1. This case has had a chequered history. From my reading of the record, the genesis of the matter is the Bill of Costs dated 17/07/2020 filed herein by the Applicant, a practicing Advocate acting through his own law firm, in which he sought the taxation of legal fees of Kshs 5,323,800.20 which he alleged to be due to him for services he rendered to the Respondents in Milimani HCCC No. 146 of 2003 . In opposition to the Bill, the 1 st Respondent, through Messrs Njenga Maina & Co. Advocates , filed a Preliminary Objection urging that the 1 st Respondent was improperly joined in the matter as it was not a party in Milimani HCCC No. 146 of 2003 . In response, the Applicant relied on a Replying Affidavit he filed in several related matters in which he exhibited copies of cheques which he alleged, the 1 st Respondent had issued to him as deposit for legal fees in respect to representation in the said Milimani HCCC No. 146 of 2003 . In his view therefore, this was sufficient proof of the existence of a retainer. By her Ruling rendered on 23/03/2022 the Deputy Registrar, Hon. S. Githongori , upheld the Preliminary Objection and struck out the 1 st Respondent from the proceedings.
2. Aggrieved by the decision, the Applicant filed the Reference dated 28/03/2022 seeking setting aside of the Ruling, and a declaration that the 1 st Respondent was a “ client ” of the Respondent as defined under Section 2 of the Advocates Act . He also sought for disqualification of Hon. Githongori whom he accused of bias and incompetence, from handling the Bill of Costs. He also accused her of ignoring a Ruling by a different Taxing Master, Hon. E. Tanui on similar matters in a related case. He further protested that the Preliminary Objection was upheld despite raising contested factual matters. That Reference was heard by D. Chepkwony J who by her Ruling rendered on 23/09/2022, upheld this latter part of the grounds and agreed with the Applicant that the nature of the Preliminary Objection, particularly the question whether there existed a retainer, required the calling of further evidence as they involved factual issues. As such, the Judge upheld the Reference, and returned the matter for determination by a different Taxing Master, and for consolidation with the other related matters.
3. In light of the foregoing, the matter was placed before a new Taxing Officer, namely, Hon. Kyanya, who then consolidated it with the other related cases. The Respondents, taking a cue from the Ruling of Chepkwony J , this time filed a formal Application seeking the striking out of the matter on the ground of absence of retainer/Advocate-Client relationship. Hon. Kyanya , upon hearing the case on merits, by her Ruling rendered on 11/11/2025, agreed with the Respondents that the 1 st Respondent was never a party to the primary suits upon which the respective consolidated Bills of Costs were founded, and he could not therefore be said to have had an Advocate-Client retainer relationship with the Applicant. Consequently, she allowed the Application and struck out the 1 st Respondent from all the respective Bills of Costs.
4. Once again, aggrieved by the above further Ruling, the Applicant filed this second Reference, by way of the Chamber Summons dated 17/11/2025 whereof he sought orders as follows:
i) [………..] spent
ii) That the Ruling rendered by the Taxing Officer/Deputy Registrar herein on the 11 th November 2025 be reviewed and set aside.
iii) The Honourable Court be pleased to declare that the Advocate-Client relationship existed between the Applicant herein and the Respondents including the 1 st Respondent herein who issued several cheques to the Applicant as Legal fee deposits to render the said Legal Services.
iv) THAT the costs of this Application be borne by the Respondents herein.
5. In his Affidavit sworn in support of the Application, and in the grounds, the Applicant basically deponed that the 1 st Respondent, having deposited legal fees with him to render legal services and having acknowledged in writing by way of its statement of Accounts dated 12/05/2017 that the payment was made as legal fee deposits, the 1 st Respondent is a “ client ” of the Applicant within the meaning and intention of Section 2 of the Advocates Act and as such, liable to pay full fees to the Applicant. He reiterated that in the premises, the Hon. Kyanya erred, and was biased in Ruling that Advocate/Client relationship did not exist between the Applicant and the 1 st Respondent. He also accused her of overturning the decision of D. Chepkwony J , and by affirming the earlier decision of Hon. S. Githongori which, according to him, was set aside by D. Chepkwony J .
