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ELCPartially AllowedNotice of Motion dated 31st October 2025 (in Kapsabet ELC No. E004 of 2023)· [2026] KEELC 340 (KLR)

Kirui t/a Cheruiyot Kirui & Company Advocates v Limo & another (Environment and Land Miscellaneous Application E034 of 2025) [2026] KEELC 340 (KLR)

Environment and Land Court of Kenya
27 January 2026
1,015 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a lawyer to tax legal fees against a client's estate because an unsigned retainer agreement and unproven payment claims could not stop the claim.

What this practically means

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Executive summary

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The applicant, an advocate trading as Cheruiyot Kirui and Company Advocates, moved the court by Notice of Motion dated 31st October 2025 seeking leave to tax a client bill of costs for legal services rendered in Kapsabet ELC No. E004 of 2023, plus costs of the application. The application was supported by an affidavit of the advocate and opposed by two replying affidavits sworn by the respondents, who asserted that a retainer agreement (BKL 1) existed, that they had paid Kshs 59,000/- in legal fees, and that a related appeal, Eldoret ELCA No. E062 of 2025, was pending; they urged dismissal on the ground that costs had already been taxed and that allowing the claim would amount to double payment. In submissions, the applicant relied on Rachier & Amollo LLP v Kenya Bureau of Standards and sections 45, 46 and 47(1) of the Advocates Act, contending that the alleged fee agreement did not qualify as a valid retainer. The court, citing Omulele & Tollo Advocates v Mount Kenya Holdings Ltd on proof of retainer, Gichuki Kingara v Mugoya Construction on the duration of a retainer, and Commercial Bank of Africa v Lalji Karasn Rubadi (Odunga J) on the rationale of end-of-trial taxation, found that the work had been completed, that the alleged retainer was unsigned by the applicant and thus no bar, and that the respondents had failed to prove their allegations, having not availed the documents referred to, per sections 107 to 112 of the Civil Procedure Act. The court allowed the application in terms of the principal prayer, with costs in the cause, and ordered accordingly.

Key legal issues

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01

Whether an advocate who has completed the work may pursue taxation of a client bill of costs despite an alleged unsigned retainer agreement

Holding

Yes; the alleged retainer (BKL 1) was signed only by the respondents and not by the applicant, so it was not a bar to the taxation application

Reasoning

The court accepted the Court of Appeal position in Omulele & Tollo on proof of retainer and the Gichuki Kingara principle that a retainer lasts until completion of the work. Since the work in the underlying suit was completed, the applicant became entitled to tax the bill. The respondents failed to prove the alleged agreement or payment because the documents referred to (BKL 1 and BKL 2) were either not produced or unsigned by the applicant.

p. 3
02

Whether the respondents discharged their burden of proving payment of legal fees and the pendency of an appeal

Holding

No; the respondents did not avail the documents relied upon to prove their allegations

Reasoning

The respondents asserted that they paid Kshs 59,000/- in legal fees and that a related appeal was pending (Eldoret ELCA No. E062 of 2025), but failed to annex or avail the document (BKL 2) referred to in their replying affidavit. The court applied sections 107 to 112 of the Civil Procedure Act on the burden of proof and found the assertions unproven.

p. 3

Legal principles established

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  • A retainer agreement lasts until the work is done, and an advocate should complete the work and then tax the bill of costs
  • The rationale for taxing costs at the end of the trial is to avoid multiplicity of proceedings in the form of taxation which may lead to references

Court orders

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  1. 1.That the firm of Cheruiyot Kirui & Company Advocates be allowed to tax their client bill of costs in Kapsabet ELC No. E004 of 2023 Jane Jepkemboi & Bethwell Kibichii Limo v Julius Kipkemboi (Suing as the administrator of the Estate of Kibet Arap Ngisirei – Deceased) as per the annexed Bill
  2. 2.Costs of the application to be in the cause
Jurisdiction invoked
Inherent jurisdiction to order taxation of an advocate-client bill of costs under sections 45, 46 and 47(1) of the Advocates Act (invoked by the applicant)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kirui t/a Cheruiyot Kirui & Company Advocates v Limo & another (Environment and Land Miscellaneous Application E034 of 2025) [2026] KEELC 340 (KLR)", Case Analysis (2026). Notice of Motion dated 31st October 2025 (in Kapsabet ELC No. E004 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/340/eng@2026-01-27

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