Odhiambo v Johnson & 3 others (Commercial Miscellaneous Application E269 of 2023) [2026] KEHC 7291 (KLR) (Commercial and Tax) (21 May 2026) (Ruling)

Odhiambo v Johnson & 3 others (Commercial Miscellaneous Application E269 of 2023) [2026] KEHC 7291 (KLR) (Commercial and Tax) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7291 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Miscellaneous Application E269 of 2023 BK Njoroge, J May 21, 2026 Between Gerard Brian Otieno Odhiamво Advocate and Lord Paul Johnson 1st Respondent Chris. M Brice 2nd Respondent Kenneth Adagala 3rd Respondent Vip$ Coin© Worldwide 4th Respondent Ruling 1.This Ruling reflects on at the bread-and-butter issue that affects Advocates and that is a matter of their legal fees. Some of the issues that the Court has had to grapple with is who is a Client? Should the Advocate at all times know who his Client is? How does an Advocate identify his Client? Is a director of a Corporation a Client when he issues instructions on behalf of a Company? In high value financial transactions where figures like Kshs.3.6 Trillion, or USD 200,000,000/= which is equivalent to approximately Kshs.26,811,475,224/= and where a Bill of costs is drawn for a sum of Kshs.15.012,220/=, what would be the proof of instructions? Would instructions with profound legal implications on the finance and monetary sector of this Country on the issue of cryptocurrency and digital currencies stand solely on the basis of WhatsApp messages? Background Facts 2.The Applicants/Clients filed the Chamber Summons dated 13th December, 2023 seeking the following orders;a.That the Honorable court be pleased to vacate and set aside in its entirety the ruling and reasoning of the learned Taxing Officer Honorable S.Githogori Bett (D.R) dated and delivered on 29th November, 2023 in HCCOMM MISC.NO. E269 of 2023 upon such terms as are just.b.That there be a stay of execution of the taxed costs pursuant to the ruling of the Taxing Officer Honorable S.Githogori Bett (D.R) dated and delivered on 29th November, 2023 in HССOМM MISC.NO. E269 of 2023, pending the outcome of this motion.c.That the costs of this application be awarded to the 1st, 2nd and 4th Respondents. 3.The Application was supported by the Affidavit of Lord Paul Johnson. He contended that the Taxing Officer erred in principle and acted without jurisdiction. This was by taxing the Bill of Costs without evidence of an Advocate–Client relationship between the Advocate and the 1st, 2nd, and 4th Respondents. He deponed that the taxation was premised on an unjustified assumed value of USD 3.6 billion for VIP$ Coin Blockchain Technology, which has not been introduced in Kenya. That the Taxing Officer failed to consider relevant factors, instead reducing the exercise to a mere mathematical computation. 4.Further, it was asserted that no evidence was produced to show that the Advocate received or perused documents relating to the alleged entity, VIP$ COIN© WORLDWIDE, yet fees were awarded on that basis. Consequently, the Applicants maintained that the award was manifestly excessive, unjustified, and improper. They urged the Court to intervene in the interest of justice to prevent a miscarriage of justice against the 1st, 2nd, and 4th Respondents. 5.In response, the Advocate who is the Respondent filed a Replying Affidavit sworn by Gerard Brian Otieno Odhiamво, an Advocate, on 24th April 2025. He contended that the Applicants instructed him to provide legal advice and consultancy on compliance, legislative drafting, and government collaboration regarding the introduction of VIP$ Coin Blockchain Technology. The instructions included its proposed recognition as an alternative currency in Kenya. The work involved extensive legal research, stakeholder engagement, and lobbying toward sponsoring a bill through to presidential assent, with continuous updates to and approval from the Clients. The deponent informed them that the assignment was resource-intensive and required a legal fee deposit and disbursements. That after over a month of consultations and groundwork, formally requested payment to facilitate ongoing travel and lobbying efforts. 6.Further to the above, the deponent refuted the Applicants’ claim that he was not competent to render and file a Bill of Costs due to lacking a 2023 practicing certificate. He clarified that the services in question were rendered between 5th December 2022 and 11th January 2023. He asserted that it is a matter of judicial notice that a practicing certificate for a given year remains valid until 31st January of the following year to allow processing by the Law Society of Kenya. Accordingly, he maintained that at the time he provided the legal services, he was duly qualified and licensed to practice law under the applicable laws and regulations. Issues for determination 7.Having carefully considered the application and the response, as well as the written submissions, the Court frames the following issues for determination;a.Whether there existed an Advocate-Client relationship capable of sustaining a Bill of Costs.b.Whether the ruling ought to be vacated for being unlawful, unreasonable, made without jurisdiction, and founded on an error of principle. Analysis and determination 8.The circumstances under which a Court can interfere with the Ruling of the taxing officer and the consequential Certificate of Taxation were highlighted and elaborated upon by the Court of Appeal in the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR. The Appellate Court held as follows:“On a 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. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of this Court said at page 492 paragraph I:“where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases.”An example of an error of principle is where the costs allowed are so manifestly excessive as to justify an inference that the taxing officer acted on erroneous principles – see Arthur v Nyeri Electricity Undertaking (supra) or where the taxing officer has over emphasized the difficulties, importance and complexity of the suit (see Devshi Dhanji v Kanji Naran Patel (No. 2), [1978] KLR 243. We have no doubt that if the taxing officer fails to apply the formula for assessing instructions fees or costs specified in schedule VI or fails to give due consideration to all relevant circumstances of the case, particularly the matters specified in proviso (1) of schedule VIA (1), that would be an error in principle.” 9.When instructions given to an Advocate are denied by the Client, it is an issue that the Taxing Master needs to look at keenly at the first instance. The Taxing Master ought to satisfy herself that indeed the instructions took place and hence a retainer exists. Whether there existed an Advocate-Client relationship capable of sustaining a Bill of Costs. 10.The Applicants disputed the existence of the 4th Respondent/ApplicantVIP$ COIN© WORLDWIDE, the issuance of instructions and the existence of an Advocate-Client relationship. On the other hand, the Respondent maintained that there was an Advocate-Client relationship. This was because the 4th Applicant, acting through the 1st to 3rd Applicants, retained the services of the Respondent. 11.The question before the Court is did the Taxing Officer misdirect herself on a matter of principle? 12.The dispute arising between the parties is whether or not there was a valid Advocate-Client relationship between the Advocate and the Applicants herein. This was a key issue that was raised before the Deputy Registrar as a preliminary issue. This was by way of an application by way of a Notice of Motion dated 8th May, 2023. It sought to strike out the Bill of Costs on the basis that there were no instructions between the Applicants and the Advocate. The Court directed that it would hear and determine the application and the Bill of costs together. 13.The Taxing Master did consider the application and, in her ruling, she indicated that she had looked at the WhatsApp messages between the 1st Respondent and the Advocate. That it was clear that there was a meeting which took place and the advocate was expected to obtain a letter from the Kenya Government on behalf of the Client. The Taxing Master ruled as follows (underlined emphasis ours);“The advocate applicant filed an advocate client Bill of costs which is dated 4th April 2023 and drawn at USD 15,012,220/- In response the It 2nd and 4th respondents filed a Notice of Motion dated 8th May 2023 seeking to strike out the bill of costs on the grounds that the advocate applicant was not qualified to practice law in 2023 having not taken out a practicing certificate: in the year 2023 as at the time the bill of costs was filed. I directed that o shall consider both the application and the bill of costs concurrently………… Going by the aforementioned cases, it is noted that documents or pleadings drawn and filed by an advocate who does not possess a current practicing certificate does not become invalid and should therefore not warrant being struck out. The Notice of motion is dismissed on these grounds. The Bill of costs shall be taxed for the duration the advocate had a practising certificate.” 