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ELCDismissedELC Misc. Application E187 of 2024

Gathemia t/a Gatheru Gathemia & Company Advocates v Abdul Waheed Sheikh and Abdul Hameed Sheikh as Trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust (Environment and Land Miscellaneous Application E186 of 2024) [2025] KEELC 7702 (KLR)

Environment and Land Court
10 November 2025
2,982 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Nairobi court dismissed a law firm's attempt to throw out a KSh 50 million legal fees bill, ruling it was filed on time because the clock starts from the last payment made.

What this practically means

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Executive summary

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This was a Notice of Motion dated 27th January 2025 filed by the Respondent (A.W. Sheikh & Company) seeking three principal orders: consolidation of the Advocate-Client Bill of Costs in this matter with that in Misc. Application No. E187 of 2024; striking out of the Applicant's (Gatheru Gathemia) Advocate-Client Bill of Costs dated 10th September 2024 as statute barred; and costs. The Respondent alleged a retainer from 2013 at a monthly fee, contending the Applicant's services were limited to receiving and transmitting correspondence and holding brief for in-house counsel, and that the Bill seeking Kshs.50 million in instruction fees relating to a compulsory acquisition of 13 acres of LR 37/67 was time-barred under Section 4(1) of the Limitation of Actions Act, formal demand having been made on 29th July 2017. The Applicant opposed, denying a retainer within the meaning of Section 45 of the Advocates Act, asserting instructions in a complex compulsory acquisition matter, and maintaining that services continued beyond 2017 with a final payment received in October 2022. The court (Ochieng, J.) framed three issues: existence of a retainer; consolidation; and limitation. It found no retainer was furnished or established; declined consolidation since the two sets of instructions related to different matters (compulsory acquisition versus lease renewal) though touching the same property; and held the Bill was not statute barred because time began running from the last payment in October 2022, placing the September 2024 filing within six years. The application was dismissed with costs and the Bill referred to a Taxing Officer.

Questions the Court framed

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

  1. 1.Whether there existed a retainer between the Respondent and the Applicant.
  2. 2.Whether the Court should consolidate the Advocate Client Bill of Costs filed herein with that filed in Misc. Application No. E187 of 2024.
  3. 3.Whether the Advocate Client Bill of Costs dated 10th September 2024 is statute barred.

Key legal issues

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01

Whether a retainer agreement existed between the Respondent and the Applicant

Holding

No retainer agreement existed between the Respondent and the Applicant as claimed by the Respondent.

Reasoning

The Respondent did not furnish the court with a copy of the alleged retainer. Although correspondence suggested a monthly fee arrangement, no written agreement signed by the client as required by Section 45 of the Advocates Act was produced. The court associated itself with the Muriithi Kireria decision on what constitutes a retainer and found that, absent evidence of a written and signed agreement, no retainer existed.

p. 5
02

Whether the two Bills of Costs should be consolidated

Holding

The two Bills of Costs shall not be consolidated and shall be taxed separately.

Reasoning

Although the Bills relate to the same subject property, the instructions in this matter related to compulsory acquisition of part of the property while those in Misc. Application No. E187 of 2024 related to renewal of a lease by way of transmission. The two sets of instructions dealt with different issues, and consolidation would not facilitate efficient disposal.

p. 5
03

Whether the Advocate-Client Bill of Costs dated 10th September 2024 is statute barred

Holding

The Bill of Costs is not statute barred; it was filed within the six-year limitation period.

Reasoning

Under Section 4(1) of the Limitation of Actions Act, actions founded on contract may not be brought after six years from when the cause of action accrued. The Respondent did not deny effecting a payment to the Applicant in October 2022, which was the last payment. Time therefore began to run in October 2022, and the Bill filed in September 2024 was within time.

p. 6

Legal principles established

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  • A retainer is a contract between an advocate and client for provision of legal services; its existence can be evidenced in writing or by conduct, and must satisfy the elements of a contract including consensus ad idem.
  • The essence of consolidation is to facilitate efficient and expeditious disposal of disputes and not to confer advantage on the party seeking it.
  • An advocate-client relationship is contractual and governed by the Limitation of Actions Act; claims for fees must be brought within the statutory period.
  • For limitation purposes, time begins to run from the date of the last payment on the fees, not from the date of formal demand.

Court orders

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  1. 1.Dismissal of the Respondent's Notice of Motion dated 27th January 2025 with costs.
  2. 2.The Applicant's Advocate-Client Bill of Costs dated 10th September 2024 be placed before a Taxing Officer for taxation.

The bench

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

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) — Advocate-Client Bill of Costs taxation

Relief refused

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Consolidation of the Advocate-Client Bill of Costs filed herein with the Bill in Misc. Application No. E187 of 2024.

The two sets of instructions, though touching on the same land, dealt with different issues (compulsory acquisition vs renewal of lease) and consolidation would not facilitate efficient disposal.

p. 5

Striking out/dismissal of the Applicant's Advocate-Client Bill of Costs dated 10th September 2024 as statute barred.

The Bill was filed within the six-year period as the last payment was effected in October 2022.

p. 6

Costs of the application to the Respondent/Applicant.

The application was found unmerited and dismissed with costs to the Applicant.

p. 6

Costs

The Notice of Motion application is dismissed with costs to the Applicant.

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.

In the foregoing, I find the instant Notice of Motion application unmerited and will proceed to dismiss it with costs.
p. 6Disposition - dismissal of the Notice of Motion
I do not find the impugned Bill of Costs Statute barred and direct that the same be placed before a Taxing oficer for taxation.
p. 6Limitation - Bill of Costs not statute barred
I decline to consolidate the Advocate Client Bills of Costs filed herein with the Advocate-Client Bill of costs filed in Misc. Application No. E187 of 2024 and direct that the two be taxed separately.
p. 5Consolidation refused
the term retainer is used to describe a contract between an Advocate and client for the provision of legal services. There can therefore be no retainer unless the elements of a contract are present, principally consensus ad idem (agreement) between the parties.
p. 5Definition of retainer

Issues in the judgment

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minor

The case number in the header/introduction references Misc. Application No. E187 of 2024 as the lead file for consolidation, yet paragraph 22/25 also refers to the same matter as Misc. Application No. E187 of 2024 while paragraph 22 refers to E 187 of 2025 in the Applicant's submission - an apparent typographical inconsistency within the judgment.

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, "Gathemia t/a Gatheru Gathemia & Company Advocates v Abdul Waheed Sheikh and Abdul Hameed Sheikh as Trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust (Environment and Land Miscellaneous Application E186 of 2024) [2025] KEELC 7702 (KLR)", Case Analysis (2025). ELC Misc. Application E187 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7702/eng@2025-11-10

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