https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9861

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **MISC. CIVIL APPLICATION NO. E1070 OF 2025** **IN THE MATTER OF THE ADVOCATES ACT** **AND** **IN THE MATTER OF ADVOCATE-CLIENT BILL OF COSTS** **BETWEEN** **CHRISTINE ORARO & CO. ADVOCATES………………ADVOCATE/RESPONDENT** **-VERSUS-** **EAST AFRICAN PORTLAND CEMENT COMPANY………........CLIENT/APPLICANT** **RULING** **The Application** 1. **East African Portland Cement Company** (hereafter the Client) has moved this court by way of the Notice of Motion dated 12.01.2026 (the Motion) supported by the grounds set out on its face and in the affidavit of the Client’s Legal Officer, **Abdisalan Ali.** The Motion seeks the following orders: 2. ***Spent.*** 3. ***THAT the ruling on taxation scheduled for 15th January, 2026, be arrested and/or stayed, pending hearing and determination of this Application;*** 4. ***THAT upon granting prayer number (ii), the Client/Respondent be granted leave to respond to and/or oppose the Advocate-Client Bill of Costs dated 7th October 2025; and*** 5. ***Costs of this Application be provided for.*** sic 6. The Motion is brought under Sections 1A, 1B & 3A of the Civil Procedure Act (CPA); Order 51, Rule 1 of the Civil Procedure Rules (CPR); Article 50 of the Constitution; and Section 45(6) of the Advocates Act. 7. It is deposed that **Christine Oraro & Co. Advocates** (hereafter the Advocate) filed an Advocate-Client Bill of Costs on which ruling was scheduled to be delivered on 15.01.2026. That the Client is however desirous of participating in the taxation proceedings and wishes to oppose the aforesaid Bill of Costs, hence the instant Motion. That the delay in filing a response to the Bill of Costs is unintentional and was occasioned by the fact that negotiations between the parties herein on the subject of legal fees owed to the Advocate were ongoing. That during the ongoing negotiations, the Advocate raised a fee note dated 10.11.2021 for a sum of Kshs. 267,398.34 out of which the Client paid a sum of Kshs. 200,000/- vide Cheque Number 39001. That out of the said amount, a sum of Kshs. 56,153.65 was deducted and remitted to the Government as VAT and withholding tax. 8. It is the deponent’s averment that the Client retained the legal services of the Advocate in respect of various matters, thereby giving rise to a retainer agreement between the parties. That in the circumstances, Section 45(6) of the Advocates Act is clear that once an advocate raises a fee note and the same is settled by the client, such fee note constitutes a binding retainer agreement between the parties and hence a taxing master lacks jurisdiction to tax a bill of costs arising therefrom, as is the case in the present instance. 9. In view of the foregoing, the Client has reasonable grounds upon which to oppose the taxation proceedings and in particular, the Bill of Costs lodged herein. That unless the prayers sought are allowed, the Client is at risk of suffering irreparable loss and that no prejudice will be visited upon the Advocate if the instant Motion succeeds. **The Response** 1. The Motion is opposed through a Replying Affidavit sworn by **Christine Adhiambo Oraro,** the proprietor of the Respondent, on 3.02.2026. It is her averment therein that while it is not in dispute that the Client had retained her law firm’s legal services, it is not true that the parties herein were engaged in settling the matter out of court; that there has been an inordinate delay of over seven (7) months on the part of the Client in moving the court and in filing a response, from the date of service of the Bill of Costs and taxation notice and that the matter came up in court on two (2) separate occasions previously, but the Client was absent in both instances. 2. It is the advocate’s averment that the taxation proceedings herein arose from *Milimani MCCC No. 7782 of 2016-Auto Express Limited v East African Portland Cement Company* in which judgment was delivered against the Client on 12.11.2021. That following the judgment, the advocate raised a fee note dated 15.11.2021 for a sum of Kshs. 296,540/- which was received on behalf of the Client on 6.12.2021. That the cheque issued by the Client and referenced hereinabove relates to an entirely different fee note and matter. That in addition, a separate payment of Kshs. 200,000/- was facilitated via Cheque Number 2878 dated 23.03.2023 forwarded to the Advocate through a letter dated 3.03.2023 but which did not specify the file to which the payment related. That in the circumstances, the advocate assigned the said payment to a separate matter. 3. It is similarly the advocate’s averment that she has no knowledge of any payment for a sum of Kshs. 200,000/- having been made to the Advocate vide Cheque Number 39001 dated 30.01.2022 in respect of the taxation proceedings in this matter. That there is nothing to indicate the aforesaid cheque was ever forwarded to or received by her and that the Client has approached this court with unclean hands. 4. For the foregoing reasons, the advocate has stated that no legal fees have been settled in the present matter thereby entitling her to tax her Bill of Costs accordingly. 5. Through afurther affidavit sworn on 17.02.2026, the Client has reiterated the earlier averment that the delay in filing a response to the Bill of Costs was unintentional. 6. It was further stated that upon receipt of the Advocate’s fee note dated 15.11.2021 the Client issued Cheque Number 39001 dated 30.03.2022 for a sum of Kshs. 200,000/- in settlement thereof. That, the Client forwarded a separate Cheque Number 2827 dated 23.03.2023 for a sum of Kshs. 200,000/- to the Advocate, though this was applied towards settlement of a different matter. That nevertheless, it is not unusual for payments to be made in the absence of a forwarding letter and that in view of the foregoing, it is clear that the Client has provided a reasonable basis for a grant of the prayers sought. **Parties’ Submissions** 1. The Motion was dispensed with through the filing and exchange of written submissions. To support the Motion, the Client has anchored its submissions on **Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR** and Article 50(1) of the Constitution, on the right to a fair hearing as well as Sections 1A and 1B of the CPA, which set out the overriding objective of the Civil Procedure Act. 2. The Client submitted that sufficient reasons have been advanced to explain the delay and that the delay in question is unintentional. That, the fee note relating to the taxation proceedings herein have been settled. That, the taxing master ought to similarly consider the issue whether he or she has jurisdiction to tax the Bill of Costs in question. That these constitute issues which can only be adequately canvassed through the Client’s participation in the taxation proceedings. The Client relied on the case of **Kagima Kariuki & 2 others v George M. Gichimu & 2 Others [2014] eKLR** where it was held that a reasonable explanation for delay can give rise to exercise of the court’s discretion in favour of an applicant. The Client urged the court to exercise its discretion by allowing the Motion as prayed. 3. On its part, the Advocate has reiterated the averments made in the Replying Affidavit regarding non-payment of the legal fees relating to the taxation proceedings and stated that the various cheques issued by the Client related to separate matters. The Advocate submitted that the Client has approached the court with unclean hands and with the intention of preventing the Advocate from pursuing its legal fees. It was submitted that no payments have been received in respect of the present matter and hence the Bill of Costs was rightly filed. 4. The Advocate has contended that judicial discretion ought to be exercised in a manner that avoids injustice or hardship but not in a manner that obstructs or delays justice, as held in the case of **Shah v Mbogo and Another [1967] E.A 116.** 5. It was submitted that in order for the Client to succeed on its Motion and therefore benefit from the court’s discretion, it would be required to show sufficient cause as to why it did not attend court on the material dates. That in this instance, the Client has not acted in good faith and has not presented any reasonable explanation to support the prayers sought. The Advocate has cited the decision in **Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR)**where the court reasoned thus: ***“Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause.”*** 1. It was submitted that in the absence of any sufficient cause shown, it would serve the interest of justice to dismiss the instant Motion for want of merit, to pave way for a determination of the taxation proceedings; that should the court be inclined to allow the Motion, then the Client should be made to pay throw away costs of Kshs. 50,000/- for the delay occasioned to the Advocate in prosecuting the Bill of Costs. **Analysis and determination** 1. I have considered the Motion and the grounds supporting it as well as the Replying Affidavit in opposition and the submissions of the parties. I note that ***prayer (ii)*** of the Motion seeking to have the taxation ruling scheduled for delivery on 15.01.2026 pending hearing and determination of the instant Motion is now spent. This leaves ***prayer (iii)*** which seeks leave of the court to enable the Client oppose the Bill of Costs filed by the Advocate and dated 7.10.2025. 2. The applicable provision therefore would be **Section 3A** of the **CPA**, which reserves the inherent power of the court ***“to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court.”*** This provision was discussed by the Court of Appeal in **Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR** where that Court stated thus: ***“Also cited was Section 3A of the Civil Procedure Act which enshrines the inherent power of the Court to*** ***make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court.