RULING
A. INTRODUCTION
1. Before this Court is the Respondent’s Notice of Motion dated 25th February 2025 seeking, inter alia, orders that:
a. The taxation of the Advocate–Client Bill of Costs dated 28th January 2025 be stayed; and
b. The said Bill of Costs be struck out for being incompetent.
2. The application is premised on the grounds on its face and supported by the affidavit of Paul Otieno Okeno. The Respondent contends that the Applicant, Odumbe & Ayieta Advocates, is a non-suited entity lacking capacity to file or tax a bill of costs, the firm having been dissolved.
3. The application is opposed by the Replying Affidavit of Steven Odumbe sworn on 14th July 2025 and the Applicant’s written submissions. The Applicant maintains that it rendered legal services to the Respondent, that the claim for fees accrued prior to dissolution, and that the application is an abuse of the court process.
B. BACKGROUND
4. It is not in dispute that the Respondent instructed the Applicant to institute Homabay High Court Misc. Civil Application No. E008 of 2022, which culminated in a monetary award in favour of the Respondent.
5. It is equally common ground that the Applicant rendered legal services pursuant to those instructions and that the Advocate–Client Bill of Costs dated 28th January 2025 arises from those services.
6. The Respondent’s contention is that since the firm of Odumbe & Ayieta Advocates was dissolved on 1st August 2022, it lacks capacity to institute or maintain the present taxation proceedings.
C. ISSUES FOR DETERMINATION
7. The issues falling for determination are:
a. Whether the Applicant has capacity to lodge the Advocate–Client Bill of Costs; and
b. Whether the Bill of Costs is incompetent and liable to be struck out.
D. ANALYSIS AND DETERMINATION
i. Whether the Applicant lacks capacity
8. The Respondent’s case rests on the proposition that a dissolved firm lacks legal capacity and therefore cannot lodge or sustain an Advocate–Client Bill of Costs.
9. While that argument appears attractive at first glance, it fails to take into account the legal position governing partnerships and firm names under Kenyan law.
10. Order 30 Rule 1 of the Civil Procedure Rules provides that:
“Any two or more persons claiming or being liable as partners… may sue or be sued in the name of the firm… in which such persons were partners at the time of the accruing of the cause of action…”
11. The import of that provision is that a firm name is merely a procedural vehicle, and the rights and liabilities therein attach to the partners who constituted the firm at the time the cause of action accrued.
12. In the instant case, it is not disputed that:
• The Respondent instructed the Applicant;
• Legal services were rendered; and
• The cause of action for legal fees accrued before dissolution of the firm.
13. Consequently, the dissolution of the firm does not extinguish rights already accrued. A contrary position would unjustly deprive advocates of fees lawfully earned.
14. This position was affirmed in Owino Okeyo & Company v Fuelex Kenya Limited [2006] eKLR, where the Court held that a partner may sue or be sued in the name of the firm notwithstanding dissolution, provided the cause of action accrued prior thereto.
15. Further, under the law of partnership, dissolution does not terminate obligations necessary for winding up the affairs of the firm, including recovery of debts due to the firm.
16. I therefore find that the Applicant retains capacity, through its partners, to pursue taxation of costs arising from instructions issued prior to dissolution.
ii. Whether the Bill of Costs is incompetent
17. The Respondent has also argued that the Bill of Costs offends section 51 of the Advocates Act and Rule 70 of the Advocates Remuneration Order.
18. With respect, that argument is misplaced.
19. Section 51 of the Advocates Act recognizes the right of an advocate to file and tax a bill of costs against a client. The Respondent does not dispute that:
• The Applicant was duly instructed.
• Legal services were rendered
• Fees is payable.
20. The objection raised is therefore not substantive but technical in nature.
21. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others [2012] eKLR emphasized that jurisdiction flows from the Constitution and statute, not procedural technicalities.
22. Moreover, Article 159(2)(d) of the Constitution commands courts to administer justice without undue regard to procedural technicalities.
23. Striking out a bill of costs where services were undeniably rendered would offend both substantive justice and the principle that courts do not aid unjust enrichment.
24. The Respondent has not denied receiving legal services. Indeed, the material before court shows that the Applicant successfully prosecuted the Respondent’s claim to judgment stage
25. The instant application is therefore a collateral attack on the Applicant’s entitlement to fees and amounts to an attempt to defeat a lawful claim on technical grounds.
iii. Whether taxation should be stayed
28. The Respondent further seeks to stay taxation. This prayer has however been overtaken by events
29. In any event, disputes as to entitlement to costs are properly canvassed within the taxation process itself.
E. CONCLUSION
31. Having considered the application, affidavits, submissions and applicable law, I find that:
a. The Applicant has capacity to lodge the Advocate–Client Bill of Costs;
b. The Bill of Costs dated 28th January 2025 is competent
c. The Respondent’s application lacks merit and is an abuse of the court process.
F. ORDERS
32. Accordingly, the Court makes the following orders:
a. The Notice of Motion dated 28th January 2025 is hereby dismissed in its entirety
b. b. The prayer for stay of taxation spent .
c. The Advocate–Client Bill of Costs dated 25th February 2025 shall
d. proceed to taxation before the Deputy Registrar.
e. Mention of 14.5.26 before DR for directions on hearing of the taxation.
f. Costs of the application to the respondent .
Orders accordingly.
T.A ODERA
JUDGE
8.4.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 8TH DAY OF APRIL 2026 IN THE ABSENCE COUNSEL FOR THE APPLICANT AND THE RESPONDENT.
