https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2093

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **MISCELLAENOUS APPLICATION NO. E011 OF 2023** IN THE MATTER OF THE ADVOCATES ACT CHAPTER 16 LAWS OF KENYA **AND** IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT **BETWEEN** BENARD O. ODERO T/A ODERO *&* PARTNERS ADVOCATES………………….…….**APPLICANT** **VERSUS** KENYA COUNTY GOVERNMENT WORKERS UNION…………………….……………………**RESPONDENT** **RULING** 1. Vide an application dated 3rd December 2025 the Applicant seeks the entry of judgment in the sum of Kshs. 1,529,182/-, being the amount certified in the Certificate of Taxation dated 7th May 2024, together with interest at the rate of 14% per annum from 21st November 2023. He also prays for the costs of the application. The application is premised on the five grounds on its face and the Applicant's supporting affidavit. He deposes that he diligently represented the Respondent in **Kisumu ELRC Cause No. E007 of 2021** but was never paid his professional fees, thereby necessitating the filing of an Advocate–Client Bill of Costs dated 30th January 2024. The bill was subsequently taxed at Kshs. 1,529,182/-. He further avers that the taxation has never been set aside or varied and that, despite the issuance of the Certificate of Taxation, the Respondent has failed to settle the taxed costs. He therefore urges the court to allow the application in the interests of justice. 2. The application is opposed through a replying affidavit sworn on 30th April 2026 by the Respondent's General Secretary, Mr. Roba Sharu Duba. While acknowledging the taxed fees, he contends that the Applicant acted pursuant to a retainer agreement under which he was to receive a total fee of Kshs. 7,000,000/-, payable in monthly instalments of Kshs. 250,000/- commencing on 1st January 2022, for, among other matters, representation in the aforesaid suit. He further deposes that, in accordance with that agreement, the Respondent remitted several cheques to the Applicant, as evinced by annexture "RSD-2", the receipt of which the Applicant has not disputed. 3. The Respondent further contends that, in light of the retainer agreement, the taxing officer lacked jurisdiction to tax the Bill of Costs. It also disputes the Applicant's claim for interest at 14% per annum, arguing that such interest only becomes payable thirty days after proper service of the Bill of Costs. According to the Respondent, the Bill of Costs was never properly served because it was sent to the incorrect email address, namely *klcgwuhq@yahoo.com*. Consequently, it asserts that the claim for interest is untenable and urges the court to dismiss or strike out the application. 4. The application was canvassed by way of written submissions. Applicant's Submissions 1. In support of the application the Applicant identifies the issues for determination as: * + 1. Whether the Certificate of Taxation herein should be adopted as a judgment of the court pursuant to section 51(2) of the Advocates Act; 2. Whether the Respondent can re-litigate issues concerning the alleged fee agreement at the adoption stage after dismissal of the reference; and 3. Whether this court is *functus officio* having rendered itself on the reference. 2. On the Certificate of Taxation, the Applicant reiterates that it should be adopted as it has not been varied altered or set aside. In support of this position, he relies on section 51 (2) of the Advocates Act, which underscores that a certificate by a taxing officer is final unless set aside or altered by the court and the court may enter judgment for the sum certified provided the retainer is not disputed. The Applicant submits that the Respondent has not demonstrated the existence of an appeal or stay order barring adoption of the Certificate of taxation hence the same should be adopted as prayed. 3. Regarding the retainer agreement, the Applicant submits that the issue is no longer open for determination, having been conclusively addressed in this Court's ruling delivered on 2nd December 2025. He contends that the Respondent's reliance on the retainer is barred by the doctrine of *res judicata* and cites **John Florence Maritime Services *&* another *v* Cabinet Secretary Transport *&* Infrastructure *&* 3 others [2021] KESC 39 (KLR)**. He submits that by making reference to the retainer the Respondent is improperly inviting the court to sit on appeal over its own ruling under the guise of opposing adoption of the Certificate of Taxation. Concerning this Court being *functus officio*, the Applicant submits that upon dismissal of the reference its mandate as regards the merits of the taxation was done. He asserts that if at all the Respondent was dissatisfied it should have appealed. Respondent's Submissions 1. The Respondent submits that the issue of a retainer is not *res judicata*. It asserts that the ruling merely struck