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

Gatheru Gathemia, Advocate, sworn on 5.5.2026 and 31.7.2026, respectively. 3. It is the applicant's contention that the taxing master declined jurisdiction and struck out the same wrongly; hence the present reference dated 5.5.2026. 4. The application is opposed through a replying affidavit of Abdul Waheed Sheikh sworn on 14.7.2026. It is deposed that the Taxing Master, by striking out the Advocate's/ client bill of costs, gave cogent reasons after thoroughly examining the evidence set out in the affidavits filed by both parties, finding that a fee or retainer agreement existed, as seen in paragraphs 15-27 of the ruling dated 21.4.2026, whose findings were in line with the Advocates Act, as there was clear evidence of several payments toward fulfilment of the retainer agreement. 5. In a supplementary affidavit, the applicant contends that the taxing master went beyond its power and jurisdiction in conflict with the Judge’s ruling made on 10.11.2025 that no valid fee agreement existed between the parties, hence dismissed the application dated 27.1.2025, which decision was binding on the taxing master. Page 2 of 25 ELC L MISC E187 OF 2024

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6. The applicant deposes that the taxing officer had no mandate to overturn, overlook, revisit, ignore, review, vary or disregard such a finding, rehashing issues already canvassed before the Judge. 7. The jurisdiction of the court to deal with an objection to a taxing master's decision on taxation of Advocate/Client Bill of Costs is governed by paragraph 11 of the Advocates Remuneration Order. A party aggrieved by the decision has to file a reference within 14 days of receiving the reasons. 8. In Kenya Airports Authority Vs Otieno Ragot & Company Advocates, Petition No. E011 of 2023 [2024] KESC 44 (KLR), the court said that the purpose and interpretation of statutes and documents is to discern the intention of the framers thereof which intention can be derived from the words used therein and the context thereof as held in Law Society of Kenya Vs Attorney General & Another (2019) KESC 16 (KLR ) and in Reserve Bank of India vs Peerless General Finance and Investment Company Limited & others (1987) 1 SCC 424; AIR 1987 SC 1023; 1987 SCR (2) 1; The Page 3 of 25 ELC L MISC E187 OF 2024

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court said that the Advocates Remuneration Order is anchored in Section 44 of the Advocates Act relating to prescription and regulation of advocates remuneration in respect of professional recompensation of costs business undertaken /expenses incurred and by a successful party. 9. The court said that the overall objective is to prevent exploitation of parties to a suit/transaction with regard to remuneration of advocates as well as to maintain the standard of the legal profession. 10. The court said that the Advocate Remuneration Order is aimed at ensuring that fees/cost paid to an advocate and a successful party are recoverable, which is to be determined on a case-to-case basis. The court cited with approval Premchand Raichand Limited & another vs Quarry Services of East Africa Limited & another(1972) EA 162 (CA) that the guiding principles of the Advocate Remuneration Order are that; a) Costs should not be allowed to rise to a level as to confine access to justice to the wealthy. Page 4 of 25 ELC L MISC E187 OF 2024

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b) A successful party ought to be fairly reimbursed for the cost he has incurred. c) The general level of remuneration of advocates must be such as to attract recruits to the profession and d) so far as practicable there should be consistency in the award made. 11. as The court said that section 36 of the Advocates Act, read together with Rule 3 of the Advocates Remuneration Order proscribes an advocate from charging or accepting otherwise than in part payment any fee or other consideration for professional business which is less than the prescribed fee in the Advocates Remuneration Order. 12. On the role of the taxing master, the court said that he or she must do so judiciously but not whimsically. 13. Regarding schedule (vi) part B on advocate & client costs, the court cited with approval Central Bank of Kenya Vs Makhecha & Company Advocates [2019] KECA 338 (KLR) that where the party/party costs have been taxed and agreed, unless there be an agreement as Page 5 of 25 ELC L MISC E187 OF 2024

