxation is final and binding, and judgment must follow.
Analysis and Determination
8. Having considered the pleadings, affidavits, annexures and submissions filed by the parties, the Court is of the view that the following issues arise for determination:
i. Whether there existed Advocate/Client relationship between the Applicant and the 2nd and 3rd Respondents in their personal capacities.
ii. Whether judgment can be entered against the Respondents on the basis of the Certificate of Taxation dated 22nd April 2024.
Existence of Advocate/Client relationship
9. The Advocate has sought for judgment as per the Certificate of Costs be entered against the Respondents, jointly and severally on account that the firm acted for the Respondents individually. He relies on the pleadings in Milimani HCCCOMM No. 269 of 2016, where the 2nd, 3rd and 4th Respondents were sued as guarantors of the 1st Respondent’s borrowings. He annexes the Memorandum of Appearance, Defence, and Decree to show that he acted for them in their personal capacities. He also cites the affidavit of Dennis Mugo sworn on 10tth November 2023, which stated “we instructed the Applicant to act for us sometime in the year 2016.”
10. The 2nd Respondent on her part avers that she never instructed the Applicant to act for her personally or as a director of the 1st Respondent. She points to Annexure JK-2, the Board Resolution, which expressly authorized the Advocate to act for the 1st Respondent (Ekaa Limited) only, and which bears the signatures of the 3rd and 4th Respondents but not hers. She further contends that no retainer agreement, correspondence, or fee note was ever addressed to her.
11. The 3rd Respondent similarly maintains that instructions were issued by the 1st Respondent, a separate legal entity, and not by him personally. He relies on the doctrine of corporate personality as established in Salomon v Salomon [1897] AC 22 and reiterated in Multichoice Kenya Ltd v Mainkam Ltd [2013] eKLR, arguing that directors cannot be held personally liable absent proof of veil piercing.
12. 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.”
13. 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.”
14. 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 stated 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.”
15. Similarly, in Omulele & Tollo Advocates v Mount Holdings Ltd [2016] eKLR, the Court of Appeal held that where a client disowns a retainer, the advocate must prove it. Here, while the Applicant has shown pleadings filed on behalf of the Respondents, there is no documentary evidence of instructions issued by the 2nd Respondent personally. The affidavit of Dennis Mugo, though referring to “we,” cannot bind the 2nd Respondent absent express authority.
16. I am persuaded that the evidence of retainer against the 2nd Respondent is tenuous. The Board Resolution (JK-2) is explicit that the Advocate was engaged to act for the 1st Respondent. Further, no fee note or demand was ever addressed to the 2nd Respondent. The 3rd Respondent’s affidavit equally disowns personal instructions. The Applicant’s reliance on pleadings filed in HCCCOMM No. 269 of 2016 does not cure the absence of proof of retainer, since representation in court can only flow from instructions, which must be demonstrated.
17. In the premises, I find and hold that evidence on record demonstrates that the existence of Advocate/Client relationship between the Applicant and the 1st Respondent only. There is no evidence of a retainer against the directors in their respective individual capacities.
Whether judgment can be entered against the Respondents on the basis of the Certificate of Taxation dated 22nd April 2024.
19. Section 51(2) of the Advocates Act provides that a Certificate of Taxation is final as to the amount of costs, unless set aside or altered, and the court may enter judgment where the retainer is not disputed. In Lubulellah & Associates Advocates v N.K. Brothers Ltd [2012], the court emphasized that once costs are taxed and no reference is filed, judgment ordinarily follows.
20. However, where retainer is disputed, the court must first determine whether instructions existed. In this case, the 2nd and 3rd Respondents have consistently disputed retainer. The Applicant himself concedes in his submissions that “there was no retainer agreement as such,” and seeks to rely on conduct. That concession is fatal to the claim against the 2nd and 3rd Respondents.
21. As regards the 1st Respondent, there is no dispute that instructions were issued through the Board Resolution. The Certificate of Taxation therefore binds the 1st Respondent. Judgment can properly be entered against the 1st Respondent for the taxed costs.
