Balala & Abed Advocates v Bajaber (Miscellaneous Application E193 of 2022) [2024] KEELRC 1848 (KLR)
The bottom line
#The High Court ruled a client must pay his advocate the taxed legal fees because an unsigned fee note was not a valid fee agreement.
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 Reference was procedurally defective for failure to follow Rule 11 of the Advocates Remuneration Order (notification of objection and request for reasons)
- 2.Whether the existence of a binding fee agreement under sections 45(1) and (6) of the Advocates Act deprived the Taxing Master of jurisdiction to tax the Advocate-Client Bill of Costs
- 3.Whether the Taxing Master erred in principle in his ruling, failed to determine all issues, or made contradictory findings warranting the court's interference
Key legal issues
#Whether a binding fee agreement existed that ousted the Taxing Master's jurisdiction under section 45(6) of the Advocates Act
No valid section 45 agreement existed; the deposit request note was signed only by the Advocate and represented part payment of a deposit, not full agreed fees, so taxation proceeded validly
Section 45(1) requires an agreement fixing remuneration to be in writing and signed by the client or authorised agent to be binding, and section 45(6) exempts only such agreements from taxation. The deposit request note of 8th September 2021 was signed by the Advocate, was a request for a deposit of Kshs 400,000 as part payment, and the client never signed or signalled acceptance. The court relied on Ali Mohammed Egal and Ahmednasir Abdikadir authorities confirming the writing and signature requirements.
Whether the Reference was incompetent for non-compliance with Rule 11 of the Advocates Remuneration Order
The objection failed because the Taxing Master had given an elaborate ruling with reasons for each item, making it unnecessary to seek reasons under Rule 11
Rule 11 requires a dissatisfied party to notify the taxing officer and request reasons within 14 days. The court held this procedure was unnecessary here because the Taxing Master had already delivered a detailed ruling setting out reasons for each item, so no prejudice arose and the Advocate's preliminary objection could not succeed.
Whether the Taxing Master erred in principle, made contradictory findings or failed to determine all issues
No error of principle was established; the ruling was elaborate, addressed the issues, and properly deducted the Kshs 435,000 paid from the taxed costs of Kshs 671,664.56
The court applied the standard that interference is warranted only for an error of principle. The taxing officer's ruling was elaborate, the jurisdictional issue was well determined, the deposit paid was deducted from the taxed amount leaving a balance of Kshs 236,664.56 payable, and the refund claim was untenable since the taxation exceeded payments made. The court therefore upheld the ruling.
Legal principles established
#- A fee agreement under section 45(1) of the Advocates Act is valid and binding only if in writing and signed by the client or his duly authorised agent, and only such an agreement exempts costs from taxation under section 45(6)
- A court will only interfere with a taxing officer's decision where the taxing officer erred in principle in assessing costs
Court orders
#- 1.The Reference dated 6th October 2023 is found without merit and is dismissed with costs
- 2.The Taxing Master's ruling of 22nd September 2023 is upheld and the Client is ordered to pay the Advocate the taxed balance of Kshs 236,664.56
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 11(2) of the Principal Advocates Remuneration Order, Sections 45(1) and (6) of the Advocates Act and Order 21 Rule 4 of the Civil Procedure Rules
Relief refused
#Declaration that the Taxing Master lacked jurisdiction and vacation of the taxation ruling of 22nd September 2023 with striking out of the Bill of Costs
The deposit request note was signed by the Advocate and not the Client, and provided for part payment of a deposit, not full fees, so it did not constitute a valid fee agreement under section 45(1)
Order that no additional fee is owed and refund of the unutilised portion of fees paid
The amount taxed (Kshs 671,664.56) exceeded what the Client had paid (Kshs 435,000), leaving a balance of Kshs 236,664.56 payable by the Client
Costs
The application is dismissed with costs to the Advocate; the Client to pay the Advocate the taxed amount of Kshs 236,664.56 and the costs of the Reference
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.
It is therefore clear that the client's assertions that the taxing oficer proceeded without jurisdiction due to the said agreement were baseless.
the said deposit Request Note did not meet a proper agreement anticipated under the above provisions to qualify to stop the court from proceeding with taxation
this court will only interfere with the taxing oficer's discretion if the taxing oficer erred in principle in assessing the costs
I therefore uphold the taxing Master's ruling and order that the client should pay the Advocate the taxed amount of Kshs 236,664.56/=
The application is therefore found without merit and is hereby dismissed with costs.
Issues in the judgment
#The taxing officer is referred to as 'Hon. F. Nyamora Deputy Registrar' and the ruling as a 'Taxation Ruling', but paragraph 17 of the judgment describes it as 'the ruling dated 22nd September,2023 where the court held', creating potential ambiguity as to the forum of the impugned decision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Balala & Abed Advocates v Bajaber (Miscellaneous Application E193 of 2022) [2024] KEELRC 1848 (KLR)", Case Analysis (2024). Chamber Summons application dated 6th October 2023 (Advocate-Client Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1848/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.