Muri Mwaniki & Wamiti Advocates v Caritas Mariana Holy Family Children’s Home (Miscellaneous Application 74 of 2017) [2025] KEELC 4240 (KLR)
The bottom line
#The High Court in Thika ruled a law firm cannot bill a borrower for legal fees when the bank, not the borrower, instructed the advocate.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Application (Reference) seeking to set aside the Taxing Officer's ruling is merited
Key legal issues
#Whether the Taxing Officer erred in law and in principle in dismissing the Applicant's Bill of Costs
The court found no misdirection in the Taxing Officer's ruling. The instructing client was Ecobank, not the Respondent, and the Letter of Offer provided that legal fees would be recovered by debiting the borrower's account by the bank, not paid directly to the Advocate.
Item 1 of the Bill of Costs expressly referred to receiving instructions from a Bank to prepare, register and perfect a charge. The court held that the Letter of Offer is exclusively between Ecobank and the Respondent and does not provide for the Advocate to recover directly from the Borrower. The existence of an Advocate-Client relationship gives jurisdiction to the Taxing Master, and in its absence the Taxing Officer lacks jurisdiction. The Applicant bore the burden of proving the retainer and failed.
Whether an implied retainer arose from the Respondent's conduct in the securitization process
No implied retainer arose. The court held that for a retainer agreement under Section 45 of the Advocates Act to exist, the terms must be in writing and signed by the Client.
The court cited Omulele & Tollo Advocates v Mount Holdings Limited where the Court of Appeal held that for a retainer agreement to exist, the terms must have been reduced into writing. The court found that he who alleges must prove, and the Applicant, who sought to recover an Advocate/Client Bill of Costs, was obliged to prove the existence of such a relationship but failed to do so.
Whether the Respondent qualified as a 'Client' under Section 2 of the Advocates Act as a person who may be liable to pay an Advocate any costs
The court found that the Letter of Offer provided that legal fees are recoverable on demand by the lender from the borrower, not payable directly to the Advocate, so the Respondent did not become the Advocate's client by that route.
The court analysed Section 2 of the Advocates Act and found the definition apt in two aspects: the undisputed relationship between the Applicant and Ecobank, and the scenario contemplated by the Applicant with the Respondent as a potential client liable to pay costs. However, the court concluded the Letter of Offer's legal charges clause shows fees are incurred by the lender and recovered from the borrower's account, with no provision for the Advocate to recover directly from the borrower.
Legal principles established
#- A Taxing Officer's decision can only be interfered with where there is an error of principle or where the fees awarded are manifestly excessive as to justify an inference of error of principle
- Existence of an Advocate-Client relationship is central as it gives jurisdiction to the Taxing Master to entertain a Bill of Costs
- There is no privity of contract between a borrower and an Advocate instructed by the bank; the instructing client is the bank
Court orders
#- 1.The Reference is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Paragraph 11(1) & (2) of the Advocates Remuneration Order
Relief refused
#Setting aside the ruling of the Deputy Registrar delivered on 7/03/2019 and any resultant Certificate of Taxation
The court found no misdirection in the Taxing Officer's ruling; instructions came from Ecobank, not the Respondent, and no privity of contract existed between the borrower and the Advocate instructed by the bank
Taxing the Bill of Costs dated 13/10/2017 or remitting it to another Taxing Officer
The Application was found to be bereft of merit as the Applicant failed to prove an Advocate-Client relationship with the Respondent
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The reference is bereft of merit and it is dismissed with no orders as to costs.
Absent such relationship, the Taxing Oficer would be bereft of jurisdiction to tax a bill.
there exists no privity of contract between a borrower and an Advocate for the bank.
The Applicant sought to recover Advocate/Client Bill of Cost and was obliged to prove existence of such a relationship to give rise to the retainer. The Applicant failed to do so.
I therefore find no misdirection on the Taxing Oficer’s Ruling and final orders.
Issues in the judgment
#Internal inconsistency in dates: the ruling of the Taxing Officer is described as delivered on 7/03/2019 in the prayers but also as 'dated 3/03/2021'
The Bill of Costs is variously dated 13/10/2017 and referred to as 13th October 2019 and 18th October 2017 in the parties' submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muri Mwaniki & Wamiti Advocates v Caritas Mariana Holy Family Children’s Home (Miscellaneous Application 74 of 2017) [2025] KEELC 4240 (KLR)", Case Analysis (2025). Chamber Summons dated 12/8/2021 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4240/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.