1. The Advocate/applicant filed a Notice of Motion application dated 15th April 2025 pursuant to the provisions of Section 51(2) of the Advocates Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010, seeking an order for judgment to be entered in favour of the applicant against the respondents for the sum of the taxed costs of Kshs.5,296,803.00 with interest at 14% per annum from the date of filing the Bill of Costs, being 14th September 2023, until payment in full and for a decree to be issued for execution against the respondents.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Tom Oduo K’opere, an Advocate of the High Court of Kenya and learned Counsel for the applicant. Mr. K’opere averred that he filed an Advocate’s Advocate/client Bill of Costs dated 14th September 2023 against the respondents, which after full hearing and submissions, was taxed and allowed on 18th December 2024 by Hon. C.L. Adisa, in the sum of Kshs.5,296,803.00. That subsequently, he applied for and obtained a Certificate of Taxation which was issued on 28th March 2025, which was duly served upon the respondents’ Advocates on 3rd April 2025. He deposed that the said Certificate of Taxation has not been challenged by way of a Reference and that the taxed sum remains unpaid despite the Ruling and service of the said Certificate.
3. In opposition to the application herein, the respondents filed a replying affidavit sworn on 19th July 2025 by Ms Anne Wanjiru Nderitu, one of the Executors of the Estate of the late James K. Nderitu (deceased). Ms Nderitu contended that the application herein offends the provisions of the Law of Succession Act and that jurisdiction properly lies with the Family Division of the High Court. She averred that the application is misconceived, frivolous, vexatious, and an abuse of the Court process, as matters relating to debts owed by or to an Estate fall within the jurisdiction of the Succession Court. She deposed that the deceased died testate on 16th January 2023 while domiciled in Nairobi, and that a Grant of Probate in respect of his will dated 13th September 2022 was issued to the Executors on 20th June 2023 in Nairobi High Court Family P&A E224 of 2023.
4. Ms Nderitu explained that the deceased was a Director and Shareholder of Kenya Continental Hotel Limited, alongside their late mother who predeceased him, and that the 1st respondent forms part of the residue Estate. She contended that judgment cannot be entered against the respondents before the conclusion of the Succession Cause. She stated that the applicant has already lodged a creditor’s claim in the succession proceedings seeking recovery of the same costs, and that pursuing judgment in the present forum while that claim is pending amounts to forum shopping and is improper and duplicitous. Ms Nderitu asserted that granting the orders being sought herein would prejudice the Estate of the late James K. Nderitu (deceased) by bypassing the proper legal process for verification and prioritization of creditors’ claims. She accused the applicant of attempting to mislead the Court to obtain unjust orders.
5. The respondents also filed a Notice of Preliminary Objection dated 14th July 2025 in opposition to the instant application, raising the following grounds –
i) The application offends Sections 2(1), 2(2) & 4 of the Law of Succession Act;
ii) The Law of Succession Act stipulates that the jurisdiction properly lies with the Family Division of the High Court;
iii) The issues raised herein are directly and substantially in issue in NAIROBI HIGH COURT FAMILY P & A E224/2023 - IN THE ESTATE OF NDERITU JAMES KANYITA (DECEASED), which case is yet to be concluded; and
iv) The applicant's application is an abuse of the Court process, being duplicative and amounting to forum shopping and should be struck out with costs.
6. The applicant filed a response to the said Preliminary Objection dated 24th July 2025. However, since a Preliminary Objection is required to raise only pure points of law, the only response that can be filed is by way of written submissions. I therefore expunge the response to the Preliminary Objection filed by the applicant, from the Court Record.
7. The instant application was canvassed by way of written submissions. The applicant’s submissions were filed by the law firm of T.O. K’opere & Company Advocates on 28th October 2025 & 15th December 2025, while the respondents’ submissions were filed on 15th December 2025 by the law firm of Walker Kontos Advocates.
