https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1616

Mugambi & another v Wangai (Civil Appeal 64 of 2020) [2026] KECA 1616 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1616 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 64 of 2020 PO Kiage, AO Muchelule & WK Korir, JJA July 31, 2026 Between John Mugambi 1st Appellant Mugambi & Company Advocates 2nd Appellant and Dr Kiama Wangai Respondent ((Being an appeal against the ruling and order of the High Court at Nairobi (L. Njuguna, J.) dated 19th July 2018 in Misc. Civil Appl. No. 310 of 2016) Judgment 1.This appeal arises from a dispute concerning the existence of an advocate-client relationship between the parties. The appellant, John Mugambi T/A M/s Mugambi & Company Advocates, contends that the respondent, Dr. Kiama Wangai, retained him to represent him in Industrial Cause No. 751 (N) of 2009, instituted by the respondent against Lawrence Gelmon, Joshua Kimani and the University of Manitoba before the then Industrial Court. According to the appellant, he issued demand letters, prepared and filed pleadings, and represented the respondent in the proceedings until 8th February 2010, when the respondent terminated his retainer and instructed another advocate to take over the matter. The respondent, on the other hand, denied that an advocate-client relationship had ever existed between the parties, maintaining that their relationship was purely one of landlord and tenant. His position was that he had merely sublet office space to the appellant at a monthly rent of Kshs.10,000/- and paid him Kshs.90,000 solely for preparing and filing pleadings in the Industrial Court. 2.The respondent’s claim before the Industrial Court was initially valued at Kshs.17,308,804 but was subsequently amended to Kshs.98,021,700. Following the hearing, the Industrial Court dismissed the suit with no order as to costs on 10th September 2010. Following the termination of his alleged retainer, the appellant sought to recover his professional fees by filing an Advocate-Client bill of costs in High Court Miscellaneous Civil Application No. 142 of 2010 claiming Kshs.4,626,252, the instruction fee having been computed on the basis of the amended value of the claim. The respondent raised a preliminary objection contending that the High Court lacked jurisdiction to tax the bill of costs and that it ought instead to have been presented before the then Industrial Court. The Deputy Registrar upheld the objection and transferred the bill of costs to the Industrial Court. 3.Upon the bill of costs being placed before the Industrial Court, the respondent raised a further preliminary objection under Rule 62A of the Advocates (Remuneration) Order, 2009, contending that, following the change of advocates, only the firm of M/s Ngugi Mwaniki Advocates, which had assumed conduct of the respondent’s case, was competent to lodge the Advocate- Client bill of costs. The Deputy Registrar upheld the preliminary objection and declined to admit the bill of costs for taxation. 4.Aggrieved by that decision, the appellant lodged a reference dated 8th August 2011 under Rule 11 of the Advocates (Remuneration) Order, seeking to set aside the Deputy Registrar’s ruling and to have the bill of costs readmitted for taxation. The appellant contended that the Deputy Registrar had misinterpreted Rule 62A in holding that only the advocate last on record could present the bill of costs and maintained that the Court should interfere with that interpretation under Rule 11. The respondent opposed the reference by way of a preliminary objection, contending that the application was incompetent because Rule 11 only permits a reference where a taxing officer has taxed a bill of costs or has allowed or disallowed specific items therein. According to the respondent, no taxation had taken place, no item in the bill of costs had been allowed or disallowed by the taxing officer, and there was therefore no decision capable of being challenged by way of a reference. Consequently, it was argued, the Court could not exercise the jurisdiction conferred by Rule 11. 5.In a ruling delivered on 30th September 2011, Rika, J. dismissed the reference. The learned Judge held that the Advocates (Remuneration) Order, 2009 had not been extended to the then Industrial Court and that there was therefore no statutory framework empowering the Registrar of that court to tax Advocate-Client bill s of Costs. The learned Judge further held that, in the absence of a competent taxation under the Advocates (Remuneration) Order, there could be no competent reference under Rule 11. He observed that the Order conferred no jurisdiction upon a Judge of the Industrial Court to exercise the jurisdiction contemplated under Rule 11 and concluded that there was no legal framework enabling the Industrial Court either to undertake taxation of Advocate-Client bill s of Costs or to entertain references arising therefrom. The learned Judge accordingly dismissed the bill of costs, holding that such jurisdiction could only arise through clear legislative provision extending the application of the Advocates (Remuneration) Order to the Industrial Court. 