Mulongo & Company Advocates LLP v Kenzuri Industrial Limited (Environment and Land Miscellaneous Case E074 of 2025) [2026] KEELC 3309 (KLR)

In summary, it is stated that the Hon. taxing oficer erred in principle on matters of law and/or fact in dismissing its bill of costs (BOC) dated 13 January 2025 on 25 June 2025 by: i. Failing to appreciate the true nature of the matter and the retainer between the parties. ii. Holding that there were no instructions given to the advocate by the client that could be inferred either directly or constructively from correspondence on record. iii. Failing to appreciate that the advocate was retained when the client's bank held a meeting wherein the advocate was introduced to the client. iv. Pegging the retainer between the advocate and the client on written instructions and failing to appreciate that the non-existence of written instructions does not mean a lack of a retainer. v. Erred in principle by noting that the correspondence between the advocate and the vendor's advocate was never copied to the client, hence no instructions upon the advocate/client could be inferred. vi. Confusing the advocate as the drafter of the sale agreement of the property title Number Plot No.1 and 2 of LR No. 12648/72(IR 13345/1)[suit properties] instead of the vendor's advocate, who, as a matter of practice, draws the sale agreements in conveyancing transactions. vii. Failed to appreciate that the advocate had conducted due diligence, including a search of the RTA title of the property from the Central Lands registry. viii. Failing to address the preliminary issue raised by the advocate in its submissions dated 2nd May 2025 related to the client’s advocate, one, Mr. Joseph Njenga Kiarie's competence to depone the replying afidavit dated 2nd April 2025 on behalf of the client that dealt with contentious issues. ix. Disregarding the advocate's submissions. 3. The summons is strenuously challenged by the lengthy replying afidavit of Chen Kun, a director of the client, deposed on 28 October 2025. Concisely, he informs the court that the advocate was neither retained nor appointed by the client to act on its behalf in the sale and purchase of the suit properties, and the burden was upon the advocate to adduce evidence to the contrary, which the Advocate failed to do. It is settled law that, in any conveyancing transaction, instructions to act as legal counsel are issued only after the parties have reached an agreement on the terms of the sale and purchase contract, particularly after the consideration has been agreed upon. 4. Further, an advocate is entitled to fees only upon being duly instructed, retained, or employed by a client. The client was introduced to the advocate by the bank at its instance. At that juncture, no instructions to act in the purported conveyance were issued, as the client was still engaged in negotiations regarding the purchase price with the prospective vendor. Subsequently, the client and the prospective vendor failed to reach an agreement on the purchase price. As a result, the conveyance relating to the suit properties was aborted, and the sale and purchase transaction was not substantially concluded. 5. Accordingly, Schedule 1 Rule 18(a) of the Advocates Remuneration Order, it provides that remuneration is only payable upon the completion of a sale or purchase, negating in its entirety the advocates' BOC. Further, pursuant to Schedule 5 Rule 18(f) thereof, an advocate is entitled to payment of a reasonable fee commensurate with the work done. In the present case, the conveyance of the subject property was never initiated, and there is no substantiated work performed by the advocate that would entitle it to remuneration. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3309/eng@2026-06-02 2

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6. Additionally, it is argued that even if the vendor's advocates prepared the sale agreement, the client neither authorised nor instructed the advocate to accept or review the said agreement. The client instructed its counsel on record, Mr. Joseph Njenga Kiarie, to file the replying afidavit sworn on 2 April 2025, as the response was grounded in law. It is maintained that the Deputy Registrar was justified both in law and in fact in dismissing the BOC. 7. Accordingly, following the court’s directions, the summons was argued through written submissions filed by the advocate acting in person, dated 3 November 2025, and those of the client filed by the law firm of Ms. Joseph Kiarie & Co. Advocates, dated 25 November 2025. Therefore, when considering the singular issue for determination, namely whether this court should interfere with the taxing oficer’s decision, this ruling shall, later in its analysis and decision, examine the rival positions as set out in the motion, grounds, afidavits and submissions, and take into account the law and judicial precedents. We proceed. 8. The pertinent legal provision granting this court the authority to hear a reference against the decision of a taxing oficer and establishing the procedure for approaching this court as a superior court is located in Order 11 of the Advocates (Remuneration) Order (“Order”), which states: “ (1) Should any party object to the decision of the taxing oficer, he may within fourteen days after the decision give notice in writing to the taxing oficer of the items of taxation to which he objects. (2) The taxing oficer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. (3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. (4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.” 9. Although the advocate did not tender a complete copy of the ruling, this court retrieved the proceedings that were before the taxing oficer. It shows that the impugned ruling was rendered on 25 June 2025, and, being aggrieved, the advocate filed an objection on 8 July 2025 in accordance with Order 11(1), seeking the reasons for the decision. Although the reasons were not provided, the client was later satisfied that the ruling contained suficient reasons and lodged the reference. 10. Regarding prevailing jurisprudence, when handling a reference, the persuasive decision of First American Bank of Kenya Ltd v Gulab P. Shah & 2 others [2002] KEHC 1277 (KLR), which this court adopts, states that a court should refrain from intervening in decisions made by the taxing oficer 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. See also Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR), Joreth https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3309/eng@2026-06-02 3

