'1. This ruling is in respect of two applications relating to the taxation of two Bills of Costs between the same parties. They were filed by the same applicant/advocate against the same client/respondent. The two matters were filed at the same time and proceeded before the same Taxing officer.
2. The applicant/advocate filed Advocate/Client Bills of Costs for taxation dated 28th June 2024 against the same respondent/client in each of the two cases. In Misc. Application No. 533 of 2024, the Bill of Costs was in the sum of KShs 1,825,356.66 while in Misc. Application No. 534 of 2024 the Bill of Costs was for KShs 1,718,954.56. The applications went before the same Taxing officer. They proceeded on the same dates and the Taxing officer gave similar directions in both applications that the respondent files a response and the applications be disposed of by way of written submissions. She fixed the date for ruling to be 4th November 2024. In both applications, the Client did not file a response or submissions in spite of being given time to do so. The Advocate filed submissions in both.
3. When the matters came up for ruling on 4th November 2024, counsel for the Client was present and he asked the Taxing officer for time to file a response. But the Taxing officer declined the request stating that the rulings were ready.
4. The Taxing officer delivered rulings dated 4th November 2024 in both applications. She taxed the Bill in the sum of KShs 347,220/= in the application No. 533 of 2024 and KShs 336,791/= in application No. 534 of 2024. A certificate of taxation for the said amounts was issued on 9th December 2024 in each case.
5. The Client filed an application in each of the two matters by way of notice of motion dated 2nd December 2024 and brought under Article 50 of the Constitution, sections 44, 47 and 52 of the Advocates Act (Cap. 16) Laws of Kenya, the Advocates Remuneration Order and all other enabling provisions of the law seeking for the following orders:
a) An order of stay of execution of the Bill of Costs.
b) An order for this court to alter, vary and/or set aside the certificate of costs in favour of the advocate to reflect the fees so far paid by the applicant.
c) A certificate of costs to be issued in the sum of KShs 7,220/= in the application No. 533 of 2024 and for KShs 39,276/= in application No. 534 of 2024 in favour of the client.
6. The applications were supported by grounds on the face thereof and expounded in the supporting affidavits sworn on 2nd December 2024 by William Omondi Otieno, a director of the Client. The grounds in both applications make similar averments and the supporting affidavits contain similar depositions, that in each case, the Client had already made payment to the Advocate in respect of each Bill of Costs as part of the Advocate’s fees and the payment should be reflected in the respective taxed Bill of Costs. With respect to Misc. Application No. E533 of 2024, the payment was said to be KShs 340,000/= while in respect of Misc. Application No. E534 of 2024 it was stated that the Advocate had received KShs 297,515/= being party and party costs that were due to the Client.
7. The Client therefore prayed that the said payments be factored in the respective taxed bills of costs and the same be adjusted accordingly so that in view of these payments, the amount due to the Advocate in respect of Misc. Application No. E533 of 2024, would be only KShs 7,220/= while in respect of Misc. Application No. E534 of 2024 the amount payable would be KShs 39,276/=.
8. The director of the Client further deposed that he did not file a response to each of the Advocate’s applications for taxation due to an inadvertent error.
9. The advocate filed a replying affidavit sworn on 7th January 2025. He deposed that he had conducted various matters for the client and how he came to file the two Bills of Costs herein for taxation. He deposed that he acted for the Client in the following cases:
a) Civil Case No. E1091 of 2021 Cubic Business Solutions Limited & Innocentive Project Limited v. Family Bank Limited.
b) Arbitration in Cubic Business Solutions Limited and Egerton University.
c) Kisumu High Court Civil Suit No. E001 of 2020 (O.S) Cubic Business Solutions Limited v. Spectre International Limited,
d) Cubic Business Solutions Limited and Spectre International Limited – Arbitration.
e) Unfiled case: Bill Omondi & Evalyne Nafula Omondi and First Assurance Co. Ltd.
f) Dispute between Chemilil Sugar Limited and Cubic Business Solutions Limited.
g) ELRC Cause No. 408 of 2019 Debra Akinyi v. Cubic Business Solutions Limited.
h) Negotiation between Cubic Business Solutions Limited and its former landlord - Jane Wanjiru Muthee.
10. He deposed further that he raised an interim fee note for all the cases with the Client amounting to KShs 1,977,600.00/=. Upon discussions and negotiations with the Client, the fees was agreed at KShs 980,000/=. The Client however, failed to sign the agreement and instead only paid a sum of KShs. 340,000/= out of the interim legal fees of KShs 1,977,600.00/= without assigning the amount to any particular matter.
