Virginia Shaw & Co. Advocates v Minar Katherine Holroyd & another [2022] KEELC 1076 (KLR)
The bottom line
#Kenya's High Court confirmed lawyers can recover fees even without a written agreement, but instruction fees must be based on value shown in the pleadings, not valuation reports.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the taxing officer where retainer is disputed
The taxing officer had jurisdiction to tax the bill notwithstanding the retainer dispute; she was not obliged to refer the issue to the High Court absent agreement under paragraph 12.
Paragraph 13A of the Advocates Remuneration Order gives the taxing officer full power to deal with all issues arising during taxation. Court intervention is limited to references under paragraph 11 or opinions under paragraph 12 by consent. Raising retainer as a preliminary objection does not oblige the taxing officer to lay down her tools; the aggrieved party may pursue a reference afterwards. The court reaffirmed its own prior decision in Mwema Kitulu and declined to follow the restrictive view in Abincha and Kenya Orient.
Existence of retainer between the deceased and the Respondent firm
There was a retainer between Ms. Virginia Shaw and the deceased; the administrators cannot avoid paying fees merely because the bill was filed in the name of Virginia Shaw & Company Advocates rather than Ransley, McVicker and Shaw Advocates.
Ms. Shaw was instructed by the deceased in 2008 as a partner in Ransley, McVicker and Shaw, remained the sole surviving partner when that firm ceased to exist, registered the Respondent firm in 2016 and continued acting until judgment in 2019. A retainer may be inferred from conduct. The court held the Applicants' objections were technicalities without substance and could not aid an attempt to avoid paying fees.
Admissibility of the Respondent's exhibits on retainer and privilege
The exhibits VWS-1 to VWS-4 were properly before the court and would not be expunged; the privilege objection failed.
Because retainer was raised before the taxing officer only as a preliminary objection (which requires no evidence), the Respondent had no opportunity to produce the correspondence there. The correspondence goes directly to the retainer issue. Advocate/client privilege protects confidentiality but cannot be used by a client to bar the advocate from proving a retainer through their own correspondence.
Interference with the taxation: instruction fees, getting up fees and VAT
Only the instruction fees were affected by an error of principle; getting up fees were correctly 1/3 of instruction fees and VAT at 16% was left undisturbed since payment had not been made and the rate had reverted to 16%.
The taxing officer erred in basing instruction fees on a valuation report produced in evidence rather than on value ascertained from pleadings or judgment. The claim on getting up fees was factually wrong. On VAT, the rate at ruling date was 14% but was temporary; since the Applicants had not paid, VAT would be payable at the prevailing 16% rate. The bill was remitted for reassessment of instruction fees.
Legal principles established
#- A taxing officer has power to determine all issues, factual and legal, arising out of or connected with a bill of costs, including retainer, unless the parties agree under paragraph 12 of the Remuneration Order to refer an issue to the court; an aggrieved party may then file a reference under paragraph 11.
- A retainer need not be in writing; it may be oral or inferred from the conduct of the parties.
- A court will not interfere with a taxing officer's decision unless an error of principle or manifest excess is shown; where an error of principle is found, the general practice is to remit quantum to the taxing officer.
- Instruction fees must be based on the value of the subject matter as ascertained from the pleadings or judgment; a valuation report produced in evidence may be considered but cannot form the basis of the assessment.
- Advocate/client privilege cannot be used by a client to bar an advocate from adducing correspondence exchanged with the client to prove a retainer.
Court orders
#- 1.The ruling of the taxing officer delivered on 29th September 2020 is reviewed and varied to the extent that the taxation of the item on instruction fees is set aside.
- 2.The Respondent's Advocate/Client Bill of Costs dated 18th May 2020 is remitted back to the taxing officer Hon. Diana Orago with directions that she assesses the instruction fees afresh on the basis that the value of the subject matter in ELC Suit No. 200 of 2008 cannot be ascertained from the pleadings or judgment of the court; parties at liberty to address the taxing officer during reassessment.
- 3.The taxing officer shall thereafter tabulate afresh the costs payable to the Respondent upon reassessment of the instruction fees, which will have effect on the ½ advocate/client costs added to party/party costs under Part B of the Remuneration Order and VAT payable.
- 4.Each party shall bear its own costs.
- Jurisdiction invoked
- Reference under paragraph 11 of the Advocates Remuneration Order against the taxing officer's ruling of 29th September 2020
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Twiga Chemical Industries Limited v Gichuki King’ara & Co. Advocates[2026] KECA 1784 (KLR)25 Sept 2026
Cite this brief
#Cite this brief
Caselaw, "Virginia Shaw & Co. Advocates v Minar Katherine Holroyd & another [2022] KEELC 1076 (KLR)", Case Analysis (2022). Not stated in the judgment (Reference against taxing officer's ruling; Chamber Summons dated 12th October 2020 and Notice of Motion dated 26th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1076/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.