https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8844

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **MISC. COMMERCIAL APPLICATION NO. E007 OF 2026** **S.I. MWAURA & CO. ADVOCATES……………………….................ADVOCATE/APPLICANT** **VERSUS** **THIKA GROVE CHANIA LIMITED alias** **FINSCO CONSULTING AFRICA LIMITED..CLIENT/RESPONDENT** **RULING** **Brief facts** 1. The applications for determination herein are dated 1st April 2026 and 7th April 2026 respectively. The application dated 1st April 2026 seeks for orders of judgment in favour of the applicant for Kshs. 17,423,200/- pursuant to the ruling delivered on 30th March 2026 in HC MISC No.E008 of 2026 and Certificate of Taxation dated 31st March 2026. The applicant further seeks for interest to be provided at court rates from the date of taxation until payment in full. 2. In opposition to the application, the respondent filed a Replying Affidavit dated 7th May 2026. 3. The respondent then filed an application dated 7th April 2026 seeking for orders of setting aside of the decision of the Taxing Master in Thika Misc E007 of 2026 delivered on 30/03/2026 and the bill be referred back for fresh taxation before a different taxing master. 4. In opposition to the application, the applicant/advocate filed a Replying affidavit dated 6th May 2026. **Applicant’s Case on the application dated 1st April 2026** 1. The applicant states that its bill of costs dated 4th February 2026 has since been taxed at Kshs. 17,423,200/- and a certificate of taxation issued on 31st March 2026. 2. The applicant states that the certificate of taxation was duly served upon the respondent but it has blatantly refused and declined to settle the bill as taxed. Further the respondent has not filed any reference or made any application for stay of execution or to set aside the certificate of taxation dated 31st March 2026. The applicant further states that he stands to suffer irreparable damage and substantial loss if the court declines to allow the instant application whereas the respondent shall not suffer any prejudice if the application is allowed as prayed. **The Respondent’s Case** 1. The respondent states that it filed a reference which raises serious and arguable issues regarding the propriety, legality and quantum of the taxed costs. The respondent further states that it would be unjust and prejudicial to it if the certificate of taxation was to be adopted as a judgment of the court before the reference is heard and determined. 1. The respondent avers that the applicant will not suffer any prejudice if the application is stayed pending the determination of the reference whereas it stands to suffer substantial prejudice if judgment is entered prematurely. **The Applicant’s Case on the application dated 7th April 2026** 1. The applicant contends that it was denied a reasonable time within which to prepare and file its responses with the Taxing master granting it two days to file responses to five bill of costs in the five different applications being Misc. E007/2026, E008/2026, E023/2026, E024/2026 and E025/2026. The applicant argues that the two days granted were grossly insufficient to allow it to gather and assemble its documentary evidence which included correspondence to enable it mount an appropriate response for each of the five applications. Thus the applicant argues that the Taxing Master denied it the opportunity to present its case and constructively condemned it unheard. 2. The applicant avers that the bill of costs involved perusal of several documents and correspondences and further the amount claimed was enormous at Kshs. 34,800,000/- which required more than two days to prepare its responses. The applicant argues that the Taxing Master proceeded to tax the bill of costs on items where it had not given instructions to the advocate. Further, the applicant states that the Taxing Master failed to consider its responses and submissions in opposition to the bill of costs. 1. The applicant argues that the Taxing Master taxed item 2 of the bill at a manifestly high amount of Kshs. 15 million plus VAT despite its representation that only Kshs. 10,900,050/- was payable as per the Advocate’s renumeration scale. Further despite a written request by the applicant for the reasons for the taxing master decision in his ruling on 30/3/2026, its request was inordinately delayed and was only granted on 7th April 2026 upon persistent follow ups. The applicant argues that no reasons have been given for the said delay leaving it to speculate that the same was intended to pave way for the respondent to proceed and prepare its application dated 1st April 2026 to its detriment. While similar requests made by the respondent were granted expeditiously as the respondent requested for the certificate of costs on 30/3/2026 and the same was issued on 31/3/2026. **The Respondent’s Case** 1. The respondent argues that the supporting affidavit dated 7th April 2026 ought to be struck out on the ground that it was commissioned before a person who is not licensed to practice law in Kenya making the said affidavit fatally defective and inadmissible before the court. The respondent states that the applicant failed to enter appearance on time and sought to arrest the ruling of the court to pave way for it to file responses to the bill of costs and the taxing master allowed its application *ex parte* and granted leave for it to file the requisite responses but maintained the ruling date thus defeating the applicant’s well calculated plan of derailing the matter herein. 