1. Before the Court is the Applicant’s Chamber Summons application dated 24th April,2024 brought pursuant to the provisions of Section 11(2) of the Advocates Act, Rule 13A of the Advocates Remuneration Order, 1962). The Applicant seeks the following orders inter alia:-
a) THAT the ruling of the Honourable taxing master, Deputy Registrar delivered on 18th April,2024 be set aside. Instead, this court taxes the bill in issue or issue directions as appropriate.
b) THAT the costs of this Application be provided for.
2. The application is founded on the grounds set out on the face therein, the Supporting Affidavit of Counsel Kibagendi Assa Nyakundi sworn on even date and a Further Affidavit sworn on 10th September,2025.
3. In summary, the main grounds are that pursuant to the taxation of the Advocate/Client Bill of Costs, the taxing master misdirected as to the tenor and nature of correspondence under consideration.
4. It was further their case that the Taxing Master ignored the fact that all the correspondence under consideration had been tendered and considered in JR Misc.No 40 of 2029 and misdirected herself that the letter from the chairman Counsel of Governors dated 22nd November,20213 concerned only the matter handled in the High Court and not the Court of Appeal and Failed to give consideration to the words in the advocates correspondence “in similar terms as agreed concerning the high court matter” and in the process reached a wrong conclusion.
5. The bone of contention in the application and affidavits in support and the reply was an alleged agreement as to fees said to have been entered between the parties. It was the contention of the respondent that in view of the said agreement, the bill of costs presented to the court for taxation was bad in law as prohibited by section 45 (b) of the Advocates Act.
THE CLIENT/RESPONDENT’S CASE
6. The client opposed the reference by way of submissions dated 6th August,2025. The gist of the Respondent’s case is that the ruling by the Honourable Registrar on the Advocate -Client Bill of Costs dated 20th November,2023 and amended on 12th January,2024 held that a valid and a binding agreement on fees existed between the parties thereby precluding taxation under Section 45 of the Advocate’s Act thus the Advocate’s Bill of Costs was therefore properly struct out.
7. Counsel further submitted that the reference currently under consideration arises from a Bill of costs filed by the Advocate in relation to proceedings before the Court of Appeal, specifically Civil Appeal No.153 of 2014 noting that two distinct Bills have existed between the Advocate and the Client, one emanating from Judicial Review No.317 of 2013 which was filed and taxed at the High Court as Miscellaneous Application No.40 of 2019 which had already been conclusively determined and the closed. The client therefore faulted the advocate for introducing issues arising from a previously concluded matter which is misleading and prejudicial.
8. Counsel further urged the Court to confine its consideration strictly on the Bill of Costs in Civil Appeal No.153 of 2014, and to disregard any references to the previously concluded proceedings.
9. The Respondent submits that the Taxing Master exercised discretion judiciously and that no error of principle has been demonstrated to warrant interference by this Court.
ANALYSIS
10. I have considered the pleadings, the submissions and the arguments advanced by the parties herein. The issue for determination is whether the Advocate/Applicant has provided sufficient reasons to warrant this court to set aside the ruling delivered on 18th April,2024.
11. The principles governing interference with a taxation are well settled. A Court will not normally interfere with the decision of a Taxing Master unless it is shown that the Taxing Master acted on a wrong principle of law, considered irrelevant factors, failed to consider relevant factors, or that the award is so manifestly excessive or so low as to justify an inference that the decision was based on an error of principle.
12. The existence of the fee agreement was brought to the attention of the Taxing Master through letters dated 1st July,2014 and 16th September,2019. There is no evidence that the agreement had been set aside, avoided, rescinded, or otherwise declared invalid by a competent court.
13. In the case of Shiva Enterprises v Mwangi Njenga & Company Advocates [2020] eKLR the court stated that; “I do not think that such agreement must be in one document titled “agreement for payment of legal fees.” It is sufficient that there be a memorandum in writing, and this would include correspondences, so long as these reveal that they are aimed at fixing the fee payable. Indeed, in the case of D Njogu & Company Advocates vs National Bank of Kenya Limited, Civil Appeal No. 165 of 2007 (2016) eKLR, where the Court of Appeal upheld an agreement between an advocate and client, the agreement was actually construed from a letter”.
14. Mbugua J.in Njuguna & Partners Advocates v Populite International Ltd & 2 others (Environment and Land Miscellaneous Application E029 of 2022) [2023] KEELC 17603 (KLR) (25 May 2023) (Ruling) held that:
“........Therefore, correspondence is capable of giving rise to a fee agreement Provided that it meets the requirements of the applicable law. That would mean that an offer, acceptance and consideration can be discerned from the correspondence in issue.”
