https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12274

Okello t/a Odero & Partners Advocates v Presbyterian Foundation (Commercial Miscellaneous Application E694 of 2025) [2026] KEHC 12274 (KLR) (Commercial and Tax) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12274 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Miscellaneous Application E694 of 2025 WN Molonko, J July 30, 2026 IN THE MATTER OF COSTS UNDER THE ADVOCATES REMUNERATION ORDER -AND- IN THE MATTER OF TAXATION OF ADVOCATE – CLIENT COSTS IN THE MILIMANI COMMERCIAL AND TAX DIVISION Between Bernard Odero Okello t/a Odero & Partners Advocates Applicant and Presbyterian Foundation Respondent Ruling 1.Before this court is a Notice of Motion application dated 29th May 2026 filed by the Applicant under the provisions of Section 51 (1) & (2) of the Advocates Act, Order 51 of the Civil Procedure Rules and all enabling provisions of the law. 2.The Applicant seeks an order for entry of judgment in its favour against the Respondent in the sum of Kenya Shillings Sixty -Nine Million Nine Hundred and Ninety-Six Thousand Nine Hundred and Forty-Three (Kshs.69,996,943/=) being the amount certified in the Certificate of Costs dated 16th March 2026. The Applicant also seeks for costs of the application. 3.The application is premised on the grounds on the face of the motion and supported by an affidavit sworn on the same day by Benard Odero Okello, an Advocate of the High Court of Kenya and the Applicant herein. 4.The Applicant avers that the Respondent instructed him pursue interests on its behalf in Nairobi Commercial Suit Number E787 OF 2024 for breach of fiduciary obligations occasioned by the Defendant through issuance of defective statutory notices for recovery of a loan of Kshs. 2,391,456,442/=. 5.The Applicant deponed that although he duly rendered the requested legal services, the Respondent failed to settle the advocate’s fees, prompting the filing of an Advocate - Client Bill of Costs dated 12th August 2025. 6.The Applicant’s case is that on 4th February 2026, the Deputy Registrar, Hon. Chembeni L. Adisa, delivered a ruling on the Applicant's Advocate- Client Bill of Costs dated 12th August 2025 and taxed the same at Kenya Shillings Sixty -Nine Million Nine Hundred and Ninety-Six Thousand Nine Hundred and Forty-Three (Kshs.69,996,943/=) 7.The Applicant asserted that the taxation has neither been varied nor set aside, that the Respondent has failed or refused to satisfy the certified costs despite demand. As such, he urged the Court to enter judgment for the certified sum. 8.This application was canvassed by way of written submissions. To support its case, the Applicant relied on submissions dated 18th June 2026 to support the instant application, submissions in support of the amended Advocate-Client Bill of Cost dated 1st September 2025, and supplementary submissions in support of the Amended Bill of Costs dated 5th December 2025. On the other hand, the Respondent filed written submissions dated 3rd November 2025, in rebuttal. 9.It is the Applicant’s case that on 4th February 2026, the Deputy Registrar, Hon. Chembeni L. Adisa, delivered a ruling on the Applicant's Advocate- Client Bill of Costs dated 12th August 2025 and taxed the same at Kenya Shillings Sixty -Nine Million Nine Hundred and Ninety-Six Thousand Nine Hundred and Forty-Three (Kshs.69,996,943/=). 10.It was submitted that thereafter, Hon. Stella Sagwe issued a Certificate of Taxation dated 16th March 2026 certifying the said sum as due and payable to the Applicant. 11.It was urged that the Respondent has neither challenged the taxation by way of a Reference under Rule 11 of the Advocates Remuneration Order nor sought to set aside, vary, review or stay the taxation proceedings. Therefore, it was argued that vide section 51(2) of the Advocates Act, the Certificate of Taxation is conclusive as to the quantum of costs. The decisions in Ahmednasir Abdikadir & Company Advocates v National Bank of Kenya Limited [2006] KEH 2910 (KLR), Lubulellah & Associates Advocates v NK Brothers Limited [2014] KEHC 8685 (KLR), and Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] eKLR were relied on to buttress this submission. 12.This court was urged to safeguard the integrity and sanctity of the taxation process and uphold the Certificate of Taxation issued on 16th March 2026. 