A. INTRODUCTION
1. Before this Court is the Respondent’s Notice of Motion dated 25th February 2025 seeking, inter alia, orders that:
a. The taxation of the Advocate–Client Bill of Costs dated 28th January 2025 be stayed; and
b. The said Bill of Costs be struck out for being incompetent.
2. The application is premised on the grounds on its face and supported by the affidavit of Paul Otieno Okeno. The Respondent contends that the Applicant, Odumbe & Ayieta Advocates, is a non-suited entity lacking capacity to file or tax a bill of costs, the firm having been dissolved.
3. The application is opposed by the Replying Affidavit of Steven Odumbe sworn on 14th July 2025 and the Applicant’s written submissions. The Applicant maintains that it rendered legal services to the Respondent, that the claim for fees accrued prior to dissolution, and that the application is an abuse of the court process.
B. BACKGROUND
4. It is not in dispute that the Respondent instructed the Applicant to institute Homabay High Court Misc. Civil Application No. E008 of 2022, which culminated in a monetary award in favour of the Respondent.
5. It is equally common ground that the Applicant rendered legal services pursuant to those instructions and that the Advocate–Client Bill of Costs dated 28th January 2025 arises from those services.
6. The Respondent’s contention is that since the firm of Odumbe & Ayieta Advocates was dissolved on 1st August 2022, it lacks capacity to institute or maintain the present taxation proceedings.
C. ISSUES FOR DETERMINATION
7. The issues falling for determination are:
a. Whether the Applicant has capacity to lodge the Advocate–Client Bill of Costs; and
b. Whether the Bill of Costs is incompetent and liable to be struck out.
D. ANALYSIS AND DETERMINATION
i. Whether the Applicant lacks capacity
8. The Respondent’s case rests on the proposition that a dissolved firm lacks legal capacity and therefore cannot lodge or sustain an Advocate–Client Bill of Costs.
9. While that argument appears attractive at first glance, it fails to take into account the legal position governing partnerships and firm names under Kenyan law.
10. Order 30 Rule 1 of the Civil Procedure Rules provides that:
“Any two or more persons claiming or being liable as partners… may sue or be sued in the name of the firm… in which such persons were partners at the time of the accruing of the cause of action…”
11. The import of that provision is that a firm name is merely a procedural vehicle, and the rights and liabilities therein attach to the partners who constituted the firm at the time the cause of action accrued.
12. In the instant case, it is not disputed that:
• The Respondent instructed the Applicant;
• Legal services were rendered; and
• The cause of action for legal fees accrued before dissolution of the firm.
13. Consequently, the dissolution of the firm does not extinguish rights already accrued. A contrary position would unjustly deprive advocates of fees lawfully earned.
14. This position was affirmed in Owino Okeyo & Company v Fuelex Kenya Limited [2006] eKLR, where the Court held that a partner may sue or be sued in the name of the firm notwithstanding dissolution, provided the cause of action accrued prior thereto.
15. Further, under the law of partnership, dissolution does not terminate obligations necessary for winding up the affairs of the firm, including recovery of debts due to the firm.
16. I therefore find that the Applicant retains capacity, through its partners, to pursue taxation of costs arising from instructions issued prior to dissolution.
ii. Whether the Bill of Costs is incompetent
17. The Respondent has also argued that the Bill of Costs offends section 51 of the Advocates Act and Rule 70 of the Advocates Remuneration Order.
18. With respect, that argument is misplaced.
19. Section 51 of the Advocates Act recognizes the right of an advocate to file and tax a bill of costs against a client. The Respondent does not dispute that:
• The Applicant was duly instructed.
• Legal services were rendered
• Fees is payable.
20. The objection raised is therefore not substantive but technical in nature.
21. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others [2012] eKLR emphasized that jurisdiction flows from the Constitution and statute, not procedural technicalities.
22. Moreover, Article 159(2)(d) of the Constitution commands courts to administer justice without undue regard to procedural technicalities.
23. Striking out a bill of costs where services were undeniably rendered would offend both substantive justice and the principle that courts do not aid unjust enrichment.
24. The Respondent has not denied receiving legal services. Indeed, the material before court shows that the Applicant successfully prosecuted the Respondent’s claim to judgment stage
25. The instant application is therefore a collateral attack on the Applicant’s entitlement to fees and amounts to an attempt to defeat a lawful claim on technical grounds.
iii. Whether taxation should be stayed
28. The Respondent further seeks to stay taxation. This prayer has however been overtaken by events
29. In any event, disputes as to entitlement to costs are properly canvassed within the taxation process itself.
E. CONCLUSION
31. Having considered the application, affidavits, submissions and applicable law, I find that:
a. The Applicant has capacity to lodge the Advocate–Client Bill of Costs;
b. The Bill of Costs dated 28th January 2025 is competent
c. The Respondent’s application lacks merit and is an abuse of the court process.
F. ORDERS
32. Accordingly, the Court makes the following orders:
a. The Notice of Motion dated 28th January 2025 is hereby dismissed in its entirety
b. b. The prayer for stay of taxation spent .
c. The Advocate–Client Bill of Costs dated 25th February 2025 shall
d. proceed to taxation before the Deputy Registrar.
e. Mention of 14.5.26 before DR for directions on hearing of the taxation.
f. Costs of the application to the respondent .
Orders accordingly.
T.A ODERA
JUDGE
8.4.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 8TH DAY OF APRIL 2026 IN THE ABSENCE COUNSEL FOR THE APPLICANT AND THE RESPONDENT.