https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8383

Ogola Okello & Co. LLP Advocates v Guardian Bank Ltd (Miscellaneous Application E218 of 2023) [2026] KEHC 8383 (KLR) (Commercial and Tax) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8383 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E218 of 2023 MO Ado, J June 11, 2026 Between Ogola Okello & Co. LLP Advocates Applicant and Guardian Bank Limited Respondent Ruling 1.The Client/Respondent’s Chamber Summons dated 9th September 2025 is brought under Paragraph 11(2) of the Advocates Remuneration Order (“ARO”). The Client seeks orders that the ruling of the taxing officer delivered on 26th August 2025 taxing the Advocate/Client Bill of Costs at Kshs. 979,454.40 be set aside, that the bill be struck out for want of an advocate-client relationship, or alternatively that the matter be remitted for fresh taxation. 2.The application is supported by the affidavit of Edna Mokaya sworn on 9th September 2025. It is opposed by the Replying Affidavit of Job Odhiambo Ochieng sworn on 27th October 2025 and the Advocate’s written submissions dated 9th April 2026. 3.The reference arises from representation allegedly undertaken by the Advocate in HCCA No. 43 of 2019 arising from CMCC No. 3532 of 2019. The gravamen of the Client’s case is that it never instructed the Advocate to act on its behalf and that the taxing officer erred in finding the existence of an advocate-client relationship. The Client further contends that the taxing officer erred in adopting Kshs. 18,000,000.00 as the value of the subject matter for purposes of taxation of instruction fees. 4.The Advocate maintains that a valid retainer existed and that the taxing officer properly exercised her discretion in assessing the bill. 5.The matter was canvassed vide written submissions. The Client/Applicant filed submissions dated 8th June 2026, whilst the Advocate’s submissions are dated 9th April 2026. Analysis and Determination 6.The principles upon which a court interferes with taxation are now settled. In First American Bank of Kenya Ltd v Shah and Others [2002] 1 EA 64, Ringera J. (as he then was), stated that the court cannot interfere with the taxing officer’s decision unless it is shown that either the decision was based on an error of principle or the fee awarded was manifestly excessive as to justify an inference of error of principle. The court also stated that where an error of principle is established, the usual course is to remit the matter back for taxation unless the court is satisfied that the error could not materially have affected the taxation. 7.Paragraph 11(2) of the ARO gives this court jurisdiction to entertain a reference from the taxing officer. The question, therefore, is whether the taxing officer committed an error of principle warranting interference by this court. 8.The first issue is whether there existed an advocate-client relationship between the parties. Section 2 of the Advocates Act (Chapter 16 of the Laws of Kenya) defines a client to include a person who has power, express or implied, to retain or employ an advocate and any person who is or may be liable to pay an advocate costs. 9.The Client submitted that the email dated 10th December 2019 relied upon by the taxing officer was addressed to Executive Super Rides Limited and not to the Advocate. It was further argued that the taxing officer improperly relied on estoppel despite the same not having been specifically pleaded, contrary to the holding in Diamond Trust Bank Kenya Limited v Said Hamad Shamisi & 2 Others [2015] eKLR. 10.The evidence before the taxing officer included an email from an officer of the Client addressed to Executive Super Rides Limited in the following terms:“In view of the shortage of time, we advise that you instruct your lawyer defending you in the case to represent the bank also as the pleadings are one and the same.” 11.Pursuant to that communication, Executive Super Rides Limited wrote to the Advocate requesting it to represent the Bank in the proceedings. 12.The law is settled that a retainer need not be in writing and may be inferred from the conduct of the parties. In Ochieng Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited [2007] eKLR, the court held that authority to act may be express or implied from conduct. Likewise, in Omulele & Tollo Advocates v Mount Holdings Limited [2016] eKLR, the Court of Appeal held that while the burden lies upon the advocate to prove a retainer where disputed, a retainer may nevertheless be implied from conduct and surrounding circumstances. 13.I have reviewed the material placed before the taxing officer. Apart from the correspondence, it is evident that the Advocate filed pleadings on behalf of the Client and acted in the proceedings without objection. The taxing officer also had the benefit of oral evidence after granting leave for cross-examination of the deponent of the replying affidavit. 14.From the record, I note that the taxing officer did not, as argued by the Client, base her decision solely on estoppel. Rather, she considered the correspondence, the conduct of the parties, and the participation of the Advocate in the proceedings on behalf of the Client. In my view, she was entitled to conclude from the totality of the evidence that a retainer existed. 15.The second issue concerns the taxation of instruction fees. The Client argues that the taxing officer erred in adopting Kshs. 18,000,000.00 as the value of the subject matter since the appeal arose from an interlocutory order directing deposit of that sum into court pending hearing of the suit. 16.The principles governing ascertainment of the value of the subject matter were settled in Joreth Limited v Kigano & Associates [2002] 1 EA 92 where the Court of Appeal held that the value of the subject matter for purposes of taxation is to be determined from the pleadings, judgment or settlement and where not ascertainable, the taxing officer is entitled to exercise discretion taking account of all relevant circumstances. 17.The appeal in question challenged orders requiring deposit into court of Kshs. 18,000,000.00. That amount was clearly identifiable from the pleadings and ruling. The taxing officer, therefore, cannot be faulted for treating the sum as the value of the subject matter. 18.I also note that the taxing officer substantially reduced the bill from Kshs. 2,122,883.00 to Kshs. 979,454.40 and declined to allow getting-up fees on the ground that there had been no certification under Schedule 6 paragraph 3 of the ARO. This demonstrates that the taxing officer properly appreciated and applied the relevant principles under the ARO. 19.The Client further argued that the Advocate acted for more than one party and therefore liability for fees ought to have been apportioned. Reliance was placed on Mwiti & Another v Viljoen & Another [2023] KEHC 24906 (KLR). However, no evidence was placed before the court demonstrating duplication of instruction fees or double recovery. The mere fact that parties shared representation does not, without more, establish an error of principle in taxation. 20.Ultimately, the Client’s complaint is principally on quantum. It is trite that matters of quantum are within the province of the taxing officer, and the court ought not to interfere merely because it would have reached a different conclusion. 21.I therefore find and hold that the Client has failed to demonstrate any error of principle on the part of the taxing officer to warrant interference by this court. 22.The Chamber Summons dated 9th September 2025 is dismissed with costs to the Advocate/Applicant which is hereby assessed at Kshs. 50,000/= 23.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/AMutua………………for the Client/ApplicantOchieng…………for the Advocate/Respondent