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ELCDismissedChamber Summons dated 12/8/2021 (Reference)

Muri Mwaniki & Wamiti Advocates v Caritas Mariana Holy Family Children’s Home (Miscellaneous Application 74 of 2017) [2025] KEELC 4240 (KLR)

High Court of Kenya
29 May 2025
4,672 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The High Court in Thika ruled a law firm cannot bill a borrower for legal fees when the bank, not the borrower, instructed the advocate.

What this practically means

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Executive summary

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By Chamber Summons dated 12/8/2021 under Paragraph 11(1) & (2) of the Advocates Remuneration Order, the Applicant law firm sought to set aside a ruling of Deputy Registrar Hon. V. Kachuodho dated 7/03/2019 which wholly dismissed its Advocate/Client Bill of Costs dated 13/10/2017, and sought taxation of the bill or, alternatively, remission to another Taxing Officer. The bill related to instructions the Applicant said it received from Ecobank to draw and register a legal charge over the Respondent's title, Thika Municipality Block 23/1107, to secure a loan of Kshs 1,500,000 advanced to the Respondent. The Applicant argued an implied retainer from the Respondent's conduct, relied on the definition of 'Client' in Section 2 of the Advocates Act and Paragraph 31 of the Advocates Remuneration Order making the borrower liable for security-perfection costs, and on the Letter of Offer clause requiring the borrower to bear legal charges. The Respondent, who filed no Replying Affidavit, contended there was no Advocate-Client relationship or privity of contract, that the instructing client was the bank, and in any event that the Reference was time-barred under Paragraph 11. The court applied the principle that a Taxing Officer's discretion can only be interfered with on an error of principle. Relying on Njuguna Matiri v National Bank of Kenya and National Bank of Kenya v Kangethe, it held there is no privity of contract between a borrower and the bank's Advocate; the instructing client was Ecobank. The Letter of Offer provided fees would be recovered by the bank debiting the borrower's account, not paid directly to the Advocate, and no undertaking to pay was produced. The court also noted that under Omulele & Tollo, a retainer agreement must be in writing. Finding no misdirection in the Taxing Officer's ruling, the court dismissed the Reference with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Application (Reference) seeking to set aside the Taxing Officer's ruling is merited

Key legal issues

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01

Whether the Taxing Officer erred in law and in principle in dismissing the Applicant's Bill of Costs

Holding

The court found no misdirection in the Taxing Officer's ruling. The instructing client was Ecobank, not the Respondent, and the Letter of Offer provided that legal fees would be recovered by debiting the borrower's account by the bank, not paid directly to the Advocate.

Reasoning

Item 1 of the Bill of Costs expressly referred to receiving instructions from a Bank to prepare, register and perfect a charge. The court held that the Letter of Offer is exclusively between Ecobank and the Respondent and does not provide for the Advocate to recover directly from the Borrower. The existence of an Advocate-Client relationship gives jurisdiction to the Taxing Master, and in its absence the Taxing Officer lacks jurisdiction. The Applicant bore the burden of proving the retainer and failed.

p. 9
02

Whether an implied retainer arose from the Respondent's conduct in the securitization process

Holding

No implied retainer arose. The court held that for a retainer agreement under Section 45 of the Advocates Act to exist, the terms must be in writing and signed by the Client.

Reasoning

The court cited Omulele & Tollo Advocates v Mount Holdings Limited where the Court of Appeal held that for a retainer agreement to exist, the terms must have been reduced into writing. The court found that he who alleges must prove, and the Applicant, who sought to recover an Advocate/Client Bill of Costs, was obliged to prove the existence of such a relationship but failed to do so.

p. 8
03

Whether the Respondent qualified as a 'Client' under Section 2 of the Advocates Act as a person who may be liable to pay an Advocate any costs

Holding

The court found that the Letter of Offer provided that legal fees are recoverable on demand by the lender from the borrower, not payable directly to the Advocate, so the Respondent did not become the Advocate's client by that route.

Reasoning

The court analysed Section 2 of the Advocates Act and found the definition apt in two aspects: the undisputed relationship between the Applicant and Ecobank, and the scenario contemplated by the Applicant with the Respondent as a potential client liable to pay costs. However, the court concluded the Letter of Offer's legal charges clause shows fees are incurred by the lender and recovered from the borrower's account, with no provision for the Advocate to recover directly from the borrower.

p. 9

Legal principles established

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  • A Taxing Officer's decision can only be interfered with where there is an error of principle or where the fees awarded are manifestly excessive as to justify an inference of error of principle
  • Existence of an Advocate-Client relationship is central as it gives jurisdiction to the Taxing Master to entertain a Bill of Costs
  • There is no privity of contract between a borrower and an Advocate instructed by the bank; the instructing client is the bank

Court orders

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  1. 1.The Reference is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Paragraph 11(1) & (2) of the Advocates Remuneration Order

Relief refused

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Setting aside the ruling of the Deputy Registrar delivered on 7/03/2019 and any resultant Certificate of Taxation

The court found no misdirection in the Taxing Officer's ruling; instructions came from Ecobank, not the Respondent, and no privity of contract existed between the borrower and the Advocate instructed by the bank

p. 9

Taxing the Bill of Costs dated 13/10/2017 or remitting it to another Taxing Officer

The Application was found to be bereft of merit as the Applicant failed to prove an Advocate-Client relationship with the Respondent

p. 8

Costs

No orders as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The reference is bereft of merit and it is dismissed with no orders as to costs.
p. 9Final orders - dismissal of the Reference
Absent such relationship, the Taxing Oficer would be bereft of jurisdiction to tax a bill.
p. 7Jurisdiction of the Taxing Officer depends on Advocate-Client relationship
there exists no privity of contract between a borrower and an Advocate for the bank.
p. 7No privity of contract between borrower and bank's Advocate
The Applicant sought to recover Advocate/Client Bill of Cost and was obliged to prove existence of such a relationship to give rise to the retainer. The Applicant failed to do so.
p. 8Burden of proving retainer
I therefore find no misdirection on the Taxing Oficer’s Ruling and final orders.
No error of principle established

Issues in the judgment

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minor

Internal inconsistency in dates: the ruling of the Taxing Officer is described as delivered on 7/03/2019 in the prayers but also as 'dated 3/03/2021'

minor

The Bill of Costs is variously dated 13/10/2017 and referred to as 13th October 2019 and 18th October 2017 in the parties' submissions

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muri Mwaniki & Wamiti Advocates v Caritas Mariana Holy Family Children’s Home (Miscellaneous Application 74 of 2017) [2025] KEELC 4240 (KLR)", Case Analysis (2025). Chamber Summons dated 12/8/2021 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4240/eng@2025-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.