8. Mr. K’opere, learned Counsel for the applicant submitted that on 18th December 2024, the Taxing Officer delivered a Ruling dismissing the respondents’ earlier Preliminary Objection and taxed the Advocate’s Advocates - client Bills of Costs, with partial payment acknowledged in one matter. He stated that the Taxing Officer in her Ruling granted the respondents a 45-day stay of execution to settle the taxed amounts, but they neither did so nor filed any Reference challenging the said taxation. He indicated that Certificates of Taxation were issued and served, and upon lapse of the stay period, the applicant filed the instant application seeking entry of judgment under Section 51(2) of the Advocates Act and interest at 14% per annum, pursuant to Rule 7 of the Advocates Remuneration Order.
9. Counsel submitted that the taxed costs arose from legal representation in various commercial proceedings involving both limited liability companies and the deceased, whose Estate is now represented by Executors holding a Grant of Probate. He maintained that these are distinct legal entities and that the applicant is entitled to pursue recovery of his fees from both the companies and the Estate. He stated that the applicant’s involvement in the Succession Cause is limited to lodging a creditor’s claim and caveat to safeguard his interests pending confirmation of the grant of Probate, and does not amount to duplicity or forum shopping. He relied on the provisions of Section 86 of the Law of Succession Act and stated that all enforceable debts must be settled before distribution of the Estate, and that the Executors cannot proceed with confirmation or distribution without addressing the outstanding taxed costs.
10. Mr. K’opere submitted that the respondents’ reliance on Sections 2(1), 2(2) & 4 of the Law of Succession Act is misplaced, as the claim herein relates to commercial debts and not to the distribution of Estate assets. He asserted that the Preliminary Objection is an afterthought, having been raised long after the Bill of Costs was filed and taxed, and that it does not meet the legal threshold established by the Court in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 at 700, since it raises issues requiring evidentiary proof that need to be supported by affidavits. He criticized the Executors for failing to disclose or provide for the outstanding legal fees in the succession proceedings, necessitating the filing of a caveat under the Probate and Administration Rules. To buttress his submissions, Counsel relied on the case of Andrew and Steve Advocates v Maureen Onsongo [2022] KEELRC 610 (KLR).
11. Ms Mutisya, learned Counsel for the respondents relied on the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), and submitted that the application herein is misconceived and incompetent as it has been filed before a Court lacking jurisdiction to determine liabilities of a deceased person’s Estate. She asserted that such jurisdiction lies exclusively with the Probate Court. She contended that the Law of Succession Act provides a comprehensive and mandatory framework governing Estates, with Sections 2(1) & 2(2) applying the Act to all Estates, and Section 47 vesting exclusive jurisdiction in the Probate Court to determine all succession-related disputes. She cited the case of In re Estate of Mathayo Arwa (Deceased) [2025] KEHC 2899 (KLR), and argued that any claim seeking payment from the Estate of the late James Nderitu must be pursued within the succession proceedings, and that any attempt to recover such debts outside that framework risks constituting intermeddling.
12. Ms Mutisya asserted that in view of the above, the settlement of debts must occur strictly under the supervision of the Succession Court to avoid unlawful interference with the Estate. Counsel contended that the issues raised in the application herein are directly and substantially in issue in Nairobi High Court Succession Cause No. E224 of 2023, where the applicant has already lodged a creditor’s claim for the same taxed costs. She invoked the provisions of Section 6 of the Civil Procedure Act and stated that this Court is barred from proceeding with a matter that is pending before another competent Court between the same parties. In her view, pursuing parallel proceedings amounts to forum shopping and an abuse of the Court process, a practice deprecated by the Courts.
13. In a rejoinder, Mr. K’opere submitted that the liabilities arising from the taxed Bills of Costs are not confined to the Estate of the late James K. Nderitu but also extend to distinct corporate entities, including Kenya Continental Hotel Ltd, Intercom Services Ltd, and SwiftAir (K) Ltd, which fall outside the jurisdiction of the Probate Court. He argued that the Preliminary Objection dated 14th July 2025, the respondents’ submissions, and the authorities relied upon are inapplicable, as they would only be relevant if the claim was solely against the deceased’s Estate. He clarified that the filing of a caveat in the Succession Cause was merely to notify the Executors of the existence of the outstanding legal fees and does not amount to prosecuting the claim within the probate proceedings. He submitted that the Probate and Administration Court lacks jurisdiction to determine issues of taxation of legal fees arising from separate civil proceedings.
