1. The respondents, through their counsel, filed the Notice of Motion dated 13th December 2024, vide which they seek the following orders:
1. That the advocate/client bill of costs dated 25th October 2024 be struck out or dismissed on the ground of the existence of a binding agreement on legal fees between the applicant/advocate and the respondents;
2. That the costs of this application be awarded to the respondents.
2. The respondents contend that they entered into an agreement, via exchange of correspondence between themselves and Ms Rahab Wanjiku Nduati t/a Wanjiku & Wanjiku Advocates LLP, vide which it was agreed that her remuneration for legal services rendered in the succession proceedings regarding the estate of the late Francis Mutua Mulinge was capped at Kes 725,480/-, which was fully paid in instalments through, among other channels, Ms Wanjiku Nduati's Mpesa line No.072xxxxx16.
3. The respondents averred that, because there was a fee agreement within the meaning of section 47 of the Advocates Act, the applicant was estopped from taxing its bill of costs and that the taxing master was divested of jurisdiction to consider it.
4. It was contended that the taxation was triggered by a demand that the advocate pay Kes 2,184,000/- to the 1st respondent. The said amount was the balance of the sale price of a property disposed of by the 1st respondent, which Ms Wanjiku Nduati was allegedly withholding as a lien for unpaid fees for legal work she had done for Mombasa Uniforms Ltd and in the succession cause. It was further contended that there was no nexus between the 1st respondent's personal transaction and the succession cause.
5. The applicant opposed the application on the grounds of opposition dated 23rd September 2025 on the grounds that the respondents did not produce certificates of electronic evidence required under sections 78A, 106A and 106B of the Evidence Act and that the application was frivolous and vexatious.
6. Mr Julius Charana, an associate in the firm of Wanjiku & Wanjiku Advocates LLP made sworn deposition dated 30th September 2025 in which, while acknowledging that their firm was appointed to represent the estate in P & A No 23 of 2020; the Estate of Fredrick Mutua Mulinge (deceased), denied that there was a fee agreement as adverted to by the respondents and stated that Kes 721,480/- was a deposit of the fees and not the final fee noted. He stated that the parties never entered into a fee agreement. In any case, he argued, the amount demanded was too low in respect of an estate worth at the very least half a billion shillings.
7. The deponent defended the alleged lien of Kes 2, 184,000/- as security pending the determination of the underlying taxation proceedings and the unsettled fee notes of which the applicants had notice but did not settle. He contended that the fee note was properly before the Taxation Master, as there was no remuneration agreement between the respondents and his firm.
8. The application was canvassed by way of written submissions. The respondents, in their submissions dated 30th October 2025, urged that there was a valid fee agreement entered into through the exchange of correspondence and that the advocate’s fees had been fully settled. It was thus urged that the application be allowed.
9. In their submissions dated 23rd September 2025, the applicant prayed that the application be dismissed with costs and that the matter be returned to the Taxing Master for taxation.
10. The applicant reiterated its contention that there was no fee agreement. It was contended that what existed was “a mere letter” which did not satisfy the mandatory requirement of a valid remuneration agreement contemplated under section 45 of the Advocates Act, as it was not in writing and signed by the advocate and the clients, or a duly authorized agent on their behalf. Reliance was placed on the decision of the court in Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited (2) [2006] 1 EA 5, Rajni. K. Somaia v Cannon Assurance (K) Ltd; Kisumu HCMA No. 289 of 2003 and Kakuta Maimai Hamise v Peris Pesi Tobiko, Independent Electoral and Boundary Commission & Returning Officer Kajiado East Constituency [2017] KEHC 3070 (KLR).
11. It was also contended that the exhibits did not comply with the Evidence Act insofar as no Certificate of Electronic Evidence was filed. In support of the said contention, reliance was placed on the case of Richard Nyagaka Tong'i v Independent Electoral & Boundaries Commission & 2 others [2013] KEHC 1879 (KLR) and John Lokitare Lodinyo v IEBC & 2 others [2017] KEHC 1394 (KLR).
12. I have considered the application, the responses thereto, as well as the submissions of the parties. The issue I must determine, in my view, is whether the correspondence exchanged by the applicant and the respondent could be said to amount to an agreement under section 45 of the Advocates Act.
13. Before I do so, I must address the issue of electronic evidence. My view is that section 78A of the Evidence Act does not mandate the production of a certificate. Thus, the requirement, though ideal, was not mandatory in this particular case. The annexed documents are germane to the issues at hand. The interests of justice require that I consider them so as to make a just determination of the issues in dispute.