6. In opposing this new Application, the Respondents, now represented by Messrs RSM Advocates filed the Replying Affidavit sworn on 27/11/2025 by Faith Wambui , who described herself as the 1 st Respondent’s General Manager and referred the Court to the contents of her earlier Affidavits filed in this matter. In summary, she reiterated that the letter dated 12/05/2017 relied on by the Applicant, on the face of it, relates to a separate primary suit, namely, HCCC No. 366 of 2015 , in which taxation of costs was concluded, and that all the annexures now cited by the Applicant were all before the Taxing Officer and were all therefore considered in arriving at the decision. She urged further that the ratio decidendi in D. Chepkwony J’s Ruling was simply that a preliminary objection was not the best avenue to determine the issue of retainer since additional evidence was required, and that the Advocate had not been given an opportunity to be heard. She thus termed the instant Application an abuse of Court process and an attempt to regularize that which has no force of law.
7. Thereafter, the parties filed written Submissions. The Applicant’s Submissions is dated 12/05/2026, while the Defendant’s is dated 19/05/2026. In both Submissions, the parties basically repeated and restated the contents of their respective Affidavits, and also cited authorities in support of the various limbs of their arguments.
Determination
8. The issue in this matter is “ whether the Taxing Officer erred in finding that there was no Advocate-Client Retainer relationship between the Applicant and the 1 st Respondent” .
9. As now established in a long line of authorities, a Judge is empowered to overturn or interfere with a Taxing officer’s decision on a Bill of Costs only under strict circumstances such an error of principle, a manifestly excessive or deficient award, or taking into account irrelevant factors, or omitting relevant factors. Error of principle would arise where the taxing officer applied a wrong rule of law, or misconstrued the Advocates Remuneration Order , or based his/her assessment on a flawed legal approach. Manifestly excessive or deficient quantum would arise where the amount awarded is so extremely high or low that it creates an injustice or implies a failure to exercise discretion judicially. Improper consideration of factors would arise where the Taxing Officer ignored crucial elements such as the nature, importance, or value of the subject matter, or factored in irrelevant details. Procedural flaws would arise where fundamental breaches of natural justice occur, such as lack of notice or service of the taxation hearing. A Judge is not therefore supposed to alter an award merely because personally, he could have arrived at a higher or lower figure. Where an error of principle is established, the standard practice is to remit the Bill back to the Taxing Officer for fresh assessment rather than arbitrarily fixing a new amount, unless the error did not materially affect the final quantum.
10. This case is however different because the retainer itself, or the existence of Advocate-Client relationship was denied by the alleged client, which denial was upheld and the Bills of Costs struck out as a result. The Bills never therefore reached the stage of being taxed.
11. There is no dispute that the 1 st Respondent was never a party to the primary suits from which the respective consolidated Bills of Costs were founded. However, a “ client ” is defined under Section 2 of the Advocates Act (Cap. 16) , as “ any person who employs, retains, or is about to retain an advocate, acts on behalf of another, or is liable to pay an advocate's costs .”
12. By implication therefore, a “ client ” includes principals, trustees, personal representatives, or anyone acting in any other capacity with express or implied power to hire an Advocate. The term also applies to those who already employ an Advocate as well as those who are “ about to ” retain or employ one, and also extends to any person who is or may become liable to pay an Advocate any costs or fees. To this extent, Mr. Ngoge is right in his interpretation as the mere fact that that the 1 st Respondent was never a party to the primary suits would not the only consideration. The question is whether Mr. Ngoge has he satisfied the Court that the 1 st Respondent, either expressly or by his conduct, falls within any of the other categories of a “ client ” as recognized in Section 2 above
13. The relevance and importance of establishing the existence of Advocate-Client relationship before embarking on taxation of a Bill of Costs was aptly explained by the Court of Appeal in the case of Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] eKLR (Civil Appeal 198 of 2014), in which it guided that:
“ The issue whether an advocate-client relationship exists in taxation of a Bill of Costs between an advocate and his/her client is core. The jurisdiction is conferred on the Taxing Officer by law. It is derived from the Advocates Act and the Advocates Remuneration Order . The Taxing Officer sits in taxation as a Judicial Officer. His or her task is to determine legal fees payable for legal services rendered. The jurisdiction cannot arise by implication nor can parties by consent confer it. And inherent jurisdiction cannot be invoked where adequate statutory provision exists. It was held in Taparn vs Roitei [1968] EA 618 that inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case. The Advocates Act and the Advocates Remuneration Order confer on the Taxing Officer jurisdiction to tax bills of costs between advocates and their clients (as well as between party and party in litigation) so as to determine legal fees for legal services rendered.