6.Following that ruling, the appellant filed a fresh Advocate-Client bill of costs before the High Court in Miscellaneous Civil Application No. 494 of 2011, which was subsequently withdrawn by the appellant on 4th March 2014 with costs to the respondent. Thereafter, the appellant instituted High Court Miscellaneous Civil Application No. 310 of 2016 by filing an Advocate-Client bill of costs dated 20th June 2016 seeking taxation of his professional fees. Before the bill could be taxed, the respondent filed a preliminary contending, inter alia, that the application was res judicata; was statute-barred under section 4 of the Limitation of Actions Act; that the High Court lacked jurisdiction by virtue of Articles 162(2)(a) and 165(5)(b) of the Constitution; that no advocate-client relationship had ever existed between the parties; and that the application was misconceived, incompetent, vexatious and an abuse of the court process. The parties canvassed the preliminary objection and the application simultaneously, culminating in the ruling delivered by the High Court on 19th July 2018, which forms the subject of the present appeal. 7.In its ruling, the High Court, (Njuguna, J. as she was then) found that the application was not barred by the doctrine of res judicata, notwithstanding that it involved the same parties and the same subject matter as the earlier proceedings. The High Court reasoned that the original bill of costs had never been heard and determined on its merits, having been transferred from the High Court to the then Industrial Court and subsequently referred back before it was ultimately withdrawn prior to taxation. In the absence of a determination on the merits, one of the essential elements of res judicata had not been satisfied. 8.The High Court further held that the reference was properly before it. It observed that although the High Court had initially declined jurisdiction and transferred the bill of costs to the Industrial Court, the latter had subsequently referred the matter back to the High Court for taxation. As no appeal had been lodged against the Industrial Court’s referral order, the High Court found that the reference was properly before it. 9.However, the court upheld the respondent’s preliminary objection on the ground that the application was statute-barred. It held that the claim arose from a contractual relationship and was therefore subject to the six-year limitation period. The withdrawal of the bill of costs from the Industrial Court meant that there was no existing bill pending taxation, with the result that the application filed on 21st June 2016 constituted a fresh proceeding. Since it had been filed more than six years after the cause of action accrued on 8th February 2010, the High Court found that it was time-barred and that it consequently lacked jurisdiction to entertain it. Accordingly, it upheld the preliminary objection on the ground of limitation and dismissed the application dated 20th June 2016 with costs. 10.Aggrieved by the above decision, the appellant raised the following grounds of appeal in the amended memorandum, inter alia:“1)The Honourable Judge erred in law and fact in capturing wrong facts of the matter at paragraph 4 of her ruling, thereby arriving at a wrong decision that was informed by wrong facts. 2)The Honourable Judge erred in law and in fact in failing to carefully consider the ruling dated 30th September 2011 by the Honourable Justice James Rika and its impact, thereby arriving at a wrong decision entirely; 3)The Honourable Judge erred in law and in fact in misapprehending and in the interpretation of the law as laid down in the Limitations of Actions Act. 4)The Honourable Judge erred in law and in fact in failing to appreciate that the taxation of the appellant’s Bill of costs was actively in court and that the withdrawal of the Bill of costs from the Industrial Court did not render the appellant’s Bill of Cost dated 20th June 2016 time barred; 2.The Honourable Judge erred in law and in fact in proceeding to make orders relating to the matter at hand when the court has indeed pronounced itself in its ruling dated 19th July 2018 without any formal application being made, thereby proving that the court was biased from the word go. 3.The Honourable Judge erred in law and in fact in failing to consider the appellant’s list of authorities filed on 22nd June 2018 to which no mention was made; 4.The Honourable Judge erred in law and in fact in awarding the respondent full costs of its preliminary objection, when in fact, the appellant had partially succeeded in challenging the application and as acknowledged by the trial judge in her ruling dated 19th July 2018; 5.That the Honourable Judge erred in law and in fact in making the conclusion as she did to the effect that a lawyer’s fee is subject to limitation and cannot be claimed as and when due.” 11.This appeal came up for hearing on 26th January 2026 when learned counsel Mr. Omondi, holding brief for Mr. Gachie Mwanza, appeared for the appellant while learned counsel Prof. Kiama Wangai was present for the respondent. They both elected to rely on their respective written submissions with brief highlights as follows. 