15. In Zaku & Nzaku Advocates v Tabitha Waithera Mararo as Trustee of Tracy Naserian Kaaka (minor) & others [2020]eKLR, it was held that;
“An agreement for fees contemplated under Section 45, is a contract whose terms and conditions must be clear and unambiguous. There must be consensus or meeting of the mind between the parties and it must also be entered into freely without undue influence or promise.”
16. From the correspondences between the advocate and the client dated 1st July,2014 and 16th September,2019, it clear that there was an understanding as to the agreed fees therefore there was a meeting of the minds with clear and unambiguous terms.
17. Once a valid remuneration agreement exists, the role of taxation is generally ousted. The Taxing Master derives jurisdiction from the Advocates Act and the Advocates Remuneration Order. That jurisdiction cannot be exercised where the parties have lawfully agreed on remuneration unless the agreement is first impeached through the appropriate legal process.
18. The Court is guided by the decision in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd where it was emphasized that a valid fee agreement under Section 45 is enforceable and ordinarily excludes taxation proceedings unless the agreement is successfully challenged.
19. The Taxing Master was therefore estopped by the provisions of Section 45(6) of the advocates Act from proceeding to tax the bill of costs dated 16th January,2024 thus did not error by downing her tools and exercising her jurisdiction by striking out the bill of cost upon determining that there was an existent and binding agreement for fees.
20. Further this Court has no jurisdiction to re-visit JR Miscellaneous No.40 of 2019 which was long determined and the case closed.
21. There has to be valid and clear reasons, upon which discretion can be favorably exercised. In the circumstances, I find that the reference dated 24th April, 2024 is not merited.
DETERMINATION
The Court finds that:
22. There existed a valid remuneration agreement between the Advocate and the Client. The agreement had not been set aside or declared invalid.The Taxing Master lacked jurisdiction to tax the Bill of Costs while the agreement remained in force.
ORDERS
1. The Reference dated 24th April,2024 is hereby dismissed.
2. The ruling of the Taxing Master delivered on 18th April,2024 is upheld.
3. The parties shall be bound by the remuneration agreement as inferred through letters dated 1st July,2014 and 16/9/2019 unless and until the same is set aside by a court of competent jurisdiction.
4. The Respondent shall have the costs of the Reference.
It is so ordered.
a) THAT the ruling of the Honourable taxing master, Deputy Registrar delivered on 18th April,2024 be set aside. Instead, this court taxes the bill in issue or issue directions as appropriate.
b) THAT the costs of this Application be provided for.
2. The application is founded on the grounds set out on the face therein, the Supporting Affidavit of Counsel Kibagendi Assa Nyakundi sworn on even date and a Further Affidavit sworn on 10th September,2025.
3. In summary, the main grounds are that pursuant to the taxation of the Advocate/Client Bill of Costs, the taxing master misdirected as to the tenor and nature of correspondence under consideration.
4. It was further their case that the Taxing Master ignored the fact that all the correspondence under consideration had been tendered and considered in JR Misc.No 40 of 2029 and misdirected herself that the letter from the chairman Counsel of Governors dated 22nd November,20213 concerned only the matter handled in the High Court and not the Court of Appeal and Failed to give consideration to the words in the advocates correspondence “in similar terms as agreed concerning the high court matter” and in the process reached a wrong conclusion.
5. The bone of contention in the application and affidavits in support and the reply was an alleged agreement as to fees said to have been entered between the parties. It was the contention of the respondent that in view of the said agreement, the bill of costs presented to the court for taxation was bad in law as prohibited by section 45 (b) of the Advocates Act.
THE CLIENT/RESPONDENT’S CASE
6. The client opposed the reference by way of submissions dated 6th August,2025. The gist of the Respondent’s case is that the ruling by the Honourable Registrar on the Advocate -Client Bill of Costs dated 20th November,2023 and amended on 12th January,2024 held that a valid and a binding agreement on fees existed between the parties thereby precluding taxation under Section 45 of the Advocate’s Act thus the Advocate’s Bill of Costs was therefore properly struct out.
7. Counsel further submitted that the reference currently under consideration arises from a Bill of costs filed by the Advocate in relation to proceedings before the Court of Appeal, specifically Civil Appeal No.153 of 2014 noting that two distinct Bills have existed between the Advocate and the Client, one emanating from Judicial Review No.317 of 2013 which was filed and taxed at the High Court as Miscellaneous Application No.40 of 2019 which had already been conclusively determined and the closed. The client therefore faulted the advocate for introducing issues arising from a previously concluded matter which is misleading and prejudicial.
