https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9284

Kiragu Nyambura & Company Advocates v Dave (Commercial Miscellaneous Application E968 of 2025) [2026] KEHC 9284 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9284 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Miscellaneous Application E968 of 2025 PM Mulwa, J June 25, 2026 Between Kiragu Nyambura & Company Advocates Advocate and Elizabeth Wanjiru Dave Client Ruling 1.Before the Court is the Advocate’s Reference dated 12th March 2026, brought under Rule 11, 61 and 62A of the Advocates Remuneration Order. Sections 1A, 1B, 3A of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules. The Applicant seeks the following orders:i.An order setting aside the decision of the Taxing Officer delivered on 26th February 2026 in HCCOMMMISC E969 of 2025 on the Advocate–Client Bill of Costs dated 24th September 2025;ii.A finding that the Honourable Deputy Registrar erred in law and in fact in declining jurisdiction to tax the Advocate–Client Bill of Costs;iii.An order directing that the Advocate–Client Bill of Costs dated 24th September 2025 be remitted for taxation before a different Taxing Officer;iv.In the alternative, an order that this Honourable Court be pleased to tax the Advocate–Client Bill of Costs dated 24th September 2025;v.Costs of the Reference. 2.The application is premised on the grounds that the Deputy Registrar misdirected herself in finding that the firm of Murage Juma & Compnay Advocates was separate and distinct from the firm of Kiragu Nyambura & Co. Advocates. that she misdirected herself in holding that a valid, binding and fully executed fee agreement existed between the Advocate and the Client, capable of ousting the jurisdiction of the Taxing Officer; that she erred in relying on alleged WhatsApp correspondence and electronic communication as proof of a binding fee agreement, when such correspondence did not comply with the mandatory provisions of section 106B of the Evidence Act on the admissibility of electronic evidence. 3.That the Taxing Master misdirected herself in finding that a binding remuneration agreement existed in the absence of any written and signed retainer agreement between the Advocate and the Client; that the Taxing Master failed to appreciate the provisions of section 46 of the Advocates Act, which expressly invalidates any agreement whereby an advocate agrees to accept remuneration less than the prescribed scale, and further failed to appreciate that the alleged fees had been fully executed despite there being no evidence before the Court; that the Taxing Master failed to appreciate that a Party-and-Party Bill of Costs had been taxed and a Certificate of Taxation issued, thereby establishing the scale and basis upon which the Advocate–Client Bill ought to have been taxed; and that the Taxing Officer improperly assumed jurisdiction to determine substantive contractual disputes between the parties. 4.The Applicant further contends that the Taxing Master erred in finding that the Advocate could recover fees under a Power of Attorney allegedly donated by the Respondent; that the Taxing Officer erred in issuing similar rulings and reasoning in HCCOMMMISC E771 of 2025 and HCCOMMMISC E969 of 2025, despite the present matter involving different advocates, different clients, different instructions, and a distinct Advocate–Client relationship; and that unless the orders sought are granted, the Applicant will continue to suffer substantial injustice. 5.The Respondent opposes the Reference by way of the Replying Affidavit of its director, Hitesh Pravin Dave, sworn on 21st March 2026. The Respondent urges the Court to uphold the Taxing Officer’s ruling declining to tax the Advocate–Client Bill of Costs. It avers that the Taxing Officer properly exercised her discretion after finding that a valid fee agreement existed between the parties, evidenced by WhatsApp correspondence and further reinforced by a Specific Power of Attorney executed by the Respondent, assigning the Party-and-Party costs to the Applicant’s managing partner. 6.The Respondent maintains that the agreed legal fees were Kshs. 6,000,000.00, clarifying that an earlier reference to Kshs. 10,000,000.00 was an inadvertent error subsequently corrected by a supplementary affidavit. The Respondent further contends that the electronic evidence relied upon was duly certified and that correspondence between an advocate and a client is capable of constituting a binding fee agreement under section 45 of the Advocates Act. Relying on judicial authorities, the Respondent asserts that the existence of a lawful fee agreement ousts the jurisdiction of the Taxing Officer to tax the Bill unless the agreement is first set aside. 7.The Respondent alleges that the Applicant’s conduct in pursuing taxation despite having prepared the Specific Power of Attorney and having agreed on the fees amounts to bad faith, unjust enrichment and an abuse of the court process. The Respondent therefore prays that the Reference be dismissed, the finding that a valid fee agreement existed be affirmed, and the Taxing Officer’s decision be upheld. 8.The Parties filed written submissions. The advocate’s submissions are dated 21st May 2026, while the Respondent's submissions are dated 11th May 2026. Analysis and determination 9.I have considered the Reference, the affidavits filed by the parties, the rival submissions and the authorities cited. In my view, the sole issue for determination is whether the learned Taxing Officer erred in declining jurisdiction to tax the Advocate–Client Bill of Costs on the basis that a binding fee agreement existed between the Advocate and the Client. 10.The jurisdiction of a Judge on a Reference from the decision of a Taxing Officer is well settled. The High Court does not interfere with the exercise of the Taxing Officer’s discretion merely because it would have reached a different conclusion. Interference is warranted only where it is demonstrated that the Taxing Officer acted on a wrong principle of law, misapprehended the law, took into account irrelevant considerations, failed to consider relevant matters, or where the decision is plainly wrong. 