13.It was the Applicant’s case that the Respondent instructed it to act on its behalf and file a suit under certificate of urgency to stop a Receiver Manager from taking over the Respondent's Property under Bankruptcy Proceedings in exercise of Debenture Rights over loan accounting disputes of Kshs.2,391,456,442/= loan repayments. 14.It was urged that the Applicant proceeded to file the suit by Plaint in Nairobi HCCOMM E787 OF 2024 to challenge the notice of appointment of receiver dated 16th December 2024. 15.The Applicant contended that it was instructed and filed a separate but related suit in Mombasa High Court Commercial Suit No. 001/2025. That the suit was later transferred to Nairobi as High Court Commercial suit number E052/2025 which matter is subject of a separate Bill of Costs. 16.It was urged that for both files, the Respondent paid the sum of Kshs.900,000/= equally split between the files to an amount of Kshs.450,000/=. It was argued that the Respondent then neglected to pay fees for the instructions and started engaging the Defendant National Bank Limited directly prompting the Applicant to cease acting for them in the matter and pursue its fees. 17.It was submitted that the filing of two separate Bill of Costs by the Applicant does not amount to duplication or double recovery. It was urged that that professional fee is charged based on the work and/or legal services duly rendered. 18.The Applicant refutes the Respondent’s assertion that the Bill of Costs drawn in HCCOMMISC E694 OF 2025 - Benard Odero T/A Odero & Partners Advocates and in HCCOMMISC E693 of 2025- Benard Odero T/A Odero AND Partners Advocates are duplicative. It was submitted that this assertion is misconceived as each bill arises from a distinct matter with its own pleadings, thereby entitling the Applicant to separate remuneration for the professional services diligently rendered. 19.It was urged that the Respondent's interpretation of the doctrine of double jeopardy is not only misconstrued but dangerously misleading, as the principle is confined to criminal proceedings and cannot be stretched to civil matters like taxation of the Bill of Costs. The decision in Jeremiah Gitau Kiereini -Versus- Capital Markets Authority and the Attorney General [2013] eKLR was relied on to bolster this submission. 20.It was further urged that Taxing Officer has jurisdiction to tax the Bill of Costs dated 12th August 2025 by virtue of the existence of an advocate-client relationship between the parties. The Applicant relied on the provisions of section 48(3) and 51 of the Advocates Act, and the case of Wilson Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] eKLR), to buttress this submission. 21.It was submitted that no written or signed fee agreement has been produced, nor any documentary evidence tendered to demonstrate the existence of such an agreement as contemplated under section 45 of the Advocates Act. It is urged that mere assertions without proof cannot suffice to establish a contractual relationship. 22.It is the Applicant’s case that a legal fee agreement is only considered valid if it meets the criteria set out under section 45 of the Advocates Act. Counsel relied on the cases of Kakuta Maimai Hamisi v. Peris Pesi Tobiko, Independent Electoral and Boundaries Commission & Returning Officer Kajiado East Constituency [2027] KEHC 3070 (KLR), Nzaku & Nzaku Advocates v Tabitha Waithera Mararo as Trustee of Tracy Naserian Kaaka (minor) & others [2020] eKLR and A.S Kuloba & Wangila Advocates v Brooklyn Cleaning Services Limited (Judicial Review Miscellaneous Application E049 of 2025) [2025] KEHC 15594 (KLR) (Judicial Review) (3 November 2025) (Ruling) to underscore what constitutes a valid agreement pursuant to section 45 of the Advocates Act. 23.The Applicant submitted that section 45 clearly stipulates that an agreement for legal fees must be in writing, signed by the client and should be reasonable. It was further submitted that as per section 107 and 109 of the Evidence Act, the burden of proof rests upon the Respondent to place before the court a valid agreement that meets the stated statutory requirements. 24.It was the Applicant’s case that it issued a deposit request note to the Respondent and this should not be construed as an agreement for final fees payable for the legal services rendered. 