https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1767

J A Guserwa & Company Advocates v Uzuri Foods Ltd (Miscellaneous Application E048 of 2025) [2026] KEELRC 1767 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1767 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E048 of 2025 BOM Manani, J June 26, 2026 Between J A Guserwa & Company Advocates Advocate and Uzuri Foods Limited Client Ruling Background 1.The Client has filed the instant reference to challenge the taxation ruling which was delivered by the Taxing Master on 19th June 2025 in respect of the Advocate’s Bill of Costs dated 14th February 2025. It (the Client) prays for the following orders:-a.That the ruling of the Taxing Master delivered on 19th June 2025 pertaining to the taxation of the Advocate Bill of Costs dated 14th February 2025 be set aside.b.That the Advocate Bill of Costs dated 14th February 2025 be struck out with costs to the Client.c.That in the alternative, the court be pleased to refer the Bill of Costs to a different Taxing Master for re-taxation. 2.The application is anchored on the grounds appearing on the face thereof. It is also supported by an affidavit sworn by one Aaron James Kinyanjui. 3.The Client contends that the impugned taxation arose from work which the Advocate was assigned in respect of Court of Appeal Civil Application No. E201 of 2024. The Client avers that the said application related to a request by it (the Client) for stay of execution pending appeal against the decision which had been rendered in ELRC Cause No. 1830 of 2015. 4.The Client contends that upon instructing the Advocate in the matter, the Advocate raised a Fee Note dated 21st March 2024 for Ksh. 713,690.00 which it (the Client) promptly paid. According to it (the Client), the aforesaid Fee Note reflected the agreed fees between the parties. As such, it (the Client) avers that the Advocate was not entitled to file the impugned Advocate – Client Bill of Costs. 5.The Client further avers that in addition to the above amount, it (the Client) paid the Advocate legal fees of Ksh. 2,069,750.00 in ELRC Cause No. 1830 of 2015. The Client asserts that this amount was meant to cover fees for both the ELRC matter and any appeal that was to emanate from it. The Client relies on its letter to the Advocate dated 17th October 2016 to anchor this contention. 6.Based on the aforesaid payments, the Client contends that the Advocate was fully paid her legal fees in the matter. It contends that the aforesaid Fee Note by the Advocate constituted an agreement on the fee which was payable between the parties and that once it (the Fee Note) was settled, there arose a binding contract between the parties which the Advocate is not entitled to walk away from and claim further payments. 7.The Client avers that when it paid the amount in the aforesaid Fee Note, the matter of legal fees between the parties was thereby closed. As such, it contends that in terms of section 45(6) of the Advocates Act, the Taxing Master did not have jurisdiction to tax the impugned Bill of Costs. 8.In the alternative, the Client asserts that even assuming that the Taxing Master had jurisdiction over the matter, he erred in principle in allowing instruction fees at Ksh. 2,750,000 when the instructions to the Advocate related to an interlocutory application for stay of execution pending appeal. In the Client’s view, it was improper for the Taxing Master to assume that the value of the subject matter in the application was Ksh. 22,503,852.00, the amount which had been awarded in the judgment which was the subject of the proposed appeal. The Client also attacks the Taxing Officer’s decision in respect of other items in the Bill of Costs. 9.The Advocate has opposed the reference. She filed a replying affidavit dated 3rd September 2025 to anchor her opposition to the motion. 10.The Advocate affirms that she was instructed by the Client to file Court of Appeal Civil Application No. E201 of 2023 to seek stay of execution of the judgment in ELRC Cause No. 1830 of 2015. She however denies that the Client paid her Ksh. 713,690.00 in legal fees for the matter. 11.The Advocate further denies that the parties had an agreement on the legal fees which the Client was to pay for the work she did. As such, she avers that the Taxing Master was entitled to and had jurisdiction to tax the impugned Bill of Costs. 12.The Advocate avers that the Taxing Master properly applied his mind to the items which the Client contested in the Bill of Costs. As such, she asserts that all the items were legitimately allowed. Issues for Determination 13.After analyzing the reference, the response thereto and the submissions by the parties, the following are the issues which arise for resolution:-a.Whether the Taxing Master was seized of jurisdiction to assess the impugned Bill of Costs.b.Whether the Taxing Master committed an error of principle in the taxation process to warrant the setting aside of the impugned taxation order. Analysis 14.The Client avers that the Taxing Master did not have jurisdiction to tax the impugned Bill of Costs. The basis for this contention is that the parties had an agreement on the fees which the Advocate was to be paid. This being the case, the Client asserts that it was not open to the Advocate to present the impugned Bill of Costs for taxation. 