14. Mr. K’opere distinguished the authority of In re Estate of Mathayo Arwa (Deceased) (supra), arguing that it does not apply to creditors who must first prove their claims in independent civil suits before presenting them for settlement in succession proceedings. In this regard, he emphasized that the issue of taxation of costs is not part of the matters for determination in the Succession Cause and that his role therein is limited to safeguarding his interests as a creditor. Relying on Section 86 of the Law of Succession Act, Counsel maintained that all enforceable debts must be settled prior to distribution of the Estate, but only after such debts have been duly established in the appropriate forum. He reiterated that a creditor or caveator under Rule 15 of the Probate and Administration Rules is not a substantive party to the Succession Cause but is only entitled to notice of proceedings to ensure their proven claims are considered before distribution.
ANALYSIS AND DETERMINATION.
15. I have considered the application filed herein, the grounds on the face of it, and the affidavit filed in support thereof. I have also considered the replying affidavit and Notice of Preliminary Objection by the respondents, together with the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the respondents’ Notice of Preliminary Objection dated 14th July 2025 is merited; and
ii) Whether the Court should enter judgment for the applicant against the respondents for the taxed costs with interest.
Whether the respondents’ Notice of Preliminary Objection dated 14th July 2025 is merited.
16. In order for a Preliminary Objection to succeed, it should raise a pure point of law. It should be argued on the assumption that all the facts pleaded by the other side are correct, but it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. What constitutes a valid Preliminary Objection was considered by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (supra). The Court stated thus: -
So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.
17. In the said case, Sir Charles Newbold P., stated as follows:-
… the first matter related to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.
18. The Supreme Court weighed in on the issue of Preliminary Objections in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] KESC 23 (KLR) wherein it stated that -
... Thus, a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.
19. The respondents’ position is that this Court lacks jurisdiction by virtue of the provisions of the Law of Succession Act, and that this matter is sub judice in light of the pending succession proceedings in Nairobi High Court P & A No. E224 of 2023.
20. Jurisdiction is fundamental and without it a Court must down its tools. In the case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi, JA; held that: –
…Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
21. This Court in determining whether or not it has the requisite jurisdiction to determine the dispute between the parties herein, it has to ascertain whether the dispute between the parties in this suit properly falls within the exclusive domain of the Probate Court. The record shows that the applicant’s claim herein arises from an Advocate’s Advocate-client Bill of Costs which has already been taxed by a competent Taxing Officer, and a Certificate of Taxation was issued. Further, the applicant averred that the claim in this suit is not directed solely against the Estate of the deceased, but also against limited liability companies which are distinct legal entities.
22. From the foregoing, this Court is persuaded that the issue between the parties in this suit is not one of administration or distribution of the Estate, but enforcement of a taxed Advocate’s Advocate-client Bill of Costs arising from commercial legal services rendered. It is now well settled that the taxation process and entry of judgment under Section 51(2) of the Advocates Act fall squarely within the jurisdiction of this Court. The Probate Court does not undertake taxation of Advocate’s Advocate-client bills arising from independent civil proceedings, nor does it determine such claims in the first instance. This Court agrees with the applicant’s submissions that creditors are required to establish their claims through appropriate legal proceedings before presenting them in Succession Causes for settlement.
23. While Section 47 of the Law of Succession Act vests jurisdiction in the Probate Court over succession disputes, it does not oust the jurisdiction of this Court to determine and enforce civil claims, including taxed costs, against parties who include both corporate entities and the Estate of a deceased person.
