https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12273

Okello t/a Odero & Partners Advocates v Foundation (Commercial Miscellaneous Application E693 of 2025) [2026] KEHC 12273 (KLR) (Commercial and Tax) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12273 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Miscellaneous Application E693 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 COMMERCIAL SUIT NO. E052 OF 2025 – PRESBYTERIAN FOUNDATION V NATIONAL BANK OF KENYA Between Bernard Odero Okello t/a Odero & Partners Advocates Applicant and Presbyterian Foundation Respondent Ruling 1.Before me 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-Two Million Nine Hundred and Sixty-Three Thousand Four Hundred and Forty-Nine (Kshs.62,963,449/=), being the amount certified in the Certificate of Costs dated 16th March 2026. 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’s case is that the Respondent instructed him on or about 9th January 2025 to represent its interests in HCCOMM No. E052 of 2025 Presbyterian Foundation V. National Bank of Kenya 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 15th July 2025. 6.The Applicant averred that on 4th February 2026, the Deputy Registrar, Hon. Chembeni L. Adisa, taxed the said Bill of Costs at Kshs. 62,963,449/=, following which a Certificate of Costs dated 16th March 2026 was issued. 7.He 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. The Applicant relied on its submissions dated 18th June 2026 as well as supplementary written submissions dated 3rd December, 2025 to support its case while the Respondent filed written submissions dated 24th September 2025, in rebuttal. 9.It is the Applicant’s case that the Taxing Officer had jurisdiction to tax the Bill of Costs dated 15th July 2025. 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. 10.The Applicant submitted that on 9th January 2025 the Respondent instructed the Applicant to represent it to safeguard its interests for breach of fiduciary obligations as a result of issuance of a defective statutory notice for recovery of a loan of Kshs. 2,391,456,442/=. 11.It was the Applicant’s case that this matter was originally filed in Mombasa as Mombasa High Court Commercial Suit No. 001/2025 which was subsequently transferred to Nairobi being Nairobi Suit No. E052 of 2025. 12.The Applicant submitted that there was an irretrievable breakdown of communication between the parties and the Applicant proceeded to file an application to cease acting for the Respondent which the court allowed on19th May, 2025. 13.The Applicant submitted that it proceeded to file a Bill of Costs dated 15th July 2025 seeking remuneration in accordance with the applicable scale under the Advocate (Remuneration) (Amendment) Order 2014. 14.The Applicant contended that there was no written or oral agreement as to the legal fees payable on account of the services rendered and thus the need to invoke the jurisdiction of the taxing officer. 15.The Applicant disputes the Respondent’s averment that there was an oral agreement by the parties that the legal fees payable would be Kshs. 900,000/=. 16.It is the Applicant’s case that a legal fees 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. 17.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. 18.It was the Applicant’s case that it issued a deposit request note to the Respondent and that should not be construed as an agreement for final fees payable for the legal services rendered. 19.The Applicant submitted 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. In this regard, he placed reliance in the case of Joreth Limited v Kigano & Associates (2002) eKLR. Thus, the Applicant submitted that the amount of instruction fee charged at Kshs. 36, 071, 846.00 should be allowed as assessed in the Applicant’s bill of costs dated 15th July 2025. 20.On getting up fees, the Applicant contended that the guiding law in this matter is Schedule VI of the Advocates Remuneration (Amendment) Order, the matter being one before the High Court and the same having been filed in the year 2024. 21.He further submitted that the taxing officer has discretion in arriving at the final figures. It was also submitted that the taxing master should award the Applicant costs as drawn as a way of compensating him for the work rendered on the instructions of the Respondent. 22.The Applicant submitted that the Certificate of Taxation issued on 16th March 2026 should be adopted as a Judgment of the Court because it is conclusive as to the quantum of costs unless and/or until it is set aside or altered by a competent Court which it has not. 23.It is the Applicant’s case that the Respondent has not challenged the taxation, has not filed a Reference, has not sought review of the taxation, and has not obtained any order staying the Certificate of Taxation. Thus, it contended that the inevitable legal consequence is that the Certificate of Taxation remains binding and enforceable. 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 are relied on to buttress this submission. 24.The Applicant submitted that it is entitled to interest on the taxed costs pursuant to Rule 7 of the Advocates Remuneration Order having served the bill of costs on 16th July 2025 and subsequently having served the taxation ruling on 17th February 2026. It is submitted that the Applicant is entitled to interest from 16th July 2025 until payment in full. The decision in D. Njogu & Company Advocates v Kenya National Capital Corporation [2006] eKLR, is relied on in this regard. 25.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. 26.Lastly, the applicant submitted that the court should adopt all the items in the bill of costs as drawn to scale at a total of Kshs.83,899,154.00. 27.The Respondent submitted that the Applicant had unequivocally acknowledged that a fee of Kshs.900,000/= was paid by the Respondent for the two matters, Nairobi Civil Suit E052/2025 and Commercial No. E787 of 2024, Presbyterian Foundation vs National Bank of Kenya. 28.It is the Respondent’s case that the Advocate- Client Bill of costs drawn by the Applicant is an abuse of court process as the agreement entered between the parties was duly performed. 29.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 matter despite several requests. It was submitted that by the time the Applicant ceased acting for the Respondent, the matters had not been concluded. 30.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. 31.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. 32.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. 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. 33.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. 34.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/=. 35.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. 36.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/= and at no point did he indicate that the fees paid was in the interim. 37.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. 38.It was further submitted that the receipt of the Kshs. 900,000/= establishes a contractual relationship which the courts should be reluctant to interfere with. 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. 39.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 40.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 Costs issued by the taxing officer. 41.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. The Court will therefore proceed based on this Certificate of Taxation. 42.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 and urges this Court to dismiss it. 43.The record shows that the Applicant filed an Advocate - Client Bill of Costs dated 15th July 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. 62,963,449/=. 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. 44.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. 45.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.” 46.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. 47.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.” 48.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.” 49.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.” 50.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. 51.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. 52.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……” 53.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). 54.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 E052 OF 2025. 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 the existence of the retainer save for the amount payable or the Applicant's entitlement to costs. Fortifying this finding, the Respondent in its submission’s states “The Applicant represented the Respondent in the suit NAIROBI COMMERCIAL SUIT NO. E052 of 2025 for breach of fiduciary obligations occasioned by the Defendant in the said matter through issuance of defective statutory notices for recovery of a loan of Kshs. 2,391,456,442/=. The above suit was the result of transfer of the Mombasa High Court Commercial Suit No. E001 of 2025 to Nairobi. The Respondent also instructed the Applicant to institute a separate suit, Commercial No. E787 of 2024, Presbyterian Foundation v National Bank of Kenya.” 55.Considering the above, the Court is satisfied that there was an advocate- client relationship between the parties with no written agreement on the agreed amount of fees. Thus, 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. 56.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. 57.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-Two Million Nine Hundred and Sixty-Three Thousand Four Hundred and Forty-Nine (Kshs. 62,963,449/=), 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. 58.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JULY 2026W.N. MOLONKOJUDGEDelivered Virtually in the presence of:-Ms. Shamallah H/b for Odero for the Applicant.N/A for the Respondent.Susan Nzioka- Court AssistantPage 4 of 4