25.On instruction fees, it was urged that the amount chargeable as instruction fee ought to be based on the subject matter value of a suit where the value is ascertainable from the pleadings or judgment of the court. Therefore, the Applicant argued that Kshs.36,071,846/= is a fair and commensurate amount towards instruction fees based on Kshs. 2,391,456,442/=, the value of the subject matter involved. The Applicant contended that the guiding law in this matter is Schedule VI of the Advocates Remuneration (Amendment) Order. The cases of Peter Muthoka and Another Versus Ochieng and 3 Others Nairobi Court of Appeal Number 328 of 2017 (2019) eKLR, Joreth Limited v Kigano & Associates [2002] eKLR and First American Bank of Kenya -vs- Shah and others [2002] 1EA 64, were relied on to buttress this submission. 26.On getting up fees, the Applicant submitted that by law, getting up fees is charged at one third of the instruction thus having submitted for Kshs.36,071,846/= as instruction fees, the Applicant prays for Kshs.12,023,948.60/= to be awarded as the getting up fees as pleaded. 27.The Applicant further relied on the decisions in Local Authorities Provident Fund v Nairobi City County Government (Cause 746 of 2019) [2023] KEELRC 3391 (KLR) (20 December 2023) and Premchand Raichand Ltd and another v Quarry Services of East Africa Ltd and Others No.3 (1972 EA 162) to urge that the taxing master should award the Applicant special fee arising from the scope of work provided by the Advocate, the pecuniary interest involved and the labour and responsibility entailed in handling the matter. It was further submitted that the taxing officer has discretion in arriving at the final figures. 28.It was submitted that the Bill of Costs is for a total of Kshs.83,956,323.56/= and from the Pleadings, the subject value of the matter can be ascertained. Thus, the Applicant urged the Taxing Officer to allow the Amended Bill of Costs dated 12th August 2025 as drawn in the total sum of Kshs.83,956,323/=. 29.On costs, the Applicant relied on Section 27(1) of the Civil Procedure Act, the decisions in Kenya Sugar Board vs. Nungu Gathini (2013) eKLR, Jasbir Singh Rai & 3 Others v Tavlochan Singh Rai & 4 others (2014) eKLR and Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another [2016] eKLR to contend that the Respondent should bear the costs of the application. 30.In conclusion, the Applicant submitted that the court should adopt the Certificate of Taxation issued in HCOMM Misc. E694 of 2025 issued on 16th of March 2026 as a Judgment of the Court and that the Court enters Judgment in favour of the Applicant in the sum of Kshs. 69,996,943/= . 31.The Respondent submitted that it was represented by the Applicant in Nairobi Commercial Suit No. E787 of 2024 regarding a loan advanced and which the Defendant claimed that the interests and penalties had accrued to Kshs.2,391,456,442/=. 32.It was submitted that this matter went hand in hand with another suit, Nairobi Commercial Suit No. E052 OF 2025 (Formerly Mombasa E001 OF 2025) Presbyterian Foundation v National Bank Of Kenya. It was contended that a look at both suits reveal that the subject matter was the same, being the disputed loan amount and the status of the loan payment by the Respondent. 33.It was urged that at the material time, the Applicant was not acting for the Respondent and the new Advocates on record applied to court for both matters to be withdrawn because the subject matter was the same which was application was allowed. 34.It was submitted that the Applicant has acknowledged that a fee of Kshs.900,000/= was due and paid by the Respondent for both matters, Nairobi Civil Suit E052/2025 and Commercial No. E787 of 2024, Presbyterian Foundation vs National Bank of Kenya. 35.It is the Respondent’s case that the parties did not enter into any written agreement. It was urged that upon ceasing to act for the Respondent in both matters, the Applicant filed for Party-to-Party Bill of Costs under High Court Miscellaneous Application No. 693 of 2025 in complete disregard of the already existing arrangement with Respondent and despite having been paid the agreed amount. 36.It is contended that both Applications are duplications and a clear scheme to have the Respondent suffer double jeopardy if condemned to pay for both Bills. 37.It is the Respondent’s case that with both matters withdrawn, the subject matter in both suits being the same, payment of fees having been made, and there being in existence High Court Miscellaneous Application no. 693 of 2025, it is a stranger to this Advocate - Client Bill of Costs drawn by the Applicant. It is further submitted that the same is an abuse of the Court process. 