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to fees between advocate and client, the advocate is entitled, as of right by dint of schedule (vi) B, of Advocates Remuneration Order to the party and party cost plus half of the same. 14. The court said that it is a matter of arithmetic requiring no exercise of discretion on the part of the taxing officer. 15. The court said that Rule 16 of the Advocates Remuneration Order ought to be read together with section 2 of the Advocates Act. 16. The court cited with approval Black Law Dictionary 8 th Edition, 2004), p. 1406, that Judicial discretion means “ the exercise of Judgment by a court based on what is fair under the circumstances guided by the rule and principles of law.” The court cited with approval Ratemo Oira & Company Advocate Vs Magereza Sacco Society Ltd [2019] eKLR, which held that the business of taxation of costs must ensure a delicate balance between the guiding principles aptly pronounced by the Premchand case (supra). Page 6 of 25 ELC L MISC E187 OF 2024

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17. The powers and Jurisdiction of the court under Rule 11, Advocates Remuneration Order is meant to be exercised to meet the ends of justice so that the objector is not barred from filing a reference. 18. In this matter, the reference is based on the ground that the taxing master declined jurisdiction, since there was a retainer agreement which the client had sufficiently complied with by making full payment. 19. Section 45(6) of the Advocates Act is the Law governing Advocates' client remuneration agreements. The section says that an agreement fixing an advocate's remuneration is only binding where it is in writing and signed by the client or his authorised agent. 20. In Omulele & Tollo Advocates vs Mount Holdings Limited [2016] KECA 523 (KLR), the court held that although oral relationship, instructions they do may not establish constitute a retainer a binding remuneration agreement under Section 45 of the Act. 21. A retainer is defined in Halsbury's Laws of England 4th Edition as the act of authorising or employing a solicitor to act on behalf of a client. Page 7 of 25 ELC L MISC E187 OF 2024

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Section 45 (1) of the Advocates Act permits a client to enter into an remuneration. agreement Once validly fixing the entered, it advocate's ousts the jurisdiction of the taxing master to tax costs covered by the agreement. 22. A retainer agreement is different from a retainer, for the former constitutes the written manifestation of the terms and conditions governing the relationship, including remuneration. In Nyamweya Osoro & Nyamweya Advocates vs Sotik Tea Company Limited ( Civil Appeal 283 of 2019) [2026] KECA 341 (KLR) (27 TH February 2026) (Judgment), jurisdiction to tax had been challenged since the client had said there was a retainer agreement for provision of legal services. 23. The client was arguing that it had paid all the monies and a discharge voucher signed discharging the client of all obligations it had towards the advocate. The bill of costs was accordingly struck out on appeal; the appellant was urging the court to fault the learned Judge for failing to find the purported agreement null and void. Page 8 of 25 ELC L MISC E187 OF 2024

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24. The court cited with approval Ahmednasir Abdikadir & Company Advocates vs National Bank of Kenya Limited (2006) eKLR that only agreements compliant with section 45 of the Advocates Act can bar taxation, for they have the effect of waiving statutory safeguards and are therefore construed strictly. 25. The court cited with D.Njogu & Company Advocates Vs National Bank of Kenya [2016] Eklr, that an advocate who willingly and knowingly enters an agreement concerning the payment of his fees that is contrary to the Advocates Remuneration Order cannot maintain proceedings whose purport is to avoid the illegal agreement by reverting to the court to tax his advocate & client bill of costs in accordance with the Advocates Remuneration Order, since having made his bed, he must lie on it. 26. The court said that notwithstanding the illegality of the contract, the court cannot, aid the applicant, since he is estopped by his conduct, from seeking the court’s intervention. Page 9 of 25 ELC L MISC E187 OF 2024

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27. Regarding the discretion of the taxing officer, in Nairobi Bottlers Limited vs Mark Ndumia Ndunge & Another, Petition Appeal No. E024 of 2023 together with Application No. E030, E034 & E038 of 2023, the Supreme Court of Kenya, cited Fredrick Otieno Outa vs Jared Otieno Odoto & Others (2023) KESC 75 (KLR) on the principles to consider in an application for setting aside a taxation decision as ; 1) There is an error of principle committed. 2) The fee awarded is shown to be manifestly excessive high or so low as to confine access to court to the wealthy or manifestly too low to cause an injustice to a party. 3) Costs must not be regarded as a punishment to the defeated party but as a recompense for expenses incurred. 4) The award proposed is so far as practicable, and consistent with previous awards in similar cases. 5) There is no mathematical formula to be used as each case must be assessed on its own peculiar circumstances. Page 10 of 25 ELC L MISC E187 OF 2024