11. In response to Misc. Application No. E533 of 2024 herein, the Advocate deposed that he allocated the sum of KShs 340,000/= paid by the Client to non-litigious matters that had not ended up in court being:
a) Bill Omondi & Evalyne Nafula Omondi and First Assurance Company Limited.
b) Dispute between Chemilil Sugar Limited and Cubic Business Solutions Limited.
c) Negotiation between Cubic Business Solutions Limited and its former landlord (Jane Wanjiru Muthee) regarding an exit from Hosana House, Karuna Close.
12. He then selected four matters for taxation, among them the two matters herein. The four matters where he filed bills of costs for taxation are:
a) In the Matter of Arbitration between Cubic Business Solutions Limited and Spectre International Limited – the subject of Misc. Application No. 534 of 2024 herein.
b) In the Matter of the Arbitration between Cubic Business Solutions Limited and Egerton University - the subject of Misc. Application No. 533 of 2024 herein.
c) CMEL No. 408 of 2019 Debra Akinyi Oliech v Cubic Business Solutions Limited.
d) Civil Case No. E1091 of 2021 Cubic Business Solutions Limited & Innocentive Project Limited v Family Bank Limited.
13. The Advocate deposed further that in spite of the above, the client keeps bringing up and presenting as evidence of payment of each case, the sum of KShs 340,000/= thereby conflating the issues.
14. In respect of Misc. Application No. E534 of 2024 herein, the Advocate deposed that the party and party costs referred to by the Client in its supporting affidavit were in respect of Kisumu High Court Civil Suit No. E001 of 2020 (O.S) Cubic Business Solutions Limited v Spectre International Limited and that the costs were limited to the work done in the said suit. He deposed that the bill of costs was taxed at KShs. 225,006.26/= as per the Certificate of Costs dated 6th August 2021 and not as alleged by the Client. Spectre International Limited settled the same and he applied the costs to cover his legal fees in the matter.
15. He deposed further that the proceedings in Civil Suit No. E001 of 2020 (O.S) were different and separate from the arbitration proceedings between Cubic Business Solutions Limited and Spectre International Limited which is the subject of the taxation proceedings herein in Misc. Application No. E534 of 2024. That the proceedings in Civil Suit No. E001 of 2020 (O.S) addressed the validity of the arbitration clause and appointment of an arbitrator while the taxation proceedings herein concern the actual arbitration and the taxed party and party bill of costs presented by the Client shows that the work done in the arbitration proceedings between Cubic Business Solutions Limited v Spectre International Limited was not included. Therefore, the bill of costs produced by the Client is for services rendered in a different suit yet the Client wishes to rely on the same as evidence of a retainer in the present application.
16. The Advocate therefore maintains that the Client never paid him for the work done in the arbitration proceedings.
17. Further to the replying affidavit, the advocate filed a preliminary objection dated 7th January 2025 to the notice of motion filed by the client. The grounds of the preliminary objection can be summarized as follows:
a) This court lacks the jurisdiction to vary and/or set aside the certificate of costs herein as the court has not been moved by way of a reference and within the time stipulated and Order 11(2) of the Advocates Remuneration Order.
b) The Client did not give a notice in writing to the taxing officer of the items of taxation to which it objects by way of a chamber summons within fourteen days from the date of receipt of the taxing officer’s reasons for his decision.
c) The threshold for review provided by Order 45 of the Civil Procedure Rules, 2010 has not been met because sufficient reason or new evidence that was not within the Client’s knowledge at the time of taxation has been presented to warrant a review. Further, the Client has not demonstrated that there is existence of a clerical or arithmetical mistake and the application for review has not been made to the taxing officer who passed the decree contrary to Order 45 Rule 2 of the Civil Procedure Rules, 2010.
d) The Client’s application seeks to introduce new evidence contrary to Rule 13A of the Advocates Remuneration Order. Further, the evidence that the Client seeks to introduce does not meet the threshold for introduction of new evidence in Court proceedings. Specifically, the evidence is not new; it was in the possession of the Client all along and no explanation has been given why it was not lodged before the taxing officer; and the Client did not exercise any due diligence to produce the material before the taxing officer.
e) The Client’s Application is frivolous, vexatious and abuse of the court process calculated to circumvent well laid taxation reference procedures. The issues in the Application ought to have been raised during taxation considering that the Client was duly served; and was fully aware of the taxation.
18. On 17th December 2025 the Advocate filed in each case a Notice of Motion dated 5th December 2024 under sections 1A, 1B, 3A of the Civil Procedure Act (Cap 21) Laws of Kenya, Section 51(2) of the Advocates Act (Cap 16) Laws of |Kenya, Rule 7 of the Advocates (Remuneration) Order and Order 51, Rule 1 of the Civil Procedure Rules, for orders that:
a) Judgment be entered against the Client for the taxed sums of Ksh. 347,220/= and KShs 336,791/= as provided in the Certificates of Taxation dated December 09, 2024 in each of the cases.
b) The Certificates of Taxation dated 9th December 2024 be adopted as judgment and decree of the Court; and the Advocate be at liberty to execute.
c) Interest be granted on the taxed sums at the rate of 14% per annum from 5th July 2024 being the date the Advocate-Client Bills of Costs were filed until payment in full.
d) The costs of the applications be provided for.
