[2025] KEELC 4281 (KLR)

Mwaniki Gitahi t/a Mwaniki Gitahi & Partners Advocates v Thuku & 2 others (Miscellaneous Application E025 of 2024) [2025] KEELC 4281 (KLR) (5 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4281 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Miscellaneous Application E025 of 2024

YM Angima, J

June 5, 2025

Between

Mwaniki Gitahi t/a Mwaniki Gitahi & Partners Advocates

Applicant

and

Cornelius Kagui Thuku

1st Respondent

Swiftway Enterprises

2nd Respondent

Michael Mulwa

3rd Respondent

Ruling

1. By a chamber summons dated 02. 09. 2024 filed pursuant to Paragraph 11 of the Advocates Remuneration Order (ARO) the 3rd respondent, Michael Mulwa, challenged the decision of the taxing officer dated 21. 08. 2024. The 3rd respondent prayed that the taxation of the applicant’s bill of costs dated 06. 05. 2024 against him be set aside and that the costs of the reference be awarded to him.

2. The gist of the application was that the 3rd respondent was not party to the suit in respect of which the bill of costs dated 06. 05. 2024 was taxed and that there was no advocate-client relationship between him and the applicant. It was his contention that he only engaged the applicant as an agent of a limited company known as Swiftway Enterprises Ltd which was a defendant in Mombasa ELC 390 of 2010. It was the 3rd respondent’s case that the taxing officer erred in law in summarily dismissing his objection to the bill of costs without first establishing the existence of the any advocate-client relationship.

3. The applicant filed a replying affidavit sworn by Mwaniki Gitahi on 12. 09. 2024. He stated that it was the 3rd respondent who personally approached him to defend Swiftway Enterprises in ELC NO. 390 of 2010. He deposed that he prepared a witness statement in the name of the 3rd respondent and led him in his evidence in-chief at the trial. It was also his case that at some point, the 3rd respondent had made part payment of the fee through his mpesa mobile number hence there existed an advocate-client relationship between them.

4. The advocate also filed a notice of preliminary objection dated 12. 09. 2024 stating that the reference violated the provisions of Rule 11 of the ADO without providing any particulars of the alleged violation. However, the applicant did not prosecute the said preliminary objection hence nothing really turns out on the same.

5. The record shows that when the matter came up for directions it was directed that the reference shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that both sides filed written submission dated 03. 03. 2024 but the 1st and 2nd respondents did not participate in the application.

6. The only question for determination is whether or not there existed an advocate-client relationship between the applicant and the 3rd respondent and if the taxing officer erred in law in failing to determine the issue. It is common ground that the bill of costs dated 06. 05. 2024 emanated from legal services rendered to Swiftway Enterprises in ELC No. 390 of 2010 (the civil suit). It is also common ground that the 3rd respondent was not one of the defendants in the suit.

7. The applicant submitted that the 3rd respondent was a “pathological’ liar because form CR 12 produced before the civil suit showed that the 2nd defendant was a director of the company hence he could not disassociate himself from the company. The applicant further submitted that it was the 3rd respondent who actually approached his firm for legal services to represent the said company and even paid some fee using his personal mobile number.

8. The court is of the view that even though the 3rd respondent may have engaged the applicant in connection with the civil suit that would not automatically create an advocate-client relationship. It would not be unreasonable to expect a director or agent of a company to engage a law firm to represent the company in legal proceedings. A company being a legal abstraction, could only act through natural beings associated with it. The applicant could not surely expect the company as a juristic person to approach him in chambers for legal services. The court is of the view that the exchange of correspondence and payment of legal fees via mpesa should be construed in that context.

9. The 3rd respondent had no reason to engage the applicant’s firm to act for him in the civil suit whereas he was not a party thereto. The mere fact that he was a witness for the company would not necessarily make him liable to pay legal fees personally. The court is of the view that an objective assessment of the situation can only lead to the conclusion that the advocate-client relationship in relation to the civil suit was between the applicant’s firm and the company.

10. In the case of Wilfred Konosi v Flamco Limited [2017] eKLR it was held that the existence of the client-advocate relationship was a condition precedent to taxation of an advocate-client bill of costs. The court of Appeal held, inter alia;“The issue whether an advocate-client relationship exists in taxation of a Bill of Costs between an advocate and his/her client is core. The jurisdiction is conferred on the Taxing Officer by law. It is derived from the Advocates Act and the Advocates Remuneration Order. The Taxing Officer sits in taxation as a Judicial Officer. His or her task is to determine legal fees payable for legal services rendered. The jurisdiction cannot arise by implication nor can parties by consent confer it. And inherent jurisdiction cannot be invoked where adequate statutory provision exists. It was held in Taparn v Roitei [1968] EA 618 that inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case. The Advocates Act and the Advocates Remuneration Order confer on the Taxing Officer jurisdiction to tax bills of costs between advocates and their clients (as well as between party and party in litigation) so as to determine legal fees for legal services rendered.The nexus between the advocate and his or her client is the advocate/client relationship which springs from instructions by the client to the advocate. Absent such relationship, the Taxing Officer would be bereft of jurisdiction to tax a bill.”

11. In his decision dated 21. 08. 2024 the taxing officer dealt with the 3rd respondent’s objection as follows;“…The 3rd respondent submitted that they were not party to the main suit. They have referred to a CR 12 form as proof. The duty of this court is however limited to taxing the filed bill and not to call on evidence of the participants in the trial suit and determining who is liable. Such decision on costs is determined in the verdict of the court that awarded costs one party as against another/others. The court thus proceeds to tax.”

12. It is evident from the above pronouncement that the taxing officer proceeded on the misapprehension that he was dealing with a party and party bill of costs in which the trial court had awarded the applicant costs against the respondents. The truth of the matter, however, was that there was no such award of costs since the bill before him was an advocate-client bill of costs which was not anchored in any award of party and party costs in the civil suit. Thus the only basis upon which the taxing officer could tax the bill of costs was the existence of an advocate-client relationship.

13. As indicated before, there was no evidence of any advocate-client relationship as between the applicant and the 3rd respondent. The court is thus of the view that the taxing officer erred in law in proceeding to tax the bill of costs dated 06. 05. 2024 without first ascertaining the existence of the relationship which could confer jurisdiction upon him. The mere fact that the 3rd respondent was mentioned 79 times by the plaintiff at the hearing of the civil suit could not, without more, create an advocate-client relationship as between the applicant and the 3rd respondent.

14. The upshot of the foregoing is that the court finds merit in the 3rd respondent’s reference against the decision of the taxing officer. As a consequence, the court makes the following orders for disposal of the reference;a.The decision of the taxing officer dated 21. 08. 2024 as relates to the 3rd respondent is hereby set aside in its entirety.b.Each party shall bear its own costs of the reference.It is so decided

RULING DATED AND SIGNED AT MOMBASA AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 5TH DAY OF JUNE, 2025. .......................................Y. M. ANGIMAJUDGEIn the presence of:Gillian - Court assistantMr. Mwaniki for the applicantNo appearance for the 1st and 2nd respondentsMr. Mwakisha for the 3rd respondent