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6) Discretion must be exercised judicially, not whimsically. 28. Applying the foregoing principles to the instant suit matter, the court has looked at the ruling delivered on 10.11.2025, the issue that the court dwelt on, regarded whether or not the bill of costs could be consolidated, and whether or not they were statute-barred. 29. The court, in paragraph 25, was clear that it did not find any retainer between the parties save for some correspondences between the parties. The court did not dwell on the merits of the bill of costs as regards jurisdiction; hence the reason it referred the bill to the taxing master by declining the primary prayers sought in the motion dated 27.1.2025. 30. As to the ruling dated 21.4.2026, the role of this court is to interfere inter alia only where there is an error of principle. The central question from both the bill of costs, the supporting affidavits and the replying affidavit in support of and against the bill was whether there was a retainer agreement and payments in relation to the retainer agreement. Page 11 of 25 ELC L MISC E187 OF 2024

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31. Both the applicant and the client, in their respective averments and annexures, admit that there was a retainer relationship for contentious and non-contentious legal work. 32. The question that the taxing master was dealing with was whether there was a retainer agreement under section 45 (1) of the Advocates Act. It is trite that a Judge ought not to interfere unless the taxing officer misdirected herself, or as held in Joreth Limited vs Kigano & Associates [ 2002 ] eKLR. In Simon Kitalei Kachapin & others vs Joel P. Arumonyang & Another ( Civil Appeal No. 64 of 2016 [2021] KECA 36(KLR) (23 rd September 2021) (Ruling), the court cited with approval Wilfred N.Konosi t/a Konosi & Company Advocates Vs Flamco Limited [2017] KECA 431 (KLR) on the issue of whether an advocate & client relationship exists in taxation of bill of costs in court. 33. There are, in law, three types of retainers: general, specific and contingency retainers. A general retainer is an agreement where an advocate is engaged over a period of time and a client pays a fixed periodic fee to have the Page 12 of 25 ELC L MISC E187 OF 2024

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advocate available for consultation on a routine basis on matters. A specific retainer is where a retainer occurs for a specific matter or transaction. A contingency retainer is one in which an advocate's fees are contingent on the success of a case. Section 46 of the Advocates Act forbids such retainers. A retainer may be created either orally, in writing or by conduct. 34. A validly written and executed retainer agreement caps the legal fees payable and bars taxation, as was held in Joel N.Mwanthi & Company Advocates vs Jarvisaps Enterprises Limited & Another [2025] EKLR. 35. Advantages of retainers include predictable legal costs and ensuring certainty for the client. It also ensures that an advocate understands the client's culture, rights, tolerance and the client's legal priorities. For the client, it ensures that an advocate is always available to respond to urgent matters when the client is in need of legal help. It also prevents an advocate from representing a client’s competitor, Page 13 of 25 as was held in Century Oil Trading ELC L MISC E187 OF 2024

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Company Limited Vs Kenya Shell Limited [2008] KEHC 3680 (KLR) 36. A retainer agreement also encourages long-term participation and trust, hence improving legal results and ongoing communications. A retained advocate is also able to foresee potential legal difficulties and legal risk for the client. 37. In Otieno Ragot & Company Advocates vs National Bank of Kenya [2023] KECA 685 (KLR), the taxing officer had found the existence of a retainer agreement and the taxation proceeding statute-barred. The court said that a reference is a test of the taxing officer’s reasons on objected items. The court said that a taxing master’s decision ought to be reviewed based on the material placed before him only. 38. In this reference it is not in dispute that when confronted by the client respondent, the appellant herein, filed annexures to his supporting affidavit and that of the accountant to address the question of the retainer agreement and the reconciliation of the amount received from the respondent. Some of the annexed documents Page 14 of 25 ELC L MISC E187 OF 2024

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were for periodic payment made to the applicant by the respondent . 39. A client is defined under the Advocates Act as a person , who as principal on behalf of another, has power, express or implied to retain or employ an advocates who he is liable to pay to an advocate any costs. 40. The orders in law like any other agreement of proving the existence of a retainer is on he who wishes to enforce it. In Omulele & Tollo Advocates vs Mount Holdings Limited [2016] EKLR the court said that the presence of a retainer in what in turn gives rise to the retainer agreement. 41. In Tom Ojienda and Associates versus Nairobi City Council Civil Appeal No 273 of 2020, a reference had been dismissed for there was no unusually complex or novel pont that could carry the figure and for lack of error of principle in taxation . The Court of Appeal held that value in constitutional or public law matters arises from the pleadings and is not lifted from the size of a budget the case happens to brush against. The court said that a taxing master's decision is not overturned because Page 15 of 25 ELC L MISC E187 OF 2024