22. In light of the foregoing, I find that the Advocate/Applicant has proved retainer only against the 1st Respondent, Ekaa Afrika Limited. The claim against the 2nd and 3rd Respondents fails for want of proof of instructions. The Certificate of Taxation dated 22nd April 2024 is final as to quantum, but judgment can only be entered against the 1st Respondent.
23. Accordingly, I order and direct as follows: -
a. Judgment is hereby entered in favour of the Advocate/Applicant against the 1st Respondent, Ekaa Afrika Limited, for the sum of Kshs. 2,944,552.30 together with interest at 14% per annum from 26th February 2024 until payment in full.
b. Given the partial success of the application, I hereby direct that each party to bear their own costs.
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 Applicant contends that he was duly instructed to act for the Respondents in Milimani HCCCOMM No. 269 of 2016 – Utility Capital Management Ltd v Ekaa Afrika Ltd & Others, where the 1st Respondent and its directors, including the 2nd, 3rd and 4th Respondents, were sued on account of borrowings secured by personal guarantees. That the Applicant/advocate came on record on behalf of the Respondents, filed pleadings, defended the suit, and participated in proceedings until judgment was delivered against the Defendants jointly and severally.
3. Following conclusion of the parent suit, the Applicant lodged a Bill of Costs dated 7th July 2023. The Taxing Master taxed the Bill in the sum of Kshs. 2,944,552.30 and issued a Certificate of Taxation on 22nd April 2024, and that no reference was filed to challenge the taxation.
4. The Applicant now seeks judgment against all the Respondents jointly and severally for the taxed sum.
5. The 2nd Respondent, Christine Achieng Ouko, opposed the application through a Replying Affidavit sworn on 26th June 2025 and submissions dated 20th July 2025. She denied ever instructing the Applicant in her personal capacity or as a director of the 1st Respondent. She asserts that the Board Resolution relied upon by the Applicant (Annexure JK 2) expressly authorized representation of the company (1st Respondent) only, and bears no evidence of her signature or attendance. She further contends that she was never served with fee notes, notices, or pleadings, and was excluded from the taxation process. She invokes the doctrine of corporate personality, arguing that absent veil piercing, she cannot be held personally liable for company debts.
6. The 3rd Respondent, Dennis Mugo, similarly filed a Replying Affidavit sworn on 1st July 2025 and submissions dated 24th July 2025, and maintained that instructions were issued by the 1st Respondent pursuant to a Board Resolution, and not by him personally. He points to payments made by the company to the Applicant as evidence that liability lay with the corporate entity. He contends that holding him personally liable would offend the principle of limited liability.
7. The Applicant, in response, filed a Replying Affidavit on 26th June 2025 and a Supplementary Supporting Affidavit sworn on 3rd July 2025. He insists that he acted for all Respondents in their personal capacities as guarantors in the parent suit, and relies on pleadings filed in HCCCOMM No. 269 of 2016, as well as the affidavit of Dennis Mugo sworn on 10th November 2023, wherein it was stated “we instructed the Applicant to act for us.” He argues that the Certificate of Taxation is final and binding, and judgment must follow.
Analysis and Determination
8. Having considered the pleadings, affidavits, annexures and submissions filed by the parties, the Court is of the view that the following issues arise for determination:
i. Whether there existed Advocate/Client relationship between the Applicant and the 2nd and 3rd Respondents in their personal capacities.
ii. Whether judgment can be entered against the Respondents on the basis of the Certificate of Taxation dated 22nd April 2024.
Existence of Advocate/Client relationship
9. The Advocate has sought for judgment as per the Certificate of Costs be entered against the Respondents, jointly and severally on account that the firm acted for the Respondents individually. He relies on the pleadings in Milimani HCCCOMM No. 269 of 2016, where the 2nd, 3rd and 4th Respondents were sued as guarantors of the 1st Respondent’s borrowings. He annexes the Memorandum of Appearance, Defence, and Decree to show that he acted for them in their personal capacities. He also cites the affidavit of Dennis Mugo sworn on 10tth November 2023, which stated “we instructed the Applicant to act for us sometime in the year 2016.”