1. The respondent argues that item 2 was taxed at a reasonable amount of Kshs. 15million considering the undisputed value of the suit property which is Kshs. 1,050,000,000/- and the importance of the conveyance to the client together with the advocate’s diligence required in executing the task in item 2. Thus the taxing master exercised his discretion reasonably and legally hence the court ought not to interfere with the taxed amount for item 2. The respondent asserts that the applicant was served with the taxation notice and bill of costs on 20th February 2026 via their five email addresses but chose not to participate in the taxation proceedings until when it filed the application for leave to respond. The applicant is a beneficiary of equity as the court allowed its application and it participated in the proceedings thus it is uncourteous for the client to frown upon the court that extended equity to it. Contrary to the allegations of two days, the client had two months to file responses and submissions and hence was accorded enough time to respond to the bill of costs. 2. The respondent asserts that the ruling of the court was uploaded on the CTS on 31st March 2026 at 5.03 p.m and hence was available for the client one day after the request was made. The respondent additionally states that it takes offence with the allegations that the taxing master responded swiftly to the request for taxation certificate but delayed with the reasons for taxation for the reason that the efficiency of the court cannot be faulted or castigated. 1. The respondent states that the Taxing master properly exercised his discretion and declined to award any sum for item 1 in the matter having held that item 1 was applicable to HCCCOM/E007/2026. Further, the Taxing Master correctly held that there were instructions to undertake item 1 and 3 which were distinct and separate chargeable items. The respondent argues that the client is clinging on straws akin to firing in the darkness and expecting to hit any target as there is no proper reference before the court. 2. The applicant filed a Further Affidavit dated 14th May 2026 and confirms that the affidavit dated 7th April 2026 was commissioned by an advocate who had not renewed his 2026 practicing certificate as at the date of commissioning. The applicant states that it was not intentional and argues that the said defect is not fatal to the application pursuant to Order 51 Rule 4 of the Civil Procedure Rules which enables an application to stand on its own without an affidavit. 3. The applicant states that the Taxing Master erred in finding that the advocate had instructions to engage in prior negotiations as billed in item 1 of the bill of costs. The email correspondences and framework agreement dated 3/8/2023 relied upon by the advocate only mentions the advocate as the advocate for the sale transaction for item 2 and did not form any part of the instructions. Further given the enormity of the fees claimed and the onus of proving instructions being on the advocate, the advocate was under a duty to act only where the instructions were clear and express. The applicant states that the instructions to act on item 1 and 3 of the bill of costs remains denied and the proof thereof has not been discharged by the advocate. 1. The applicant argues that paragraph 20(2) of the ARO only lists the items that are excluded and separately chargeable namely prior negotiations and stamp duty forms which are excluded from the scale which means that they not automatically chargeable but they may be separately charged if they were separately instructed. Further, the taxation at Kshs. 7 million for the said prior negotiations was grossly high and exorbitant given that the same advocate had been instructed to undertake the instruction as per item 2 of the bill of costs. 2. The applicant states that the emails containing the bill of taxation and the notice were directed to the spam folder where in the ordinary course of things they were not able to sight them leading to the failure to enter appearance and respond to the bills. The applicant further states that it was denied ample time within which to make its responses and in an attempt to cure that within the time constraints, it filed a further affidavit whereby it omitted the letter dated 13/5/2024 written by the advocate admitting receiving Kshs. 3 million on account of item 2. Further the contents of the letter dated 13/5/2024 reveals that the sum of Kshs. 3 million was for the subject transaction and thus invites the court to evaluate the said letter for its import and meaning and further, the said Kshs. 3 million paid to the advocate forms a substantive amount of the fees and it would be an injustice to it and unfair enrichment on the part of the advocate. 