38.The court was urged not to get in between a contract between consenting parties and uphold the principle of freedom of contract, which holds that parties are bound by the terms they voluntarily agree to. 39.The Respondent contends that the relationship between the parties went awry when the Applicant instituted applications in court without the Respondent’s approval and did not update the Respondent on the progress of the despite several requests. It was submitted that by the time the Applicant ceased acting for the Respondent, the matters had not been concluded. 40.The Respondent submitted that it paid Kshs. 900,000/= to the Applicant as payment for the fees save that there was no written agreement between them. 41.It was urged, without prejudice, that even if the Bill of Costs was entertained as presented, it would be defective, erroneous and understated for the following reasons. 42.On instruction fees, the Respondent submitted that the Applicant misapplied the subject value of the suit. It was contended that sections 44,46(d), 48 and 51 of the Advocates Act are applicable to the scenario at hand. 43.It was submitted that the Respondent disputed the amount of Kshs. 811,000,000/= as demanded by the National Bank in the outstanding debt and contended that it had paid the said amount over and above the figure indicated. It was urged that if National Bank were to be refunded, it would get the above amount, not what the Applicant alludes to and uses as their basis for the calculations. Reliance was placed in Peter Muthoka vs. Ochieng and 3 others [2029] eKLR in this regard. 44.It was submitted that the only pleadings in court were those of the Respondent, who was the plaintiff in the matter and who upon being adjudged to be owing the sum of Kshs. 811,000,000 /=. urged the Court to find that it had in fact settled the sum. Therefore, the figure quoted by the Applicant was submitted to be incorrect and with no basis. 45.It was the Respondent’s case that the applicable law is Schedule 6B as read together with Schedule A of the Advocates Remuneration Order. It was contended that in the instant matter, the instructions to the Applicant were to institute a plaint refuting the debt amounting to Kshs. 811,000,000/=. 46.The Respondent further argued that the getting up fees was not due to the Applicant. It was averred that by the time the relationship between the parties became strained, the Nairobi HCCCOMM E052/2025 had not been set down for hearing nor any submissions tendered. To bolster this submission, the Respondent cited the case of Christopher O. Kenyariri t/a Kenyariri & Associates Advocates v. Community Bank Limited [2021]. It was submitted that since the matter had not been set down for hearing, the getting up fees of Kshs. 12, 023,948/= does not apply and should not be considered and should be taxed off. 47.On VAT calculations, the Respondent argued that it paid Kshs. 900,000/= for the two suits as legal fees and VAT should be calculated based on that fee. The Respondent argued that the Applicant received the Kshs. 900,000/=, is being economical with the truth and at no point indicated that the fees paid was in the interim. 48.It was contended that where an Advocate acknowledges payment without a formal Advocate-Client Agreement, the Advocate is typically barred from pursuing a formal Advocate-Client Bill of costs. It is the Respondent’s case that Section 45(6) of the Advocates Act is applicable in this matter. 49.It was submitted that where there is a valid agreement between an Advocate and a Client with regard to legal fees, an Advocate is not at liberty to tax his/her costs. In support of this, Counsel cited the cases of Sifa International v. Board of Trustees NSSF [2018], and Corporate Insurance Company Limited v Kang’ethe and Mola Advocates. 50.In conclusion, the Respondent urged the Court to shield it from exorbitant and predatory fees and urged the court to strike a balance creating a level playing field for the parties. In this regard, the Respondent cited the case of Nyangito & Co Advocates v Doinyo Lessos Creameries Ltd, HC Misc No. 843 of 2013 ([2014] eKLR. Analysis And Determination 51.Upon consideration of the pleadings and written submissions in this case, the issue that arises for determination is whether the Court should enter judgment for the Applicant in terms of the Certificate of Taxation issued by the taxing officer on 16th March 2026. 