19. The grounds in support of the applications as laid out on the face of each application are similar. They are in each case, that the Client was duly served with the Certificate of Taxation demanding payment of the certified amount but it has failed/refused and/or ignored to settle the same.
20. The Client was duly served with the notice of preliminary objection and the application by the Advocate but did not file a response to either in both matters despite the court giving directions that the same be done. The Client only filed submissions to its application dated 5th December 2024 but not the Advocate’s application or the preliminary objection.
21. The court gave directions that the two applications filed by each party and the preliminary objection filed by the Advocate be disposed of concurrently. The Client only filed submissions in respect of its respective applications but not for the Advocate’s application and preliminary objection.
22. In the submissions to its application, the Client raised two issues for determination:
a) Whether the fees paid by a client to his advocate should be factored in the assessment of advocate/client bill of costs?
b) In respect of Misc. Application No. 533 of 2024, whether the advocate received payment from the client and in respect of Misc. Application No. 534 of 2024, whether the Advocate received party and party costs for and on behalf of the client prior to filing his bill of costs and whether the same should be factored in the subject proceedings.
23. In the submissions to its application, learned counsel for the Client submits that is not challenging the ruling of the taxing officer in both applications. But, that the fact of the Advocate having received payment from the Client towards payment of his fees in respect of each of these cases ought to have been disclosed to the taxing officer by the Advocate at the time of filing the bills for taxation.
24. He deposes further that the deposition by the Advocate that he applied the KShs 340,000/= towards settlement of other matters in which he was acting for the Client and that he applied the KShs 225, 006/= party and party costs received for and on behalf of the client to settle fees in different proceedings, is not supported by any evidence.
25. The Advocate filed composite submissions, as directed by the court encompassing the client’s application dated 2nd December 2024, the Advocate’s notice of motion dated 5th December 2024 and the preliminary objection dated 5th December 2024 and filed in court on 17th December 2024.
26. In his submissions the advocate raised the following issues for the court’s determination:
a) Whether the Advocate’s Application dated December 5, 2024 should be allowed.
b) Whether the Client’s application is incompetent on account of Order 11 of the Advocates (Remuneration) Order.
c) Whether this Court lacks jurisdiction to entertain the Client’s application as it improperly introduces new evidence.
d) Whether the Client’s application satisfies the legal threshold for review
e) Whether the Client’s application is frivolous, vexatious and an abuse of the court process.
f) Who should bear the costs of the Client’s application
27. I have considered the two applications and the preliminary objection. The preliminary objection is more or less a response to the Client’s application and I will dispose of it as such, concurrently with the two applications by the parties.
28. The first issue to determine is whether this court has jurisdiction to consider the application by the Client.
29. The Client did not submit on this issue.
30. The issue of jurisdiction is contained in the preliminary objection. Considering the preliminary objection, I find that only one issue qualifies as a pure point of law, that is, whether the Client’s application fails to comply with the provisions of Order 11(2) and 11(4) of the Advocates Remuneration Order for being filed out of the 14 days after the decision of the taxing officer and without seeking for extension of time to file the same. Further that the application herein is made by way of notice of motion rather than by chamber summons as provided for under the Order. Learned counsel submits that for the said reasons, the client’s application should be struck out.
31. Order 11 of the Advocates Remuneration Order provides as follows:
(1) Should any party object to the decision of the taxing officer, he may within fourteen 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.
(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.
32. Learned counsel has cited the cases of KCB Bank Limited & another v Yeswa Antonny Joseph [2022] KEHC 2868 (KLR), Twiga Motors Limited v Dalmas Otieno Onyango [2015] KEHC 8106 (KLR), Muri Mwaniki & Wamiti Advocates v African Banking Corporation Limited [2020] KEHC 4794 (KLR)
33. In each of the cases, the courts considered the provisions of Order 11(2) and (4) of the ARO and found that failure to abide by the provisions caused the application to be incompetent and amenable to be struck out. Learned counsel submits that in such a case, the court should not even consider the merits of the application.
34. In this case, the taxing officer delivered her ruling on 4th November 2024. The reference under Order 11 of the ARO by the Client was filed on 2nd December 2024 some twenty-seven days after the taxing officer delivered her ruling. There is no application filed herein either before or after the filing of the application seeking to enlarge time and regularize the application on record. There is therefore no reason offered by the client for filing the application out of time.
