https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7407

Anyumba & Associates Advocates v Apollo (Civil Miscellaneous Application E093 of 2025) [2026] KEHC 7407 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7407 (KLR) Republic of Kenya In the High Court at Kisumu Civil Miscellaneous Application E093 of 2025 A Mabeya, J May 29, 2026 Between Anyumba & Associates Advocates Applicant and Owuor Felix Apollo Respondent Ruling 1.By Summons dated 14/08/2025, the respondent sought to have the decision of the taxing master delivered on the 15/7/2025 in respect of the Bill of Costs dated 21/5/2025 set aside and that the Court finds that there was no retainer agreement between the applicant and respondent. 2.The Summons was brought under the provisions of rules 45, 46 & 49 of the Advocates Act and Rule 11 (2) and 79 of the Advocates Remuneration Rules and Order 22 rules 22 of the Civil Procedure Rules. 3.The grounds for the Summons were set out therein as well as in the supporting affidavit of Owuor Felix Apollo sworn on the 14/8/2025. It was contended that the taxing master erred by asserting that there existed a retainer agreement between the parties herein prior to proceeding and taxing the Bill of Costs dated 21/5/2025. That this amounted to a procedural and substantial flouting of the law that exposed the respondent to injustice. 4.The reference was opposed vide Grounds of Opposition dated 3/10/2025 as well as a Notice of Preliminary Objection of the same date. In its Grounds of Opposition, the applicant stated that the reference was fatally defective as the Court lacked the jurisdiction to entertain it. In the Preliminary Objection it was contended that the reference was fatally defective for failure to comply with Rule 11 (2) of the Advocates (Remuneration) Order having been filed out of time. 5.The parties filed submissions which I have duly considered. The first issue that falls for determination is whether the reference was filed out of time and, therefore, fit for dismissal. 6.Paragraph 11 of the Advocate’s [Remuneration] Order comprehensively provides for the procedure to be conformed with by a party desiring to impugn a Taxing Officer’s decision on a Party and Party bill of costs. It bears repeating that the procedure is mandatory. The section provides;“ 1.Should any party object to the decision of the taxing officer, he may, within 14 days after the decision, give notice in writing to the officer of the items of taxation to which he objects. 2.The taxing officer 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 parties concerned, setting out the grounds for objection” 7.In the present case, the gravamen of the respondent’s claim was that the taxing officer erred by holding that there was a retainer agreement between the parties herein. That being aggrieved with the decision, vide a letter dated 28/7/2025, he wrote to the taxing master seeking reasons for the decision delivered on the 15/7/2025 but had not received the said decision. 8.I have perused the impugned decision of the taxing master delivered on the 15/7/2025. In explaining the decision to find that a retainer agreement existed between the parties herein, the taxing officer held as follows: -“Each party has filed submissions in support of their version but the main issue for determination is whether the mother file has been furnished for confirmation of retainer relationship.I was able to trace the physical file KSMCMCC NO. E21 of 2020 particularly the affidavit sworn by one William on behalf of the respondents.Secondly the judgment was not entered against the 1st defendant as Anyumba advocate represented both defendants therein.I was able to see the attached defence and the same was for both defendants.An advocate client relationship is considered a contract but the same had continuity of instructions during pendency of the matter or as long as the matter is still on going.Advocates can receive instructions from clients either in writing or orally. Although for clarity, written instructions are preferred to minimize potential disputes.I will therefore establish that there was advocate client relationship between the parties herein and proceed to tax the bill herein” 9.The step contemplated under Paragraph 11 is aimed at enabling the Party intending to challenge the decision of the Taxing Officer to pick materials to aid him in preparing the application contemplated under subparagraph [2], with sufficiency. 10.In this regard, where the Taxing Officer gives a detailed ruling, giving reasons for his or her decision on all the taxed items of the bill of costs, and avails the written decision to the parties, it may not be necessary to engage the process provided for under subparagraph [1]. 11.Consequently, where a ruling is detailed like the one the subject matter of this reference, the date when the ruling was availed to the parties, becomes pivotal in computing the time contemplated under subparagraph [2]. 12.The Learned Taxing Officer’s ruling was availed to the parties on 15/7/2025. As such, the 14 days for filing a reference against the Taxing Officer’s decision was to lapse and indeed did, on 28/7/2025. 13.The reference was filed on 19/8/2025, therefore, out of time. 14.This Court has no jurisdiction to entertain a reference filed out of time without the leave of the Court. As a result, the respondent’s reference is hereby struck out with costs to the applicant.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026.A. MABEYA, FCI ArbJUDGE