52.Before delving any further in this matter, I must point out that the Applicant refers to a Certificate of Taxation dated 16th March 2026. However, the Certificate of Taxation on record in this matter is dated 4th February 2026 issued on 16th March, 2026. The Court will therefore proceed based on this Certificate of Taxation. 53.The Applicant is emphatic that this Court should adopt the Certificate of Taxation as a judgment of the Court. The Respondent on the other hand contends that the Bill of Costs is exorbitant a duplication and urges this Court to dismiss it. 54.The record shows that the Applicant filed an Advocate - Client Bill of Costs dated 12th August 2025 for taxation. The said bill was subsequently heard and taxed vide a ruling delivered on 4th February 2026, by the Deputy Registrar, Hon. Chembeni L. Adisa. The bill was taxed in the sum of Kshs. 69,996,943/=. Thereafter, a Certificate of Taxation was duly issued on 16th March 2026, by Hon. Stella Sagwe of the same sum, certifying the amount payable by the Respondent. 55.I have carefully examined the record and find no evidence that the Respondent challenged the taxation by invoking the procedure prescribed under Rule 11 of the Advocates (Remuneration) Order, which requires a party dissatisfied with a decision of the Taxing Officer to, within fourteen days, give notice in writing specifying the items objected to, whereupon the Taxing Officer furnishes reasons for the decision which reasons can be appealed. Further, there is no evidence before me that the Respondent applied to set aside, vary or stay the Certificate of Costs. 56.It is therefore without doubt, that the provisions of section 51(2) of the Advocates Act kick in. This section provides that:“The certificate of the taxing officer 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.” 57.Accordingly, Section 51 (2) of the Advocates Act is categorical that once a Certificate of Costs is issued and has not been set aside or altered, no other action would be required from the Court save to enter judgment upon application. This is the first statutory requirement. 58.Additionally, the Court of Appeal in Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] KECA 587 (KLR) has explained section 51(2) of the Advocates Act in the following terms:“….unless set aside or altered, the party and party bill in respect of the same suit having already undergone the scrutiny of a taxing officer who had exercised discretion to arrive at a determination of the just party and party fees, and with it the instruction fees, the issue of the quantum of the advocates’ instruction fees was effectively disposed of at that time. As such, that decision was final and binding on the concerned parties.” 59.Further, the High Court in Lubulellah & Associates Advocates v N K Brothers Limited [2014] KEHC 8685 (KLR) held at paragraphs 19-21: “The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation that was issued on 25th November 2012.The aforesaid position has been held by this court in HC Misc 486 of 2012 E.W. Njeru & Co Advocates vs Zakhem Construction (K) Limited and HC Misc 487 of 2012 E.W. Njeru & Co Advocates vs Zakhem Construction (K) Limited and several other courts regarding the entry of judgment upon issuance of a Certificate of Costs that had not been set aside or impugned. This position is based on the provisions of Section 51 (2) of the Advocates Act Cap 16 (laws of Kenya) cited hereinabove and Section 48 (3) of the Advocates Act, the latter which states as follows:-“Notwithstanding any other provision of this Act, a bill of costs between an advocate and a client may be taxed notwithstanding that no suit for recovery of costs had been filed.” 60.In the case of Lesinko Njororge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] KEHC 9046 (KLR) the High Court in paragraph 9 explained the circumstances under which judgment may be entered on a Certificate of Costs as follows:“The procedure provided in section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of advocate-client costs as long as: (1) the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs; (2) the Certificate of Costs has not been set aside or stayed or appealed against on a reference filed upon it; and (3) there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the advocate. The application may be commenced by way of a Notice of Motion which in law is potent tool for originating a suit.” 61.In the premise, the Court is satisfied that the aforesaid Certificate of Taxation remains valid as it has not been impeached in any manner recognized by law. 62.The