out the chamber summons and did not specifically pronounce itself on the issue of its retainer. It further contends that, by virtue of section 45(6) of the Advocates Act, the Bill of Costs ought not to have been taxed at all where there existed a remuneration agreement between the parties. In support of this position, it relies on **Otieno Ragot *&* Co. Advocates *v* National Bank of Kenya Limited [2017] KEHC 5200 (KLR)**, in which the court rejected the notion that a Certificate of Costs is final and remitted it to the taxing officer for re-taxation in accordance with the agreement between the parties. The Respondent submits that section 51(2) of the Employment Act does not impose a mandatory duty to enter judgment in terms of the Certificate of Costs but allows the court latitude to set aside the certificate even at the adoption stage, where the retainer is not disputed. To buttress its position the Respondent draws attention to Justice Rika's ruling in **Benard Odero Okello t/a Benard Odero *&* Co. Advocates *v* Kenya County Government Workers Union** **[2026] KEELRC 262 (KLR)**, where the court held that, in view of a subsisting retainer agreement, the Bill of Costs ought not to have been presented for taxation by virtue of section 45(6) of the Advocates Act. 2. Without prejudice to the foregoing, the Respondent submits that should the court be inclined to adopt the Certificate of Taxation, it ought first to deduct all sums already paid to the Applicant pursuant to the retainer agreement, as evinced by the cheques annexed to its replying affidavit. It further argues that where disputes arise concerning the amount ultimately payable, the court may decline to adopt the Certificate of Taxation and instead remit the matter to the taxing officer for the taking of accounts. In support of that proposition, it relies on **Menyee *&* Kirima Advocates *v* Keya Commercial Bank HC. Misc. Appl. No. 511 of 2024 (UR)** and **Kenyariri *&* Associates Advocates *v* National Bank of Kenya Limited [2016] KEHC 2735 (KLR)**. Consequently, it urges the court to dismiss the application with costs or in the alternative enter judgment for the net balance after setting off of the part payments. Furthermore, it urges the court to reject the claim for interest at 14% per annum from 21st November 2023 and instead award interest from one month after proper service of the Bill of Costs or, alternatively, from the date of judgment. Disposition 1. The issue for determination is straightforward. Is this Court *functus officio* having rendered a Ruling on the matter in respect of the reference and therefore incapable of correcting the manifest illegality in preferring a taxation on a matter that had a retainer agreement? The short answer is no. This is because an illegality voids any action taken. In the matter bringing forth the taxation, it is evident the Applicant did not serve the Respondent. He used the incorrect email address, namely *klcgwuhq@yahoo.com* instead of the correct email which is known to the Applicant being *klgwuhq@yahoo.com*. There was no proper service of the bill of costs. Importantly, the application before me is not *res judicata*. The phrase *res judicata* is literally Latin for "a matter judged". This legal principle, bars litigants from relitigating a matter if it has already been decided by a court. Once a court has made a final determination in a matter, the same parties cannot sue again over the same issue which was in issue in the previous suit. I find that the case before me was not *res judicata* nor does the principle apply to the aspects of the case subject of this Ruling. 2. The taxation undertaken was a nullity *ab initio* the Respondent and the Applicant having had a retainer agreement. The Advocate in addition, failed to disclose to the Taxing Officer, that there was a valid retainer agreement between the Parties, dated 17th November 2022, at the time of taxation. The Advocates Act in section 45(6) provides that the costs of an Advocate, in any case where an agreement has been made by virtue of this section, shall not be subject to taxation. That being the law there was no authority to tax a bill whose foundation was tenuous. Regardless of whether there was proper service, the Bill of Costs should not have been presented before the Court for taxation. In my considered view the only order that commends itself for me to make is one disallowing the taxation made; and rejecting any bill of costs drawn in respect of the matters which were subject of the retainer agreement, one of which is the case that brought to bear this unlawful taxation, challenged vide these proceedings. Applicant to bear the costs of the motion to the Respondent as he filed a bill of costs knowing full well, he had no authority to do so. It is so ordered. **Dated and delivered at Kisumu this 21st day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**