8. Counsel further urged the Court to confine its consideration strictly on the Bill of Costs in Civil Appeal No.153 of 2014, and to disregard any references to the previously concluded proceedings.
9. The Respondent submits that the Taxing Master exercised discretion judiciously and that no error of principle has been demonstrated to warrant interference by this Court.
ANALYSIS
10. I have considered the pleadings, the submissions and the arguments advanced by the parties herein. The issue for determination is whether the Advocate/Applicant has provided sufficient reasons to warrant this court to set aside the ruling delivered on 18th April,2024.
11. The principles governing interference with a taxation are well settled. A Court will not normally interfere with the decision of a Taxing Master unless it is shown that the Taxing Master acted on a wrong principle of law, considered irrelevant factors, failed to consider relevant factors, or that the award is so manifestly excessive or so low as to justify an inference that the decision was based on an error of principle.
12. The existence of the fee agreement was brought to the attention of the Taxing Master through letters dated 1st July,2014 and 16th September,2019. There is no evidence that the agreement had been set aside, avoided, rescinded, or otherwise declared invalid by a competent court.
13. In the case of Shiva Enterprises v Mwangi Njenga & Company Advocates [2020] eKLR the court stated that; “I do not think that such agreement must be in one document titled “agreement for payment of legal fees.” It is sufficient that there be a memorandum in writing, and this would include correspondences, so long as these reveal that they are aimed at fixing the fee payable. Indeed, in the case of D Njogu & Company Advocates vs National Bank of Kenya Limited, Civil Appeal No. 165 of 2007 (2016) eKLR, where the Court of Appeal upheld an agreement between an advocate and client, the agreement was actually construed from a letter”.
14. Mbugua J.in Njuguna & Partners Advocates v Populite International Ltd & 2 others (Environment and Land Miscellaneous Application E029 of 2022) [2023] KEELC 17603 (KLR) (25 May 2023) (Ruling) held that:
“........Therefore, correspondence is capable of giving rise to a fee agreement Provided that it meets the requirements of the applicable law. That would mean that an offer, acceptance and consideration can be discerned from the correspondence in issue.”
15. In Zaku & Nzaku Advocates v Tabitha Waithera Mararo as Trustee of Tracy Naserian Kaaka (minor) & others [2020]eKLR, it was held that;
“An agreement for fees contemplated under Section 45, is a contract whose terms and conditions must be clear and unambiguous. There must be consensus or meeting of the mind between the parties and it must also be entered into freely without undue influence or promise.”
16. From the correspondences between the advocate and the client dated 1st July,2014 and 16th September,2019, it clear that there was an understanding as to the agreed fees therefore there was a meeting of the minds with clear and unambiguous terms.
17. Once a valid remuneration agreement exists, the role of taxation is generally ousted. The Taxing Master derives jurisdiction from the Advocates Act and the Advocates Remuneration Order. That jurisdiction cannot be exercised where the parties have lawfully agreed on remuneration unless the agreement is first impeached through the appropriate legal process.
18. The Court is guided by the decision in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd where it was emphasized that a valid fee agreement under Section 45 is enforceable and ordinarily excludes taxation proceedings unless the agreement is successfully challenged.
19. The Taxing Master was therefore estopped by the provisions of Section 45(6) of the advocates Act from proceeding to tax the bill of costs dated 16th January,2024 thus did not error by downing her tools and exercising her jurisdiction by striking out the bill of cost upon determining that there was an existent and binding agreement for fees.
20. Further this Court has no jurisdiction to re-visit JR Miscellaneous No.40 of 2019 which was long determined and the case closed.
21. There has to be valid and clear reasons, upon which discretion can be favorably exercised. In the circumstances, I find that the reference dated 24th April, 2024 is not merited.
DETERMINATION
The Court finds that:
22. There existed a valid remuneration agreement between the Advocate and the Client. The agreement had not been set aside or declared invalid.The Taxing Master lacked jurisdiction to tax the Bill of Costs while the agreement remained in force.
ORDERS
1. The Reference dated 24th April,2024 is hereby dismissed.
2. The ruling of the Taxing Master delivered on 18th April,2024 is upheld.
3. The parties shall be bound by the remuneration agreement as inferred through letters dated 1st July,2014 and 16/9/2019 unless and until the same is set aside by a court of competent jurisdiction.
4. The Respondent shall have the costs of the Reference.
It is so ordered.