14.In Omulele & Tollo Advocates v Magnum Properties Limited [2016] eKLR, the Court held that,“[A] retainer need not to be in writing unless, under the general law of contract, the terms of the retainer or the disability of a party, to it make writing requisite…… even if there has been no written retainer, the court may imply the existence of a retainer from the acts of the parties in the particular case.” 15.The Court has carefully perused the WhatsApp conversation between the Applicant and the Respondent. To paraphrase it, it is the Court’s understanding that; 16.On 11th January 2023, “Odhiambo Lawyers” shared details of a proposed meeting venue at Fortis Suites, Nairobi, while “Lord Paul Johnson” indicated that he was engaged in another meeting and requested that Kenneth first speak with the Advocate before any meeting could proceed. “Odhiambo Lawyers” subsequently sought clarification on whether the proposed engagement remained viable so as not to expend further political capital in pursuing the matter, to which “Lord Paul Johnson” responded that the meeting should instead be cancelled pending further planning with Kenneth. Later that evening, “Odhiambo Lawyers” forwarded a Fee Note in respect of legal services allegedly rendered, prompting “Lord Paul Johnson” to question the basis of the same and stated that no steps could be undertaken absent a formal letter from the Government of Kenya. He further maintained that there had been no letter of instructions issued by the UK company to the advocate and reiterated that the Kenyan Government was the only entity with which they intended to engage regarding the matter. 17.Subsequently, on 20th January 2023, “Odhiambo Lawyers” demanded settlement of legal fees and intimated that recovery proceedings would be commenced should no action be taken, despite prior demands allegedly issued to the Respondents’ team. On 23rd January 2023, “Odhiambo Lawyers” asserted that he had undertaken lobbying efforts and organised meetings with senior government officials, including the Chief of Staff in the Deputy President’s office, allegedly at significant personal and political expense, with a view to facilitating the adoption of VIPS Coin in Kenya. He complained that the conduct of “Lord Paul Johnson” and Kenneth had caused government stakeholders to lose confidence in the project and demanded settlement of fees together with commitment toward further engagements, failing which he would institute Court proceedings for recovery of costs. 18.In response, “Lord Paul Johnson” maintained that any claim for fees ought to be communicated formally to the UK company through official correspondence, noting that WhatsApp messages could not constitute official instructions or engagement. He further stated that the Advocate had represented that he would procure an official letter from the President of Kenya to facilitate the project, which had never materialised, thereby causing doubt as to the advocate’s capacity to deliver on the undertaking. He reiterated that neither he nor the company had issued any instructions to “Odhiambo Lawyers” and clarified that the parties had merely attended discussions at the Advocate’s invitation to explore possible opportunities in Kenya. “Lord Paul Johnson” concluded by requesting formal communication to the company, to which “Odhiambo Lawyers” replied that he would proceed as he deemed fit, and “Lord Paul Johnson” reiterated that the company awaited official correspondence. 19.The Court acknowledges that it is trite that an Advocate need not obtain a written authority from the Client before he commences a matter. This is for the reason that the participation and authority of an Advocate in a matter can be implied or discerned from the conduct of the Client. 20.Further, the Black’s Law dictionary, 9th Edition defined a retainer as:1.A client’s authorization for a lawyer to act in a case.2.A fee that a client pays to a lawyer simply to be available when the client needs legal help during a specified period or on a specified matter.3.A lump sum fee paid by the client to engage a lawyer at the outset of a matter- also termed engagement fee.4.An advance payment of fees for work that the lawyer will perform in the future- also termed retaining fee. 21.The Court of Appeal in Omulele & Tollo Advocates v Mount Holdings Limited [2016] KECA 523 (KLR) held as follows; -‘’……‘retainer’ covers a broad spectrum. It encompasses the instructions given to an advocate as well as the fees payable thereunder. A retainer need not be written, it can be oral and can even be inferred from the conduct of the parties. However, if there is no evidence of retainer, except a statement from the advocate, which a client contradicts, the court will treat the advocate as having acted without authority from the client (see. Halsbury’s Laws of England, (supra) at page 14 para 765).’’ 22.From the WhatsApp conversations, there is no evidence of an Advocate-Client relationship between the parties herein. Further, it is the Court’s understanding that the Applicant simply informed the Advocate what they required, which was the letter from the government. The Applicants went ahead to clarify that there were no instructions issued as the same had to come from the UK Company. No evidence was adduced of the UK company issuing instructions to the Advocate either. 