11.In Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR this Court observed that:“On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.” 12.With this in mind, the issue for determination is whether the Taxing Officer rightly exercised her discretion in declining to tax the Advocate – Client bill of costs on the strength of an agreement for fees. 13.Section 45 of the Advocates Act provides1.Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may-a.before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;b.before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;c.before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf”…(6)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. 14.In Kakuta Maimai Hamise v Peris Pesi Tobiko, IEBC & Returning Officer, Kajiado East Constituency [2017] KEHC 3070 (KLR) the court held that:“To constitute a valid and binding agreement for the purpose of section 45 of the Advocates Act it expressly provides that the same must be in writing and signed by the client or his agent duly authorized in that behalf. In this case, both the two letters are not signed by the client.” 15.It is clear that in order for there to be a valid agreement for the purpose of section 45 of the Advocates Act, the document relied upon must be in writing and signed by both parties, or there must be exchange of correspondences from which inference of an agreement by way of meeting of the minds of both parties can be deduced. 16.What is relied herein is the WhatsApp correspondence exchanged between the parties, a Specific Power of Attorney executed by the Respondent assigning the Party-and-Party costs, and the parties’ respective affidavits explaining the nature of their engagement. The Respondent also placed before the Taxing Officer certificates under section 106B of the Evidence Act in support of the electronic communications. Whether those documents ultimately established a binding fee agreement was a matter falling squarely within the Taxing Officer’s province in determining whether the Bill was amenable to taxation. 17.In Majanja Luseno & Co. Advocates v Leo Investments Ltd & Another [2017] KEHC 9857 (KLR) the Court held that:“correspondence between an advocate and a client may constitute a remuneration agreement where offer, acceptance and consideration are discernible from the communications.” 18.The Applicant has further argued that the alleged agreement offended section 46 of the Advocates Act by providing remuneration below the prescribed scale. I find that the Taxing Master properly addressed this issue as the Advocate entered into the agreement, but he is prevented from rescinding it. 19.Equally unpersuasive is the contention that the Taxing Officer improperly relied on the Specific Power of Attorney. The ruling demonstrates that the Power of Attorney was not treated as the source of the Advocate’s entitlement to fees but rather as one of several documents evidencing the parties’ understanding regarding payment of costs. Read together with the correspondence relied upon by the Respondent, the document formed part of the factual matrix considered by the Taxing Officer in determining whether a remuneration agreement existed. 20.The Applicant also faults the Taxing Officer for allegedly determining contractual disputes beyond the scope of taxation. I do not agree. Before embarking upon taxation, a Taxing Officer is entitled and indeed obliged to determine whether the Bill is properly before the Court. Where a party raises the existence of a remuneration agreement under section 45 of the Advocates Act, the Taxing Officer cannot ignore that issue and proceed to tax the Bill. Determining whether such an agreement exists is incidental to the exercise of the taxing jurisdiction. 21.I have also considered the submission that a Party-and-Party Bill of Costs had already been taxed and that this automatically entitled the Applicant to taxation of the Advocate–Client Bill. That argument overlooks the fundamental distinction between Party-and-Party costs and Advocate-and-Client costs. Taxation of the former does not extinguish or supersede a valid remuneration agreement governing the latter. Where a binding agreement exists, the Advocate’s remuneration is governed by the contract and not by the Advocates Remuneration Order. 22.The Applicant further complained that the Taxing Officer erred in issuing similar rulings in HCCOMMMISC E771 of 2025 and HCCOMMMISC E969 of 2025, contending that the matters involved different advocates, different clients and distinct instructions. I have considered this ground and find no merit in it. The record reveals that the Taxing Officer carefully examined the attached correspondence, in which counsel indicated that the matter was being handled by three different advocates and that the only issue was how the money would be disbursed. In the circumstances, it was proper for the Taxing Officer to deliver a single ruling in respect of the three files, which were evidently interconnected. This ground equally fails. 23.Having carefully reviewed the impugned ruling, I am not persuaded that the learned Deputy Registrar acted upon any wrong principle of law or misapprehended the applicable legal framework. The finding that there existed a remuneration agreement attracting the application of section 45 of the Advocates Act was open to the Taxing Officer on the material placed before her. Once she reached that conclusion, she correctly declined to tax the Advocate–Client Bill of Costs. 24.In the result, the Advocate’s Reference dated 12th March 2026 is without merit and is hereby dismissed. 25.The rulings of the learned Deputy Registrar delivered on 26th February 2026 is upheld. 26.The Respondent shall have the costs of the Reference. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBITHIS 25TH DAY OF JUNE 2026.PETER MULWAJUDGEIn the presence of:Ms. Kiragu for Advocate/ApplicantMs. Mureithi for RespondentCourt Assistant: Lispa