14. In my view, so long as the correspondence is clear about the terms of what was agreed, the intention to create binding legal obligations is evident in the text of the correspondence, and the parties have the capacity to contract, the correspondence exchanged amounts to a written agreement that is enforceable under Section 45 of the Advocates Act.
15. The applicant clearly saw the contract as binding and was paid accordingly. She may not therefore resile from what she agreed to. I am in agreement with what the court stated in GM Gamma Advocates LLP v Board of Trustees of the National Social Security Fund [2025] KEELC 5965 (KLR) that:-
“24. The exchange of correspondence, the payment of the deposit fee, note no. 335, and the wording as contained in the deposit request note is an indication of the existence of an agreement arising out of the conduct of the parties. Even in the absence of a letter acknowledging the agreed legal fees, how else would the client/applicant pay the deposit if it had not agreed to the letter dated 21st October, 2021?
25. In the case of Adopt A Light Limited v Ochieng’, Onyango, Kibet & Ohaga Advocates [2016] KECA 387 (KLR) 15, the Court of Appeal stated as follows:-“The interpretation of Section 45(1) and in particular what constitutes an agreement on fees under the section is imperative in the determination of this appeal. We consequently remind ourselves of the cardinal rule for the construction of a statute; that is, a statute should be construed according to the intention expressed in the statute itself. Halsbury's Laws of England, 4th Edition (Reissue), Butterworths, 1995, Vol. 44(1), para 1372 provides:-“The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore, the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole in its context…”
16. The intention of a statute can be identified through a number of factors. In Cusack v Harrow London Borough Council, (2013) 4 ALL ER 97, the Supreme Court observed:-“Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.”
17. In determining this matter, we cannot consider the provisions of Section 45 of the Advocates Act in solitude. We must take into account the letter in question, its intent and purport, and the conduct of the parties. Was there a legally enforceable contract between the parties herein in respect of the fees? Did the parties intend to be bound by the terms of the agreement, which was in the form of the letter in question?”
26. While I place reliance on the above cited authority, and having had a proper scrutiny of the correspondences especially on the legal fees, I am of the view that the client/applicant’s conduct of paying the deposit on the agreed’ legal fees signified their agreement to the proposal as contained in the letter dated 21st October, 2021 because this was the final exchange on negotiations of the legal fees. In my view, and bearing in mind the email which forwarded the letter dated 2nd July, 2024, the advocate/respondent is estopped from charging further fees. With that said, it is my finding that the taxing officer did not have the jurisdiction to tax the bill of costs. It therefore follows that the taxed bill of costs is null. I do not see the need to delve into the other issues.”
16. I agree with the counsel for the respondents that the applicant may not now resile from her agreement on the basis that it would amount to undercutting. The Court of Appeal stated in the case of Njogu & Company Advocates v National Bank of Kenya Limited [2016] KECA 85 (KLR) that:
“[26] In our view, an advocate who willingly and knowingly enters into an agreement in regard to the payment of his fees that is contrary to the Advocates Remuneration Order, cannot maintain proceedings whose purport is to avoid the illegal agreement by reverting to the Court to tax his advocate/client bill of costs in accordance with the Advocate’s Remuneration Order. We concur with the learned Judge that the appellant, having made his bed, must lie on it. That is to say that, notwithstanding the illegality of the contract, this Court cannot come to the appellant’s aid as the appellant is estopped by his conduct from seeking the court’s intervention. We find no merit in this appeal as the appellant’s bill of costs was properly struck out. Accordingly, the appeal is dismissed with costs.”
17. In my view, the doctrine of ex turpi causa non oritur actio applies. The advocate, having entered into an agreement vide which she undercut, cannot now file a taxation cause. She is estopped by her own conduct from seeking the court’s intervention in her favour.
18. The upshot of the foregoing is that the Bill of Costs dated 25th October 2024 is without merit. The Notice of Objection to Taxation dated 13th November, 2024, and the Notice of Motion dated 13th December 2024 are hereby upheld and allowed, respectively. The bill of costs filed by the applicant is hereby struck out for being incompetent, irregular, and contrary to Section 45(6) of the Advocates Act. I find and hold that the Taxing Master has no jurisdiction to hear and determine the bill of costs dated 25th October 2024.
19. The Respondents/Clients shall have costs.
20. It is so ordered.
Dated and signed in Nairobi, this 22nd day of June 2026.