10. The 2nd Respondent on her part avers that she never instructed the Applicant to act for her personally or as a director of the 1st Respondent. She points to Annexure JK-2, the Board Resolution, which expressly authorized the Advocate to act for the 1st Respondent (Ekaa Limited) only, and which bears the signatures of the 3rd and 4th Respondents but not hers. She further contends that no retainer agreement, correspondence, or fee note was ever addressed to her.
11. The 3rd Respondent similarly maintains that instructions were issued by the 1st Respondent, a separate legal entity, and not by him personally. He relies on the doctrine of corporate personality as established in Salomon v Salomon [1897] AC 22 and reiterated in Multichoice Kenya Ltd v Mainkam Ltd [2013] eKLR, arguing that directors cannot be held personally liable absent proof of veil piercing.
12. 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.”
13. 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.”
14. 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 stated 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.”
15. Similarly, in Omulele & Tollo Advocates v Mount Holdings Ltd [2016] eKLR, the Court of Appeal held that where a client disowns a retainer, the advocate must prove it. Here, while the Applicant has shown pleadings filed on behalf of the Respondents, there is no documentary evidence of instructions issued by the 2nd Respondent personally. The affidavit of Dennis Mugo, though referring to “we,” cannot bind the 2nd Respondent absent express authority.
16. I am persuaded that the evidence of retainer against the 2nd Respondent is tenuous. The Board Resolution (JK-2) is explicit that the Advocate was engaged to act for the 1st Respondent. Further, no fee note or demand was ever addressed to the 2nd Respondent. The 3rd Respondent’s affidavit equally disowns personal instructions. The Applicant’s reliance on pleadings filed in HCCCOMM No. 269 of 2016 does not cure the absence of proof of retainer, since representation in court can only flow from instructions, which must be demonstrated.
17. In the premises, I find and hold that evidence on record demonstrates that the existence of Advocate/Client relationship between the Applicant and the 1st Respondent only. There is no evidence of a retainer against the directors in their respective individual capacities.
Whether judgment can be entered against the Respondents on the basis of the Certificate of Taxation dated 22nd April 2024.
19. Section 51(2) of the Advocates Act provides that a Certificate of Taxation is final as to the amount of costs, unless set aside or altered, and the court may enter judgment where the retainer is not disputed. In Lubulellah & Associates Advocates v N.K. Brothers Ltd [2012], the court emphasized that once costs are taxed and no reference is filed, judgment ordinarily follows.
20. However, where retainer is disputed, the court must first determine whether instructions existed. In this case, the 2nd and 3rd Respondents have consistently disputed retainer. The Applicant himself concedes in his submissions that “there was no retainer agreement as such,” and seeks to rely on conduct. That concession is fatal to the claim against the 2nd and 3rd Respondents.
21. As regards the 1st Respondent, there is no dispute that instructions were issued through the Board Resolution. The Certificate of Taxation therefore binds the 1st Respondent. Judgment can properly be entered against the 1st Respondent for the taxed costs.
22. In light of the foregoing, I find that the Advocate/Applicant has proved retainer only against the 1st Respondent, Ekaa Afrika Limited. The claim against the 2nd and 3rd Respondents fails for want of proof of instructions. The Certificate of Taxation dated 22nd April 2024 is final as to quantum, but judgment can only be entered against the 1st Respondent.
23. Accordingly, I order and direct as follows: -
a. Judgment is hereby entered in favour of the Advocate/Applicant against the 1st Respondent, Ekaa Afrika Limited, for the sum of Kshs. 2,944,552.30 together with interest at 14% per annum from 26th February 2024 until payment in full.
b. Given the partial success of the application, I hereby direct that each party to bear their own costs.
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