1. Parties put in written submissions. **The Client/Applicant’s Submissions** 1. The applicant submits that it was denied its right to a fair hearing under Article 50 of the Constitution as it was granted insufficient time within which to make its responses and the taxing master made it impossible for it by setting the ruling date effectively. To support its contentions, the applicant relies on the cases of **Kenya National Commission on Human Rights vs Attorney General &** **Others [2012] eKLR**; **Erad Supplies & General Contractors Limited vs National Cereals and Produce Board [2012] KEHC 4372 (KLR)**; **E. Muriu Kamau & Another vs National Bank of Kenya Limited [2009] KECA 111 (KLR)** and **B. Surinder Singh Kanda vs The Government of the Federation of Malaya [1962] 1 MLJ 169.** 2. The applicant submits that it did not issue instructions to the advocate to represent it on item 1 and further the respondent advocate has not produced any formal instructions for item 1. The Taxing master placed reliance on the citing of the name of the advocate’s law firm in a framework agreement between the applicant and the seller. The applicant submits that the mere mention of the advocate’s law firm in the framework agreement per se cannot constitute or give rise to the advocate client relationship. To support its contentions, the applicant relies on the cases of **Wilfred N. Konosi t/a Konosi & C. Advocates vs Flamco Limited [2017] KECA 431 (KLR)** and **Oruko & Associates vs Brollo (K) Ltd [2002] (KLR)** and submits that the onus of proving instructions is on the advocate. 1. The applicant submits that item 2 ought to be taxed at Kshs. 10,900,050/- as opposed to Kshs. 15 million taxed by the taxing master. The applicant further submits that the said amount as taxed is grossly exaggerated and exorbitant causing it injustice while enriching the advocate. On item 3, the applicant argues that completion of stamp duty forms an integral part of the work under item 2 of the bill of costs and the advocate’s action of charging separately was erroneous and the taxing master ought to have disallowed it since it constitutes a duplication of fees already captured under schedule 1 scale 1 instruction fee for conveyancing. Stamp duty assessment and the completion of stamp duty forms are indisputably integral to conveyancing as they are not a separate agreement but a component of the same transaction. This principle was affirmed in the decision in **Malindi Law Society vs Republic [2016] eKLR**. 2. The applicant cites **Order 51 Rule 4, Rule 10(2)** and **Order 19 Rule 7 of the Civil Procedure Rules** and submits that commissioning by an advocate without a current practicing certificate goes to the form and not the substance. The contents of the affidavit and the facts deponed therein remain true. Thus the applicant refers to **Article** **159(2)(d) of the Constitution** and the case of **National Bank of Kenya Ltd vs Anaj Warehousing Ltd [2015] KESC 4 (KLR) Petition No. 36 of 2014**; **Peterson Ndungu, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani vs Kenya Power & Lighting Company Ltd [2018] KECA 638 (KLR)**; **Benel Development Limited vs First Community Bank Limited [2021] KEHC 8812 (KLR)**; **Dardanell & 6 Others vs Tilito & 3 Others [2025] KEELC 392(KLR)** and **Microsoft Corporation vs Mitsumi Computer Garage Ltd & Another [2001] KEHC 846 (KLR)**. **The Advocate/Respondent’s Submissions** 1. The respondent submits that the client introduced a new issue of payment of Kshs. 3 million which is unprocedural since it was not in the application dated 7th April 2026 and the advocate did not address such an issue in his replying affidavit. Further, the issue of the payment of Kshs. 3 million and the letter dated 13th May 2024 were issues in HCCCOMMMISC/E007/2026 and not an issue in the instant matter hence the said averments ought to be disregarded as he was not given a chance to respond to the said averments. The respondent submits that the client admitted that the supporting affidavit was commissioned before a person who is unqualified to practice law in Kenya thus the said affidavit is a nullity and ought to be struck out. The respondent further relies on the case of **Nicholas Kiptoo arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2015] eKLR** and submits that the said defect is not a mere procedural technicality which can be cured by the duty of the court to do substantive justice but the defect goes to the root of the application and supporting affidavit. Further, the client’s argument that the chamber summons ought to stand alone even when the supporting affidavit is struck out is legally flawed as **Order 51 Rule 4 of the** **Civil Procedure Rules** does not envisage an application that is not supported by an affidavit to verify the contents of the application as well as provide evidence. Further upon striking out the supporting affidavit, the entire application fails on account of lack of evidence and thus the court ought to strike the entire application. 