24. On the issue of the sub judice Rule as provided for under Section 6 of the Civil Procedure Act, this Court notes that although the applicant has lodged a creditor’s claim in the Succession Cause, the issues therein relate to administration and distribution of the Estate, whereas these proceedings concern the crystallization and enforcement of a debt arising from taxation. These are distinct processes. This Court is of the considered view that the filing of a caveat or a creditor’s claim in the Succession Cause does not amount to instituting a parallel suit for determination of the same issue. Consequently, the plea of sub judice is not sustainable, and it cannot be successfully raised in this case.
25. The above notwithstanding, this Court finds that the respondents’ Preliminary Objection is anchored on contested issues of fact, including the nature of the claim and the extent of liability as between the Estate of the deceased and corporate respondents. Such matters require evidentiary interrogation adduced by way of affidavit evidence and therefore fall outside the ambit of a proper Preliminary Objection.
26. In the circumstances, this Court finds that the respondents’ Notice of Preliminary Objection dated 14th July 2025 is not merited.
Whether this Court should enter judgment for the applicant as against the respondents for the taxed costs interest.
27. This Court has the jurisdiction to enter judgment provided the Bill of Costs has been taxed, the Taxing Master has issued a Certificate of Taxation, and the retainer is not disputed, pursuant to the provisions of Section 51(2) of the Advocates Act, which states as hereunder –
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.
28. In the case of Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] KEHC 9046 (KLR), the Court in allowing an application to enter judgment held that: –
The procedure provided in section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of Advocates-client costs as long as: (1) the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs; (2) the Certificate of Costs has not been set aside or stayed or appealed against on a Reference filed upon it; and (3) there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the Advocates. The application may be commenced by way of a Notice of Motion which in law is potent tool for originating a suit.”
29. It is undisputed that the applicant’s Bill of Costs was taxed on 18th December 2024 in the sum of Kshs.5,296,803.00 and that a Certificate of Taxation was issued on 28th March 2025 and duly served. It is also not disputed that no Reference has been filed to challenge the aforesaid taxation. In the circumstances, the said Certificate of Taxation remains valid and binding. It is noteworthy that the retainer is not disputed.
30. From the foregoing, I am satisfied that all the conditions set out under Section 51(2) of the Advocates Act have been complied with. For this reason, I enter judgment for the applicant against the respondents in the sum of Kshs. 5,296,803.00.
31. Interest on the Advocate’s Costs is provided for under Regulation 7 of the Advocates (Remuneration) Order, which states that -
An Advocates may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.
32. The import of the provisions of Regulation 7 of the Advocates (Remuneration) Order is that interest on an Advocate’s fees can only be charged after the lapse of one month from when the Bill of Costs was delivered to the client, and the claim for interest should be raised before the amount of the Bill of Costs is paid or tendered in full.
33. The claim for payment of interest at fourteen (14%) per cent, per annum, has been raised in the instant application, but the client is yet to pay the applicant either in part or wholly, the amount taxed by the Taxing Master and certified in the Certificate of Taxation dated 28th March 2025. Further, while the respondents do not dispute receipt of the Advocate’s Advocate-client Bill of Costs dated 14th September 2023, the exact date of service is not ascertainable from the record. Consequently, this Court is unable to determine when the one-month period contemplated under Regulation 7 commenced. In the circumstances, although the claim for interest at fourteen (14%) per cent per annum is properly before the Court, such interest shall accrue from the date of this Ruling until payment in full.
34. This Court therefore finds that the instant application is merited, whereas the respondents’ Notice of Preliminary Objection dated 14th July 2025 is devoid of merits. As a result, I make the following orders –
i) The Notice of Preliminary Objection dated 14th July 2025 is hereby dismissed with costs to the applicant;
ii) Judgment is hereby entered in favour of the applicant as against the respondents jointly and severally for the sum of Kshs.5,296,803.00 with interest at 14% per annum, from the date of this Ruling until payment in full; and
iii) Costs of the application are awarded to the applicant.
It is so ordered.