second statutory requirement is that the retainer should not be disputed. Black’s Law Dictionary, 9th Edition, defines retainer as: “A. A client’s authorization for a lawyer to act in a case. B. a fee that a client pays to a lawyer simply to be available when the client needs legal help during a specified period or on a specified matter. C. A lump sum fee paid by the client to engage a lawyer at the outset of a matter- also termed engagement fee. D. an advance payment of fees for work that the lawyer will perform in the future – also termed retaining fee. 63.Halsbury’s Laws of England, 5th Edition, 2009 vol 66 at page 13 para 763 defines retainer as; “The act of authorizing or employing a solicitor to act on behalf of a client constitutes the solicitor’s retainer by that client. Thus, the giving of a retainer is equivalent to the making of a contract for the solicitor’s employment……” 64.The Court of Appeal in Omulele & Tollo Advocates v Mount Holdings Limited [2016] KECA 523 (KLR) held: ‘…. retainer’ covers a broad spectrum. It encompasses the instructions given to an advocate as well as the fees payable thereunder. A retainer need not be written; it can be oral and can even be inferred from the conduct of the parties. However, if there is no evidence of retainer, except a statement from the advocate, which a client contradicts, the court will treat the advocate as having acted without authority from the client (see. Halsbury’s Laws of England, (supra) at page 14 para 765). 65.On examination of the Applicant’s affidavit in support of the instant application, the Applicant averred that the Respondent instructed him to act on his behalf in Nairobi Commercial Suit Number E787 OF 2024. The record shows that the said averment has not been controverted, since the Respondent did not file any pleadings in opposition to the instant application, disputing either the existence of the retainer or the Applicant's entitlement to costs save for the amount. Fortifying this finding, the Respondent in its submission’s states “The Applicant represented the Respondent in the suit NAIROBI COMMERCIAL SUIT NO. E787 of 2024 for breach of fiduciary obligations occasioned by the Defendant in the said matter through non- disclosure of material facts regarding a loan advanced and which the defendant claimed that the interests and penalties had accrued to Kshs.2,391,456,442/=. The Respondent also filed an application to stop the Third interested Party, receiver from assuming the roles of the Respondent’s Milele Beach Hotel.” 66.It is now well settled that while the Court must satisfy itself that the retainer is not disputed, such dispute must be real and supported by material placed before the Court. In the circumstances of this case, the Respondent averred that there was an unwritten agreement between the parties as to costs payable at Kshs.900,000/= for both matters. However, this came through the Respondents written submissions when the Bill of Costs had already been taxed and no challenge has been lodged against the resulting Certificate of Taxation as required under section 11 of the Advocate’s Act. In light of the above, the Court is satisfied that the applicant has met all the statutory conditions contemplated under section 51(2) of the Advocates Act, to warrant entry of judgment for the amount certified in the Certificate of Costs. 67.On Costs, I note that once judgment is entered, the decretal sum becomes a judgment debt. Pursuant to section 26(1) of the Civil Procedure Act, the Court retains discretion to award interest on the judgment sum at Court rates from the date of judgment until payment in full. In the circumstances of this case, I find it appropriate to exercise that discretion. 68.The upshot is that the instant application is merited. In the premise, the court orders –i.Judgment is entered in favor of the Applicant against the Respondent for Kenya Shillings Sixty-Nine Million Nine Hundred and Ninety-Six Thousand Nine Hundred and Forty-Three (Kshs.69,996,943/=), being the amount certified in the Certificate of Costs dated 4th February 2026 and issued on 16th March, 2026.ii.The said sum shall attract interest at Court rates from the date of this judgment until payment in full; andiii.Each party to bear its own costs. 69.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JULY 2026W.N. MOLONKOJUDGEDelivered Virtually in the presence of-Shamallah h/b for Odero for the Applicant.N/A for the Respondent.Susan Nzioka- Court Assistant