35. As held in a myriad of cases considering the provisions of Order 11 of the ARO, among them the examples cited above, I find that the client’s reference is incompetent and should be and is hereby struck out with costs to the advocate. It follows that the preliminary objection to the Client’s applications in each case succeeds and is sustained on that basis.
36. On the merits of the Client’s applications, there is no dispute that the Advocate received some payments from the Client. The Client submits that the Advocate ought to have disclosed that payment in the Bills of Costs presented for taxation and credit given accordingly.
37. The Advocate on his part submits that the Client is seeking to introduce new evidence at this point without any good reason why it did not provide that evidence that was readily within its reach to the taxing officer. He submits that the Client’s application offends the principles of res judicata and non-introduction of new evidence at during a reference to the High Court.
38. I have considered the submissions made by learned counsel on the doctrine of res judicata and I find that the same is not applicable to this application for the simple reason that this is not a former suit as is the condition required under section 7 of the Civil Procedure Act (Cap. 21) Laws of Kenya. The Client is not seeking to re-litigate the issues before the Taxing Officer as submitted by learned counsel for the advocate. The principles of the doctrine of res judicata as enunciated in the cases of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) and Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) cited by learned counsel have not been satisfied in this context.
39. On introduction of new evidence before this court when the same was not placed before the Taxing Officer, learned counsel submits that a reference from a taxation decision is a sui generis appellate proceeding restricted to questioning the Taxing Officer’s exercise of discretion. He submits that such an approach offends the provisions of Rule 13A of the Advocates (Remuneration) Order. He has cited the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR) where the Court of Appeal, dealing with this issue held that:
“In the present appeal, the respondent did not seek leave to adduce additional evidence. It filed an application for review on which it purported to introduce new evidence. No additional evidence could be produced before the learned Judge unless they formed part of the record before the taxing officer as correctly submitted by the appellant. Admission of documents in taxation proceedings is a preserve of the taxing officer under Rule 13A of the Advocates Remuneration Order and on reference, the Judge only deals with what was on record before the taxing officer.”
40. The Client submitted that the Advocate had conceded in his reply to the Client’s contention that he had already received part payment from the client and this ought to have been factored in the taxation of the bill of costs.
41. It is true that the Advocate conceded in his replying affidavits to both applications that he received some payment from the Client being KShs 340,000/= and also KShs 225,006.26/= from Spectre International on account of a taxed Party and Party Bill of costs. He then explained how he applied those amounts to other briefs he had with the Client leaving the bills the subject of the taxation and the applications herein, unsettled. His reply was not contested by the Client and so it remains to be the position.
42. But even under those circumstances, the Client did not raise that issue with the taxing officer and as determined above, it did not seek leave to file the reference out of time and therefore on the authority of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR) above, it is precluded from offering new evidence at this time during determination of the reference.
43. On that account too, the Client’s application is found to be without merit and the same is subject to dismissal.
44. The Advocate’s applications dated 5th December 2024 and filed on 17th December 2024, is seeking for orders that the Certificates of Taxation dated 9th December 2024 in each of the applications for taxation be adopted as judgment and decree of the Court and the Advocate be at liberty to execute.
45. The advocate avers that the Client was duly served with the Certificate of Taxation demanding payment of the certified amount but he has failed/refused and/or ignored to settle the same. Instead, the Client filed the application dated 2nd December 2024 seeking stay of execution of the taxed Bill of Costs and or the Certificate of Taxation.
46. As stated above, the Client did not respond to both applications. The advocate submits that the Certificates of Taxation dated 9th December 2024 ought to be entered as judgments of the court and decrees issued accordingly.
47. Section 51(2) of the Advocates Act, under which this application was brought provides that:
“51(2) The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”
48. In the present cases, there is no dispute as to the retainer and the costs were taxed and certified by the Taxing officer. The challenges to the same have been found to have no merit and are dismissed. Therefore, sums taxed are final. I find that both applications have not been set aside or altered by the court.
49. Accordingly, it is ordered that judgment is hereby entered in each of the cases herein in the sums certified. Any other feuds by the parties on other accounts can be resolved by way of either filing an appropriate application to court.
50. For the foregoing reasons, I am satisfied that the notice of motion and the preliminary objection by the Advocate have merit and the same are allowed with costs to the Advocate. The costs will carry interest at 14% p.a. from 5th July 2024 when the Bills of costs were filed.
51. For clarity, the notice of motion by the Client is struck out for being incompetent as it was filed out of time without leave and/or otherwise dismissed with costs to the Advocate.
52. Written, dated, signed and delivered on the virtual platform, Teams, this 6th day of October 2025
ANDAYI W. F.
JUDGE
In the presence of:
Morara Omoke for the Advocate.