12.Mr. Omondi, submitted that the appeal arose from the ruling of the High Court delivered on 19th July 2018, which upheld the respondent’s preliminary objection and dismissed the appellant’s Advocate-Client bill of costs dated 20th June 2016 on the ground that it was statute-barred. Counsel condensed the appeal into two issues, namely, whether the Advocate-Client bill of costs was statute-barred and whether the learned judge properly exercised her discretion in awarding the respondent the entirety of the costs. 13.On the first issue, counsel submitted that an advocate-client relationship existed between the parties from 1st December 2009 until 8th February 2010, when the appellant’ retainer was terminated. Upon termination of the retainer, the appellant sought to recover their professional fees by filing an Advocate- Client bill of costs. Counsel submitted that the claim was thereafter pursued before both the High Court and the Industrial Court but was met with a succession of preliminary objections and jurisdictional challenges which prevented the bill from being taxed. He argued that, in a ruling delivered by Rika J. in 2014, the Industrial Court held that it lacked the legal framework to tax Advocate-Client bills of costs or entertain references arising therefrom and, consequently, the appellant filed the impugned bill of costs before the High Court on 21st June 2016. 14.Counsel submitted that the learned Judge erred in holding that the bill of costs was statute-barred. While acknowledging that an advocate-client retainer is contractual and ordinarily subject to the six-year limitation period under section 4(1)(a) of the Limitation of Actions Act, he argued that the appellant had diligently pursued the same claim since filing the first bill of costs in 2010 and had never been indolent. According to counsel, the delay in obtaining taxation resulted from jurisdictional objections and procedural impediments rather than inaction on the part of the appellant. He maintained that there had been continuous litigation over the appellant’s claim for fees and that the respondent had at all material times been aware that the appellant was pursuing payment of those fees, with the result that the filing of the bill of costs in June 2016 occasioned no prejudice to the respondent. 15.In support of those submissions, counsel relied on Abincha & Co. Advocates -vs- Trident Insurance Co. Ltd [2013] eKLR for the proposition that an advocate-client retainer is a contract for professional services to which the limitation period prescribed under section 4(1)(a) of the Limitation of Actions Act applies. He further relied on Kenya Airways Ltd -vs- Donald Osewe Oluoch [2014] eKLR, arguing that where proceedings concerning the same cause of action are diligently prosecuted before a court that ultimately lacks jurisdiction, the period during which those proceedings remain pending ought not to be reckoned for purposes of limitation. Counsel also cited Rioki Estate Co. (1970) Ltd -vs- Michael Kinyuru Kamau [2011] eKLR, in which extension of time was granted after proceedings had initially been instituted before a court without jurisdiction. Additionally, counsel invited the Court, pursuant to section 3 of the Judicature Act, to adopt the common law doctrine of equitable tolling, relying on the decision of the United States Supreme Court in Heimeshoff -vs- Hartford Life & Accident Insurance Co. et. al. No. 12-729, 567 US 310 (2013), for the proposition that limitation does not run while proceedings are being diligently prosecuted in the wrong forum, provided the defendant has notice of the claim, suffers no prejudice and the claimant acts reasonably and in good faith. 16.In his oral highlights, counsel reiterated that the parties had been engaged in litigation concerning the appellant’s claim for professional fees before both the High Court and the Industrial Court, and that the impugned bill of costs was filed after Rika J.’s ruling that the Industrial Court lacked the legal framework to tax advocate-client bills of costs. He submitted that the respondent had throughout been aware that the appellant was pursuing its fees and that the claim had remained alive before the trial court. 17.When questioned by the Court, counsel accepted that the impugned bill of costs had been filed outside the ordinary six- year limitation period applicable to contractual claims. He nevertheless maintained that the period during which the parties were actively litigating the dispute before the High Court and the Industrial Court should not count for purposes of limitation because there had been continuous litigation concerning the same claim. 