The nexus between the advocate and his or her client is the advocate/client relationship which springs from instructions by the client to the advocate. Absent such relationship, the Taxing Officer would be bereft of jurisdiction to tax a bill.”
14. In this case, the first limb of Mr. Ngoge’s Submissions is that Hon. Kyanya the Taxing Officer, overturned the decision of D. Chepkwony J rendered earlier on 23/09/2022. I do not think so. As already recounted above, the chronology of events is that in opposition to the Applicant’s Bill of Costs, the 1 st Respondent filed a Preliminary Objection before the earlier Taxing Officer, Hon. S. Githongori , urging that the 1 st Respondent was improperly joined in the matter as it was not a party in the primary suit from which the Bill of Costs arose. By her Ruling rendered on 23/03/2022, Hon. S. Githongori , upheld that Preliminary Objection and struck out the 1 st Respondent from the proceedings. The Reference from the decision of Hon. S. Githongori was then heard by D. Chepkwony J who by her said Ruling rendered on 11/11/2022, agreed with Mr. Ngoge that the question whether there existed a retainer, required the calling of further evidence as they involved factual issues and could not have been determined by way of a Preliminary Objection. As such, the Judge upheld the Reference, and simply returned the matter for determination on merits by a different Taxing Officer, and for consolidation with the other related matters. It is therefore clear that D. Chepkwony J never determined the matter on merits. Nowhere in her Ruling did the Judge rule that the 1 st Respondent was the Applicant’s client. As such, the accusation that Hon. Kyanya overturned the decision of D. Chepkwony J is unjustified as she could not have overturned or set aside that which was never determined in the first place.
15. Regarding the merits of the matter, existence of Advocate-Client relationship between the Applicant and the 1st Respondent is alleged by the Applicant but denied by the Respondent. As aforesaid, there is however no dispute that the 1 st Respondent was never a party to the primary suits from which the respective consolidated Bills of Costs are founded. The Applicant however contends that the 1 st Respondent is the entity that issued cheques to him as deposit for payment of legal fees for those primary suits, and as such, there is a “ retainer ” between him and the 1 st Respondent as defined under Section 2 of the Advocates Act . He relies on the letter dated 12/05/2017 from the 1 st Respondent and copies of the cheques which he exhibited. However, the letter does not disclose the circumstances under which the cheques were issued. All I can deduce from the letter is that on the first part thereof, it gives a breakdown of payments made by the 1 st Respondent to the Applicant as legal fees for cases involving an entity described as “ Tesco ” and on the second part, a similar breakdown concerning cases involving “ Peponi Gardens ”. It is not even possible to tell whether the matters for which the cheques were issued were cases that indeed matured into actual Court litigation, and if so, case numbers thereof. There is also no hint on whether the cheques were issued by the 1 st Respondent as the Principal of another party as alluded to by the Applicant or under what capacity. I therefore agree with the Respondents that under the circumstances of this case, the mere fact of issuance of the cheques cannot per se be conclusively interpreted or construed to constitute the existence of Advocate-Client relationship, and/or by extension, the existence of a “ retainer ”. To therefore purport to make the conclusive determinations that the Applicant is asking this Court to do, will be to engage in pure speculation and guesswork.