1. That the advocate/client bill of costs dated 25th October 2024 be struck out or dismissed on the ground of the existence of a binding agreement on legal fees between the applicant/advocate and the respondents;
2. That the costs of this application be awarded to the respondents.
2. The respondents contend that they entered into an agreement, via exchange of correspondence between themselves and Ms Rahab Wanjiku Nduati t/a Wanjiku & Wanjiku Advocates LLP, vide which it was agreed that her remuneration for legal services rendered in the succession proceedings regarding the estate of the late Francis Mutua Mulinge was capped at Kes 725,480/-, which was fully paid in instalments through, among other channels, Ms Wanjiku Nduati's Mpesa line No.072xxxxx16.
3. The respondents averred that, because there was a fee agreement within the meaning of section 47 of the Advocates Act, the applicant was estopped from taxing its bill of costs and that the taxing master was divested of jurisdiction to consider it.
4. It was contended that the taxation was triggered by a demand that the advocate pay Kes 2,184,000/- to the 1st respondent. The said amount was the balance of the sale price of a property disposed of by the 1st respondent, which Ms Wanjiku Nduati was allegedly withholding as a lien for unpaid fees for legal work she had done for Mombasa Uniforms Ltd and in the succession cause. It was further contended that there was no nexus between the 1st respondent's personal transaction and the succession cause.
5. The applicant opposed the application on the grounds of opposition dated 23rd September 2025 on the grounds that the respondents did not produce certificates of electronic evidence required under sections 78A, 106A and 106B of the Evidence Act and that the application was frivolous and vexatious.
6. Mr Julius Charana, an associate in the firm of Wanjiku & Wanjiku Advocates LLP made sworn deposition dated 30th September 2025 in which, while acknowledging that their firm was appointed to represent the estate in P & A No 23 of 2020; the Estate of Fredrick Mutua Mulinge (deceased), denied that there was a fee agreement as adverted to by the respondents and stated that Kes 721,480/- was a deposit of the fees and not the final fee noted. He stated that the parties never entered into a fee agreement. In any case, he argued, the amount demanded was too low in respect of an estate worth at the very least half a billion shillings.
7. The deponent defended the alleged lien of Kes 2, 184,000/- as security pending the determination of the underlying taxation proceedings and the unsettled fee notes of which the applicants had notice but did not settle. He contended that the fee note was properly before the Taxation Master, as there was no remuneration agreement between the respondents and his firm.
8. The application was canvassed by way of written submissions. The respondents, in their submissions dated 30th October 2025, urged that there was a valid fee agreement entered into through the exchange of correspondence and that the advocate’s fees had been fully settled. It was thus urged that the application be allowed.
9. In their submissions dated 23rd September 2025, the applicant prayed that the application be dismissed with costs and that the matter be returned to the Taxing Master for taxation.
10. The applicant reiterated its contention that there was no fee agreement. It was contended that what existed was “a mere letter” which did not satisfy the mandatory requirement of a valid remuneration agreement contemplated under section 45 of the Advocates Act, as it was not in writing and signed by the advocate and the clients, or a duly authorized agent on their behalf. Reliance was placed on the decision of the court in Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited (2) [2006] 1 EA 5, Rajni. K. Somaia v Cannon Assurance (K) Ltd; Kisumu HCMA No. 289 of 2003 and Kakuta Maimai Hamise v Peris Pesi Tobiko, Independent Electoral and Boundary Commission & Returning Officer Kajiado East Constituency [2017] KEHC 3070 (KLR).
11. It was also contended that the exhibits did not comply with the Evidence Act insofar as no Certificate of Electronic Evidence was filed. In support of the said contention, reliance was placed on the case of Richard Nyagaka Tong'i v Independent Electoral & Boundaries Commission & 2 others [2013] KEHC 1879 (KLR) and John Lokitare Lodinyo v IEBC & 2 others [2017] KEHC 1394 (KLR).
12. I have considered the application, the responses thereto, as well as the submissions of the parties. The issue I must determine, in my view, is whether the correspondence exchanged by the applicant and the respondent could be said to amount to an agreement under section 45 of the Advocates Act.
13. Before I do so, I must address the issue of electronic evidence. My view is that section 78A of the Evidence Act does not mandate the production of a certificate. Thus, the requirement, though ideal, was not mandatory in this particular case. The annexed documents are germane to the issues at hand. The interests of justice require that I consider them so as to make a just determination of the issues in dispute.