N/A for the Client.
Ummu holding brief for Carlos: Court assistant.
'
2. The applicant/advocate filed Advocate/Client Bills of Costs for taxation dated 28th June 2024 against the same respondent/client in each of the two cases. In Misc. Application No. 533 of 2024, the Bill of Costs was in the sum of KShs 1,825,356.66 while in Misc. Application No. 534 of 2024 the Bill of Costs was for KShs 1,718,954.56. The applications went before the same Taxing officer. They proceeded on the same dates and the Taxing officer gave similar directions in both applications that the respondent files a response and the applications be disposed of by way of written submissions. She fixed the date for ruling to be 4th November 2024. In both applications, the Client did not file a response or submissions in spite of being given time to do so. The Advocate filed submissions in both.
3. When the matters came up for ruling on 4th November 2024, counsel for the Client was present and he asked the Taxing officer for time to file a response. But the Taxing officer declined the request stating that the rulings were ready.
4. The Taxing officer delivered rulings dated 4th November 2024 in both applications. She taxed the Bill in the sum of KShs 347,220/= in the application No. 533 of 2024 and KShs 336,791/= in application No. 534 of 2024. A certificate of taxation for the said amounts was issued on 9th December 2024 in each case.
5. The Client filed an application in each of the two matters by way of notice of motion dated 2nd December 2024 and brought under Article 50 of the Constitution, sections 44, 47 and 52 of the Advocates Act (Cap. 16) Laws of Kenya, the Advocates Remuneration Order and all other enabling provisions of the law seeking for the following orders:
a) An order of stay of execution of the Bill of Costs.
b) An order for this court to alter, vary and/or set aside the certificate of costs in favour of the advocate to reflect the fees so far paid by the applicant.
c) A certificate of costs to be issued in the sum of KShs 7,220/= in the application No. 533 of 2024 and for KShs 39,276/= in application No. 534 of 2024 in favour of the client.
6. The applications were supported by grounds on the face thereof and expounded in the supporting affidavits sworn on 2nd December 2024 by William Omondi Otieno, a director of the Client. The grounds in both applications make similar averments and the supporting affidavits contain similar depositions, that in each case, the Client had already made payment to the Advocate in respect of each Bill of Costs as part of the Advocate’s fees and the payment should be reflected in the respective taxed Bill of Costs. With respect to Misc. Application No. E533 of 2024, the payment was said to be KShs 340,000/= while in respect of Misc. Application No. E534 of 2024 it was stated that the Advocate had received KShs 297,515/= being party and party costs that were due to the Client.
7. The Client therefore prayed that the said payments be factored in the respective taxed bills of costs and the same be adjusted accordingly so that in view of these payments, the amount due to the Advocate in respect of Misc. Application No. E533 of 2024, would be only KShs 7,220/= while in respect of Misc. Application No. E534 of 2024 the amount payable would be KShs 39,276/=.
8. The director of the Client further deposed that he did not file a response to each of the Advocate’s applications for taxation due to an inadvertent error.
9. The advocate filed a replying affidavit sworn on 7th January 2025. He deposed that he had conducted various matters for the client and how he came to file the two Bills of Costs herein for taxation. He deposed that he acted for the Client in the following cases:
a) Civil Case No. E1091 of 2021 Cubic Business Solutions Limited & Innocentive Project Limited v. Family Bank Limited.
b) Arbitration in Cubic Business Solutions Limited and Egerton University.
c) Kisumu High Court Civil Suit No. E001 of 2020 (O.S) Cubic Business Solutions Limited v. Spectre International Limited,
d) Cubic Business Solutions Limited and Spectre International Limited – Arbitration.
e) Unfiled case: Bill Omondi & Evalyne Nafula Omondi and First Assurance Co. Ltd.
f) Dispute between Chemilil Sugar Limited and Cubic Business Solutions Limited.
g) ELRC Cause No. 408 of 2019 Debra Akinyi v. Cubic Business Solutions Limited.
h) Negotiation between Cubic Business Solutions Limited and its former landlord - Jane Wanjiru Muthee.
10. He deposed further that he raised an interim fee note for all the cases with the Client amounting to KShs 1,977,600.00/=. Upon discussions and negotiations with the Client, the fees was agreed at KShs 980,000/=. The Client however, failed to sign the agreement and instead only paid a sum of KShs. 340,000/= out of the interim legal fees of KShs 1,977,600.00/= without assigning the amount to any particular matter.
11. In response to Misc. Application No. E533 of 2024 herein, the Advocate deposed that he allocated the sum of KShs 340,000/= paid by the Client to non-litigious matters that had not ended up in court being:
a) Bill Omondi & Evalyne Nafula Omondi and First Assurance Company Limited.
b) Dispute between Chemilil Sugar Limited and Cubic Business Solutions Limited.
c) Negotiation between Cubic Business Solutions Limited and its former landlord (Jane Wanjiru Muthee) regarding an exit from Hosana House, Karuna Close.
12. He then selected four matters for taxation, among them the two matters herein. The four matters where he filed bills of costs for taxation are:
a) In the Matter of Arbitration between Cubic Business Solutions Limited and Spectre International Limited – the subject of Misc. Application No. 534 of 2024 herein.
b) In the Matter of the Arbitration between Cubic Business Solutions Limited and Egerton University - the subject of Misc. Application No. 533 of 2024 herein.
c) CMEL No. 408 of 2019 Debra Akinyi Oliech v Cubic Business Solutions Limited.
d) Civil Case No. E1091 of 2021 Cubic Business Solutions Limited & Innocentive Project Limited v Family Bank Limited.
13. The Advocate deposed further that in spite of the above, the client keeps bringing up and presenting as evidence of payment of each case, the sum of KShs 340,000/= thereby conflating the issues.
14. In respect of Misc. Application No. E534 of 2024 herein, the Advocate deposed that the party and party costs referred to by the Client in its supporting affidavit were in respect of Kisumu High Court Civil Suit No. E001 of 2020 (O.S) Cubic Business Solutions Limited v Spectre International Limited and that the costs were limited to the work done in the said suit. He deposed that the bill of costs was taxed at KShs. 225,006.26/= as per the Certificate of Costs dated 6th August 2021 and not as alleged by the Client. Spectre International Limited settled the same and he applied the costs to cover his legal fees in the matter.
15. He deposed further that the proceedings in Civil Suit No. E001 of 2020 (O.S) were different and separate from the arbitration proceedings between Cubic Business Solutions Limited and Spectre International Limited which is the subject of the taxation proceedings herein in Misc. Application No. E534 of 2024. That the proceedings in Civil Suit No. E001 of 2020 (O.S) addressed the validity of the arbitration clause and appointment of an arbitrator while the taxation proceedings herein concern the actual arbitration and the taxed party and party bill of costs presented by the Client shows that the work done in the arbitration proceedings between Cubic Business Solutions Limited v Spectre International Limited was not included. Therefore, the bill of costs produced by the Client is for services rendered in a different suit yet the Client wishes to rely on the same as evidence of a retainer in the present application.
16. The Advocate therefore maintains that the Client never paid him for the work done in the arbitration proceedings.
17. Further to the replying affidavit, the advocate filed a preliminary objection dated 7th January 2025 to the notice of motion filed by the client. The grounds of the preliminary objection can be summarized as follows:
a) This court lacks the jurisdiction to vary and/or set aside the certificate of costs herein as the court has not been moved by way of a reference and within the time stipulated and Order 11(2) of the Advocates Remuneration Order.
b) The Client did not give a notice in writing to the taxing officer of the items of taxation to which it objects by way of a chamber summons within fourteen days from the date of receipt of the taxing officer’s reasons for his decision.
c) The threshold for review provided by Order 45 of the Civil Procedure Rules, 2010 has not been met because sufficient reason or new evidence that was not within the Client’s knowledge at the time of taxation has been presented to warrant a review. Further, the Client has not demonstrated that there is existence of a clerical or arithmetical mistake and the application for review has not been made to the taxing officer who passed the decree contrary to Order 45 Rule 2 of the Civil Procedure Rules, 2010.
d) The Client’s application seeks to introduce new evidence contrary to Rule 13A of the Advocates Remuneration Order. Further, the evidence that the Client seeks to introduce does not meet the threshold for introduction of new evidence in Court proceedings. Specifically, the evidence is not new; it was in the possession of the Client all along and no explanation has been given why it was not lodged before the taxing officer; and the Client did not exercise any due diligence to produce the material before the taxing officer.
e) The Client’s Application is frivolous, vexatious and abuse of the court process calculated to circumvent well laid taxation reference procedures. The issues in the Application ought to have been raised during taxation considering that the Client was duly served; and was fully aware of the taxation.
18. On 17th December 2025 the Advocate filed in each case a Notice of Motion dated 5th December 2024 under sections 1A, 1B, 3A of the Civil Procedure Act (Cap 21) Laws of Kenya, Section 51(2) of the Advocates Act (Cap 16) Laws of |Kenya, Rule 7 of the Advocates (Remuneration) Order and Order 51, Rule 1 of the Civil Procedure Rules, for orders that:
a) Judgment be entered against the Client for the taxed sums of Ksh. 347,220/= and KShs 336,791/= as provided in the Certificates of Taxation dated December 09, 2024 in each of the cases.
b) The Certificates of Taxation dated 9th December 2024 be adopted as judgment and decree of the Court; and the Advocate be at liberty to execute.
c) Interest be granted on the taxed sums at the rate of 14% per annum from 5th July 2024 being the date the Advocate-Client Bills of Costs were filed until payment in full.
d) The costs of the applications be provided for.
