Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedChamber summons dated 02.09.2024 (Reference under Paragraph 11 of the Advocates Remuneration Order)· [2025] KEELC 4281 (KLR)

Mwaniki Gitahi t/a Mwaniki Gitahi & Partners Advocates v Thuku & 2 others (Miscellaneous Application E025 of 2024) [2025] KEELC 4281 (KLR)

High Court of Kenya
5 June 2025
YAY. M. Angima
1,404 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed that directors who hire lawyers for their companies are not personally liable for the legal fees unless personally instructed.

What this practically means

#

Executive summary

#
The 3rd respondent, Michael Mulwa, filed a reference under Paragraph 11 of the Advocates Remuneration Order challenging the taxing officer's decision of 21.08.2024 taxing the applicant advocate's bill of costs dated 06.05.2024 against him personally. He argued he was not a party to Mombasa ELC 390 of 2010, in which the legal services were rendered to Swiftway Enterprises Ltd, and that no advocate-client relationship existed between him and the advocate. The applicant, through Mwaniki Gitahi, contended that the 3rd respondent personally approached the firm, gave a witness statement, gave evidence at trial and partly paid fees via mpesa, establishing a personal advocate-client relationship. The advocate also filed a preliminary objection under Rule 11 but never prosecuted it. The sole issue was whether an advocate-client relationship existed between the applicant and the 3rd respondent and whether the taxing officer erred in not determining it. Applying Wilfred Konosi v Flamco Limited, the court held that the advocate-client relationship is a condition precedent to taxation and confers jurisdiction on the taxing officer. It found that a director or agent engaging counsel for a company does not thereby become personally liable, and that the taxing officer misapprehended the bill as a party and party bill anchored in a costs award. The reference was allowed; the taxing officer's decision as against the 3rd respondent was set aside in its entirety, with each party bearing its own costs of the reference.

Key legal issues

#
01

Existence of advocate-client relationship between the applicant and the 3rd respondent

Holding

No advocate-client relationship existed between the applicant and the 3rd respondent; the relationship was with Swiftway Enterprises Ltd.

Reasoning

It is common ground the bill related to services rendered to Swiftway Enterprises Ltd in ELC No. 390 of 2010, in which the 3rd respondent was not a defendant. A company being a legal abstraction acts through natural persons, so a director or agent engaging a law firm for the company does not personally instruct the advocate. Payment via mpesa and correspondence must be construed in that context. Being a witness for the company does not make one liable for legal fees.

p. 2
02

Jurisdiction of the taxing officer

Holding

The taxing officer lacked jurisdiction to tax the advocate-client bill without first establishing the advocate-client relationship, and misapprehended the nature of the bill as party and party.

Reasoning

Relying on Wilfred Konosi v Flamco Limited, the advocate-client relationship is a condition precedent to taxation and confers jurisdiction on the taxing officer. The taxing officer treated the bill as if anchored in an award of party and party costs, but the bill was an advocate-client bill not anchored in any such award, so he proceeded on a misapprehension.

p. 3

Legal principles established

#
  • The existence of an advocate-client relationship is a condition precedent to taxation of an advocate-client bill of costs, and the taxing officer must first ascertain it before taxing.
  • A director or agent who engages a law firm on behalf of a company does not automatically become personally liable in an advocate-client relationship; the relationship lies with the company.

Court orders

#
  1. 1.The decision of the taxing officer dated 21.08.2024 as relates to the 3rd respondent is set aside in its entirety
  2. 2.Each party shall bear its own costs of the reference

Authorities

#

Legislation

  • Advocates Remuneration OrderParagraph 11; Rule 11
  • Advocates Actnull

Cases cited (2)

  • Wilfred Konosi v Flamco Limited
    [2017] eKLR
  • Taparn v Roitei
    [1968] EA 618
Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mwaniki Gitahi t/a Mwaniki Gitahi & Partners Advocates v Thuku & 2 others (Miscellaneous Application E025 of 2024) [2025] KEELC 4281 (KLR)", Case Analysis (2025). Chamber summons dated 02.09.2024 (Reference under Paragraph 11 of the Advocates Remuneration Order). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4281/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.