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Limited v Kigano & Associates [2002] KECA 153 (KLR) and Kamunyori & Company Advocates v Development Bank Of Kenya Limited [2015] KECA 595 (KLR). 11. Thus, having outlined the principles of law, this court shall now consider the grievances raised by the advocate against the hon. taxing oficer, allegedly stemming from a misapprehension of legal principles and facts. However, prior to proceeding, it is necessary to address the preliminary issue concerning the competency of the replying afidavit sworn by counsel, Mr. Joseph Njenga Kiarie, dated 2nd April 2025, which was before the honourable taxing oficer. 12. Regarding the law on this issue, Order 19 Rule 3(1) of the Civil Procedure Rules and Rule 8 of the Advocates (Practice) Rules stipulate the circumstances under which counsel may depose an afidavit. These circumstances include formal or non-contentious matters of fact within any matter in which counsel acts or appears, and such afidavits may contain statements of information and belief, including sources and grounds. A careful scrutiny of this afidavit reveals that there were paragraphs in which counsel was competent to depose and others in which he was not. 13. Notwithstanding that the advocate has raised the issue of this impugned afidavit, which the advocate argues should not have seen the light of day, the advocate at the same time relies on paragraph 6 of this very afidavit, which is a contentious fact, to buttress its argument that it received instructions from the client. In this court’s humble view, it is impermissible for the advocate to approbate and reprobate. This court need not say more, as the advocate's argument fails. 14. Turning to the substantive matter, the primary dispute between the parties concerned whether there were instructions conveyed from the client to the advocate, directing it to act on its behalf in relation to the purported intended purchase of the suit properties. In the impugned ruling, the hon. taxing oficer found none. Thus, the question for assessment is whether the taxing master applied wrong principles in assessing the BOC and finding a want of instructions. 15. The Advocates Act does not include a definition of the term “instructions” or “retainer”. Section 51 (2) of the Advocates Act states as follows: “ The certificate of the taxing oficer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.” Underlined for emphasis purposes. 16. However, Section 52 of the Act delineates circumstances under which an advocate may be entitled to instruction fees as follows: “ Any court in which an advocate has been employed to prosecute or defend any suit or matter may at any time declare the advocate entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or matter, and may make orders for the taxation of the costs and for raising money to pay or for paying the costs out of the property so charged as it thinks fit, and all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the advocate: Provided that no order shall be made if the right to recover the costs is barred by limitation.” Underlined for emphasis purposes. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3309/eng@2026-06-02 4

