KTK Advocates v Nairobi County Government (Miscellaneous Cause E056 of 2020) [2024] KEELC 5467 (KLR)

The court reasoned that Rule 11 of the Advocates (Remuneration) Order grants the High Court jurisdiction over references and extension-of-time applications, but the Constitution 2010 created the ELC and ELRC as courts of equal status to the High Court. Relying on Monyo & 2 Others v Ngige, the court held the Advocates Act's definition of 'the court' must be construed with adaptations to conform with the Constitution, vesting jurisdiction in the ELC judge where taxation arose from an ELC suit.

The court perused the Plaint and found paragraph 9 pleaded the market value of the suit land at Kshs 61,500,000,000 as the alternative to delivery of vacant possession. No document from the original file challenged that value or gave an alternative value. The applicant also failed to submit that, if the value used was correct, the amount taxed was outside the Remuneration Order. The taxing master's discretion was therefore properly exercised.

The court noted the taxing master's ruling had already found no retainer agreement was proved other than an unsigned letter of 21.6.2016. Both alleged agreement letters emanated from the advocate alone, with no letter from the client confirming receipt or agreement. A section 45 agreement requires a signed document. Further, relying on Otieno Ragot, new evidence cannot be admitted on a reference unless it was before the taxing officer, and the fee-agreement issue was never raised before taxation.

The applicant invited the court to re-assess or re-tax the bill afresh. The court found no proof warranting re-taxation. The documents evidencing payments towards the advocate's fees were not aimed at disputing the taxation but at reducing the taxed amount by amounts already paid. Citing Otieno Ragot, the court reiterated it cannot admit new evidence not tendered before the taxing master and that discretion must be exercised judiciously within the parameters of the law.