16. The circumstances under which the payments were made not being disclosed, and the 1 st Respondent not being a party to the primary suits forming the foundation for the Bills of Costs filed by the Applicant, I cannot fault Hon. Kyanya for returning the verdict that the evidence on record was insufficient to establish the existence of Advocate-Client relationship. As the professional in the field of law as compared to the 1st Respondent, the Applicant no doubt understood the relevance of preparing a clear and proper retainer Agreement. I do not therefore understand why the Applicant did not just draft and cause to be executed, such legal representation agreement, or at least, to formalize whichever relationship it was by issuing clear correspondence. It is not clear why the Applicant was contented with operating in such an environment of uncertainty and ambiguous documentation. The Applicant would not have found himself in the present situation had he ensured that there was such proper and clear retainer documentation. Asking the Court to rummage through ambiguous correspondence to deduce some kind of implied interpretations to identity a retainer relationship will not succeed. These kinds of disputes are so common and Advocates who still fail to ensure that they protect themselves by preparing clear and express retainer Agreements will always find themselves in the unfortunate situation that Mr. Ngoge has found himself in here. This situation, I am afraid, the Court cannot come to the aid of Advocates.
.
17. Mr. Malebe , Counsel for the Respondents, in opposing the Application, relied on the already referred to Court of Appeal case of Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited (supra) , which I agree, is almost on all fours as the case herein as the case also centred around whether an established Advocate-Client relationship existed to justify the taxation of an Advocate-Client Bill of Costs. In finding that no such relationship existed, the Court held as follows:
"He merely emphasized that he had filed the advocate-client Bill of Costs and that the respondent had paid Ksh. 110,000/= to him without indicating the circumstances in which the payment by cheque was made. Unless the circumstances in which the payment of Ksh.110,000/= were made known, the mere fact of payment per se cannot constitute or give rise to advocate-client relationship."
18. In summary therefore, the Court of Appeal affirmed that simply filing a Bill of Costs or showing a general payment does not automatically prove an Advocate-Client relationship. The Advocate thus bears the burden of proof to demonstrate a clear retainer or specific circumstances of engagement; otherwise, the Taxing Officer is fully justified in striking out the Bill of Costs.
Final Orders
19. In the end, the Applicant’s Notice of Motion dated 17/11/2025 fails and is dismissed. As costs follow the event, the Respondents are awarded costs of the Application.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14 TH DAY OF AUGUST 2026
…………………..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
N/A for the Applicant
Mr. Malebe for the Respondents
Court Assistant: Amos Boso
MILIMANI HCCOMM/E969/2020
2. Aggrieved by the decision, the Applicant filed the Reference dated 28/03/2022 seeking setting aside of the Ruling, and a declaration that the 1 st Respondent was a “ client ” of the Respondent as defined under Section 2 of the Advocates Act . He also sought for disqualification of Hon. Githongori whom he accused of bias and incompetence, from handling the Bill of Costs. He also accused her of ignoring a Ruling by a different Taxing Master, Hon. E. Tanui on similar matters in a related case. He further protested that the Preliminary Objection was upheld despite raising contested factual matters. That Reference was heard by D. Chepkwony J who by her Ruling rendered on 23/09/2022, upheld this latter part of the grounds and agreed with the Applicant that the nature of the Preliminary Objection, particularly the question whether there existed a retainer, required the calling of further evidence as they involved factual issues. As such, the Judge upheld the Reference, and returned the matter for determination by a different Taxing Master, and for consolidation with the other related matters.
3. In light of the foregoing, the matter was placed before a new Taxing Officer, namely, Hon. Kyanya, who then consolidated it with the other related cases. The Respondents, taking a cue from the Ruling of Chepkwony J , this time filed a formal Application seeking the striking out of the matter on the ground of absence of retainer/Advocate-Client relationship. Hon. Kyanya , upon hearing the case on merits, by her Ruling rendered on 11/11/2025, agreed with the Respondents that the 1 st Respondent was never a party to the primary suits upon which the respective consolidated Bills of Costs were founded, and he could not therefore be said to have had an Advocate-Client retainer relationship with the Applicant. Consequently, she allowed the Application and struck out the 1 st Respondent from all the respective Bills of Costs.
4. Once again, aggrieved by the above further Ruling, the Applicant filed this second Reference, by way of the Chamber Summons dated 17/11/2025 whereof he sought orders as follows:
i) [………..] spent
ii) That the Ruling rendered by the Taxing Officer/Deputy Registrar herein on the 11 th November 2025 be reviewed and set aside.
iii) The Honourable Court be pleased to declare that the Advocate-Client relationship existed between the Applicant herein and the Respondents including the 1 st Respondent herein who issued several cheques to the Applicant as Legal fee deposits to render the said Legal Services.
iv) THAT the costs of this Application be borne by the Respondents herein.
5. In his Affidavit sworn in support of the Application, and in the grounds, the Applicant basically deponed that the 1 st Respondent, having deposited legal fees with him to render legal services and having acknowledged in writing by way of its statement of Accounts dated 12/05/2017 that the payment was made as legal fee deposits, the 1 st Respondent is a “ client ” of the Applicant within the meaning and intention of Section 2 of the Advocates Act and as such, liable to pay full fees to the Applicant. He reiterated that in the premises, the Hon. Kyanya erred, and was biased in Ruling that Advocate/Client relationship did not exist between the Applicant and the 1 st Respondent. He also accused her of overturning the decision of D. Chepkwony J , and by affirming the earlier decision of Hon. S. Githongori which, according to him, was set aside by D. Chepkwony J .
6. In opposing this new Application, the Respondents, now represented by Messrs RSM Advocates filed the Replying Affidavit sworn on 27/11/2025 by Faith Wambui , who described herself as the 1 st Respondent’s General Manager and referred the Court to the contents of her earlier Affidavits filed in this matter. In summary, she reiterated that the letter dated 12/05/2017 relied on by the Applicant, on the face of it, relates to a separate primary suit, namely, HCCC No. 366 of 2015 , in which taxation of costs was concluded, and that all the annexures now cited by the Applicant were all before the Taxing Officer and were all therefore considered in arriving at the decision. She urged further that the ratio decidendi in D. Chepkwony J’s Ruling was simply that a preliminary objection was not the best avenue to determine the issue of retainer since additional evidence was required, and that the Advocate had not been given an opportunity to be heard. She thus termed the instant Application an abuse of Court process and an attempt to regularize that which has no force of law.
7. Thereafter, the parties filed written Submissions. The Applicant’s Submissions is dated 12/05/2026, while the Defendant’s is dated 19/05/2026. In both Submissions, the parties basically repeated and restated the contents of their respective Affidavits, and also cited authorities in support of the various limbs of their arguments.
Determination
8. The issue in this matter is “ whether the Taxing Officer erred in finding that there was no Advocate-Client Retainer relationship between the Applicant and the 1 st Respondent” .
9. As now established in a long line of authorities, a Judge is empowered to overturn or interfere with a Taxing officer’s decision on a Bill of Costs only under strict circumstances such an error of principle, a manifestly excessive or deficient award, or taking into account irrelevant factors, or omitting relevant factors. Error of principle would arise where the taxing officer applied a wrong rule of law, or misconstrued the Advocates Remuneration Order , or based his/her assessment on a flawed legal approach. Manifestly excessive or deficient quantum would arise where the amount awarded is so extremely high or low that it creates an injustice or implies a failure to exercise discretion judicially. Improper consideration of factors would arise where the Taxing Officer ignored crucial elements such as the nature, importance, or value of the subject matter, or factored in irrelevant details. Procedural flaws would arise where fundamental breaches of natural justice occur, such as lack of notice or service of the taxation hearing. A Judge is not therefore supposed to alter an award merely because personally, he could have arrived at a higher or lower figure. Where an error of principle is established, the standard practice is to remit the Bill back to the Taxing Officer for fresh assessment rather than arbitrarily fixing a new amount, unless the error did not materially affect the final quantum.
