https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11956

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **MISC CIVIL APPLICATION NO. E303 OF 2025.** **MILLIMO, MUTHOMI & CO. ADVOCATES…………………………………....APPLICANT** **-VERSUS-** **POLICY HOLDERS COMPENSATION FUND…………..……………………...RESPONDENT** **RULING.** **(on the advocate-client bill of costs dated 22nd October 2025)** 1. **BACKGROUND.** 2. This ruling relates to the bill of costs dated 22nd October 2025. The bill is opposed by the submissions of the respondent dated 22nd May 2026. The applicant has also filed his submissions dated 15th April 2026. The court has read and considered the bill of costs and the submissions by both parties. 3. Upon reading the said submissions, the respondent seems to challenge the existence of an advocate client relationship between the parties. 4. It is trite that this is an important issue that this court has to make a determination in that if the court finds there is no relationship, the matter terminates at that point. I will thus determine it first. It is a jurisdictional question. 5. It is trite that jurisdiction is everything I must therefore determine that first. 6. **DETERMINATION.** 7. The respondent asserts that the applicant/advocate rendered services to an individual called Joseph Michira Masira and not Policy Holders Compensation Fund (PCF). 8. Indeed, a perusal of the bill of costs at the particulars of service rendered, the applicant admits as much and through out the bill there is no mention of PCF. 9. The applicant in his response to the issue based his argument that there is a relationship because Resolution Insurance Company Ltd was placed under statutory management pursuant to Section 67 of the Insurance Act and by the same order the commissioner of insurance appointed PCF as the statutory manager of Resolution Insurance Company limited and by that appointment PCF assumed the management and control and conduct of the affairs of the insurance company and was vested with all the powers of the insurer. 10. That it is on that basis that the Respondent appointed the applicant to handle matters on behalf of the respondent as the statutory manager. 11. I have perused the annextures and I notice that there are email correspondences between the applicant and the respondent through its representative. The definition of a client under Section 2 of the Advocates Act permits the formation of Advocate-client relationship that extent beyond direct and explicit instructions. 12. The burden of proving existence of such a relationship in a dispute, that burden is squarely on the door of the advocate. In **Omulele & Tollo Advocates vs Mount Holdings ltd[2018] eKLR** the court of appeal stated as follows; **“as with any other agreement, the onus of proving the existence of the retainer agreement lies with her that wishes to enforce it. This is in line with the ordinary rules of contracts and evidence…under the proviso to section 45(5) of the Act, an advocate who is a party to a retainer agreement and who has acted diligently for the client is entitled to sue and recover for the whole retainer fee should his client default payment thereof. In fact, as long as the advocate has been diligent his entitlement to the fixed sum is so outright that he need not tax his costs nor give statutory notice to the client prior to his pursuit of the said fee. Consequently, it behoves such an advocate to ensure that the retainer agreement once and made, is reduced into writing.** **The same onus of proof applies to a retainer. As said earlier, where a client disowns an oral retainer or even the existence of a retainer relationship, it is for the advocate who claims under than retainer to prove to court that such a relationship indeed existed, otherwise the court will deem that he acted without instruction”** 1. The applicant availed email correspondences to prove that indeed the respondent instructed them to defend their interests in the primary suit. The email is from the respondent’s domain to wit LNganga@resolution-pcf.co.ke the Respondent distances himself from the said email and states that the respondent could only act through the managing trustee and no one else and that there is no evidence that the managing trustee instructed the said individual to transact with the applicant. 2. The respondent despite these allegations fails to demonstrate to the court that the email in question did not emanate from the respondent and that the said Lewis Ng’ang’a was not as at the time an officer of the respondent. 3. The high court in the case of **Mamicha & Company advocates vs Nairobi city water & sewerage company limited [2015]eKLR** the court held as follows; **“having evaluated the evidence on record, it is clear to this court that when an advocate enters into an agreement with his client regarding his retainer and the payable fees for such retainer, the parties cannot turn around and disown the agreement on the ground that the legal fees agreed were illegal since the same did not follow the requisite procurement law… in this application, the respondent is estopped from denying that it did instruct the advocate to act on its behalf as correspondence between its officers and the advocate are contained in the annextures to the supporting affidavit sworn on behalf of the client… It is in the interest of justice that the bill of costs dated 25th June 2013 proceeds for taxation before a taxing master for purposes of ascertaining what is due to the advocate. I therefore find that the applicant’s/client application lacks merit and dismiss it with costs”.** 1. I have considered the arguments by both parties, the law and the cited cases I find and hold that there existed an advocate-client relationship between the parties and the advocate having offered legal services the applicant is thus entitled to professional fees for work done in the primary suit giving rise to the fees sought in this taxation. 2. I am therefore clothed with the necessary jurisdiction to tax this bills of costs and I proceed to do the same as hereunder. **Instruction fees** 1. The instruction fees sought are based on the judgment sum of Kshs.1,725,550/= the said sum when subjected to the bands, the sum of Kshs.120,000/= as pleaded is drawn to scale and is thus allowed as drawn. **Court attendances** 1. These items to wit item 3(a) and (b) are drawn to scale and are allowed as drawn. **Drawings** 1. Item 4(a) is taxed off as drawings are not provided for under schedule 7. However, items 4(b) and (c) are allowed as drawn. 2. **Items 6,7(a),(c) and (d)** are allowed as drawn as they are provided for under schedule 7. Item 7(b) is taxed off as drawings are not provided for under schedule 7. 3. The amount as taxed herein above is subjected to an increase by 50% and 16% VAT. 4. **CONCLUSION AND DISPOSITION.** 5. The costs in this matter are assessed in the sum of Kshs.211,400/= 6. Orders accordingly. **DATED, DELIVERED AND SIGNED VIRTUALLY AT NAKURU HIGH COURT THIS..31st …DAY OF ..July..2026.** **F.M. MULAMA** **DEPUTY REGISTRAR** **In the presence of** Court Assistant: Abuswaleh. Ms. Ndungu H/B for Mr. Njogu for the Respondent.