Viscjhi & another v Mulewa & others (Environment and Land Case 210 of 2017) [2026] KEELC 879 (KLR)
The bottom line
#A Malindi court ruled that if you haven't formally filed to remove your advocate, you're still represented by them—even at taxation, even if they refuse service.
What this practically means
#Executive summary
#Key legal issues
#Service of the bill of costs where advocate refuses service but has not ceased acting
The Taxing Master did not err in proceeding with taxation ex parte
Article 50 guarantees a fair hearing, but the applicant's advocate on record was served with the bill and taxation notice and simply failed to attend. Under Order 9 Rule 5 CPR, an advocate who has not filed an application to cease acting remains on record until final conclusion of the matter, including post-judgment stages such as taxation. Rule 72 ARO contemplates service on the advocate on record, and lack of instructions is a private matter between counsel and client, not something the court or the opposing advocate can be expected to verify.
Error in principle in the assessment of instruction fees and getting up fees
The Taxing Master erred by considering only the value of the land (Kshs 95,000,000) while ignoring hotel structures on it, but the court nonetheless declined to interfere
The valuation report, commissioned by the applicant, valued only the land at Watamu and expressly excluded the developments thereon. Evidence showed a hotel on the land worth many times that figure. The existence of the hotel infrastructure suggests the instruction fee, and consequently the getting up fees, may have been higher had the Taxing Master established the base instruction fee with that factor in mind. Despite identifying this error, the court exercised its discretion not to disturb the taxation and dismissed the application.
Whether to extend time for filing the objection and reference
Extension of time would require great probability of merit; the court found the merits insufficient and dismissed the application
The court indicated that any extension of time would have to rest on great probability of merit in the substance of the application. The applicant attributed the delay to its former advocate's refusal of service and to late awareness of the demand letter. The court found service on the advocate effective under Order 9 Rule 5 CPR and Rule 72 ARO, and, having examined the taxation ruling, declined to enlarge time or interfere with the Taxing Master's discretion.
Legal principles established
#- Unless and until notice of change of advocate is filed and served, the former advocate remains the advocate of the party until final conclusion of the cause, including representation at taxation after judgment
- Lack of instructions is evidenced only by lodging an application to cease acting; the court cannot presume whether counsel has instructions
Court orders
#- 1.The entire application dated 22nd April 2025 is dismissed
- 2.No orders as to costs
- On appeal from
- Deputy Registrar / Taxing Master (ELC, Malindi)
- Party and party bill of costs dated 6th August 2024
- Jurisdiction invoked
- Inherent jurisdiction to enlarge time and review/set aside taxation (Rule 72 and Paragraph 11 Advocates Remuneration Order; Order 50 Rule 6 Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Viscjhi & another v Mulewa & others (Environment and Land Case 210 of 2017) [2026] KEELC 879 (KLR)", Case Analysis (2026). Chamber Summons dated 22nd April 2025 (ELC, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/879/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.