Mulongo & Company Advocates LLP v Kenzuri Industrial Limited (Environment and Land Miscellaneous Case E074 of 2025) [2026] KEELC 3309 (KLR)
The bottom line
#The High Court in Machakos dismissed an advocate's attempt to recover unpaid legal fees because he could not prove the client had actually instructed him.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should interfere with the taxing officer's decision of 25 June 2025 dismissing the advocate/client bill of costs dated 13 January 2025
- 2.Whether the taxing officer applied wrong principles in finding that no instructions/retainer existed between the advocate and the client
- 3.The competency of the replying affidavit sworn by counsel Joseph Njenga Kiarie dated 2 April 2025
Key legal issues
#Whether the court should interfere with the taxing officer's decision
The reference fails; the taxing officer committed no error of principle in dismissing the bill of costs for want of instructions
The court adopted the First American Bank principle that interference requires an error of principle. It examined the documents the advocate presented (draft sale agreement by the vendor's advocates, official search, demand letters and correspondence) and found no contact or correspondence from the client to the advocate. The parties met only once, at a bank-arranged introduction. The advocate therefore failed to discharge the burden of proving a retainer.
Whether a retainer/instructions existed between the advocate and the client
No retainer was established; instructions need not be written, but the advocate must prove them by evidence such as correspondence, which was absent
Sections 51(2) and 52 of the Advocates Act do not define 'retainer' or 'instructions', but case law treats retainer as synonymous with employment, engagement or instruction. An advocate introduced by a bank must exercise due caution under Rules 5(2) and (3) of the Advocates (Practice) Rules and make reasonable inquiries to establish clear instructions. No such instructions were proved here.
Competency of the replying affidavit deponed by the client's counsel
The affidavit was partly competent and partly not, but the advocate could not rely on it while attacking it - approbate and reprobate
Order 19 Rule 3(1) of the Civil Procedure Rules and Rule 8 of the Advocates (Practice) Rules permit counsel to depose affidavits only on formal or non-contentious matters. The impugned affidavit contained both competent and incompetent paragraphs. Since the advocate itself relied on paragraph 6 of the same affidavit to prove instructions, its objection to the affidavit failed.
Legal principles established
#- A court should not interfere with a taxing officer's decision unless the decision is based on an error of principle or the fee is so obviously excessive as to indicate a mistake of principle
- Retainer is synonymous with instructions, engagement or employment; the advocate bears the burden of proving the advocate-client relationship, and absent instructions the taxing officer has no jurisdiction to tax a bill
- A party cannot approbate and reprobate - relying on a paragraph of an affidavit while challenging the affidavit's competency is impermissible
Court orders
#- 1.The chamber summons dated 15 July 2025 is dismissed with costs to the client
- 2.The file is marked as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Paragraph 11(2) of the Advocates Remuneration Order, 2014 and Order 11 of the Advocates (Remuneration) Order; Sections 1A, 1B & 3A of the Civil Procedure Act (Cap 21)
Relief refused
#Setting aside the taxing officer's decision of 25 June 2025 dismissing the entire advocate/client bill of costs dated 13 January 2025
The taxing officer did not err in principle; no instructions or retainer were proved by the advocate, who bore the burden of proof
Referral back to the taxing officer for fresh taxation, or re-taxation by the court, of the bill of costs dated 13 January 2025
Follows from dismissal of the reference; no error of principle was demonstrated
Costs
The reference is dismissed with costs to the client.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
this court finds that the learned trial magistrate did not err in principle on matters of law or fact in dismissing the bill of costs for want of instructions. It finds that the chamber summons dated 15 July 2025 is not merited. It is dismissed with costs to the client.
a court should refrain from intervening in decisions made by the taxing officer concerning taxation unless it can be demonstrated that the decision was based on an error of principle or that the fee awarded was so obviously excessive as to indicate a mistake of principle
In this court’s humble view, it is impermissible for the advocate to approbate and reprobate.
the documents do not show any contact or correspondence from the client to the advocate. There is no record of telephone conversations between the parties herein, and it is obvious that they met only once, when they were introduced to each other by a bank.
As a matter of law, the advocate, having been introduced to the client by the bank, was expected to exercise due caution and conduct inquiries to determine whether such introductions constituted solicitation and establish whether it possessed and accepted clear instructions from the client
Issues in the judgment
#The court refers to 'the learned trial magistrate' when describing the taxing officer's decision, though the taxing officer was a Deputy Registrar
Internal date inconsistency: the replying affidavit is described as deposed on 28 October 2025 and submissions dated 25 November 2025, while the ruling is delivered on 2 June 2026 but the taxing officer's ruling is 25 June 2025 with the objection filed 8 July 2025; also the text states 'the client was later satisfied that the ruling contained suficient reasons and lodged the reference' although it is the advocate who lodged the reference
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulongo & Company Advocates LLP v Kenzuri Industrial Limited (Environment and Land Miscellaneous Case E074 of 2025) [2026] KEELC 3309 (KLR)", Case Analysis (2026). Chamber Summons dated 15 July 2025 (Advocate/Client Bill of Costs dated 13 January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3309/eng@2026-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.