18.On the issue of costs, counsel submitted that although the award of costs is discretionary under section 27 of the Civil Procedure Act, that discretion must be exercised judicially. He argued that the respondent had filed both a preliminary objection and a notice of motion, but had succeeded only on one limb of the proceedings. Relying on Thomas Nyaga Njuki -vs- Alexander Ireri Karimi [2020] eKLR and the principles set out in Halsbury’s Laws of England, counsel submitted that the learned Judge erred in awarding the respondent the entirety of the costs. He accordingly urged the Court to allow the appeal, set aside the ruling of the High Court, remit the Advocate-Client bill of costs for taxation before the Deputy Registrar, and interfere with the order on costs. 19.In opposing the appeal, learned counsel for the respondent, Prof. Kiama Wangai, opposed the appeal and urged the Court to uphold the ruling of the High Court. Counsel submitted that although the memorandum of appeal set out several grounds challenging the learned Judge’s decision, the appeal essentially raised two issues, namely whether the appellant’s Advocate- Client bill of costs dated 20th June 2016 was statute-barred and whether the learned Judge erred in awarding costs to the respondent. 20.On the issue of limitation, counsel submitted that the learned Judge correctly found that the appellant’s claim was founded on a contractual advocate-client relationship, which was subject to the six-year limitation period prescribed under section 4(1)(a) of the Limitation of Actions Act. He adopted the reasoning of the learned Judge, contending that although the appellant initially filed a bill of costs in 2010, the matter was subsequently litigated before the Industrial Court until 2014, when the appellant withdrew the bill of costs. According to counsel, upon the withdrawal of that bill there remained no bill of costs pending for taxation, with the result that the Advocate-Client bill of costs filed on 21st June 2016 constituted a fresh and independent claim. Since the cause of action arose on 8th February 2010 upon termination of the retainer, counsel submitted that the fresh bill, having been filed more than six years later, was statute-barred. 21.Counsel further submitted that the appellant’s written submissions omitted a material part of the history of the dispute. He argued that after the proceedings before the Industrial Court, the appellant filed another Advocate-Client bill of costs in High Court Miscellaneous Application No. 494 of 2011, which was dated 18th November 2011 but was subsequently withdrawn on 4th March 2014 with costs to the respondent. Counsel maintained that, notwithstanding the withdrawal of that bill, the appellant proceeded to file yet another bill of costs in Miscellaneous Application No. 310 of 2016, which is the subject of the present appeal. In his submission, the 2016 bill was therefore a fresh application that had to comply independently with the statutory limitation period. 22.Counsel also referred the Court to the ruling of Rika J. dismissing the appellant’s reference seeking reinstatement of the bill of costs before the Industrial Court, submitting that no bill of costs remained pending before that court following the dismissal of the reference. He contended that the appellant’s subsequent attempt to withdraw a non-existent bill of costs before the Industrial Court did not alter the legal position. 23.Regarding costs, counsel submitted that the appellant’s contention that the respondent had succeeded only partially before the High Court was unfounded. He argued that the learned Judge upheld the preliminary objection and dismissed the application with costs, and nowhere in the ruling did the Court indicate that the respondent had achieved only partial success or award what the appellant described as "full costs." Counsel therefore submitted that there was no error in the exercise of the learned Judge’s discretion on costs. 24.Finally, counsel submitted that the memorandum of appeal sought no substantive relief and that prayers could not properly be introduced at the stage of written submissions. He maintained that the appellant had filed a stale Advocate-Client bill of costs, which the High Court correctly dismissed, and accordingly urged the Court to dismiss the appeal with costs. 25.The appeal arises from the ruling of the High Court (Njuguna, J.) delivered on 19th July 2018, by which the learned Judge upheld the respondent’s preliminary objection and dismissed the appellant’s Advocate-Client bill of costs dated 20th June 2016. The preliminary objection challenged the bill of costs on several grounds, namely that it was res judicata; was statute-barred under section 4(1)(a) of the Limitation of Actions Act; that the High Court lacked jurisdiction by virtue of Articles 162(2)(a) and 165(5)(b) of the Constitution; that no advocate-client relationship existed between the parties; and that the proceedings were otherwise misconceived and an abuse of the court process. Although the learned Judge rejected some of those objections, she upheld the plea of limitation and dismissed the bill of costs with costs to the respondent. 