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a figure looks high or low. The court said it only steps in for an error of principle or where a fee is so excessive or too low as to become an injustice. 42. Error in principle in taxation was discussed in ta versus Otieno Odoto 2023 KESC 75 KLR and in Nairobi Bottlers Ndumia Ndungu and Limited another versus petition Mark application no E024 ,E30, E34 and E38 of 2023. 43. The burden is on the appellant to establish the manner in which the taxing master fell in error on the known principles allueded governing taxation generally and in particular the jurisdiction of the taxing master. Jurisdiction is everything. Without it, a court has to down its tools; otherwise, anything it does is a nullity. Jurisdiction is a creature of statute, the constitution or both. It cannot be conferred by consent of parties or through judicial craftsmanship or parties' draftsmanship. 44. In this reference, it is not in dispute that when confronted by the client/ respondent, the applicant herein filed annexures to his supporting affidavit and that of the accountant to address the question of the retainer Page 16 of 25 ELC L MISC E187 OF 2024

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agreement and the reconciliation of the amount received from the respondent. Some of the annexed documents were for periodic payments made to the applicant by the respondent. 45. A client is defined under the Advocates Act as a person who, as principal on behalf of another, has power, express or implied, to retain or employ an advocate whom he is liable to pay any costs. 46. The burden in law, like any other agreement, of proving the existence of a retainer is one who wishes to enforce it. 47. The court cited Kenya National Capital Corporation & Another Vs Albert Mario Cordeiro & Another [2014] KECA 775 (KLR), which held that there must be proof of the existence of a retainer relationship. 48. In this matter, the evidence tendered before the taxing master and which the applicant did not dispute showed that the applicant and the respondent had a contractual arrangement where the latter was paying a Page 17 of 25 ELC L MISC E187 OF 2024

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recurring fee to the advocate. The act of authorising or employing an advocate, in my view, constituted a retainer. 49. In Ochieng Onyango Kibet & Ohaga Advocates vs Akiba Bank Limited [2007] KEHC 2677 (KLR), the court said that a retainer is the foundation upon which the retainer of an advocate and a client rests. 50. In Sattva Capital Corp vs Creston Moly Corp (2014) SCC 43, the court held that parties must demonstrate consensus ad idem or a meeting of minds. 51. Section 48 (1) of the Advocates Act states that an advocate and his client may, before, after or in the course of contentious business, make an agreement fixing the amount of the advocate's remuneration. From the annexures to the supporting affidavits by the applicant, he did acknowledge that there were correspondences with the respondent in which the parties discussed various contentious and non-contentious matters, and that there was an offer and acceptance to undertake legal business subject to payment of periodic legal fees. Page 18 of 25 ELC L MISC E187 OF 2024

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52. my The correspondences shows and leaves no doubt in mind that the parties agreed on monthly fee payments, which, from the annexures, were acknowledged receipts by the applicant with a view to reconciling the amount received and the amount outstanding. The applicant had to engage an accountant, who swore a supporting affidavit after going through the receipts and payments issued and received. 53. The law is that a Judge in a reference will not normally interfere with the exercise of discretion by the taxing master, unless the taxing master erred in principle in assessing the cost. In Kipkorir Titoo & Kiara Advocates VS Deposit Protection Fund board [2005] EKLR , Peter Muthoka & Another vs Ochieng & others [2019] EKLR , Joreth Limited vs Kigano & Associates [2002] EKLR, the court said that the taxing master has discretion as to what it considers based on either the pleadings, the judgment on settlement, and cannot disregard the statutory commanded starting point. 54. In Majanja Luseno & Co. Advocates& VS Dhirajlal V.Patani [2021] eKLR the client had invoked Page 19 of 25 ELC L MISC E187 OF 2024