DATED, SIGNED and DELIVERED at KIAMBU on this 10TH day of APRIL, 2026. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Ongocho h/b for Mr. K’Opere for the Advocate/applicant
Ms Naomi Mutisya for the respondents
Ms Julia – Court Assistant.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Tom Oduo K’opere, an Advocate of the High Court of Kenya and learned Counsel for the applicant. Mr. K’opere averred that he filed an Advocate’s Advocate/client Bill of Costs dated 14th September 2023 against the respondents, which after full hearing and submissions, was taxed and allowed on 18th December 2024 by Hon. C.L. Adisa, in the sum of Kshs.5,296,803.00. That subsequently, he applied for and obtained a Certificate of Taxation which was issued on 28th March 2025, which was duly served upon the respondents’ Advocates on 3rd April 2025. He deposed that the said Certificate of Taxation has not been challenged by way of a Reference and that the taxed sum remains unpaid despite the Ruling and service of the said Certificate.
3. In opposition to the application herein, the respondents filed a replying affidavit sworn on 19th July 2025 by Ms Anne Wanjiru Nderitu, one of the Executors of the Estate of the late James K. Nderitu (deceased). Ms Nderitu contended that the application herein offends the provisions of the Law of Succession Act and that jurisdiction properly lies with the Family Division of the High Court. She averred that the application is misconceived, frivolous, vexatious, and an abuse of the Court process, as matters relating to debts owed by or to an Estate fall within the jurisdiction of the Succession Court. She deposed that the deceased died testate on 16th January 2023 while domiciled in Nairobi, and that a Grant of Probate in respect of his will dated 13th September 2022 was issued to the Executors on 20th June 2023 in Nairobi High Court Family P&A E224 of 2023.
4. Ms Nderitu explained that the deceased was a Director and Shareholder of Kenya Continental Hotel Limited, alongside their late mother who predeceased him, and that the 1st respondent forms part of the residue Estate. She contended that judgment cannot be entered against the respondents before the conclusion of the Succession Cause. She stated that the applicant has already lodged a creditor’s claim in the succession proceedings seeking recovery of the same costs, and that pursuing judgment in the present forum while that claim is pending amounts to forum shopping and is improper and duplicitous. Ms Nderitu asserted that granting the orders being sought herein would prejudice the Estate of the late James K. Nderitu (deceased) by bypassing the proper legal process for verification and prioritization of creditors’ claims. She accused the applicant of attempting to mislead the Court to obtain unjust orders.
5. The respondents also filed a Notice of Preliminary Objection dated 14th July 2025 in opposition to the instant application, raising the following grounds –
i) The application offends Sections 2(1), 2(2) & 4 of the Law of Succession Act;
ii) The Law of Succession Act stipulates that the jurisdiction properly lies with the Family Division of the High Court;
iii) The issues raised herein are directly and substantially in issue in NAIROBI HIGH COURT FAMILY P & A E224/2023 - IN THE ESTATE OF NDERITU JAMES KANYITA (DECEASED), which case is yet to be concluded; and
iv) The applicant's application is an abuse of the Court process, being duplicative and amounting to forum shopping and should be struck out with costs.
6. The applicant filed a response to the said Preliminary Objection dated 24th July 2025. However, since a Preliminary Objection is required to raise only pure points of law, the only response that can be filed is by way of written submissions. I therefore expunge the response to the Preliminary Objection filed by the applicant, from the Court Record.
7. The instant application was canvassed by way of written submissions. The applicant’s submissions were filed by the law firm of T.O. K’opere & Company Advocates on 28th October 2025 & 15th December 2025, while the respondents’ submissions were filed on 15th December 2025 by the law firm of Walker Kontos Advocates.