1. The respondent submits that the client was served with the taxation notice and the bill of costs on 20th February 2026 via their five email addresses but chose not to participate in the taxation proceedings until it filed the application for leave to respond. The client is a beneficiary of equity as the court allowed its application and it participated in the proceedings. Contrary to the allegations of two days, the client had approximately two months to file responses and submissions hence was accorded enough time to respond to the bill of costs. Further, the client had annexed a draft response to the bill of costs in its application for leave to respond to the bill of costs out of time, thus it is factually incorrect for it to argue that it was given two days when indeed a draft was in place when its application for leave was allowed. The respondent submits that it was equally given two days to respond to the client’s response to the bill of costs hence there was no discrimination on the parties. the respondent argues that the client was granted enough time to respond to the bill of costs, that the taxing master extended equity by allowing the client’s application *ex parte* and that the taxing master did not discriminate the client as he gave equal time to both parties to file their responses hence there is no justifiable reason to disturb the decision of the taxing master on the frivolous, unmerited and unsubstantiated ground. In any event, the client participated in the taxation proceedings and filed the requisite documents that were duly considered by the court in its ruling. 1. The respondent submits that the taxing master addressed the issue of item 1, prior negotiations and item 3 completion of valuation forms for assessment of stamp duties, at length and concluded that the client having conceded to issuing instructions for item 2 but disputing items 1 and 3, it was incumbent upon the client to produce instruction notes showing the scope of instructions. Without the instruction notes and in the presence of the letter of offer and the framework agreement wherein the advocate was named as the client’s advocate in the transaction, the court correctly held that there were instructions for items 1 and 3. Further the taxing master held that the letter of offer and the framework agreement wherein the advocate was named as the client’s advocate in the transaction were conclusive proof that there existed instructions for item 1 noting that the framework agreement and the letter of offer were negotiations necessary for the completion of the bargain and necessary execution of item 2 of the bill of costs. In any event, item 1 was taxed off in its entirety at paragraph 21 of the ruling since the taxing master held that it was not available to the advocate in the instant matter the same having been awarded in HCCCOMMMISC/E007/2026. However for purposes of item 3, the taxing master correctly held that paragraph 20 (2)(d) and (e) of the Advocates Remuneration Order excludes completion of valuation of forms for assessment of stamp duties and adjudication of stamp duties. The taxing master taxed item 3 at a reasonable sum of Kshs. 20,000/- having satisfied himself that there were instructions and that the work undertaken under the said item was not complex. Thus the same is reasonable and justifiable. 1. On item 2, the respondent submits that the taxing master considered the item and cited the importance of the project to the client and the value of the subject matter which is Kshs. 1,050,000,000/-, the work undertaken by the advocate and the complexity of the matter. Thus, the allegations by the client that the taxing master exaggerated the amount taxed for item 2 are unfounded, unsubstantiated, unmerited and frivolous as there is no error in principle on the part of the taxing master. To support his contentions, the respondent relies on the case of **Kipkorir Titoo & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR** and submits that a judge will not interfere with the discretion of the taxing master at a whim but only where there is an error in principle. **Issues for determination** 1. The issues for determination are:- 2. Whether the supporting affidavit dated 7th April 2026 ought to be struck out. 3. Whether the client/applicant has made out a case for the review or setting aside of the taxing master’s assessment. 4. Whether the application dated 1st April 2026 has merit. **The Law** **Whether the supporting affidavit dated 7th April 2026 ought to be struck out** 1. The advocate argues that the supporting affidavit dated 7th April 2026 ought to be struck out as it was commissioned by an unqualified person. From the record, the applicant has admitted that its supporting affidavit was commissioned before an advocate who did not have a practicing certificate for the year 2026. The applicant however argues that pursuant to **Order 51 Rule 4 of the** **Civil Procedure Rules**, the application can stand without the affidavit and therefore should not be struck out. **Order 51 Rule 4 of the Civil Procedure Rules** provides:- **Every notice of motion shall state in general terms the grounds of the application and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.** 1. It is clear that an application should be accompanied by an affidavit which shall bring out the evidence which a party may seek to rely on. Thus, the applicant is misguided in arguing that an application can stand alone without an affidavit in support. 2. However the question presents itself on whether a document prepared, executed or commissioned by an advocate who lacked a current practicing certificate is invalid. The Supreme Court addressed this issue in **National Bank of Kenya Ltd vs Anaj Warehousing Ltd (Petition 36 of 2014) [2015] KESC 4(KLR) (2 December 2015) (Judgment)** where the court held that Section 34 of the Advocates Act, did not invalidate all documents prepared by an advocate who lacked a current practicing certificate. The court stated:- **Thus, the issue still remains: whether Section 34 of the Advocates Act actually invalidates all instruments of conveyance prepared by advocates who do not have current practicing certificates. In our opinion, it is essential to establish the main objective of Section 34 as a basis for any conclusions. This section prohibits** **unqualified persons from preparing certain documents. It is directed at “unqualified persons”. It prescribes clear sanctions against those who transgress the prohibition. The sanctions prescribed are both civil and criminal in nature. But the law is silent as to the effect of documents prepared by advocates not holding current practicing certificates.** **In these circumstances, how does the citizen’s position rest? If he or she were to walk into an advocate’s office, for a conveyancing service at a fee, would there be an initial obligation resting on him or her to demand the advocate’s practicing certificate? Would he or she be in breach of the law if after the service, it turned out that the advocate lacked a certificate? The transgressor, in our view, is the advocate, and not the client. The illegality is the assumption of the task or preparing the conveyancing document, by the advocate, and not seeking and receiving of services from that advocate. Likewise, a financial institution that calls upon any advocate from among its established panel to execute a conveyance, commits no offence if it turns out that the advocate did not possess a current practicing certificate at the time he or se prepared the conveyance documents. The spectre of illegality lies squarely upon the advocate and ought not to be apportioned to the client.** **Is such reasoning in keeping with a perception that Section 34 of the Advocates Act, invalidated all documents prepared by an advocates who lacks a practicing certificate? We do not think so.** 1. In the case before me, it is highly probable that the deponent of the affidavit assumed like any other client that the advocate he approached or his advocate instructed had the current certificate for the relevant year. It has now come out, which is not denied that the advocate who commissioned the supporting affidavit did not have a current practicing certificate. As held by the Supreme Court in the National Bank of Kenya case, a party’s documents should not be struck out for the said reason. The Supreme Court made it clear that the fault is on the said advocate but not on the party. Consequently I hold that Article 159 of the Constitution cures the said defect and that the affidavit dated 7th April 2026 should not be struck out. It is hereby accepted by this court as properly before the court. 1. The other issue is whether the applicant has complied with the law in filing this application in regard to timelines and procedure **Rule 11 of the Advocates Remuneration Order** provides:- 1. **Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.** 2. **The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be** **served on all the parties concerned, setting out the grounds of his objection.** 1. The taxation ruling was delivered on 30th March 2026. The applicant wrote to the taxing officer on 30th March 2026 notifying him that they objected to the instruction fees and requested for reasons for the ruling. The court sent a certified copy of the ruling and email on 7th April 2026 outlining the reasons. The applicant filed the instant reference on 7th April 2026 which is within the 14 days as provided by the law. Thus, the application has been filed timeously. **Whether the applicant has made out a case for the review or setting aside of the taxing master’s assessment** 1. The law is settled that a court will only interfere with the taxing master’s decision where there is an error of principle. In the case of **Republic vs Ministry of Agriculture & 2 Others *ex parte* Muchiri W’njuguna & 6 Others [2006] eKLR** it was held:- **The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks that the award somewhat too high or too low; it will only interfere if it thinks the ward so high or so low as to amount to injustice to one party or the other….The court cannot interfere with the taxing officer’s decision on taxation 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 interference that it was based on an error of principle.