19. The grounds in support of the applications as laid out on the face of each application are similar. They are in each case, that the Client was duly served with the Certificate of Taxation demanding payment of the certified amount but it has failed/refused and/or ignored to settle the same.
20. The Client was duly served with the notice of preliminary objection and the application by the Advocate but did not file a response to either in both matters despite the court giving directions that the same be done. The Client only filed submissions to its application dated 5th December 2024 but not the Advocate’s application or the preliminary objection.
21. The court gave directions that the two applications filed by each party and the preliminary objection filed by the Advocate be disposed of concurrently. The Client only filed submissions in respect of its respective applications but not for the Advocate’s application and preliminary objection.
22. In the submissions to its application, the Client raised two issues for determination:
a) Whether the fees paid by a client to his advocate should be factored in the assessment of advocate/client bill of costs?
b) In respect of Misc. Application No. 533 of 2024, whether the advocate received payment from the client and in respect of Misc. Application No. 534 of 2024, whether the Advocate received party and party costs for and on behalf of the client prior to filing his bill of costs and whether the same should be factored in the subject proceedings.
23. In the submissions to its application, learned counsel for the Client submits that is not challenging the ruling of the taxing officer in both applications. But, that the fact of the Advocate having received payment from the Client towards payment of his fees in respect of each of these cases ought to have been disclosed to the taxing officer by the Advocate at the time of filing the bills for taxation.
24. He deposes further that the deposition by the Advocate that he applied the KShs 340,000/= towards settlement of other matters in which he was acting for the Client and that he applied the KShs 225, 006/= party and party costs received for and on behalf of the client to settle fees in different proceedings, is not supported by any evidence.
25. The Advocate filed composite submissions, as directed by the court encompassing the client’s application dated 2nd December 2024, the Advocate’s notice of motion dated 5th December 2024 and the preliminary objection dated 5th December 2024 and filed in court on 17th December 2024.
26. In his submissions the advocate raised the following issues for the court’s determination:
a) Whether the Advocate’s Application dated December 5, 2024 should be allowed.
b) Whether the Client’s application is incompetent on account of Order 11 of the Advocates (Remuneration) Order.
c) Whether this Court lacks jurisdiction to entertain the Client’s application as it improperly introduces new evidence.
d) Whether the Client’s application satisfies the legal threshold for review
e) Whether the Client’s application is frivolous, vexatious and an abuse of the court process.
f) Who should bear the costs of the Client’s application
27. I have considered the two applications and the preliminary objection. The preliminary objection is more or less a response to the Client’s application and I will dispose of it as such, concurrently with the two applications by the parties.
28. The first issue to determine is whether this court has jurisdiction to consider the application by the Client.
29. The Client did not submit on this issue.
30. The issue of jurisdiction is contained in the preliminary objection. Considering the preliminary objection, I find that only one issue qualifies as a pure point of law, that is, whether the Client’s application fails to comply with the provisions of Order 11(2) and 11(4) of the Advocates Remuneration Order for being filed out of the 14 days after the decision of the taxing officer and without seeking for extension of time to file the same. Further that the application herein is made by way of notice of motion rather than by chamber summons as provided for under the Order. Learned counsel submits that for the said reasons, the client’s application should be struck out.
31. Order 11 of the Advocates Remuneration Order provides as follows:
(1) Should any party object to the decision of the taxing officer, he may within fourteen 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.
(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.
32. Learned counsel has cited the cases of KCB Bank Limited & another v Yeswa Antonny Joseph [2022] KEHC 2868 (KLR), Twiga Motors Limited v Dalmas Otieno Onyango [2015] KEHC 8106 (KLR), Muri Mwaniki & Wamiti Advocates v African Banking Corporation Limited [2020] KEHC 4794 (KLR)
33. In each of the cases, the courts considered the provisions of Order 11(2) and (4) of the ARO and found that failure to abide by the provisions caused the application to be incompetent and amenable to be struck out. Learned counsel submits that in such a case, the court should not even consider the merits of the application.
34. In this case, the taxing officer delivered her ruling on 4th November 2024. The reference under Order 11 of the ARO by the Client was filed on 2nd December 2024 some twenty-seven days after the taxing officer delivered her ruling. There is no application filed herein either before or after the filing of the application seeking to enlarge time and regularize the application on record. There is therefore no reason offered by the client for filing the application out of time.