15.The Client relies on the Fee Note dated 21st March 2024 which the Advocate raised in the matter to advance the above argument. According to the document, the Advocate invoiced the Client for Ksh. 713,690.00 as deposit for fees. The record shows that the Client drew cheque No. 029590 dated 27th March 2025 for the aforesaid amount in favour of the Advocate. The record further shows that the Advocate cashed the cheque (see annex AJK-6 on the Client’s affidavit). This is despite the Advocate’s denial that she was paid the money. 16.According to the Client, when the Advocate raised the aforesaid Fee Note, she made an offer regarding the fees which she was to be paid in the matter. The Client contends that when it settled the Fee Note, it accepted the Advocate’s offer regarding the amount that was to be paid thereby creating a binding contract on the fees that was payable for the matter. 17.The Client argues that once the parties entered into the alleged fees agreement, the Advocate lost the right to move the court to ascertain the fees payable in the matter through taxation. As such, it (the Client) contends that the Taxing Master improperly assumed jurisdiction over the matter. 18.The Client relies on section 45 (6) of the Advocates Act to support this argument. The provision states as follows:-‘’Subject to this section, 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 nor to section 48.’’ 19.Whilst the Client asserts that there was an agreement on fees between the parties, the Advocate disputes this fact. Hence the contest. 20.In the Taxing Officer’s ruling dated 19th June 2025, he held that there was no evidence to demonstrate that the parties had an agreement regarding the fees which the Client was to pay. As such, he found that his jurisdiction to determine the fees payable to the Advocate in the matter was not ousted by section 45 (6) of the Advocates Act. 21.Section 45 (6) of the Advocates Act provides that an advocate and his client may enter into an agreement regarding the fees to be paid for any contentious work. However and by virtue of section 45 (1) (c) of the Act, for such agreement to be valid, it must be in writing and signed by the client or his agent. 22.In the instant case, there is no evidence to demonstrate that the parties entered into a written agreement which was signed by the Client to provide for the legal fees which the Client was to pay to the Advocate. The Client cannot rely on the invoice that raised by the Advocate and the cheque it paid in settlement thereof to contend that there was an agreement as this does not satisfy the threshold for an agreement under the aforesaid provision of law which requires that such agreement be signed by the client. 23.In the premises, the court agrees with the findings by the Taxing Master that there is no evidence that the parties entered into a fees agreement contemplated in law. As such, it (the court) concurs with the Taxing Master that he had jurisdiction to tax the impugned Bill of Costs. 24.The other issue for determination is whether the Taxing Master committed an error of principle whilst taxing the impugned Bill of Costs to warrant the setting aside of the taxation order. The Client makes various assertions to anchor its contention that the Taxing Master committed an error of principle which entitles this court to interfere with the taxation order. 25.The starting point in this respect is to restate the legal principle that this court is not entitled to interfere with a taxation order unless it is demonstrated that the Taxing Master committed an error of principle in the process of taxation of the impugned Bill of Costs. Speaking to this in the case ofNyangito & Co Advocates v Doinyo Lessos Creameries Ltd [2014] KEHC 5481 (KLR), the court expressed itself on the matter as follows:-‘’… the Court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle.’’ 26.The learned Judge went further to discuss what constitutes an error of principle. He observed on the subject as follows:-‘’….it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Remuneration Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge.’’ 27.First, the Client contends that the Taxing Master committed an error of principle by equating proceedings which were commenced through a Notice of Motion application to a substantive appeal. According to the Client, the Taxing Master erroneously ascribed the sum of Ksh. 22,503,852 which was the subject of the substantive appeal as the value of the interlocutory application for stay pending appeal. 28.The process of instituting an appeal before the Court of Appeal commences by filing a Notice of Appeal. Once this document is filed, the proposed appellant is entitled to approach the court through an interlocutory application under rule 5 (2) (b) of the Court of Appeal Rules for interim reliefs including an order for stay of execution of the order or decree which is the subject of the proposed appeal. 