*** *In Equity Bank Ltd versus West Link Mbo Limited [2013], eKLR,* ***Musinga, JA stated inter alia, that, by “inherent power” it means that:*** ***“Courts of law exist to administer justice and in so doing, they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate…..inherent power is therefore the natural or essential power conferred upon the court irrespective of any conferment of discretion.”*** 1. From the foregoing, it is clear that the inherent power of the court is to be exercised in a manner that takes into account the interest of justice while simultaneously preventing a situation where the court process is permitted to be abused. 2. From the record, the Advocate filed an Advocate-Client Bill of Costs dated 15.07.2025 (and not 7.10.2025 as averred by the Client, in the Motion) seeking a sum of Kshs. 472,165/- as costs arising from *Milimani MCCC No. 7782 of 2016-Auto Express Limited v East African Portland Cement Company* in which matter the Client had engaged the Advocate to defend its interest. 3. The record shows that when the matter came up before Deputy Registrar on 2.10.2025, it was noted that a copy of the Bill of Costs had been served upon the Client, with an affidavit of service on record supporting the same. The Deputy Registrar gave directions for the filing of written submissions and directed that the matter be mentioned on 13.11.2025 to take a ruling date. 4. The record further shows that the matter subsequently came up in court before the aforementioned Deputy Registrar, during which attendance counsel for the Advocate indicated that they had filed written submissions and served the same upon the Client, with no response. In the circumstances, the Deputy Registrar fixed the Bill of Costs for ruling on 15.01.2026. The aforesaid proceedings prompted the instant Motion. 5. I have considered the rival positions taken for and against the substantive prayer sought in the instant Motion. Drawing from **Section 3A** of the CPA and the authority cited above, the court is bestowed with inherent power to make such orders as may be necessary for ends of justice to be met or to prevent abuse of the process of the court. This therefore means that where it is apparent that an abuse of the court process is at imminent or where an injustice is likely to occur, the court will not hesitate to make any orders it deems fit to curb this. 6. In the present instance, the issue of service of the Bill of Costs and relevant taxation notices is not disputed or denied by the Client and yet it is apparent that the Client did not participate in the taxation proceedings. That service was effected is equally evidenced by the respective affidavits of service on the record. 7. On the question of delay, the legal principle is that both the duration and explanation of delay are key considerations in determining whether to extend or enlarge time for undertaking an action, as was reaffirmed by the Court of Appeal in **Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR** when it reasoned that: ***“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained, hence a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There have to be valid and clear reasons, upon which discretion can be favourably exercisable……”*** 1. I have noted, from the record, that the instant Motions has been brought close to six (6) months from the date on which the Bill of Costs was filed, and only three (3) days prior to the scheduled ruling thereof. In my considered view, given the nature of proceedings here, alongside the fact that service of the relevant notices and Bill of Costs was effected, I find the delay was inordinate. 2. Having considered the reasons advanced by the Client in respect to the delay in responding to the Bill of Costs, I am of the view that it has not been demonstrated, sufficiently, that the Client was prevented in any way, from timeously responding to the Bill of Costs or participating in the taxation proceedings at all material times. 3. In my considered view, the mere fact that the parties may or may not have been engaged in negotiations would not in, and of itself, constitute sufficient cause for the delay. The Client was granted every reasonable opportunity to challenge the Bill of Costs and to participate in the taxation proceedings at all material times previously, but did not.I am therefore not satisfied that the explanation given by the Client is plausible, reasonable or sufficient in the circumstances. 4. In view of all the foregoing reasoning, and in the absence of any credible material provided by the Client, I am not persuaded to exercise my discretion in favour of the Client in this instance. Consequently, the Notice of Motion dated 12.01.2026 is hereby dismissed for want of merit, with costs to the Advocate. 5. It is so ordered. **Dated, signed and delivered this 23rd day of June 2026.** **S. N. MUTUKU** **JUDGE**