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ELCDismissedMiscellaneous Application No. E187 of 2024

Gatheru Gathemia T/A Gatheru Gathemia & Company Advocates v Abdul Waheed Sheikh and Abdul Hammed Sheikh as Trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust

Environment and Land Court
7 October 2026
4,367 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an advocate who accepted Ksh 19 million in agreed periodic fees cannot demand more through taxation.

What this practically means

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Executive summary

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The applicant advocate moved the Environment and Land Court at Nairobi by a reference/application seeking a stay of execution of, and setting aside of, a taxing master's ruling of 21.4.2026 on an Advocate/Client bill of costs, plus directions that the bill be taxed by a different taxing master. The applicant contended the taxing master wrongly declined jurisdiction and struck out the bill, and that she was bound by a Judge's ruling of 10.11.2025 that no valid fee agreement existed. The respondent trustees deposed that the taxing master gave cogent reasons after examining the evidence, finding a fee or retainer agreement existed with clear evidence of payments toward its fulfilment. The court set out the framework under paragraph 11 of the Advocates Remuneration Order and section 45 of the Advocates Act, and reviewed extensive authority on retainers, remuneration agreements and the limits of judicial interference with taxation. It found that the correspondence, invoices, receipts and acknowledgements showed the parties agreed on monthly fee payments, with the advocate accepting payments of an admitted Ksh 19 million. It held the retainer agreement and its substantial compliance by the respondent ousted the taxing master's jurisdiction, and that the advocate was estopped from pursuing additional fees through taxation. Finding no misdirection or error of principle, the court affirmed the taxing master's ruling and dismissed the reference and application with 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 taxing master erred in principle in striking out the Advocate/Client bill of costs and declining jurisdiction
  2. 2.Whether a retainer agreement existed between the parties and whether it was substantially complied with, thereby ousting the taxing master's jurisdiction
  3. 3.Whether the taxing master was bound by the Judge's ruling of 10.11.2025 that no valid fee agreement existed
  4. 4.Whether the applicant is estopped from pursuing additional fees through taxation

Key legal issues

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01

Existence of a retainer agreement under section 45 of the Advocates Act

Holding

The court found that the parties had a retainer agreement acted upon, with periodic payments of about Ksh 19 million, which ousted the taxing master's jurisdiction

Reasoning

The court examined annexed correspondence, invoices, receipts and acknowledgements showing monthly fee payments accepted by the advocate. Applying section 45 and case law on retainers, it concluded the parties' conduct and communications evidenced a binding remuneration agreement, substantially complied with by the client, so the advocate could not pursue additional fees through taxation.

p. 23
02

Whether the taxing master erred in principle

Holding

No misdirection or error of principle was found; the taxing master's ruling was affirmed

Reasoning

The court applied the principle that interference is warranted only for an error of principle or where the fee is manifestly excessive or low. It found the taxing master carefully considered the material on intention, conduct and meeting of minds, and correctly found a retainer agreement existed with payments toward its fulfilment.

p. 24
03

Estoppel of the advocate from claiming additional fees

Holding

The advocate was estopped from pursuing additional fees through taxation after accepting periodic payments

Reasoning

Having negotiated, accepted and received payments on an almost monthly basis to the tune of admitted Ksh 19 million, the advocate could not revert to taxation for more. The court held that courts cannot aid a party to escape a bad bargain and parties are bound by their contracts.

p. 22

Legal principles established

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  • A party aggrieved by a taxing master's decision must file a reference under paragraph 11 of the Advocates Remuneration Order within 14 days of receiving reasons
  • An agreement fixing an advocate's remuneration is only binding where it is in writing and signed by the client or his authorised agent
  • A judge on a reference will not interfere with a taxing master's exercise of discretion unless there is an error of principle
  • The burden of proving the existence of a retainer lies on the party wishing to enforce it

Court orders

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  1. 1.The taxing master's ruling delivered on 21.4.2026 is affirmed
  2. 2.The reference and the application dated 5.5.2026 are dismissed with 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 of the Advocates Remuneration Order (reference against a taxing master's decision on an Advocate/Client bill of costs)

Relief refused

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Stay of execution of the ruling on the Advocate/Client bill of costs delivered on 21.4.2026

No misdirection or error of principle found in the taxing master's decision

p. 24

Setting aside of the ruling of 21.4.2026

The reference and application were dismissed

p. 24

Directions that the Advocate/Client bill of costs dated 10.9.2024 be taxed by a different taxing master

The court found a retainer agreement existed and was substantially complied with, ousting the taxing master's jurisdiction

p. 22

Costs

The reference and the application are dismissed with costs to the respondent.

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 upshot is that I find no misdirection or error of principle in the taxing master’s decision. It is affirmed. The reference and the application herein are dismissed with costs.
p. 24Disposition - reference dismissed and taxing master's ruling affirmed
Out of the correspondences, words used, and conduct, it leaves no doubt in my mind that the parties had a retainer agreement which was acted upon, and that periodic payments were made to the applicant.
p. 23Finding of a retainer agreement
Therefore, the advocate was estopped in law from pursuing additional fees through taxation, since the retainer agreement and its substantial compliance by the respondent ousted the jurisdiction of the taxing master.
p. 22Estoppel and ouster of taxing master's jurisdiction
Jurisdiction is everything. Without it, a court has to down its tools; otherwise, anything it does is a nullity.
p. 16Jurisdiction
A validly written and executed retainer agreement caps the legal fees payable and bars taxation
p. 13Effect of a valid retainer agreement

Issues in the judgment

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minor

Application dated 5.5.2026 filed in a 2024 miscellaneous application; date mismatch unexplained

minor

First-instance reference refers to the applicant as 'the appellant'

material

Self-contradictory statement on statutory interpretation

material

Court finds a retainer agreement existed despite citing a ruling that no valid fee agreement existed

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, "Gatheru Gathemia T/A Gatheru Gathemia & Company Advocates v Abdul Waheed Sheikh and Abdul Hammed Sheikh as Trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust", Case Analysis (2026). Miscellaneous Application No. E187 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6245/eng@2026-10-07

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