26.We have carefully considered the record of appeal, the impugned ruling, the rival submissions and the authorities cited by counsel. In our view, the appeal raises two issues for determination: first, whether the learned Judge erred in holding that the appellant’s Advocate-Client bill of costs was barred by limitation; and secondly, whether she properly exercised her discretion in awarding costs to the respondent. 27.There is no dispute that an advocate’s claim for professional fees arises from the contract of retainer and is therefore subject to the six-year limitation period prescribed under section 4(1)(a) of the Limitation of Actions Act, as held in Abincha & Co. Advocates -vs- Trident Insurance Co. Ltd [2013] eKLR. The appellant’s submission is, however, that time ceased to run while the earlier proceedings remained pending. We are unable to accept that proposition. This Court in Donald Osewe Oluoch v Kenya Airways Limited [2017] KECA 701 (KLR) expressly held that limitation of actions in Kenya is entirely statutory and that there is no provision in the Limitation of Actions Act or any other written law providing that the period during which a litigant prosecutes proceedings founded upon the same cause of action before a court that ultimately declines jurisdiction should be excluded in computing the limitation period. This Court further held that the principle embodied in section 14 of the Indian Limitation Act has no application in Kenya and declined to import analogous principles from foreign jurisdictions in the absence of statutory authority. The appellant’s invitation to adopt the doctrine of equitable tolling discussed in Heimeshoff -vs- Hartford Life & Accident Insurance Co. et al., 567 U.S. 99 (2013) is therefore equally untenable. As observed in the Donald Osewe Oluoch (supra), limitation of actions in Kenya is governed entirely by statute, and courts cannot create exceptions not enacted by Parliament. 28.Applying those principles to the present appeal, the appellant’s cause of action accrued on 8th February 2010 upon termination of the alleged retainer. Although the appellant commenced proceedings to recover his fees within the prescribed period, those proceedings neither interrupted nor suspended the running of time under section 4(1)(a) of the Limitation of Actions Act. The fact that the earlier proceedings were subsequently withdrawn did not preserve the appellant’s cause of action or arrest the running of time. Consequently, by the time the Advocate-Client bill of costs dated 20th June 2016 was filed, more than six years had elapsed from the date the cause of action accrued. In the absence of any statutory provision extending or suspending time, we find no error in the learned Judge’s conclusion that the appellant’s claim was barred by limitation. 29.The appellant also challenged the learned Judge’s exercise of discretion in awarding costs to the respondent, arguing that the respondent had succeeded only on one limb of the preliminary objection. It is well settled that although section 27 of the Civil Procedure Act vests the award of costs in the discretion of the court, that discretion must be exercised judicially. An appellate court will not interfere unless it is shown that the court misdirected itself, took into account irrelevant considerations, failed to take into account relevant considerations, or that the decision is plainly wrong. See Mbogo & Another -vs- Shah [1968] EA 93 and Jasbir Singh Rai & 3 Others -vs- Tarlochan Singh Rai & 4 Others [2014] eKLR. Although the respondent did not succeed on every ground raised in the preliminary objection, he succeeded on the issue of limitation, which was dispositive of the entire proceedings and resulted in the dismissal of the appellant’s bill of costs. He was therefore the successful party before the High Court. We discern no error of principle or improper exercise of discretion warranting the interference with the order on costs. 30.In the result, we are satisfied that the learned Judge properly upheld the preliminary objection on the ground that the Advocate-Client bill of costs dated 20th June 2016 was barred by limitation, and did not err in the exercise of her discretion in awarding costs to the respondent. The appeal consequently lacks merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026P. O. KIAGE........................................JUDGE OF APPEALA. O. MUCHELULE........................................JUDGE OF APPEALW. KORIR........................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR.