https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2213

Opolo & Opolo Associates Advocates v Mega Garments Industries Kenya Limited (Miscellaneous Application E017 of 2026) [2026] KEELRC 2213 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2213 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Miscellaneous Application E017 of 2026 K Ocharo, J July 30, 2026 IN THE MATTER OF: THE ADVOCATES ACT, CAP. 16 AND IN THE MATTER OF: THE ADVOCATES (REMUNERATION) ORDER, 2014 AND IN THE MATTER OF: ADVOCATE-CLIENT BILLS OF COSTS IN ELRC MISC. CAUSE NOS. E057, E058 AND E059 OF 2025 Between Opolo & Opolo Associates Advocates Applicant and Mega Garments Industries Kenya Limited Respondent (Being a Reference from the Ruling of Hon. L. K. Sindani, Deputy Registrar (Taxing Officer), delivered on 29th January, 2026 in Mombasa ELRC Misc. Cause Nos. E057, E058 and E059 of 2025) Ruling A. Introduction 1.This Reference brings to the fore a question that recurs with some frequency at the intersection of the law of contract and the statutory law of costs: what is a court, seized of a reference under the Advocates (Remuneration) Order, 2014 ("the ARO"), to make of a retainer agreement between an advocate and her client, where the taxing officer has read one clause of that agreement in isolation and, on the strength of that clause alone, has declined jurisdiction to tax the advocate's bill of costs altogether? The answer, as will become apparent, lies not in any exotic principle of law, but in the ordinary, time-honoured canon that a written instrument must be read as a whole, each clause illuminating and qualifying the others, so that its true meaning and effect are discerned from the document in its entirety and not from a single clause plucked out of its context. 2.By a Chamber Summons dated 5th February, 2026, brought under paragraph 11 of the ARO and Sections 1A, 1B and 3A of the Civil Procedure Act, the Applicant, Opolo & Opolo Associates Advocates ("the Advocate"), moved this Court to set aside the Ruling of the Taxing Officer, Hon. L. K. Sindani, delivered on 29th January, 2026, in ELRC Misc. Cause Nos. E057, E058 and E059 of 2025, and to have the three Bills of Costs remitted to the Taxing Officer for taxation on their merits. 3.The Reference was opposed by the Respondent, Mega Garments Industries Kenya Limited ("the Client"), which filed a Replying Affidavit sworn by its Head of Human Resources, Duncan Nzyoki Kavita, and written submissions dated 27th March, 2026, urging that the Taxing Officer's Ruling was correct and ought to stand. 4.Both parties filed written submissions, which the Court will presently analyse. Having done so, the Court will identify the issues properly calling for determination, undertake a close reading of the retainer agreement at the centre of this dispute, and set out its analysis and determination. B. Background 5.The matters giving rise to the three Bills of Costs the subject of the impugned Ruling have a common lineage. They arise from the Advocate's erstwhile engagement by the Client to defend it in a suit filed by Ales Senzighe Johnson and 143 others, former employees of the Client, who claimed unfair termination and terminal dues in the cumulative sum of Kshs. 46,017,550.76. That suit commenced in the Chief Magistrate's Court at Mombasa as CMCC No. E013 of 2020. Owing to want of pecuniary jurisdiction in the subordinate court, an application for transfer was filed and allowed in Mombasa Misc. Application No. E028 of 2021, and the matter was consequently transferred to and renumbered as Mombasa ELRC No. E087 of 2024. That cause proceeded to full hearing and was ultimately dismissed, with costs to the Client, by a judgment delivered on 5th May, 2025. 6.It is common ground that on 1st July, 2020 - that is, before the claim by the 143 former employees had even been transferred to this Court - the Advocate and the Client (jointly with two related entities, Mega Couture Clothing (EPZ) Ltd and Mega Apparel Industries (EPZ) Ltd, described together with the Respondent as "the Client" in the instrument) executed a written retainer agreement styled "Agreement for the Provision of Retainer & Legal Services" ("the Retainer Agreement"). Its full text and the significance of its several clauses are considered in detail later in this Ruling. 7.Following the dismissal of ELRC No. E087 of 2024 and upon the former employees intimating an intention to appeal, a disagreement arose between the Advocate and the Client over the conduct of the appeal, and the Client's instructions to the Advocate were withdrawn. The Advocate responded by presenting for taxation three separate Advocate-Client Bills of Costs, referable to the three judicial stages the underlying dispute had traversed:(a)ELRC Misc. Cause No. E057 of 2025, in respect of work done in Mombasa CMCC No. E013 of 2020, claiming Kshs. 4,593,850/-;(b)ELRC Misc. Cause No. E058 of 2025, in respect of work done in Mombasa ELRC No. E087 of 2024, claiming Kshs. 10,161,900/-; and(c)ELRC Misc. Cause No. E059 of 2025, in respect of work done in Mombasa Misc. Application No. E028 of 2021, claiming Kshs. 10,059,050/-. 8.The Client resisted taxation of all three Bills principally on the ground that the parties' remuneration had already been fixed, and fully discharged, under the Retainer Agreement. It deposed, through Mr. Kavita, that it had paid the Advocate the agreed monthly retainer of Kshs. 50,000/- for a continuous, unbroken period of fifty (50) months, amounting in aggregate to Kshs. 2,500,000/-. 9.The Advocate's initial response to that opposition, filed on 12th September, 2025, was equivocal, even self-contradictory: it did not squarely admit the existence of a retainer agreement binding the firm. Instead, it asserted that if any such retainer existed, it was a personal arrangement between the Client and Ms. Beatrice Akinyi Opolo in her individual capacity - "a separate and distinct person from the firm of Opolo and Opolo Associates Advocates" - covering only consultancies, notarial and advisory work, and, in any event, subsisting for a single year, from July 2020 to June 2021, with "no co-relation whatsoever" to the firm. It was further contended that any agreement capping legal fees at Kshs. 50,000/- would, in any event, be illegal and contrary to Section 36 of the Advocates Act. 10.That position did not survive scrutiny for long. On 16th October, 2025, the taxing officer granted the Advocate leave to file a Further Affidavit, which she swore on 21st October, 2025. In it, she annexed - for the first time in the taxation proceedings - a copy of the very Retainer Agreement she had earlier suggested did not bind the firm, marking it "OA-1", and deposed that "the said Retainer Agreement clearly did not cover any court work undertaken or conducted on behalf of the Respondent" and that, accordingly, "the Bill of Costs herein does not relate to the matters covered in the said retainer Agreement." The argument had thus shifted, within the space of one month, from "there is no binding retainer" to "there is a retainer, but it does not cover litigation." 11.It was on this state of the record that the Taxing Officer proceeded to her Ruling. C. The Ruling of the Taxing Officer 12.In identical rulings delivered in each of the three causes on 29th January, 2026, the Taxing Officer framed three issues:(i)whether the Retainer Agreement catered for the services the subject of the Bills;(ii)whether she had jurisdiction to tax the Bills at all; and(iii)whether, if she did, the Bills ought to be taxed under Schedule 6, Part B of the ARO. 13.She never reached the third issue. Having reproduced Clause 1 of the Retainer Agreement, she held:“I find the paragraph stating that the retainer relates to general advice and all other matters that would require legal representation covered all the court appearances and instructions given to the applicant by the applicant including services rendered to the respondent as enumerated in the bills..." 14.Proceeding on that footing, and relying on Section 45(6) of the Advocates Act together with the decisions in Owino & Company Advocates v Kisaka (Miscellaneous Case E041 of 2020) [2023] KEELRC 2325 and Omulele & Tollo Advocates v Mount Holdings Ltd, Civil Appeal No. 75 of 2015, she concluded:“The legal implication of the above-cited authorities is that once a valid retainer agreement exists, such as the one in this case dated 1st July, 2020, the jurisdiction of the taxing officer is ousted, and the advocate is estopped from seeking any additional fees through taxation. This court finds that it lacks jurisdiction to tax the bill." 15.She accordingly struck out the application and the Bills of Costs in all three files "for want of jurisdiction". It is that finding, and that finding alone, which the Advocate now impugns by this Reference. D. The Applicant's Grounds 16.The grounds set out on the face of the Chamber Summons and repeated in the Supporting Affidavit of Ms. Opolo Akinyi may be summarised as follows:(a)that the Taxing Officer erred in law and in fact in holding that she lacked jurisdiction to tax the Bills, while relying solely on a general clause of the Retainer Agreement touching on legal representation;(b)that she failed to consider and give effect to Clause 4 of the Retainer Agreement, which expressly entitles the Advocate to present, and have taxed, a bill in accordance with the ARO wherever a specific legal service attracts fees higher than the monthly retainer;(c)that she misdirected herself by overlooking the principle that a specific contractual provision overrides a general one, thereby occasioning a miscarriage of justice;(d)that her Ruling undermines the Advocate's statutory right to have her fees taxed under the Advocates Act and the ARO;(e)that her decision runs contrary to the established principle that, where a retainer expressly provides for taxation, the taxing officer retains jurisdiction to entertain the bill; and(f)that, unless the Ruling is set aside, the Advocate stands to suffer prejudice, her Bills of Costs remaining unconsidered and her lawful remuneration for professional services denied. 17.The prayers sought are that the Ruling be set aside and the three Bills of Costs remitted to the taxing officer for taxation in accordance with the ARO. E. The Respondent's Grounds of OppositionThe Client's Replying Affidavit and submissions resist the Reference substantially as follows:(a)that it is not in dispute that the parties concluded the Retainer Agreement on 1st July, 2020, fixing the Advocate's remuneration at Kshs. 50,000/- per month, and that the Client faithfully honoured it for fifty (50) consecutive months, paying a cumulative Kshs. 2,500,000/-;(b)that Clause 4 of the Retainer Agreement, on which the Advocate's entire Reference is founded, does not confer an automatic entitlement to additional fees; it merely prescribes a contractual precondition - the raising of a fee note, accompanied by supporting documentary proof, in respect of an identified specific legal service - which the Advocate at no time satisfied during the subsistence of the retainer;(c)that the Advocate only asserted a claim to fees beyond the monthly retainer after the professional relationship had broken down, by which time Clause 4's precondition could no longer, retrospectively, be met;(d)that Clauses 1(e) and 10 of the Retainer Agreement show that the retainer extended to the Client's representation in courts of law;(e)that having consistently accepted and retained the monthly sum for over four years, including through the difficult period occasioned by the Covid-19 pandemic, the Advocate is estopped, on ordinary principles of approbation and reprobation, from now asserting a claim inconsistent with the continued subsistence and adequacy of the retainer;(f)that once a valid retainer agreement within the meaning of Section 45 of the Advocates Act is shown to exist, the jurisdiction of the taxing officer to tax a bill of costs is ousted, for which proposition the Client relies on Owino & Company Advocates v Kisaka (supra); Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates v Invesco Assurance Company Limited [2016] eKLR; Rachuonyo & Rachuonyo Advocates v National Bank of Kenya Limited [2020] eKLR; and Omulele & Tollo Advocates v Mount Holdings Ltd (supra);(g)that the sanctity of contract precludes the Court from rewriting the parties' bargain, citing Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR and Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] eKLR; and, in the alternative and without prejudice to the foregoing,(h)that, should the Court find that it has jurisdiction, the Bills as drawn are grossly inflated, the underlying suit having been dismissed without any monetary award, so that under Schedule 6, Paragraph 1(j)(iii) of the ARO the applicable instruction fee is the basic sum of Kshs. 75,000/- per cause, and any sum ultimately taxed ought to be set off against, and is in any event far exceeded by, the Kshs. 2,500,000/- already paid, the excess (if any) to be refunded to the Client with interest and costs. F. The Submissions (i) The Applicant's Submissions 18.Counsel for the Advocate submitted, both before the Taxing Officer and on this Reference, that the Taxing Officer overlooked "a critical clause" of the Retainer Agreement - Clause 4 - which, it was argued, expressly preserved the Advocate's entitlement to charge in accordance with the ARO wherever the statutory minimum fee for a specific legal service exceeded the monthly cap. It was submitted that agreements on remuneration are binding only to the extent that they are fair, reasonable and complete, and do not oust the ARO where the agreement itself incorporates it. 19.Three authorities were pressed in support: Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board, Civil Appeal No. 220 of 2004, for the proposition that "taxation is a matter of law and discretion, and agreements cannot oust the taxing officer's jurisdiction where the agreement itself contemplates taxation"; Ahmed Nasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd [2006] eKLR, cited for an identical proposition; and Otieno Ragot & Co. Advocates v Kenya Airports Authority [2021] eKLR, for the proposition that "taxing officers must give effect to clauses that preserve the right to charge under the Remuneration Order." 20.It was submitted, finally, that Clauses 1, 2 and 4 of the Retainer Agreement must be construed together and harmoniously: Clause 2 was said to apply where the ARO would yield a lower figure than the retainer, but where the ARO prescribes a higher fee - as, it was argued, would be the case in respect of a claim valued at over Kshs. 46 million - the Advocate is entitled to that higher sum under Clause 4. 21.The Court has had the advantage of perusing the full text of the authority annexed by the Advocate -Ahmed Nasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd [2006] eKLR. Upon perusal, it is not a decision on retainer agreements, taxation or the jurisdiction of a taxing officer at all. It is a ruling of the High Court (Ochieng, J.) dated 27th July, 2006, determining an altogether different question - whether, under Rule 9 of the Advocates (Practice) Rules, an advocate who has sworn an affidavit on a contentious matter may continue to appear as counsel in the same proceeding. Nothing in that ruling touches, even obliquely, upon the ouster or preservation of a taxing officer's jurisdiction by a retainer agreement. The citation cannot, therefore, assist the Advocate's proposition, and the Court declines to place any weight on it. 22.As regards Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board, the portions of that judgment placed before the Court concern the correctness of an instruction fee assessed on a Party-and-Party Bill of Costs; it is not evident from the decision availed that the Court of Appeal there pronounced itself on whether a retainer agreement could or could not oust a taxing officer's jurisdiction. The Court is not prepared to attribute to that authority a proposition it cannot, on the material before it, verify, though it notes that in principle a taxing officer's jurisdiction is a creature of law and not liable to be extinguished by private agreement save to the extent Parliament has so provided in Section 45(6) of the Advocates Act - a proposition this Ruling accepts on its own footing. 23.Otieno Ragot & Co. Advocates v Kenya Airports Authority [2021] eKLR calls for closer examination, for reasons that will become apparent when the Court comes to consider the Respondent's reliance on the sequel to that very litigation. (ii) The Respondent's Submissions 24.Counsel for the Client anchored the opposition on the proposition, said to be "well-settled," that a valid retainer agreement under Section 45 of the Advocates Act ousts a taxing officer's jurisdiction absolutely, the advocate's remuneration then being "governed strictly by the terms of the retainer agreement" and incapable of variation by resort to taxation. 25.Four authorities were relied upon for that broad proposition: Owino & Company Advocates v Kisaka (supra); Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates v Invesco Assurance Company Limited [2016] eKLR; Rachuonyo & Rachuonyo Advocates v National Bank of Kenya Limited [2020] eKLR (itself adopting the reasoning in D. M. Njogu & Co. v National Bank of Kenya Ltd, Misc. 730 of 2006 & Misc. 165 of 2007 [2016] eKLR); and Omulele & Tollo Advocates v Mount Holdings Ltd (supra). Reliance was also placed on Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR, Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] eKLR and Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR for the sanctity of contract and the doctrine of estoppel, and, by analogy, on Speaker of the National Assembly v Karume [1992] eKLR for the proposition that where a specific procedure is agreed for redress, it must be strictly followed. In the alternative, on quantum, the Client cited Joreth Limited v Kigano & Associates [2002] eKLR, Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition No. E011 of 2023) [2024] KESC 44, Muthola, Peter & Another v Ochieng & 3 Others [2019] eKLR, Lalji Mehta Patel & Company Limited v P.C.E.A. Foundation & Another [2020] eKLR, and Republic v Ministry of Agriculture & 2 Others Ex-Parte Muchiri Wa Njuguna & 6 Others [2006] eKLR. 26.The Court has read each of the primary authorities relied upon by the Client in full, as annexed to the record, and its assessment of them is set out in the Analysis below. It suffices to record here that none of them - Owino v Kisaka least of all - was a case in which the retainer agreement under consideration contained anything resembling Clause 4 of the instrument now before this Court; a distinction of real consequence, as will be shown. G. Issues for Determination 27.Arising from the foregoing, the Court considers that the following issues fall for determination:(i)What is the nature of a reference to this Court under the ARO, and what does that nature imply for the scope of the present proceeding?(ii)What, properly speaking, is before the Court on this Reference, and what is not?(iii)On a holistic construction of the Retainer Agreement, did it oust the Taxing Officer's jurisdiction to tax the three Bills of Costs?(iv)Is the Advocate, having voluntarily bound herself to the Retainer Agreement, entitled to escape its effect, and if so, on what basis and with what result in this case?(v)What order should issue on this Reference? H. Analysis and Determination (1) The nature of a reference under the Advocates (Remuneration) Order 28.Paragraph 11 of the ARO provides that a party dissatisfied with the decision of a taxing officer may, having first given notice of objection and received the taxing officer's reasons, apply to a Judge by chamber summons setting out the grounds of objection. What is the character of the jurisdiction so invoked? 29.This Court respectfully adopts and follows the statement of principle in Tanda Agent Limited v CNK Advocates LLP, Miscellaneous Application No. E482 of 2024, [2024] KEHC 13950 (KLR) (Mabeya, J.), where, after setting out paragraph 11 of the ARO and the earlier authority of Machira and Company Advocates v Mugugu [2002] EA 248 - itself holding that "any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to the Judge in accordance with paragraph 11 of the Advocates Remuneration Rules" - the learned Judge held, in a passage this Court respectfully adopts and quotes in full:“A reference is in essence an Appeal to this Court against the decision of the Taxing Officer. The Court will therefore exercise its appellate jurisdiction. It will therefore re-look, re-analyse or re-evaluate the pleadings and submissions made by the parties before the Taxing Officer. The Court will reach its own independent conclusion." 30.It follows that this Court sits, for present purposes, as a court of first appeal from the Taxing Officer's Ruling. It is entitled - indeed, obliged - to re-examine the material that was before her, to form its own independent view of the law and of the facts as they bore upon the decision under challenge, and it is not restrained by the deference ordinarily shown to an exercise of pure discretion (as, for instance, in the fixing of quantum within a permissible range) where what is impugned is a decision on a question of jurisdiction, which is a question of law admitting of only one correct answer. (2) The confines of this Reference 31.It is, however, of equal importance to recognise what an appeal is not. An appellate court reviews the decision actually made below; it does not, save in the clearest of circumstances, constitute itself a court of first instance for issues never canvassed, still less determined, by the court appealed from. The Taxing Officer's Ruling, as this Court has set out at paragraphs 12-15 above, answered one question and one question only: whether she had jurisdiction to tax the Bills at all, having regard to the existence of the Retainer Agreement. Having answered that question in the negative, she never reached, and expressed no view whatsoever upon, the third issue she herself had framed - namely, whether, and at what figure, the Bills ought to be taxed under Schedule 6, Part B of the ARO. 32.Yet a very considerable proportion of the written submissions filed by both parties range well beyond that narrow jurisdictional compass. I will confine myself to the jurisdictional issue. (3) The Retainer Agreement: a holistic construction 33.This brings the Court to the heart of the matter. It is trite, and has been trite for as long as courts have construed written instruments, that a contract is not a collection of independent, free-standing sentences to be read and applied one at a time; it is an integrated whole, and the meaning of any one clause is coloured, qualified, and sometimes entirely altered, by what the other clauses say. The Court of Appeal captured the same idea, in the cognate context of a retainer agreement, in Omulele & Tollo Advocates v Mount Holdings Ltd (supra), where it distinguished, with some care, between "a retainer" (the relationship) and "a retainer agreement" (its written manifestation) - a distinction that itself illustrates that a single clause, or even a single word, cannot be permitted to swallow the whole of the parties' bargain without regard to the remaining text. 34.It is precisely this discipline that the Taxing Officer did not apply. She reproduced Clause 1 of the Retainer Agreement, fastened upon its final limb - "general advice and all other matters that would require legal representation" - and held, without more, that it "covered all the court appearances and instructions" the subject of the three Bills. Clauses 4, 6, 8, 9 and 10 of the very same instrument, each of which bears directly and materially on the scope and continuing operation of the retainer, do not feature anywhere in her reasoning. 35.The Court sets out the material clauses, and its reading of their interrelation, in turn. 36.Clause 1 appoints the Advocate "to act for the client in all its legal affairs requiring the employment of an advocate including all matters relating but not limited to:(a)Legal opinion;(b)Witnessing of commercial transaction documents;(c)Approval of employment contracts;(d)Approval of internship contracts;(e)General advice and all other matters that would require legal representation."Read on its own, sub-clause (e) is undeniably capacious. Read in the company it keeps, however - legal opinions, witnessing of documents, approval of employment and internship contracts - it bears the character of a general retainer for routine, transactional and advisory legal support of the kind an in-house counsel, or a firm engaged on a standing basis, ordinarily renders to a commercial enterprise. The ejusdem generis quality of sub-clause (e), following as it does four specific examples all advisory or transactional in character, counsels against reading it as extending, without qualification, to the conduct of full-scale, contested, multi-party litigation of the kind that CMCC No. E013 of 2020 and its progeny in fact were. 37.Clause 2 confirms this reading: the monthly sum of Kshs. 50,000/- is expressed to be remuneration "for all the work described in pt 1 a-e above" - that is, for the advisory and transactional services just described - "and labour as aforesaid." It is not expressed, in terms, to be a global cap on any and all legal work the Advocate might ever perform for the Client, howsoever weighty or dissimilar in kind from what Clause 1 enumerates. 38.Clause 4 then supplies the mechanism for precisely the eventuality that a matter of the kind Clause 1 contemplates turns out, in a given instance, to require "a specific legal service" whose statutory minimum fee under the ARO exceeds the monthly retainer: in that event, "the Advocate shall raise a fee note for that specific works and scheduled in the scale with supporting documentary proof." Clause 4 would be otiose - a dead letter from the moment of signature - if Clause 1(e) already swallowed the whole of the Advocate's professional engagement with the Client, court work included, without exception. Effect must be given, so far as possible, to every clause of an instrument; a construction that renders one clause entirely without work to do is, for that reason alone, suspect. See, by analogy, the Court of Appeal's insistence in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2002] 2 EA 503 that "a court of law cannot rewrite a contract between the parties," a principle that cuts, in the circumstances of this case, against the Client's submission and not in its favour: to read Clause 1(e) as if Clause 4 did not exist is itself an impermissible rewriting of the parties' bargain, by omission rather than addition. 39.Clause 6 removes any remaining doubt. It records that the Advocate "shall during the continuance of this agreement also look into the client's present advocate, Ms Cynthia Onyango Oballa or advocate representing from Onyango Oballa & Partners on behalf of the client in the court of law." That clause is telling in two respects. First, it shows that, as at the date of the Retainer Agreement, the parties themselves contemplated that the Client's court representation would, or at least might, be conducted by a different firm altogether, with the Advocate's role in that regard being merely to "look into" - that is, to monitor or liaise with - that other advocate's conduct of the litigation. Second, and consequently, it confirms that the general words of Clause 1(e) were never intended by the parties, at the time they contracted, to constitute the Advocate the Client's substantive litigation counsel across the board, still less in matters of the scale and complexity of a 143-claimant unfair termination suit valued at over Kshs. 46 million. 40.Clauses 8 and 9, finally, speak to the temporal scope of the retainer and are of some relevance to a point the Court addresses next: the retainer was to run for an initial term of one year, renewable "yearly on mutual consent of both Parties one month prior to the expiry unless either Party provided in writing to the other party their unwillingness to continue the terms after 12 months," and terminable only upon one month's written notice, in default of which "the entire annual sum is payable by the rescinding party." 41.Reading Clauses 1, 2, 4 and 6 together, therefore, the Court arrives at a construction materially different from the one adopted by the Taxing Officer: The Retainer Agreement fixed the Advocate's remuneration, at Kshs. 50,000/- per month, for general advisory and transactional legal support; it did not, on a fair reading of the instrument as a whole, extend that fixed remuneration, without more, to the conduct of substantive contentious litigation of the character in issue in CMCC No. E013 of 2020, ELRC No. E087 of 2024 and Misc. Application No. E028 of 2021; and it expressly preserved, through Clause 4, recourse to the statutory scale under the ARO for precisely such "specific legal service" - subject only to the contractual precondition that a fee note, with supporting proof, be raised in respect of it. (4) May an advocate escape the effect of a retainer she has voluntarily signed - and does that principle assist the Advocate here? 42.The Client's authorities establish, and this Court accepts, the general proposition that an advocate who has willingly and knowingly entered into a valid retainer agreement, duly executed in conformity with Section 45 of the Advocates Act, cannot ordinarily resile from it and resort to taxation to obtain more than the agreement allows. That is the ratio common to Owino & Company Advocates v Kisaka (supra), Rachuonyo & Rachuonyo Advocates v National Bank of Kenya Limited (supra) - itself adopting D. M. Njogu & Co. v National Bank of Kenya Ltd (supra), where the Court of Appeal held that "an advocate who willingly and knowingly enters into an agreement in regard to the payment of his Fees that is contrary to the Advocates Remuneration Order, cannot maintain proceedings whose purport is to avoid the illegal contract by reverting to Court to tax his advocate/Client Bill of Costs" - and Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates v Invesco Assurance Company Limited (supra), insofar as that last case affirmed that a validly executed fee agreement binds the advocate who signed it. 43.It does not, however, follow - and it is important to be precise on this, for the Advocate's submissions invite a degree of imprecision - that an advocate is invariably and in every circumstance shackled to the four corners of a retainer she has signed, indifferent to what the retainer itself says about its own limits. Mercy Nduta Mwangi is itself instructive on this score, and the Client's reliance on it in fact cuts both ways. The retainer agreement considered in that case contained, at Clause 4(h), a provision that the advocate "shall further to (g) above be entitled to go to taxation where accrued fees exceed what is provided in 4(a)." The Court there held:“The argument that the term basic in the clause meant the minimum fees is accepted by the Court as the ordinary meaning of basic is that it is the simplest or lowest in level. Therefore the intention of the parties was that the Respondent could charge for higher fees for a case, and which was expressly provided for in the said agreement... It is therefore my view that Clause 4(h) of the agreement allowed the Applicant to file Bills of Costs in applicable cases... It is also my view that the Parties had the freedom to contract out of the provisions of section 45(6) of the Advocates Act as regards taxation in the context of their agreement." 44.That is precisely the analytical move this Court makes in respect of Clause 4 of the Retainer Agreement now before it. An advocate does not "wriggle out" of a retainer she has signed by disowning it or by asserting some general unfairness in its terms - a course of action that, in any event, Section 45(2) of the Advocates Act reserves to "a client," not to the advocate, so that it is not open to the Advocate here to invoke that provision on her own behalf even were she minded to. What she may do - and what Mercy Nduta Mwangi shows a court will recognise where the contract itself permits it - is rely on a saving clause within the very same retainer that preserves, for defined categories of higher-value specific work, recourse to the statutory scale. That is not an escape from the retainer; it is enforcement of it, in accordance with its own terms. 45.Does that principle assist the Advocate on the facts of this case? The Court holds that it does, but only to this extent: it disposes of the narrow jurisdictional question, without pronouncing - because it cannot yet be known - on whether the Advocate is, on taxation, ultimately entitled to any, or any particular quantum of, fees under Clause 4. (5) Could the Taxing Officer, properly construing the Retainer Agreement, have declined jurisdiction? 46.Drawing the foregoing threads together, the Court is satisfied that had the learned Taxing Officer read the Retainer Agreement as an integrated whole - giving to Clause 4 the same weight she gave to the final limb of Clause 1(e), and taking into account what Clause 6 reveals about the parties' original contemplation of who would conduct the Client's litigation - she could not properly have arrived at the conclusion that the Retainer Agreement ousted her jurisdiction to tax the three Bills of Costs in their entirety. An instrument that expressly preserves, in Clause 4, recourse to the ARO for specific legal services attracting fees above the retainer cannot, in the same breath and without any textual warrant, be read as an absolute and total ouster of the very taxation machinery it expressly invokes. The Taxing Officer's error was one of construction - an error of principle in the true sense - and not a mere difference of view on a matter of discretion; it is precisely the kind of error a reference, exercised as an appeal, exists to correct. (6) Disposal of the specific grounds of the Reference 47.Ground (a) - that the Taxing Officer erred in relying solely on a general clause relating to legal representation - succeeds, for the reasons given above. Ground (b) - that she failed to give effect to Clause 4 - succeeds. Ground (c) - that she overlooked the principle that specific provisions override general ones - succeeds, subject to the qualification that the "override" operates not to defeat the general retainer altogether, but to preserve, alongside it, the taxing officer's jurisdiction over the category of work Clause 4 addresses. Grounds (d) and (e) follow as a consequence. Ground (f), touching on prejudice, is rendered moot by the order the Court now makes. I. Disposition 48.For the foregoing reasons, the Court makes the following orders:(i)The Reference dated 5th February, 2026, is hereby allowed.(ii)The Ruling of Hon. L. K. Sindani, Deputy Registrar, delivered on 29th January, 2026, in Mombasa ELRC Misc. Cause Nos. E057, E058 and E059 of 2025, striking out the Advocate-Client Bills of Costs for want of jurisdiction, is hereby set aside.(iii)The three Bills of Costs in ELRC Misc. Cause Nos. E057, E058 and E059 of 2025 are remitted to the taxing officer for taxation on their merits, before a taxing officer other than Hon. L. K. Sindani if administratively convenient, failing which before her.(iv)In taxing the said Bills, the taxing officer shall determine, as a live issue on the merits and not as a question of jurisdiction, whether and to what extent the Advocate's failure to raise a fee note under Clause 4 of the Retainer Agreement during the subsistence thereof affects her entitlement to, or the quantum of, instruction and other fees claimed; and shall further determine the value of the subject matter, the applicable scale under Schedule 6 of the ARO, getting-up fees (if any), and any set-off or account as between the sums already paid under the Retainer Agreement and any sum found to be due, together with any consequential order as to interest, all of which matters this Court expressly declines to pre-determine, the same not having been reached, still less decided, in the Ruling under reference.(v)The costs of this Reference shall be borne by the Respondent, to be taxed if not agreed. The costs of the taxation to follow upon remission shall abide the outcome thereof and be in the discretion of the taxing officer. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30TH DAY OF JULY, 2026.OCHARO KEBIRAJUDGE