35. As held in a myriad of cases considering the provisions of Order 11 of the ARO, among them the examples cited above, I find that the client’s reference is incompetent and should be and is hereby struck out with costs to the advocate. It follows that the preliminary objection to the Client’s applications in each case succeeds and is sustained on that basis.
36. On the merits of the Client’s applications, there is no dispute that the Advocate received some payments from the Client. The Client submits that the Advocate ought to have disclosed that payment in the Bills of Costs presented for taxation and credit given accordingly.
37. The Advocate on his part submits that the Client is seeking to introduce new evidence at this point without any good reason why it did not provide that evidence that was readily within its reach to the taxing officer. He submits that the Client’s application offends the principles of res judicata and non-introduction of new evidence at during a reference to the High Court.
38. I have considered the submissions made by learned counsel on the doctrine of res judicata and I find that the same is not applicable to this application for the simple reason that this is not a former suit as is the condition required under section 7 of the Civil Procedure Act (Cap. 21) Laws of Kenya. The Client is not seeking to re-litigate the issues before the Taxing Officer as submitted by learned counsel for the advocate. The principles of the doctrine of res judicata as enunciated in the cases of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) and Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) cited by learned counsel have not been satisfied in this context.
39. On introduction of new evidence before this court when the same was not placed before the Taxing Officer, learned counsel submits that a reference from a taxation decision is a sui generis appellate proceeding restricted to questioning the Taxing Officer’s exercise of discretion. He submits that such an approach offends the provisions of Rule 13A of the Advocates (Remuneration) Order. He has cited the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR) where the Court of Appeal, dealing with this issue held that:
“In the present appeal, the respondent did not seek leave to adduce additional evidence. It filed an application for review on which it purported to introduce new evidence. No additional evidence could be produced before the learned Judge unless they formed part of the record before the taxing officer as correctly submitted by the appellant. Admission of documents in taxation proceedings is a preserve of the taxing officer under Rule 13A of the Advocates Remuneration Order and on reference, the Judge only deals with what was on record before the taxing officer.”
40. The Client submitted that the Advocate had conceded in his reply to the Client’s contention that he had already received part payment from the client and this ought to have been factored in the taxation of the bill of costs.
41. It is true that the Advocate conceded in his replying affidavits to both applications that he received some payment from the Client being KShs 340,000/= and also KShs 225,006.26/= from Spectre International on account of a taxed Party and Party Bill of costs. He then explained how he applied those amounts to other briefs he had with the Client leaving the bills the subject of the taxation and the applications herein, unsettled. His reply was not contested by the Client and so it remains to be the position.
42. But even under those circumstances, the Client did not raise that issue with the taxing officer and as determined above, it did not seek leave to file the reference out of time and therefore on the authority of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR) above, it is precluded from offering new evidence at this time during determination of the reference.
43. On that account too, the Client’s application is found to be without merit and the same is subject to dismissal.
44. The Advocate’s applications dated 5th December 2024 and filed on 17th December 2024, is seeking for orders that the Certificates of Taxation dated 9th December 2024 in each of the applications for taxation be adopted as judgment and decree of the Court and the Advocate be at liberty to execute.
45. The advocate avers that the Client was duly served with the Certificate of Taxation demanding payment of the certified amount but he has failed/refused and/or ignored to settle the same. Instead, the Client filed the application dated 2nd December 2024 seeking stay of execution of the taxed Bill of Costs and or the Certificate of Taxation.
46. As stated above, the Client did not respond to both applications. The advocate submits that the Certificates of Taxation dated 9th December 2024 ought to be entered as judgments of the court and decrees issued accordingly.
47. Section 51(2) of the Advocates Act, under which this application was brought provides that:
“51(2) The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”
48. In the present cases, there is no dispute as to the retainer and the costs were taxed and certified by the Taxing officer. The challenges to the same have been found to have no merit and are dismissed. Therefore, sums taxed are final. I find that both applications have not been set aside or altered by the court.
49. Accordingly, it is ordered that judgment is hereby entered in each of the cases herein in the sums certified. Any other feuds by the parties on other accounts can be resolved by way of either filing an appropriate application to court.
50. For the foregoing reasons, I am satisfied that the notice of motion and the preliminary objection by the Advocate have merit and the same are allowed with costs to the Advocate. The costs will carry interest at 14% p.a. from 5th July 2024 when the Bills of costs were filed.
51. For clarity, the notice of motion by the Client is struck out for being incompetent as it was filed out of time without leave and/or otherwise dismissed with costs to the Advocate.
52. Written, dated, signed and delivered on the virtual platform, Teams, this 6th day of October 2025
ANDAYI W. F.
JUDGE
In the presence of:
Morara Omoke for the Advocate.
N/A for the Client.
Ummu holding brief for Carlos: Court assistant.
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