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section 45(6) of the Advocates Act because there existed a binding Remuneration agreement between them and the Advocate. The court said that in the absence of any credible evidence, it remained clear when if ever, the sale of the subject matter was concluded to support the averment that by the time the applicant came on record the sale had completed hence the applicant could not claim legal fees of the same. 55. In RTS Flexible System Limited Vs Molkerie Alois Muller GmbH & Co KG (UK Production) [2010] UKSC 14, the court said that whether there is an intention to create legal relations is to be implied objectively based on the expectation of a reasonable honest businessman. 56. The court said that it all depends on an assessment of communication by word and conduct between the parties. The court said that relevant circumstances would include substantial performance occurring, essential terms such as the price were agreed upon, and negotiations were in an advanced stage. 57. The Supreme Court determined that the parties' actions, such as commencing work, invoicing, and making Page 20 of 25 ELC L MISC E187 OF 2024

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payouts, indicated a mutual intention to be bound by the agreed terms. The court rejected the Court of Appeal's stanz that no contract existed, because the agreed price and the substantial performance by both parties underscored the presence of a binding agreement. 58. The court said that the waiver of the subject-to- contract clause was in line with the parties' conduct, aligning with established legal principles that prioritise objective evidence of intention over formalistic procedural barriers. 59. The decision reinforced the importance of clear communication and mutual understanding in contract negotiations, underscoring that intent, as evidenced by conduct and agreement on essential terms, has primacy over procedural formalities. 60. In Wilson vs The Spectre Partnership & others [2007] EWHC 133 (Ch), (2007) 6 costs LR 802, Lord Denning held that for an agreement to count as a CBA, there must be sufficient certainty regarding fees and must tell the client, “what he is letting himself in for by way of costs”. The court said that a CBA is a bargain fixing or Page 21 of 25 ELC L MISC E187 OF 2024

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providing a sufficiently certain mechanism for fixing what the solicitor is to be paid. 61. In G M Gamma Advocates LLP vs Board of Trustees of the National Social Security Fund, ELC Misc No. E221 of 2024, [2025] KEILC 5 965 (KLR), the question was whether negotiation and conduct transformed into a binding agreement. The court said that it is when parties' correspondences and actions leave no room for doubt. 62. In this matter, the applicant and the respondent attached a chain of letters, correspondences, invoices, receipts, payments and acknowledgements that explicitly described the agreed fees. 63. In my considered view, the advocate negotiated, accepted and received payments on an almost monthly basis for the period the retainer is on to the tune of admitted Ksh 19 million. 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. Page 22 of 25 ELC L MISC E187 OF 2024

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64. In my view, section 45 of the Advocates Act should be interpreted not just by its letter but in the light of the parties' conduct. The main purpose of a statute is to promote access to Justice. A statute should be interpreted in a manner that undermines the statute's significance. 65. In Asanyo & 3 others Vs Attorney General, Petition 21 of 2015 [2018] KESC 15 KLR, the court said that the epitome of justice between parties before a court was when the parties finally and voluntarily came to an amicable settlement of the dispute between them, as the court only comes as an impartial arbiter. 66. The court said that a holistic interpretation of the consent was intended to settle the matter. Therefore, looking at the decision by the taxing master, she carefully went through the material that was placed before the court as regards the intention, conduct and the meeting of minds of the parties as to what they had agreed. 67. 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. Page 23 of 25 ELC L MISC E187 OF 2024

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68. It is not the business of the court to rewrite contracts, as held in National Bank of Kenya Vs Pipeplastic SamKolit (K) Ltd & another [2001] EKLR. Courts only enforce contracts unless vitiated by coercion, undue influence, or are against public policy or illegal. Courts cannot help parties escape from a bad bargain, as held in Fina Bank Limited Vs Spares & Industries Limited [ 2000 ] eKLR. 69. Parties are bound by their contracts. A court cannot amend the terms of the parties' contract, as was held in Nyutu Agrovet Limited Vs Airtel Network Limited 2015] KECA 1012(KLR) 70. 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. 71. Orders accordingly. DATED, SIGNED AND DELIVERED ON THIS 7th DAY OF OCTOBER, 2026 AT NAIROBI. …………….. HON. JUSTICE C.K NZILI Page 24 of 25 ELC L MISC E187 OF 2024

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JUDGE In the presence of ; Mr. Khatete , McRonald for the Applicant Mr. Oundo for the Respondent. Court assistant ; Julius LegaL Researcher ; Bevalyn Nyakwana Page 25 of 25 ELC L MISC E187 OF 2024

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