23.To this Court when a Client walks into a law firm and inquires in to the provision of legal services, say the cost of representation in a conveyance, the fact that he or it gets a letter breaking down the costs does not amount to an engagements or instructions. It is a fact that a Client buying an Apartment in Kilimani and Lavington areas of Nairobi may visit several law firms. He may obtain several quotations on fees. Until the Client engages the Law firm, he cannot be said to be a Client. The Client is shopping around for the best deal. It is not a deal until the Client commits. It is for that reason that Lawyers are entitled to charge consultation fees to compensate for such time. 24.To this Court, if a director acting on behalf of a Company instructs an Advocate to act for that Company, he can no longer be held liable for fees. This is unless he undertook to guarantee or stand surety for such fees. That seems to be the position of the 1st and 2nd Applicants in relation to VIP$ COIN LTD which is not even a party to the Bill of costs. 25.To this Court, there is also something quite off in this matter. A Law firm was said to have received instructions that would have profound impact on the monetary and financial sector of this Country, the largest economy in East and Central Africa. Whether and how and which cryptocurrency this Country would adopt. The Law firm leading this task that would require intense lobbying and facilitation to the tune of USD 200,000,000/= was receiving oral instructions or via WhatsApp. One would suppose that representations would have been made to the Deputy President, the Speakers of the National Assembly and Senate as well the Office of the Governor of Central Bank and back all the way up to the Presidency (as per the WhatsApp messages). It would look strange to this Court and even to the ordinary reasonable Kenyan in a Matatu to Ongata Rongai, that such instructions would stand on WhatsApp messages and screenshots. 26.The 4th Applicant is said to be a foreign company. At the very least a resolution of the Board of Directors of such a Company authorizing the law firm to act would secure and preserve the retainer and instructions for a time such as this. 27.As Lawyers continue to offer their legal services, they are reminded to be certain as to whom they represent and secure their instructions in writing. Anyone can show up at a Lawyer’s office and purport to instruct the firm on behalf of Safaricom. It would be foolhardy for the Law firm to proceed and act without firm and well sought out instructions. This could be by way of a single agreement or a series of correspondence exchanged as proof of the retainer. 28.This Court is not saying that oral instructions have no place in legal transactions. Far from it. If a Lawyer was to receive an early morning call to rush to the Traffic Court to represent the Chairman of Equity Bank, (presented before the Court on a simple traffic infraction, allegedly), insisting on a Board resolution may cost Counsel the brief. If instructions were ever to be challenged, the record of the Traffic Court would be sufficient to prove the presence of the Chairman and Counsel in Court. The Court record would be sufficient proof that instructions were undertaken. Suffice to say that each case and set of instructions as well as a retainer will be determined on its own unique circumstances. However, in high value and high stakes instructions/transactions, woe unto the Lawyer who stands on oral instructions without any other document(s) to back him up. Whether the ruling ought to be vacated for being unlawful, unreasonable, made without jurisdiction, and founded on an error of principle. 29.Therefore, the Court faults the conclusion reached by the Taxing Master of the existence of such a relationship. There were no implied instructions given to the Advocate by the Applicants in this case. To this Court nothing moved beyond what can be termed as exploratory conversations. The conversations did not move beyond shopping around, to a firm retainer and giving Counsel instructions. The Taxing Officer’s Ruling is hereby set aside in its entirety. 30.As to cost the same lie at the discretion of this Court and ordinarily follow the event. The 1st, 2nd and 4th Applicants/Clients are entitled to costs. 31.The Court has taken note that the 3rd Respondent did file Submissions supporting the Reference by the Applicants but did not take any action in filing his own reference to the Ruling on the Bill of costs. Determination 32.The Applicants/Clients application by way of a Chamber Summons dated 13th December, 2023 is allowed in the following terms;a.That the Honourable Court hereby vacates and sets aside in its entirety the Ruling and reasoning of the Learned Taxing Officer Honourable S.Githogori Bett (D.R) dated and delivered on 29th November, 2023 in HCCOMM MISC.NO. E269 of 2023.b.That the costs of this application be awarded to the 1st, 2nd and 4th Respondents. 33.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 21ST DAY OF MAY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of;Miss Osodo holding brief for Mr. Kounah for the 1st 2nd and 4th Applicants/Clients.Miss Mbaabu holding brief for Mr. Mwangi for the Respondent/AdvocateMiss Metto for the 3rd Respondent/Client.Ms. Susan Nzioka - Court Assistant.