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17. These provisions of the law have been the subject of interpretation, and there is concurrence that the term “retainer” is synonymous with the terms “instructions”, “engagement” and “employment”. In Mukono Ondieki & Company Advocates v Unclaimed Financial Assets Authority [2019] KEHC 11544 (KLR), the court stated:“ I am persuaded that the word retainer as used in section 51(2) of the Advocates Act is synonymous with “employment,” “engagement” or “instruction.” An advocate duly instructed is retained and where there is no dispute that an advocate was duly instructed by the client in any matter, the retainer cannot be said to be in dispute.” 18. In Owino Okeyo & Company Advocates V Pelican Engineering & Construction Co. Ltd [2006] Kehc 1315 (KLR), the court, in concurring with previous decisions, held as follows: “ What is in contention is whether or not there is a dispute as to the retainer. I agree with my learned brothers Ringera J as he then was and Waweru J with their definitions of what a retainer is. As cited above, Ringera J took the word to mean “employment” “engagement” or “instruction” in Hezekiah Ogao Abunya –vs – Kuguru Food Complex Ltd (Supra). Waweru J on his part in A.N. Ndambiri & Company Advocates – vs – Mwea Rice Growers Multi-purpose cooperative Limited (Supra) defined retainer as used in Section 51(2) of the Advocates Act as “instructions to act in the matter in which the costs have been taxed.” 19. In this matter, there was a significant dispute regarding the retainer. Since it is well-established law that the party making an allegation must prove it, the obligation was on the advocate to substantiate its claims that it was properly engaged by the client to act on its behalf. 20 In demonstrating these claims before the hon. taxing oficer, the advocate presented several documents. These documents have also been submitted to this court and they are copies of a draft agreement for sale by Archer & Wilcock, acting as the alleged vendor’s advocates, to the advocate; an oficial search of 12648/72 (IR No. 12648); correspondence from the advocate to the client demanding settlement of its invoice; correspondence between the advocate and the alleged vendor’s advocates; correspondence from Kenplastic Limited to the advocate; and correspondence from the advocate to a Mr. Chen (presumably the deponent of the afidavit) requesting for relevant documents. 21. When considering these documents, the hon. taxing oficer, in finding that the advocate was not retained by the client, stated that, from the record, which has not been disputed, the only interaction between the advocate and the client was a meeting arranged at the bank’s convenience, at which the advocate sat in and was introduced to the client. 22. The hon. taxing oficer, after considering the documents submitted by the advocate, stated that she was not persuaded that any instructions were given in the matter, whether direct or constructive. Apart from the oversight regarding which advocate drafted the agreement for sale, this court concurs with her conclusions, as 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. 23. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3309/eng@2026-06-02 5

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solicitation and establish whether it possessed and accepted clear instructions from the client as required by Rules 5(2) and (3) of the Advocates (Practice) Rules, which state: 24. “ (2) No advocate may with regard to any such claim knowingly act for any client introduced or referred to him by any person or organization whose connexion with such client arises from solicitation in respect of the cause of any such claim. (3) It is the duty of an advocate to make reasonable inquiry before accepting instructions in respect of any such claim for the purpose of ascertaining whether the acceptance of such instructions would involve a contravention of subrule (1) or (2).” Furthermore, prevailing jurisprudence, whether binding or persuasive, which this court associates with, when confronted with similar circumstances herein, has consistently held that evidence by an advocate demonstrating a relationship with the client is essential, a requirement not fulfilled in this case. In the Court of Appeal decision of Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] KECA 431 (KLR), the court afirmed: “ The nexus between the advocate and his or her client is the advocate/client relationship which springs from instructions by the client to the advocate. Absent such relationship, the Taxing Oficer would be bereft of jurisdiction to tax a bill……… Not a single letter by the appellant to the respondent was exhibited to demonstrate that the relationship of advocate-client obtained. The onus reposed on the appellant. It was not discharged. In the absence of proof that there existed advocate-client relationship, the Taxing Oficer was justified in striking out the Bill of Costs as she did and the learned Judge of the High Court was right to uphold the decision of the Taxing Oficer.” 25. In Mugoye & Associates Advocates v Kiambu County Assembly Speaker [2018] KEHC 4859 (KLR), the court held: “ In the absence of a contract or evidence to that efiect, it would be dificult for this Court to find that there is a contractual relationship between the advocates and the client for purposes of taxing the Advocate- client Bill of costs.” 26. Similarly, in Charles M Karweru t/a Karweru and Co Advocates v Maisha Flour Mills Ltd [2019] KEHC 10752 (KLR), the court stated: “ Looking at the subject bill of costs there is no semblance of advocate-client relationship to warrant taxation of the said bill. Instructions do not have to be written. The advocate can prove that they have been given instruction by providing correspondence or the case number which the Applicant failed to do before the taxing master.” 27. Consequently, guided by the law and judicial precedent, 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. This file is efiectively marked as closed. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 2ND DAY OF JUNE, 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3309/eng@2026-06-02 6

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HON. A. Y. KOROSS JUDGE 02.06.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms. Kanja Court Assistant. Mr. Ndegwa for applicant. No appearance for other parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3309/eng@2026-06-02 7

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