** 1. In the case of **Machira & Co. Advocates vs Magugu [2002] 2EA** where Ringera J (as he then was) held that:- **As I understand the practice relating to taxation of bill of costs, any complaint about 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 a judge in accordance with paragraph 11 of the Advocates Remuneration Order.** 1. The advocate client bill of costs is dated 4th February 2026 and was drawn for Kshs. 34,800,000/-. The taxing master taxed the bill at Kshs. 17,423,200/-. The applicant disputes the amount arguing that it is excessive and that the taxing master condemned them unheard. On perusal of the record, the advocate served the client with the bill of costs and election notice both dated 4th February 2026, taxation notice and list of documents on 20th February 2026 via email through its email addresses mwaurakogi@finscoafrica.com anthonyw@finscoafrica.com maryanne@finscoafrica.com and ckamau@finscoafrica.com. The applicant never entered appearance but filed an application dated 19th March 2026 for leave to file its reply to the bill of costs on the grounds that they never saw the emails of service as the emails were directed to the spam folder. Annexed to the said application, the applicant annexed a draft response to the bill of costs. The Taxing Master on 23rd March 2026 considered the application *ex parte* and granted the applicant two days to file the response to the bill of costs and granted the respondent two days to file a further affidavit if need be. The Taxing Master had already fixed a ruling date for 30th March 2026. This date was maintained with both parties having been granted 2 days each to file their response and further affidavit respectively. It is noted that the applicant filed its response to the bill as well as a further response and submissions. Thus, it is evident that the applicant was not condemned unheard but was given a chance to respond and did so. The allegation by the applicant that two days was not sufficient time, is unsubstantiated. The applicants were served with the bill of costs as early as 20th February 2026 and further as at 19th March 2026 when they were filing their application for leave they already had drafted a response to the said bill. The applicant was given ample time to respond to the bill of costs and that they complied with the time given. There is no evidence on record that when the tax master gave the applicant two days to file their response, they raised no concern or plea for additional time and were denied. The respondent (advocate) who had waited for several days for the response did not complain as the applicant was granted time to participate in the application. In my considered view, the applicant was given sufficient time to file response, given the facts of the case. 1. The applicant further disputes items 1, 2 and 3 of the bill of costs arguing that item 1 should be taxed off as the applicant never gave the respondent instructions to undertake prior negotiations leading to the actual sale transaction between itself and the vendor as a separate assignment or instructions; item 2 was exaggerated and not drawn as per scale under Schedule 1 therefore an amount of Kshs. 4,099,500/- ought to be taxed off and item 3, the advocate was not given instructions to undertake completion of stamp duty forms for assessment as a separate instruction or assignment. The applicant further argues that assessment of stamp duty is an integral part of a conveyance of land and without it the transaction would not be complete and thus item 3, ought to be taxed off in its entirety. 1. On perusal of the record, the advocate duly served an election notice dated 4th February 2026 pertaining to item number 1 and 3 (prior negotiations leading up to or necessary in the completion of the transaction and assessment and adjudication of stamp duty respectively) in HCCCOMM MISC E007 OF 2026. In regard to the item 2, the advocate filed adjudication of stamp duty in HCCCOMM MISC NO E008 of 2026 to charge fees under Schedule 5 of the Advocates Remuneration Order 2014. **Paragraph 22** provides:- **In all cases in which any other Schedule applies, an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under such schedule, his remuneration shall be according to Schedule 5, but if no election is made his remuneration shall be according to the scale applicable under the other Schedule.** **Subject to paragraph 3, an advocate who makes an election under subparagraph (1) of this paragraph may not by reason of his election charge less than the scale fee under the appropriate schedule.** 1. The advocate proposed Kshs. 10 million for item 1 for instructions leading up to and necessary in the completion of the transaction, reviewing the letter of offer and the framework agreement between the client and International Controls Limited. The client on the other hand argues that the advocate was not instructed to undertake prior negotiations leading to the actual sale transaction between itself and the vendor as a separate assignment. I is noted that the framework agreement was purely a document between the seller and buyer setting out the mode of the sale to be undertaken and which did not amount to a letter of instructions to the advocate. 2. It is trite law that the nexus between the advocate and his client is the advocate-client relationship which springs from instructions by the client to the advocate. In **Uhuru Highway Development Ltd & Others vs Central Bank of Kenya & Others (2) [2002] 2 EA 654 (CAK)** the Court of Appeal held:- **Whether the plaintiffs were the counsel’s clients may be discerned from a careful consideration of the correspondence on record and in particular a fee note and notice of taxation and as is in this case conclude that the relationship between them was that of an advocate and client.** 1. It is evident from the record that there existed an advocate client relationship between the advocate and client as shown by two email correspondence dated 25th May 2023, 2nd June 2023, 25th July 2023, 27th July 2023, 2nd August 2023, letter of offer dated which stipulates that the advocate is the client’s advocate for the purpose of the transaction of sale of two hundred acres to be excised from LR. Nos. 10875 and 10878 and the Framework agreement which was executed before the advocate herein. It can be discerned from the emails that the advocate was instructed to act for the client to undertake tasks prior and leading to the actual sale transaction between the client and International controls Limited. Thus, for he client to dispute the same, it ought to have provided evidence in form of an instruction note showing that the instructions were split into prior negotiations and the actual transactions. It is therefore my considered view that there existed a advocate client relationship between the parties where the client instructed the advocate to carry out prior negotiations before the actual sale of the land parcels. 2. Thus the question then arises whether prior negotiations leading up to or necessary in the completion of a bargain form part of the scale fees. **Paragraph 20 of the ARO** provides what scale charges includes and excludes in a non contentious matter. It provides:- 3. **Scale charges shall include all work ordinarily incidental to a transaction, and in the case of a conveyance, transfer or mortgage shall include-** 4. **Taking of instructions to prepare the necessary deed or document;** 5. **Investigation of title;** 6. **Report on the title to the client;** 7. **Preparation or approval or adjustment of the deed or document;** 8. **Settlement of the transaction if in the town of the advocate’s practice;** 9. **Obtaining by correspondence any necessary consent or clearance certificate but excluding land control consent;** 10. **Registration of the deed;** 11. **Correspondence between advocate and client.** 12. **Scale charges shall not include-** 13. **Prior negotiations leading up to or necessary in the completion of a bargain;** 14. **Tracing of title deeds or obtaining certified copies thereof;** 15. **Payment of withholding tax or obtaining of exemption therefrom;** 16. **Completion of valuation forms for assessment of stamp duties;** 17. **Adjudication of stamp duties;** 18. **Obtaining land control consent and personal attendances for obtaining of any necessary consent or clearance certificate under subparagraph (1)(f);** 19. **Extra work occasioned by special circumstances;** 20. **Extra work occasioned by a change of circumstances emerging while an item of business is in progress e.g death or bankruptcy of a party to the transaction.** 21. It is therefore clear that that prior negotiations leading up to or necessary in the completion of a bargain are excluded from the scale fees. Thus, it is an order that the said item ought to be taxed separately. In taxing the said item, the taxing master ought to consider the care and labour required, the number and length of papers to be perused, the nature or importance of the matter, the amount or value of the subject matter involved, the interest of parties, complexity of the matter and all other circumstances. The matter involved sale of two hundred acres to be excised from properties LR. Nos. 10875 (Original Number 2955/17 and 18/2) which sale would be completed in two phases of 100 properties each for the purchase price of two billion and one hundred million. The Framework Agreement outlined the tasks of the advocate as reviewing the agreements for sale on behalf of their client and facilitate the subdivision formalities, change of use and any other formalities that may be necessary to bring to fruition the purchaser’s project objectives. Further from the email correspondence, the advocate explained the prior negotiations he undertook and the review of the relevant documents. It is therefore clear that the said assignment was complex in nature which required a lot of time and a very keen eye to detail. Therefore it is my considered view that the advocate was entitled to fees under item 1 although since the negotiations were undertaken to cover both phases, the advocate is only entitled to fees for negotiating once which were taxed in HCCCOMM MISC E007 OF 2026. It is my further considered view that the sum of Kshs. 7 million is reasonable. Thus, for this application, I am in agreement with the taxing master for taxing off item 1 in its entirety. 1. On item 2, the applicant contends that the sum of Kshs. 15 million as taxed was excessive and the advocate is only entitled to Kshs. 10,900,050/-. It is not in dispute that the subject matter is Kshs. 1,050,000,000/-. Schedule 1 provides for fees chargeable by the advocate for sale and purchases affecting land. It provides that the scale fee shall be calculated cumulatively on the basis of the consideration or value of the subject matter as follows:- 2. **From Kshs. 1 to Kshs. 5,000,000/-, 2% of the consideration or the value of the subject matter or Kshs. 35,000 whichever is higher.** 3. **From Kshs. 5,000,001 to Kshs. 100,000,000/-, the fee prescribed in (i) above plus 1.5% of the balance.** 4. **From Kshs. 100,000,001 to Kshs. 250,000,000/-, the fee prescribed in (ii) plus 1.25% of the balance.** 5. **From Kshs. 250,000,001 to Kshs. 1,000,000,000/-, the fee prescribed in (iii) plus 1% of the balance.** 6. **In respect of an amount where the consideration or value is more than Kshs. 1,000,000,000/-, the fee set out in (iv) plus 0.1% of the balance.** 7. Schedule I provides that the fees should work out as follows:- 8. 2% of the first Kshs. 5 million which is Kshs. 100,000/- 9. Fee as above being Kshs. 100,000/- plus (1.5% of Kshs. 95,000,000) which is 1,425,000 + 100,000 = Kshs. 1,525,000/- 10. Fee as above being Kshs. 1,525,000/- plus (1.25% of Kshs. 150,000,000) which is Kshs. 1,875,000/- + Kshs. 1,525,000/ = Kshs. 3,400,000/- 11. Fee as above being Kshs. 3,400,000/- plus (1% of 750,000,000) which is Kshs. 7,500,000/- + 3,400,000/- = Kshs. 10,900,000/- 12. Fee as above being Kshs. 10,900,000/- plus (0.1% of Kshs. 50,000,000) which is Kshs. 50,000/- + Kshs. 10,900,000/- = Kshs. 10,950,000/- 13. The total amount is Kshs. 100,000/- + Kshs. 1,525,000/- + Kshs. 3,400,000/- + Kshs. 10,900,000/- + Kshs. 10,950,000/- = Kshs. 26,875,000/-. 14. The taxing master allowed the sum of Kshs. 15 million deeming it reasonable instead of taxing it at the scale amount. It is my considered view that the said amount of Kshs. 15 million is reasonable and should not be interfered with. The applicant introduced in its Further Affidavit dated 14th May 2026 that the advocate was paid Kshs. 3 million pursuant to its letter dated 13/05/2024. It is evident that the said facts were introduced unprocedurally as the applicant introduced them in its further affidavit. The advocate herein had no chance of responding to this issue. In the interests of justice and fairness, the court expunges the said averments from the record. That notwithstanding, the said issue was raised by the applicant in the lower court and the taxing master already ruled on the matter and held that the applicant never tendered any evidence of the payment to the advocate for Kshs. 3 million. The court notes that the applicant introduced the said new material both in the lower court and before this court unprocedurally in a bid to deny the advocate an opportunity to respond, which in my view, is an act of bad faith. 1. On item 3, the applicant argues that completion of stamp duty forms was an integral part of work under item 2 of the bill of costs. Pursuant to paragraph 20 of the ARO completion of valuation forms for assessment of stamp duty and adjudication of stamp duties is clearly excluded and does not form part of the instruction fees under item 2. The fee is assessed under Schedule 5. The filled valuation form was provided in the bundle on page 49 and payment receipt on page 50. It is therefore my considered view that as the task only involved filling forms which is not a complex task by its nature. I find that the sum of Kshs. 20,000/- as taxed by the taxing master is reasonable. The applicant has failed to demonstrate that the taxing master committed any error of principle, or that the taxed amount was manifestly excessive so as to justify interference by this court. 2. Thus it is my considered view that the reference dated 7th April 2026 lacks merit and is hereby dismissed. The bill is hereby taxed at Kshs. 17,423,200/-. A certificate of taxation was issued on 31st March 2026. 3. Taxation is a matter that is guided by the **Advocates Act** and the **Advocates Remuneration Order, Section 51(2) of the Advocates Act** which provides that:- **The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.** 1. The above provision is clear that the certificate of costs once issued by the taxing officer is final unless set aside or altered by the court. The court may also make an order that judgment be entered in terms of the amount in the certificate of costs in the case of an advocate client bill of costs. Having considered that the reference lacks merit the advocate is entitled to the sum of Kshs. 17,423,200/- as judgment which I hereby enter. Accordingly, interest at court rates is hereby allowed until payment in full. Further in HCCCOMM MISC E007 OF 2026, the sum of Kshs. 25,543,200/- is entered as judgment and interest is allowed at court rates until payment in full. 2. It is hereby so ordered. ***RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 18TH DAY OF JUNE 2026.*** **F. MUCHEMI** **JUDGE**