10. This case is however different because the retainer itself, or the existence of Advocate-Client relationship was denied by the alleged client, which denial was upheld and the Bills of Costs struck out as a result. The Bills never therefore reached the stage of being taxed.
11. There is no dispute that the 1 st Respondent was never a party to the primary suits from which the respective consolidated Bills of Costs were founded. However, a “ client ” is defined under Section 2 of the Advocates Act (Cap. 16) , as “ any person who employs, retains, or is about to retain an advocate, acts on behalf of another, or is liable to pay an advocate's costs .”
12. By implication therefore, a “ client ” includes principals, trustees, personal representatives, or anyone acting in any other capacity with express or implied power to hire an Advocate. The term also applies to those who already employ an Advocate as well as those who are “ about to ” retain or employ one, and also extends to any person who is or may become liable to pay an Advocate any costs or fees. To this extent, Mr. Ngoge is right in his interpretation as the mere fact that that the 1 st Respondent was never a party to the primary suits would not the only consideration. The question is whether Mr. Ngoge has he satisfied the Court that the 1 st Respondent, either expressly or by his conduct, falls within any of the other categories of a “ client ” as recognized in Section 2 above
13. The relevance and importance of establishing the existence of Advocate-Client relationship before embarking on taxation of a Bill of Costs was aptly explained by the Court of Appeal in the case of Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] eKLR (Civil Appeal 198 of 2014), in which it guided that:
“ The issue whether an advocate-client relationship exists in taxation of a Bill of Costs between an advocate and his/her client is core. The jurisdiction is conferred on the Taxing Officer by law. It is derived from the Advocates Act and the Advocates Remuneration Order . The Taxing Officer sits in taxation as a Judicial Officer. His or her task is to determine legal fees payable for legal services rendered. The jurisdiction cannot arise by implication nor can parties by consent confer it. And inherent jurisdiction cannot be invoked where adequate statutory provision exists. It was held in Taparn vs Roitei [1968] EA 618 that inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case. The Advocates Act and the Advocates Remuneration Order confer on the Taxing Officer jurisdiction to tax bills of costs between advocates and their clients (as well as between party and party in litigation) so as to determine legal fees for legal services rendered.
The nexus between the advocate and his or her client is the advocate/client relationship which springs from instructions by the client to the advocate. Absent such relationship, the Taxing Officer would be bereft of jurisdiction to tax a bill.”
14. In this case, the first limb of Mr. Ngoge’s Submissions is that Hon. Kyanya the Taxing Officer, overturned the decision of D. Chepkwony J rendered earlier on 23/09/2022. I do not think so. As already recounted above, the chronology of events is that in opposition to the Applicant’s Bill of Costs, the 1 st Respondent filed a Preliminary Objection before the earlier Taxing Officer, Hon. S. Githongori , urging that the 1 st Respondent was improperly joined in the matter as it was not a party in the primary suit from which the Bill of Costs arose. By her Ruling rendered on 23/03/2022, Hon. S. Githongori , upheld that Preliminary Objection and struck out the 1 st Respondent from the proceedings. The Reference from the decision of Hon. S. Githongori was then heard by D. Chepkwony J who by her said Ruling rendered on 11/11/2022, agreed with Mr. Ngoge that the question whether there existed a retainer, required the calling of further evidence as they involved factual issues and could not have been determined by way of a Preliminary Objection. As such, the Judge upheld the Reference, and simply returned the matter for determination on merits by a different Taxing Officer, and for consolidation with the other related matters. It is therefore clear that D. Chepkwony J never determined the matter on merits. Nowhere in her Ruling did the Judge rule that the 1 st Respondent was the Applicant’s client. As such, the accusation that Hon. Kyanya overturned the decision of D. Chepkwony J is unjustified as she could not have overturned or set aside that which was never determined in the first place.