29.However, institution of a substantive appeal before the court only happens when the proposed appellant has complied with the requirements of rule 84 of the Court of Appeal Rules by: lodging a memorandum of appeal in four copies; lodging the record of appeal in four copies; paying the requisite fees; and depositing security for costs of the appeal. As such and in my view, there is a distinction between filing an interlocutory application for stay of execution at the court and filing a substantive appeal. 30.An appeal to the Court of Appeal denotes the substantive appeal before the court. On the other hand, an application for stay of execution under rule 5 (2) (b) of the Court of Appeal Rules is in the nature of an interlocutory application in the process of appeal. Thus the two ought to be treated differently when it comes to billing for fees. 31.The foregoing is apparent from rule 116 (3) of the Court of Appeal Rules which gives directions regarding the methodology and rules to be applied in ascertaining legal fees for counsel for work done before the Court of Appeal. The rule distinguishes between applications and substantive appeals by providing thus:-‘’The remuneration of an advocate by the advocate’s clients in respect of application or appeal shall be governed by the rules of, and scales for, proceedings in the High Court.’’ Emphasis added by underlining. 32.The rule speaks to fees for both applications and appeals before the Court of Appeal. If the law intended to treat the two as identical, there would have been no need to mention them separately. 33.Having regard to the foregoing, it is the court’s view that filing of an application for stay of execution before the Court of Appeal is not synonymous with instituting a substantive appeal before the court. An application for stay of execution pending appeal should be viewed as an interlocutory motion in the appeal process. 34.That being the case, the advocate in the instant dispute was not entitled to bill for the application for stay of execution as if it was the substantive appeal which would have entitled her to peg her fees on the value of the subject matter as ascertained in the judgment which was the subject of appeal. The fees billed by her ought to have been for an interlocutory application in the proposed appeal. 35.In John Kinyanjui Theuri & Kariuki Njuguna T/A Kinyanjui Njuguna & Co Advocates v Board of Trustees National Social Security Fund [2023] KEHC 19238 (KLR), after making reference to rule 116 (3) of the Court of Appeal Rules, the learned Judge expressed the view that the provisions in the Advocates (Remuneration) Order which govern billing for work done in respect of appeals before the High Court are the same ones to be applied in billing for work done before the Court of Appeal. I agree with this view. 36.Schedule 6 of the Advocates (Remuneration) Order has specific guidelines for computing the quantum of instruction fees in respect of substantive appeals before the High Court. Having regard to the position expressed in John Kinyanjui Theuri & Kariuki Njuguna T/A Kinyanjui Njuguna & Co Advocates v Board of Trustees National Social Security Fund (supra), these are the same guidelines to be applied in computing fees due to an advocate for work done in respect of a substantive appeal before the Court of Appeal. 37.Similarly, the Schedule makes provision for billing in respect of interlocutory applications presented in an appeal before the High Court. The same guidelines are to be applied whilst billing for legal fees for interlocutory applications (including applications for stay of execution pending appeal) before the Court of Appeal. 38.In the court’s view, the Taxing Master ought to have determined the fees which was payable to the Advocate in the instant dispute by applying the scale fees for interlocutory applications filed in an appeal before the High Court instead of treating the application for stay of execution as if it were a substantive appeal. It is therefore the court’s view that the Taxing Master committed an error of principle by ascribing the sum of Ksh. 22,503,852 as the value of the subject matter in the interlocutory application for stay. 39.The record also shows that the Advocate was paid a sum of Ksh.713,690.00 towards legal fees for the application. However, the Taxing Master did not take this into account whilst rendering his decision. This, again, was an error of principle. Determination 40.Having regard to the aforesaid, the court arrives at the conclusion that the Taxing Master committed an error of principle whilst taxing the impugned Bill of Costs. 41.In the premises, I set aside the taxation order which was issued on 19th June 2025. 42.I order that the Bill of Costs dated 14th February 2025 be placed before a different Taxing Master for taxation having regard to the guidelines expressed in this ruling. 43.Each party to bear own costs of this reference. DATED, SIGNED AND DELIVERED ON THE 26TH DAY OF JUNE, 2026B. O. M. MANANIJUDGEIn the presence of:…………….for the Client…………….for the AdvocateORDERIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANI