https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9373

Osiemo Wanyonyi & Company Advocates v Henkel Polymer Company Ltd (Miscellaneous Civil Application E1704 of 2025) [2026] KEHC 9373 (KLR) (Civ) (29 June 2026) (Ruling) Neutral citation: [2026] KEHC 9373 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E1704 of 2025 KL Kandet, J June 29, 2026 Between Osiemo Wanyonyi & Company Advocates Applicant and Henkel Polymer Company Limited Respondent Ruling 1.By Notice of Motion dated 6th December, 2025 and which is expressed to be brought under Sections 45, 46, 48 and 51(2) of the Advocates Act, Sections 3,7,18,62A, and 69 of the Advocates Remuneration Order, Sections lA, lB & 3A of the Civil Procedure Act; and Order 51 of the Civil Procedure Rules, the Applicant, Osiemo Wanyonyi & Co Advocates seeks the following orders: -i.That Judgment be entered in favour of the Applicant for Kshs.2,100,000/= being unpaid contractual retainer fees due and owing under the written retainer agreement dated 1st February 2022, enforceable under Section 45 of the Advocates Act;ii.That the said amount of Kshs.2,100,000/= be adopted as the certified sum due pursuant to Section 51(2) of the Advocates Act and Paragraphs 3 & 62A of the Advocates Remuneration Order;iii.That interest do run at court rates from the date of default to payment in full;iv.That the Respondent do bear the costs of this Application; andv.That this Honourable Court do grant any further orders in the interests of justice. 2.Subsequent to the Application, the Respondent filed a Notice of Preliminary Objection dated 2nd March, 2026 seeking that the Notice of Motion Application be struck out with costs on the following grounds:a.That this Honourable Court lacks jurisdiction to entertain the Application as framed, the Applicant having improperly invoked Section 51(2) of the Advocates Act in the absence of a suit. An action for recovery of costs under a fee agreement, must be instituted by a substantive suit;b.That the validity, enforceability, variation, performance, and alleged breach of the purported retainer agreement are contested matters of fact, which cannot be determined through a preliminary or summary process and are wholly unsuitable for determination by way of a miscellaneous application;c.That the Application improperly seeks final orders for payment of a liquidated sum without pleadings, discovery, or trial, thereby offending the mandatory statutory framework governing advocate–client fee disputes;d.That the Application is incurably defective, premature, incompetent, and an abuse of the court process, and discloses no cause of action capable of sustaining the orders sought; ande.That on the foregoing grounds alone, the Application ought to be struck out with costs to the Respondent. Submissions on the Preliminary Objection 3.Pursuant to the Court directions, the Preliminary Objection was canvassed by way of written submissions. Both parties complied. 4.Counsel for the Respondent’s in his submissions dated 15th June, 2026 raised the following issues for the court’s determination in support of the Preliminary Objection:a)) whether a substantive claim for an advocate-client fees can be commenced by way of a miscellaneous Notice of Motion;b)whether sections 45, 48 and 51(2) of the Advocates Act allow the Applicant to obtain final judgment in the manner presented;c)whether failure to file a suit, obtain taxation and a certificate of costs is a mere procedural defect or a fatal defect; andd)whether the Notice of Motion should be struck out with costs. 5.On the first issue as to whether the Preliminary Objection was properly before Court, Counsel relied on the decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the Court defined a preliminary objection as a point of law which is argued on the assumption that all facts pleaded by the opposing party are correct and which may dispose of the matter. Counsel submitted that the objection herein meets that threshold as it does not require the Court to determine disputed facts but only whether the procedure adopted by the Applicant is legally permissible. 6.On whether the Applicant had adopted the proper procedure in commencing the proceedings, Counsel submitted that the Applicant had improperly attempted to institute a substantive claim through a Notice of Motion. It was submitted that the Applicant was seeking final orders, including judgment for Kshs.2,100,000/=, interest and costs, yet no plaint or other recognized originating process had been filed. Counsel maintained that a Notice of Motion is not an independent mode of commencing a suit but is only available within proceedings already properly instituted. Reliance was placed on the case of Jane Wambui Gathuru v Teachers Service Commission & Mutuku Joseph Kyalo [2020] KEELRC 644 (KLR), where the Court held that a Notice of Motion cannot be used as a substitute for an originating process where a substantive claim is being pursued. 7.On the applicability of Ssection 45 of the Advocates Act, Counsel submitted that although advocates may recover fees where there is a valid retainer agreement, such recovery must still be pursued through the correct legal procedure. Counsel relied on Omulele & Tollo Advocates v Mount Holdings Limited [2016] eKLR, where the Court recognized that an advocate may sue for recovery of agreed fees arising from a retainer agreement. Counsel argued that the decision supports the Respondent’s position because it contemplates recovery through a suit and not through a miscellaneous application. 8.On section 51(2) of the Advocates Act, Counsel submitted that the provision only becomes applicable after taxation of a bill of costs and issuance of a certificate of costs. The Respondent argued that there was no certificate of costs before the Court and therefore the Applicant could not seek judgment for professional fees under the said provision. Counsel contended that the Applicant was attempting to convert a disputed claim for fees into an enforceable judgment without undergoing taxation. 9.Counsel also submitted that the proceedings were incompetent by reason of the moratorium under section 561 of the Insolvency Act, 2015. It was argued that the Respondent was under an insolvency process and that no proceedings could properly be commenced or continued against it without the leave of the Court. 10.Finally, Counsel submitted that the Court could not rely on Article 159 of the Constitution or the overriding objective under sections 1A, 1B and 3A of the Civil Procedure Act to cure the defect in the Applicant’s proceedings. It was argued that the defect was not a mere procedural technicality but went to the foundation of the proceedings because there was no valid suit, no taxation, and no certificate of costs upon which judgment could be entered. 11.In summation, the Respondent urged the Court to uphold the Preliminary Objection, strike out the Notice of Motion dated 6th December, 2025, and award costs to the Respondent. 12.Conversely, the Applicant vide its submissions dated 9th April, 2026 equally raised the following issues for the Court’s determination:a)whether the Preliminary Objection raised a proper point of law capable of disposing of the matter;b)whether the Applicant’s application was properly instituted by way of a Miscellaneous Application;c)whether the Applicant was entitled to recover agreed professional fees without undergoing taxation; andd)whether the Respondent’s Preliminary Objection had merit. 13.on the first issue, Counsel submitted that the objection did not meet the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. Counsel argued that a Preliminary Objection must be founded on a pure point of law arising from undisputed facts and should not require the Court to investigate evidence. It was submitted that the issues raised by the objection involved factual and legal questions that could only be determined after hearing the parties. 14.on the second issue regarding whether the proceedings were properly commenced by way of a Miscellaneous Application, Counsel submitted that the Applicant had properly moved the Court. 15.It was argued that the claim arose from an advocate-client relationship and was founded on an agreement for payment of professional fees. Counsel maintained that the Applicant was not seeking recovery of a disputed bill of costs but enforcement of an agreement between advocate and client, which was permissible under the Advocates Act. 16.Counsel relied on section 45 of the Advocates Act and submitted that parties are permitted to enter into agreements regarding remuneration and that such agreements are binding and enforceable. Counsel further relied on Omulele & Tollo Advocates v Mount Holdings Limited [2016] eKLR, where the Court recognised that an advocate may recover agreed fees arising from a valid retainer agreement. 117.On the third issue as to whether taxation was mandatory before recovery of the claimed fees, Counsel submitted that the Respondent had misconstrued the nature of the Applicant’s claim. It was argued that taxation applies where there is no agreement as to fees or where an advocate seeks recovery under a bill of costs, whereas in the present matter the Applicant relied on an agreement on remuneration. Counsel maintained that the absence of a certificate of costs under section 51(2) of the Advocates Act did not render the application incompetent because the Applicant was enforcing a contractual obligation rather than a taxed bill of costs. 18.On the issue relating to the Insolvency Act moratorium, Counsel submitted that the Respondent’s reliance on section 561 of the Insolvency Act was misplaced. It was argued that the existence of insolvency proceedings did not extinguish the Respondent’s contractual obligations nor prevent the Applicant from pursuing recovery of fees lawfully due. Counsel maintained that the Respondent had not demonstrated that the present proceedings were barred or that leave of Court was required in the circumstances. 19.On whether the Court could consider substantive justice under Article 159 of the Constitution and the overriding objective under sections 1A, 1B and 3A of the Civil Procedure Act, Counsel submitted that the Respondent was relying on technical objections to defeat a legitimate claim. It was argued that the Court is required to administer justice without undue regard to procedural technicalities and that any alleged procedural defect, if found to exist, was curable and should not result in striking out the Applicant’s claim. 20.In summation, the Applicant urged the Court to dismiss the Preliminary Objection and allow the Applicant’s application to proceed for determination on merit, arguing that the Respondent’s objection was without basis and was intended to prevent the Applicant from recovering fees due under the advocate-client agreement. Analysis & Determination 21.Having considered the Preliminary Objection, the rival submissions and the authorities cited, the issues would arise for determination are:i.Whether the Preliminary Objection raises a proper point of law.ii.Whether the Applicant’s Notice of Motion is a competent mode of commencing proceedings for recovery of advocate-client fees and whether taxation of costs was a pre-requisite in the circumstances of this matter; andiii.Whether the Preliminary Objection has merit. 22.On the first issue on whether the Preliminary Objection as raised meets the requisite threshold, the law is settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the Court held as follows:“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”At page 701 Sir Charles Newbold, P added: -“...A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 23.The principles emerging from the above authority are that for a preliminary objection to succeed, it must satisfy three conditions: firstly, it must raise a pure point of law; secondly, it must be argued on the assumption that the facts pleaded by the opposing party are correct; and thirdly, its determination must not require the Court to undertake an inquiry into disputed facts or exercise discretion. Further, a valid preliminary objection ought to be capable of disposing of the proceedings if upheld. 24.In the present matter, the Applicant contends that the Preliminary Objection does not meet the threshold set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, arguing that issues relating to the retainer agreement, entitlement to fees and alleged breach thereof are matters requiring evidence. The Respondent, however, maintains that the objection raises a pure question of law concerning the procedure adopted by the Applicant in commencing the proceedings. 25.Having considered the objection, I find that the issue raised concerns the propriety of the procedure adopted by the Applicant in seeking recovery of alleged retainer fees amounting to Kshs.2,100,000/=. The Applicant’s Notice of Motion is premised on sections 45, 46, 48 and 51(2) of the Advocates Act, cap 16 of the laws of Kenya. The question before the Court is whether, assuming the Applicant’s claim to be correct, the reliefs sought could properly be pursued through the procedure adopted. This is a question of statutory interpretation and application of the law and therefore raises a pure point of law. 26.Further, the Court is mindful that a Preliminary Objection must be considered on the assumption that the facts pleaded by the opposing party are correct. At this stage, the Court is not required to determine the validity of the retainer agreement, whether the fees are due, or the merits of the Applicant’s claim. The Court only considers the legal consequences arising from the facts as pleaded. 27.In this case, the Preliminary Objection challenges whether the Applicant adopted the correct legal procedure in seeking the orders sought. The determination of this issue does not require the Court to investigate disputed facts or exercise judicial discretion, and if upheld, would dispose of the proceedings at this stage. 28.Accordingly, I find that the Preliminary Objection raised by the Respondent satisfies the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and is therefore properly before the Court for determination. 29.The second issue is on whether the Applicant’s Notice of Motion is a competent mode of commencing proceedings for recovery of advocate-client fees and whether taxation of costs is necessary in this case. 30.On the first part concerning the form of pleadings, the Respondent contends that the Applicant adopted an improper procedure by instituting the claim through a Notice of Motion instead of filing a Plaint. It is the Respondent’s submission that the Applicant seeks substantive and final orders, including judgment for the alleged unpaid professional fees, interest and costs, yet such reliefs can only be sought through a properly instituted suit. 31.The Applicant on the other part contends that the proceedings were properly commenced by way of a Notice of Motion, the claim being founded on a written retainer agreement entered into between the advocate and client. It is the Applicant’s submission that the present application does not constitute a fresh substantive claim requiring institution by way of a plaint, but rather an application seeking enforcement of an existing advocate-client fee agreement. 32.The determination of the proper form of pleadings in the present matter requires the Court to examine and interpret the relevant provisions of the Advocates Act, particularly the applicability of sections 48 and 51(2) thereof, in relation to the recovery of advocate-client fees. The question before the Court is therefore whether the Applicant adopted the correct procedure in seeking recovery of the alleged retainer fees and whether the reliefs sought fall within the statute. 33.Section 51(2) of the Advocates Act applies where there is an advocate’s bill of costs that has already been taxed and a certificate of costs issued by the taxing officer, upon which the Court may enter judgment where the retainer is not disputed. In the present case, however, the Applicant does not rely on a taxed bill of costs or a certificate of costs, but seeks judgment for an agreed sum said to be due under a retainer agreement. 34.In my view, the fact that the Applicant relies on a retainer agreement under section 45 of the Advocates Act does not, by itself, determine the procedure to be followed in enforcing the alleged fees. While such an agreement may entitle an advocate to recover agreed fees, the enforcement of that entitlement must still be undertaken in accordance with the procedure provided by law. Section 48 of the Advocates Act provides the framework through which an advocate may institute proceedings for recovery of costs due from a client. The section provides as follows:“48.Action for recovery of costs1.Subject to this Act, no suit shall be brought for the recovery of any costs due to an advocate or his firm until the expiry of one month after a bill for such costs, which may be in summarized form, signed by the advocate or a partner in his firm, has been delivered or sent by registered post to the client, unless there is reasonable cause to be verified by affidavit filed with the plaint, for believing that the party chargeable therewith is about to quit Kenya or abscond from the local limits of the Court’s jurisdiction, in which event action may be commenced before expiry of the period of one month.2.Subject to subsection (1), a suit may be brought for the recovery of costs due to an advocate in any court of competent jurisdiction.3.Notwithstanding any other provisions of this Act, a bill of costs between an advocate and a client may be taxed notwithstanding that no suit for recovery of costs has been filed.” (emphasis added) 35.From the forgoing provision, Section 48 of the Advocates Act provides the procedure through which an advocate may institute proceedings for recovery of costs due from a client. In this present case, while the Applicant relies on a contractual retainer agreement, the reliefs sought before this Court are substantive in nature and therefore require invocation of the Court’s jurisdiction through a proper substantive suit and not through a standalone Notice of Motion Application. 36.The procedure for instituting civil proceedings is provided for under section 19 of the Civil Procedure Act, Cap 21 of the Laws of Kenya, which provides that:“Every suit shall be instituted in such manner as may be prescribed by rules.” 37.Similarly, Order 3 Rule 1 of the Civil Procedure Rules, 2010 provides that:“Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.” 38.The importance of following the prescribed procedure was considered by the High Court in Proto Energy Limited v Hashi Energy Limited (2019) eKLR, where the Court held as follows:“Order 3 Rule (i) (ii) provides that every suit shall be instituted by way of a Plaint. As a general rule a suit can only be instituted by way of a plaint, petition or an originating summons. A Notice of Motion is not legally recognized as an originating process. A Notice of Motion can only be filed within a properly instituted suit. The Applicants failed to file any originating process in this matter. I find that the attempt to institute this suit by way of a Notice of Motion renders the entire suit defective.” 39.Similarly, in Rajab Kosgei Magut v Nuru Jepleting Choge (2020) eKLR, the High Court emphasized that parties must follow the procedure prescribed by law and cannot circumvent established legal processes. The Court held:“I am also of the view that an Applicant cannot use short cuts to access justice where there are laid down procedures to be followed...... Having considered the Preliminary Objection and the submissions therein, I find that the Preliminary Objection has merit and is therefore upheld. The Applicant’s application dated 19th May, 2020 is hereby struck out with costs to the 1st Respondent.” 40.Further, in Samuel Chege Thiari & another v Eddah Wanjiru Wangari & 3 others [2018] eKLR, the Court held that:“In the end, I find that the Applicant is not properly before this court as there is no suit upon which the Notice of Motion can stand. The court cannot invoke its inherent jurisdiction to cure that defect.” 41.In view of the forgoing legal authorities, I do find that a Notice of Motion is not an independent originating process for commencing substantive proceedings unless expressly provided by law. The difficulty with the Applicant’s application is that the orders sought are not interlocutory in nature but seek final orders of the Respondent’s liability for the alleged professional fees. Such reliefs cannot properly issue through a standalone miscellaneous application. 42.In the case of Rockland Kenya Ltd v Commissioner General of KRA & Another (2020) eKLR, the court held that substantive orders cannot be issued in miscellaneous applications. The court had in turn cited with approval the decision in Witmore Investment Ltd –vs- County Government of Kirinyaga & 3 Others (2016) eKLR where Limo J had stated that:“……where a party such as an applicant herein seeks an order that in effect appears to resolve with a finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court for a final resolution of the issues in controversy, raised in the application, it should have moved this court properly in the manner provided by the law.” 43.The court in the case of Nairobi West Hospital Ltd –vs- Joseph Karina & Another (2018) eKLR, made a similar finding that a substantive order cannot be issued through a miscellaneous application. 44.Further, although the Applicant contends that the claim is founded on a written retainer agreement, enforcement of such agreement may still require the Court to consider matters such as the existence of the agreement, the obligations undertaken by the parties, performance thereof and whether the amount claimed is due and payable. These are matters ordinarily determined within a properly instituted suit where the parties are afforded an opportunity to ventilate their respective positions. 45.It is also necessary to consider the Applicant’s invitation to the Court to invoke Article 159 of the Constitution and disregard what the Applicant terms as procedural technicalities. Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. However, the provision does not permit the Court to disregard mandatory statutory procedures or to validate proceedings which are fundamentally incompetent. In the present case, the defect is not a mere procedural lapse capable of being cured, but relates to the manner in which the Applicant invoked the jurisdiction of this Court and the foundation upon which the substantive reliefs sought are premised. 46.The Court of Appeal in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2013] eKLR cautioned that Article 159(2)(d) is not a panacea for all litigation defects and cannot be invoked to cure the absence of jurisdiction or failure to comply with mandatory legal requirements. The Court held that where the law prescribes a specific procedure for approaching the Court, such procedure cannot be disregarded under the guise of substantive justice. 47.In the circumstances, the defect in the Applicant’s application is not merely a procedural irregularity that can be cured by invoking Article 159 of the Constitution. Rather, it relates to the manner in which the Court’s jurisdiction was invoked, as the Applicant sought final substantive reliefs without first instituting a proper suit. 48.On the second limb of this issue, namely whether taxation of costs was a pre-requisite in the circumstances of this matter, the Court has considered the provisions of section 45(6) of the Advocates Act, which provides as follows:“45.Agreements with respect to remuneration (6) Subject to this section, the costs of an Advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.” 49.It is evident from the above provision that where an advocate and client have entered into a valid agreement on remuneration pursuant to section 45 of the Advocates Act, the agreed fees are not subject to taxation. The Court therefore agrees with the Applicant’s submission that taxation would not ordinarily be required where the advocate seeks enforcement of an agreed fee arrangement. 50.However, the issue before this Court is not whether the Applicant’s alleged fees were subject to taxation, but rather whether the Applicant adopted the proper procedure in seeking enforcement of the retainer agreement and the consequential orders for judgment. 51.In the upshot, the issue for determination is not whether the Applicant has a valid claim for recovery of the alleged retainer fees, but whether the Applicant adopted the proper procedure in seeking the reliefs before the Court. The Applicant sought substantive and final orders for payment of Kshs.2,100,000/=, interest and costs, which reliefs could not properly be determined through a standalone Notice of Motion. 52.The enforcement of the alleged retainer agreement and the recovery of the claimed sum are substantive matters that require commencement of proceedings through a proper originating process. Accordingly, the defect in the present application is in the manner in which the proceedings were instituted, rendering the Notice of Motion improperly before court.Final OrdersAccordingly, I make the following Orders:a)The Preliminary Objection dated 2nd March 2026 is hereby upheld;b)The Applicant’s Notice of Motion dated 6th December, 2025 is hereby struck out with costs to the RespondentOrders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 29TH DAY OF JUNE, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn the presence of:Ms Maina for The ApplicantNo Appearance for The RespondentCourt Assistant: Aggrey Ochieng