Mochiemo t/a Mochiemo Gichana & Co. Advocates v Noa Investment Ltd (Miscellaneous Case E004 of 2026) [2026] KEHC 13258 (KLR) (30 July 2026) (Ruling)

** REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCCMISC E004 OF 2026** **IN THE MATTER OF THE TAXATION OF AN ADVOCATE–CLIENT BILL OF COSTS** **AND** **IN THE MATTER OF THE ADVOCATES ACT, CAP. 16 LAWS OF KENYA** **BETWEEN** **GICHANA MOCHIEMO T/A MOCHIEMO GICHANA & CO. ADVOCATES**...................................................**ADVOCATE/RESPONDENT** **AND** **NOA INVESTMENT LIMITED**....................................**CLIENT/APPLICANT** **RULING** 1. The Client/Applicant's Notice of Motion dated 05th June 2026, brought under Sections 1A, 1B, 3A and 89 of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Sections 48 and 49 of the Advocates Act, Articles 47 and 50 of the Constitution, and all other enabling provisions of the law, seeks orders that the taxation of the Advocate–Client Bill of Costs dated 22nd January 2026 be stayed; that the Advocate be directed to institute a suit for recovery of costs under Sections 48 and 49 of the Advocates Act; that these miscellaneous proceedings be stayed pending the determination of that suit; and that the costs of the application be in the cause. 2. The Motion is supported by the affidavit of Richard Mwebi Kwanga sworn on 05th June 2026, together with the annexures thereto. The Applicant states that it instructed the Advocate in 2019 to institute Nyamira High Court Civil Suit 003 of 2019 against the County Government of Nyamira, and that the parties verbally agreed a total fee of KES.1,000,000. It deposes to payments comprising an initial cash payment of KES.300,000, bankers' cheques totalling KES.375,000, M-Pesa transfers of KES.68,200, a further cash payment of KES.250,000 allegedly made at the court premises in October 2021, and KES.40,000 allegedly paid in Kisumu in the presence of witnesses who are prepared to testify. 3. The Applicant further deposes that a previous Bill of Costs taxed in Nyamira Miscellaneous Application E011 of 2023 was set aside for want of service, and that whereas that Bill acknowledged a deposit of Kshs.200,000, the present Bill credits KES.285,000, an inconsistency it says shows the Advocate has failed to account for a total of KES.748,200 paid towards fees. 4. The Applicant contends that taxation is unsuited to resolve these contested factual questions, which require oral evidence, and that the proper course is for the Advocate to institute a substantive suit under Sections 48 and 49 of the Advocates Act within which the disputed payments may be proved before taxation proceeds, failing which it will suffer prejudice and double recovery by the Advocate. 5. The application is opposed through the Replying Affidavit of Kevin Gichana Mochiemo sworn on 02nd July 2026, together with its annexures. The Advocate describes the application as a deliberate attempt to delay taxation and postpone payment of fees earned in Nyamira HCCC 003 of 2019. He denies any agreement fixing fees at KES.1,000,000 or at any specific figure, states that no written fee agreement or contemporaneous document evidencing one exists, and avers that while a figure of KES2,000,000 may have been discussed at the outset, no binding agreement was concluded. 6. The Advocate disputes receiving the alleged cash payments, pointing to inconsistencies between KES.250,000 and KES.300,000 in the Applicant's own affidavit in the earlier E011 of 2023 proceedings, and to a Credit Note dated 16th November 2022 which he says records payment by cheque rather than cash. He states the cheque said to represent KES.250,000 was never cleared. 7. As to the M-Pesa transfers of KES.68,200, the Advocate admits receipt but explains these were reimbursement for transport between Kisii and Nyamira, subsistence during court attendance, and expenses in obtaining documents from the County Government of Nyamira, and not payment of professional fees. 8. The Advocate also denies receiving or banking several of the cheques relied upon, states no receipts or bank records support the alleged cash payments, and relies on the Statutory Declaration of Andrew Nyachiro, Advocate, who denies witnessing any exchange of money at the court premises as alleged. 9. On the contention that a substantive suit must precede taxation, the Advocate maintains that the Advocates Act permits taxation of an Advocate–Client Bill of Costs without a prior suit for recovery, that the retainer is admitted, and that directing a separate suit would unnecessarily delay recovery of fees lawfully earned and defeat the statutory taxation procedure. 10. The Advocate explains that the earlier taxation in E011 of 2023 was set aside solely for want of service and not on the merits, that he has since traced the affidavit of service and taxation notice bearing the Applicant's acknowledgment of receipt, and urges dismissal of the Motion with costs and that the present Bill proceed to taxation without further delay. 11. Pursuant to directions of the Court, the application was canvassed by written submissions: the Applicant's dated 15th July 2026 and the Advocate's dated 17th July 2026. 