14. In my view, so long as the correspondence is clear about the terms of what was agreed, the intention to create binding legal obligations is evident in the text of the correspondence, and the parties have the capacity to contract, the correspondence exchanged amounts to a written agreement that is enforceable under Section 45 of the Advocates Act.
15. The applicant clearly saw the contract as binding and was paid accordingly. She may not therefore resile from what she agreed to. I am in agreement with what the court stated in GM Gamma Advocates LLP v Board of Trustees of the National Social Security Fund [2025] KEELC 5965 (KLR) that:-
“24. The exchange of correspondence, the payment of the deposit fee, note no. 335, and the wording as contained in the deposit request note is an indication of the existence of an agreement arising out of the conduct of the parties. Even in the absence of a letter acknowledging the agreed legal fees, how else would the client/applicant pay the deposit if it had not agreed to the letter dated 21st October, 2021?
25. In the case of Adopt A Light Limited v Ochieng’, Onyango, Kibet & Ohaga Advocates [2016] KECA 387 (KLR) 15, the Court of Appeal stated as follows:-“The interpretation of Section 45(1) and in particular what constitutes an agreement on fees under the section is imperative in the determination of this appeal. We consequently remind ourselves of the cardinal rule for the construction of a statute; that is, a statute should be construed according to the intention expressed in the statute itself. Halsbury's Laws of England, 4th Edition (Reissue), Butterworths, 1995, Vol. 44(1), para 1372 provides:-“The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore, the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole in its context…”
16. The intention of a statute can be identified through a number of factors. In Cusack v Harrow London Borough Council, (2013) 4 ALL ER 97, the Supreme Court observed:-“Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.”
17. In determining this matter, we cannot consider the provisions of Section 45 of the Advocates Act in solitude. We must take into account the letter in question, its intent and purport, and the conduct of the parties. Was there a legally enforceable contract between the parties herein in respect of the fees? Did the parties intend to be bound by the terms of the agreement, which was in the form of the letter in question?”
26. While I place reliance on the above cited authority, and having had a proper scrutiny of the correspondences especially on the legal fees, I am of the view that the client/applicant’s conduct of paying the deposit on the agreed’ legal fees signified their agreement to the proposal as contained in the letter dated 21st October, 2021 because this was the final exchange on negotiations of the legal fees. In my view, and bearing in mind the email which forwarded the letter dated 2nd July, 2024, the advocate/respondent is estopped from charging further fees. With that said, it is my finding that the taxing officer did not have the jurisdiction to tax the bill of costs. It therefore follows that the taxed bill of costs is null. I do not see the need to delve into the other issues.”
16. I agree with the counsel for the respondents that the applicant may not now resile from her agreement on the basis that it would amount to undercutting. The Court of Appeal stated in the case of Njogu & Company Advocates v National Bank of Kenya Limited [2016] KECA 85 (KLR) that:
“[26] In our view, an advocate who willingly and knowingly enters into an agreement in regard to the payment of his fees that is contrary to the Advocates Remuneration Order, cannot maintain proceedings whose purport is to avoid the illegal agreement by reverting to the Court to tax his advocate/client bill of costs in accordance with the Advocate’s Remuneration Order. We concur with the learned Judge that the appellant, having made his bed, must lie on it. That is to say that, notwithstanding the illegality of the contract, this Court cannot come to the appellant’s aid as the appellant is estopped by his conduct from seeking the court’s intervention. We find no merit in this appeal as the appellant’s bill of costs was properly struck out. Accordingly, the appeal is dismissed with costs.”
17. In my view, the doctrine of ex turpi causa non oritur actio applies. The advocate, having entered into an agreement vide which she undercut, cannot now file a taxation cause. She is estopped by her own conduct from seeking the court’s intervention in her favour.
18. The upshot of the foregoing is that the Bill of Costs dated 25th October 2024 is without merit. The Notice of Objection to Taxation dated 13th November, 2024, and the Notice of Motion dated 13th December 2024 are hereby upheld and allowed, respectively. The bill of costs filed by the applicant is hereby struck out for being incompetent, irregular, and contrary to Section 45(6) of the Advocates Act. I find and hold that the Taxing Master has no jurisdiction to hear and determine the bill of costs dated 25th October 2024.
19. The Respondents/Clients shall have costs.
20. It is so ordered.
Dated and signed in Nairobi, this 22nd day of June 2026.