8. Mr. K’opere, learned Counsel for the applicant submitted that on 18th December 2024, the Taxing Officer delivered a Ruling dismissing the respondents’ earlier Preliminary Objection and taxed the Advocate’s Advocates - client Bills of Costs, with partial payment acknowledged in one matter. He stated that the Taxing Officer in her Ruling granted the respondents a 45-day stay of execution to settle the taxed amounts, but they neither did so nor filed any Reference challenging the said taxation. He indicated that Certificates of Taxation were issued and served, and upon lapse of the stay period, the applicant filed the instant application seeking entry of judgment under Section 51(2) of the Advocates Act and interest at 14% per annum, pursuant to Rule 7 of the Advocates Remuneration Order.
9. Counsel submitted that the taxed costs arose from legal representation in various commercial proceedings involving both limited liability companies and the deceased, whose Estate is now represented by Executors holding a Grant of Probate. He maintained that these are distinct legal entities and that the applicant is entitled to pursue recovery of his fees from both the companies and the Estate. He stated that the applicant’s involvement in the Succession Cause is limited to lodging a creditor’s claim and caveat to safeguard his interests pending confirmation of the grant of Probate, and does not amount to duplicity or forum shopping. He relied on the provisions of Section 86 of the Law of Succession Act and stated that all enforceable debts must be settled before distribution of the Estate, and that the Executors cannot proceed with confirmation or distribution without addressing the outstanding taxed costs.
10. Mr. K’opere submitted that the respondents’ reliance on Sections 2(1), 2(2) & 4 of the Law of Succession Act is misplaced, as the claim herein relates to commercial debts and not to the distribution of Estate assets. He asserted that the Preliminary Objection is an afterthought, having been raised long after the Bill of Costs was filed and taxed, and that it does not meet the legal threshold established by the Court in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 at 700, since it raises issues requiring evidentiary proof that need to be supported by affidavits. He criticized the Executors for failing to disclose or provide for the outstanding legal fees in the succession proceedings, necessitating the filing of a caveat under the Probate and Administration Rules. To buttress his submissions, Counsel relied on the case of Andrew and Steve Advocates v Maureen Onsongo [2022] KEELRC 610 (KLR).
11. Ms Mutisya, learned Counsel for the respondents relied on the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), and submitted that the application herein is misconceived and incompetent as it has been filed before a Court lacking jurisdiction to determine liabilities of a deceased person’s Estate. She asserted that such jurisdiction lies exclusively with the Probate Court. She contended that the Law of Succession Act provides a comprehensive and mandatory framework governing Estates, with Sections 2(1) & 2(2) applying the Act to all Estates, and Section 47 vesting exclusive jurisdiction in the Probate Court to determine all succession-related disputes. She cited the case of In re Estate of Mathayo Arwa (Deceased) [2025] KEHC 2899 (KLR), and argued that any claim seeking payment from the Estate of the late James Nderitu must be pursued within the succession proceedings, and that any attempt to recover such debts outside that framework risks constituting intermeddling.
12. Ms Mutisya asserted that in view of the above, the settlement of debts must occur strictly under the supervision of the Succession Court to avoid unlawful interference with the Estate. Counsel contended that the issues raised in the application herein are directly and substantially in issue in Nairobi High Court Succession Cause No. E224 of 2023, where the applicant has already lodged a creditor’s claim for the same taxed costs. She invoked the provisions of Section 6 of the Civil Procedure Act and stated that this Court is barred from proceeding with a matter that is pending before another competent Court between the same parties. In her view, pursuing parallel proceedings amounts to forum shopping and an abuse of the Court process, a practice deprecated by the Courts.
13. In a rejoinder, Mr. K’opere submitted that the liabilities arising from the taxed Bills of Costs are not confined to the Estate of the late James K. Nderitu but also extend to distinct corporate entities, including Kenya Continental Hotel Ltd, Intercom Services Ltd, and SwiftAir (K) Ltd, which fall outside the jurisdiction of the Probate Court. He argued that the Preliminary Objection dated 14th July 2025, the respondents’ submissions, and the authorities relied upon are inapplicable, as they would only be relevant if the claim was solely against the deceased’s Estate. He clarified that the filing of a caveat in the Succession Cause was merely to notify the Executors of the existence of the outstanding legal fees and does not amount to prosecuting the claim within the probate proceedings. He submitted that the Probate and Administration Court lacks jurisdiction to determine issues of taxation of legal fees arising from separate civil proceedings.