15. Regarding the merits of the matter, existence of Advocate-Client relationship between the Applicant and the 1st Respondent is alleged by the Applicant but denied by the Respondent. As aforesaid, there is however no dispute that the 1 st Respondent was never a party to the primary suits from which the respective consolidated Bills of Costs are founded. The Applicant however contends that the 1 st Respondent is the entity that issued cheques to him as deposit for payment of legal fees for those primary suits, and as such, there is a “ retainer ” between him and the 1 st Respondent as defined under Section 2 of the Advocates Act . He relies on the letter dated 12/05/2017 from the 1 st Respondent and copies of the cheques which he exhibited. However, the letter does not disclose the circumstances under which the cheques were issued. All I can deduce from the letter is that on the first part thereof, it gives a breakdown of payments made by the 1 st Respondent to the Applicant as legal fees for cases involving an entity described as “ Tesco ” and on the second part, a similar breakdown concerning cases involving “ Peponi Gardens ”. It is not even possible to tell whether the matters for which the cheques were issued were cases that indeed matured into actual Court litigation, and if so, case numbers thereof. There is also no hint on whether the cheques were issued by the 1 st Respondent as the Principal of another party as alluded to by the Applicant or under what capacity. I therefore agree with the Respondents that under the circumstances of this case, the mere fact of issuance of the cheques cannot per se be conclusively interpreted or construed to constitute the existence of Advocate-Client relationship, and/or by extension, the existence of a “ retainer ”. To therefore purport to make the conclusive determinations that the Applicant is asking this Court to do, will be to engage in pure speculation and guesswork.
16. The circumstances under which the payments were made not being disclosed, and the 1 st Respondent not being a party to the primary suits forming the foundation for the Bills of Costs filed by the Applicant, I cannot fault Hon. Kyanya for returning the verdict that the evidence on record was insufficient to establish the existence of Advocate-Client relationship. As the professional in the field of law as compared to the 1st Respondent, the Applicant no doubt understood the relevance of preparing a clear and proper retainer Agreement. I do not therefore understand why the Applicant did not just draft and cause to be executed, such legal representation agreement, or at least, to formalize whichever relationship it was by issuing clear correspondence. It is not clear why the Applicant was contented with operating in such an environment of uncertainty and ambiguous documentation. The Applicant would not have found himself in the present situation had he ensured that there was such proper and clear retainer documentation. Asking the Court to rummage through ambiguous correspondence to deduce some kind of implied interpretations to identity a retainer relationship will not succeed. These kinds of disputes are so common and Advocates who still fail to ensure that they protect themselves by preparing clear and express retainer Agreements will always find themselves in the unfortunate situation that Mr. Ngoge has found himself in here. This situation, I am afraid, the Court cannot come to the aid of Advocates.
.
17. Mr. Malebe , Counsel for the Respondents, in opposing the Application, relied on the already referred to Court of Appeal case of Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited (supra) , which I agree, is almost on all fours as the case herein as the case also centred around whether an established Advocate-Client relationship existed to justify the taxation of an Advocate-Client Bill of Costs. In finding that no such relationship existed, the Court held as follows:
"He merely emphasized that he had filed the advocate-client Bill of Costs and that the respondent had paid Ksh. 110,000/= to him without indicating the circumstances in which the payment by cheque was made. Unless the circumstances in which the payment of Ksh.110,000/= were made known, the mere fact of payment per se cannot constitute or give rise to advocate-client relationship."
18. In summary therefore, the Court of Appeal affirmed that simply filing a Bill of Costs or showing a general payment does not automatically prove an Advocate-Client relationship. The Advocate thus bears the burden of proof to demonstrate a clear retainer or specific circumstances of engagement; otherwise, the Taxing Officer is fully justified in striking out the Bill of Costs.
Final Orders
19. In the end, the Applicant’s Notice of Motion dated 17/11/2025 fails and is dismissed. As costs follow the event, the Respondents are awarded costs of the Application.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14 TH DAY OF AUGUST 2026
…………………..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
N/A for the Applicant
Mr. Malebe for the Respondents
Court Assistant: Amos Boso
MILIMANI HCCOMM/E969/2020