12. Having considered the Notice of Motion, the Supporting Affidavit and its annexures, the Replying Affidavit and its annexures, and the parties' submissions, the Court identifies the following issues: 13. **Whether the dispute over sums allegedly paid by the Client is capable of resolution within taxation proceedings, without the Court making any finding on whether the alleged payments were in fact made.** 14. **Whether the Court should compel the Advocate to institute a suit under Sections 48 and 49 of the Advocates Act before taxation.** 15. **Whether the Applicant has established grounds to stay the taxation proceedings pending such a suit.** 16. **Who should bear the costs of the application.** 17. It is common ground that the Applicant instructed the Advocate in Nyamira High Court Civil Suit 003 of 2019, and that following completion of that retainer the Advocate lodged the Bill of Costs dated 22nd January 2026 for taxation. What is contested is the amount, if any, already paid, and the legal consequences of the alleged payments. Nothing in this Ruling determines whether the alleged payments were in fact made; that question remains open for determination through the appropriate process, addressed below. 18. Sections 48, 49 and 51 of the Advocates Act establish complementary, rather than mutually exclusive, procedures for the recovery of professional fees. An advocate may institute a suit for recovery of costs or invoke the taxation process, and the availability of one does not preclude recourse to the other. This is directly supported by **Ondaba & Partners Advocates v Sea Turtle Limited & Another [2025] eKLR**, which recognises taxation as the primary statutory mechanism for determining advocate-client fee disputes. Where, as here, the retainer is not disputed, Section 51(2) facilitates the expeditious determination of advocate-client costs through taxation: **Lubulellah & Associates Advocates v Vinayak Builders Limited**; **Lesionko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] eKLR**. As held in **Mamicha & Company Advocates v Nairobi City Water & Sewerage Company Ltd [2015] eKLR**, an advocate should not be kept from recovering lawfully earned fees by unnecessary delay, and in **Aggrey Lucas Kidiavai t/a Kidiavai Advocates & Company Advocates v Kishor Veijipatani [2022] eKLR**, the Court underscored that procedural rules should be applied to advance, rather than frustrate, substantive justice. In **Jones Nyachiro t/a M/S Nyachiro Nyagaka & Company v Nyamira County Government [2022] eKLR**, the Court cautioned against applications whose effect is merely to delay taxation of advocate-client bills of costs. These authorities confirm that the Applicant's dispute over the sums allegedly paid neither ousts the jurisdiction of the Taxing Officer nor requires the Advocate to institute a substantive suit before taxation. 19. The existence of disputed factual allegations does not, without more, transform taxation proceedings into an ordinary civil suit. Were that the position, any client could indefinitely frustrate the taxation of an Advocate–Client Bill of Costs merely by alleging undocumented or disputed payments. Under Section 107 of the Evidence Act, the burden of proving those alleged payments rests upon the Applicant. Whether the alleged cash payments were made, whether the disputed cheques were honoured, whether the M-Pesa remittances constituted professional fees or reimbursement of disbursements, and consequently what credit, if any, ought to be allowed against the Bill of Costs, are matters that fall within the Taxing Officer's jurisdiction to determine upon consideration of the evidence presented by the parties during taxation. This Court therefore declines to determine those contested factual issues at this interlocutory stage, as doing so would amount to usurping the statutory mandate of the Taxing Officer. 20. The Applicant's reliance on Nyamira Miscellaneous Application E011 of 2023 is misplaced for as noted above, that matter was set aside solely for want of service; it neither determined the correctness of the Bill nor whether the Advocate had failed to account for monies received, and affords no basis for requiring a substantive suit before taxation. 21. This Court is equally unpersuaded by the Applicant's apprehension of "double jeopardy" through execution before the disputed payments are resolved. Taxation determines the Advocate's entitlement to fees, taking into account any payments proved before the Taxing Officer, while enforcement arises only after that process has been concluded. The Applicant's apprehension is therefore premature and does not justify staying taxation or compelling the institution of a substantive suit. 22. For the foregoing reasons, the Applicant has failed to establish any legal basis for compelling the Advocate to institute a substantive suit before taxation, or for staying the taxation proceedings. The statutory procedure invoked by the Advocate is the proper procedure in the circumstances of this case, and the dispute concerning the payments allegedly made by the Applicant falls for determination by the Taxing Officer in the course of taxation. 23. Consequently, the Notice of Motion dated 05th June 2026 is hereby dismissed with costs to the Advocate/Respondent. **DELIVERED AT NYAMIRA THIS 30th DAY OF July 2026**  **WAMAE.T. W. CHERERE** **JUDGE** ## **Appearances** **Court Assistant - Hilda** **For Applicant - Mr. Kiriankie for Kiriankie Advocates** **For Respondent - Mr. Mochiemo for Mochiemo Gichana & Co. Advocates**