14. Mr. K’opere distinguished the authority of In re Estate of Mathayo Arwa (Deceased) (supra), arguing that it does not apply to creditors who must first prove their claims in independent civil suits before presenting them for settlement in succession proceedings. In this regard, he emphasized that the issue of taxation of costs is not part of the matters for determination in the Succession Cause and that his role therein is limited to safeguarding his interests as a creditor. Relying on Section 86 of the Law of Succession Act, Counsel maintained that all enforceable debts must be settled prior to distribution of the Estate, but only after such debts have been duly established in the appropriate forum. He reiterated that a creditor or caveator under Rule 15 of the Probate and Administration Rules is not a substantive party to the Succession Cause but is only entitled to notice of proceedings to ensure their proven claims are considered before distribution.
ANALYSIS AND DETERMINATION.
15. I have considered the application filed herein, the grounds on the face of it, and the affidavit filed in support thereof. I have also considered the replying affidavit and Notice of Preliminary Objection by the respondents, together with the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the respondents’ Notice of Preliminary Objection dated 14th July 2025 is merited; and
ii) Whether the Court should enter judgment for the applicant against the respondents for the taxed costs with interest.
Whether the respondents’ Notice of Preliminary Objection dated 14th July 2025 is merited.
16. In order for a Preliminary Objection to succeed, it should raise a pure point of law. It should be argued on the assumption that all the facts pleaded by the other side are correct, but it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. What constitutes a valid Preliminary Objection was considered by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (supra). The Court stated thus: -
So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.
17. In the said case, Sir Charles Newbold P., stated as follows:-
… the first matter related to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.
18. The Supreme Court weighed in on the issue of Preliminary Objections in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] KESC 23 (KLR) wherein it stated that -
... Thus, a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.
19. The respondents’ position is that this Court lacks jurisdiction by virtue of the provisions of the Law of Succession Act, and that this matter is sub judice in light of the pending succession proceedings in Nairobi High Court P & A No. E224 of 2023.
20. Jurisdiction is fundamental and without it a Court must down its tools. In the case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi, JA; held that: –
…Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
21. This Court in determining whether or not it has the requisite jurisdiction to determine the dispute between the parties herein, it has to ascertain whether the dispute between the parties in this suit properly falls within the exclusive domain of the Probate Court. The record shows that the applicant’s claim herein arises from an Advocate’s Advocate-client Bill of Costs which has already been taxed by a competent Taxing Officer, and a Certificate of Taxation was issued. Further, the applicant averred that the claim in this suit is not directed solely against the Estate of the deceased, but also against limited liability companies which are distinct legal entities.
22. From the foregoing, this Court is persuaded that the issue between the parties in this suit is not one of administration or distribution of the Estate, but enforcement of a taxed Advocate’s Advocate-client Bill of Costs arising from commercial legal services rendered. It is now well settled that the taxation process and entry of judgment under Section 51(2) of the Advocates Act fall squarely within the jurisdiction of this Court. The Probate Court does not undertake taxation of Advocate’s Advocate-client bills arising from independent civil proceedings, nor does it determine such claims in the first instance. This Court agrees with the applicant’s submissions that creditors are required to establish their claims through appropriate legal proceedings before presenting them in Succession Causes for settlement.
23. While Section 47 of the Law of Succession Act vests jurisdiction in the Probate Court over succession disputes, it does not oust the jurisdiction of this Court to determine and enforce civil claims, including taxed costs, against parties who include both corporate entities and the Estate of a deceased person.
24. On the issue of the sub judice Rule as provided for under Section 6 of the Civil Procedure Act, this Court notes that although the applicant has lodged a creditor’s claim in the Succession Cause, the issues therein relate to administration and distribution of the Estate, whereas these proceedings concern the crystallization and enforcement of a debt arising from taxation. These are distinct processes. This Court is of the considered view that the filing of a caveat or a creditor’s claim in the Succession Cause does not amount to instituting a parallel suit for determination of the same issue. Consequently, the plea of sub judice is not sustainable, and it cannot be successfully raised in this case.
25. The above notwithstanding, this Court finds that the respondents’ Preliminary Objection is anchored on contested issues of fact, including the nature of the claim and the extent of liability as between the Estate of the deceased and corporate respondents. Such matters require evidentiary interrogation adduced by way of affidavit evidence and therefore fall outside the ambit of a proper Preliminary Objection.
26. In the circumstances, this Court finds that the respondents’ Notice of Preliminary Objection dated 14th July 2025 is not merited.
Whether this Court should enter judgment for the applicant as against the respondents for the taxed costs interest.
27. This Court has the jurisdiction to enter judgment provided the Bill of Costs has been taxed, the Taxing Master has issued a Certificate of Taxation, and the retainer is not disputed, pursuant to the provisions of Section 51(2) of the Advocates Act, which states as hereunder –
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.
28. In the case of Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] KEHC 9046 (KLR), the Court in allowing an application to enter judgment held that: –
The procedure provided in section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of Advocates-client costs as long as: (1) the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs; (2) the Certificate of Costs has not been set aside or stayed or appealed against on a Reference filed upon it; and (3) there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the Advocates. The application may be commenced by way of a Notice of Motion which in law is potent tool for originating a suit.”
29. It is undisputed that the applicant’s Bill of Costs was taxed on 18th December 2024 in the sum of Kshs.5,296,803.00 and that a Certificate of Taxation was issued on 28th March 2025 and duly served. It is also not disputed that no Reference has been filed to challenge the aforesaid taxation. In the circumstances, the said Certificate of Taxation remains valid and binding. It is noteworthy that the retainer is not disputed.
30. From the foregoing, I am satisfied that all the conditions set out under Section 51(2) of the Advocates Act have been complied with. For this reason, I enter judgment for the applicant against the respondents in the sum of Kshs. 5,296,803.00.
31. Interest on the Advocate’s Costs is provided for under Regulation 7 of the Advocates (Remuneration) Order, which states that -
An Advocates may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.
32. The import of the provisions of Regulation 7 of the Advocates (Remuneration) Order is that interest on an Advocate’s fees can only be charged after the lapse of one month from when the Bill of Costs was delivered to the client, and the claim for interest should be raised before the amount of the Bill of Costs is paid or tendered in full.
33. The claim for payment of interest at fourteen (14%) per cent, per annum, has been raised in the instant application, but the client is yet to pay the applicant either in part or wholly, the amount taxed by the Taxing Master and certified in the Certificate of Taxation dated 28th March 2025. Further, while the respondents do not dispute receipt of the Advocate’s Advocate-client Bill of Costs dated 14th September 2023, the exact date of service is not ascertainable from the record. Consequently, this Court is unable to determine when the one-month period contemplated under Regulation 7 commenced. In the circumstances, although the claim for interest at fourteen (14%) per cent per annum is properly before the Court, such interest shall accrue from the date of this Ruling until payment in full.
34. This Court therefore finds that the instant application is merited, whereas the respondents’ Notice of Preliminary Objection dated 14th July 2025 is devoid of merits. As a result, I make the following orders –
i) The Notice of Preliminary Objection dated 14th July 2025 is hereby dismissed with costs to the applicant;
ii) Judgment is hereby entered in favour of the applicant as against the respondents jointly and severally for the sum of Kshs.5,296,803.00 with interest at 14% per annum, from the date of this Ruling until payment in full; and
iii) Costs of the application are awarded to the applicant.
It is so ordered.
DATED, SIGNED and DELIVERED at KIAMBU on this 10TH day of APRIL, 2026. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Ongocho h/b for Mr. K’Opere for the Advocate/applicant
Ms Naomi Mutisya for the respondents
Ms Julia – Court Assistant.