Viscjhi & another v Mulewa & others (Environment and Land Case 210 of 2017) [2026] KEELC 879 (KLR)
The bottom line
#A Malindi court ruled that if you haven't formally filed to remove your advocate, you're still represented by them—even at taxation, even if they refuse service.
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 applicant's former advocates remained on record for purposes of service of the bill of costs and notice of taxation despite refusing service and filing no application to cease acting
- 2.Whether the Taxing Master erred by proceeding to tax the bill ex parte after the applicant's advocate declined service
- 3.Whether the applicant should be granted extension of time to object to the taxation and file a reference
- 4.Whether the Taxing Master erred in principle in assessing the instruction fee and getting up fees without first establishing a base instruction fee and taking into account the developments on the suit land
Key legal issues
#Service of the bill of costs where advocate refuses service but has not ceased acting
The Taxing Master did not err in proceeding with taxation ex parte
Article 50 guarantees a fair hearing, but the applicant's advocate on record was served with the bill and taxation notice and simply failed to attend. Under Order 9 Rule 5 CPR, an advocate who has not filed an application to cease acting remains on record until final conclusion of the matter, including post-judgment stages such as taxation. Rule 72 ARO contemplates service on the advocate on record, and lack of instructions is a private matter between counsel and client, not something the court or the opposing advocate can be expected to verify.
Error in principle in the assessment of instruction fees and getting up fees
The Taxing Master erred by considering only the value of the land (Kshs 95,000,000) while ignoring hotel structures on it, but the court nonetheless declined to interfere
The valuation report, commissioned by the applicant, valued only the land at Watamu and expressly excluded the developments thereon. Evidence showed a hotel on the land worth many times that figure. The existence of the hotel infrastructure suggests the instruction fee, and consequently the getting up fees, may have been higher had the Taxing Master established the base instruction fee with that factor in mind. Despite identifying this error, the court exercised its discretion not to disturb the taxation and dismissed the application.
Whether to extend time for filing the objection and reference
Extension of time would require great probability of merit; the court found the merits insufficient and dismissed the application
The court indicated that any extension of time would have to rest on great probability of merit in the substance of the application. The applicant attributed the delay to its former advocate's refusal of service and to late awareness of the demand letter. The court found service on the advocate effective under Order 9 Rule 5 CPR and Rule 72 ARO, and, having examined the taxation ruling, declined to enlarge time or interfere with the Taxing Master's discretion.
Legal principles established
#- Unless and until notice of change of advocate is filed and served, the former advocate remains the advocate of the party until final conclusion of the cause, including representation at taxation after judgment
- Lack of instructions is evidenced only by lodging an application to cease acting; the court cannot presume whether counsel has instructions
Court orders
#- 1.The entire application dated 22nd April 2025 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Deputy Registrar / Taxing Master (ELC, Malindi)
- Party and party bill of costs dated 6th August 2024
- Jurisdiction invoked
- Inherent jurisdiction to enlarge time and review/set aside taxation (Rule 72 and Paragraph 11 Advocates Remuneration Order; Order 50 Rule 6 Civil Procedure Rules)
Relief refused
#Enlargement of time to file notice of objection and reference to the taxed bill of costs
The applicant's advocate on record was deemed still on record under Order 9 Rule 5 CPR and was properly served; the Taxing Master did not err in proceeding ex parte
Setting aside/review of the ruling of 18th November 2024 and stay of execution of the certificate of costs
No execution had commenced and the Taxing Master's taxation was found not to have erred in principle on service; on merits the court declined to interfere
Remittal of the bill of costs for fresh taxation before a different Taxing Master
Though the Taxing Master erred in addressing only the land value without the buildings, the court nonetheless declined to interfere with the taxation
Costs
Application dismissed with no orders as to costs - each party to bear their own 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 upshot of the foregoing is that this court is of the view that it ought not interfere with the Taxing Master's decision and the entire application dated 22/4/25 is hereby dismissed with no orders as to costs.
In this court's considered view, representation at taxation must be deemed to be included in Order 9 Rule 5 as it falls between judgment and review or appeal if any is to be filed.
Evidence of lack of instructions is adduced by way of action-the lodging of an application to cease acting-and there was none in the present case.
The rules of natural justice reign supreme in our jurisprudence. The right to be heard in an impartial setting are guaranteed by Article 50 of the Constitution.
It cannot be stated categorically that the Taxing Master considered that evidence from the proceedings and the valuation report.
Issues in the judgment
#Internal inconsistency in the merits analysis: the court identifies an error by the Taxing Master in ignoring the value of hotel structures on the suit land, yet still declines to interfere with the taxation
Conflicting dates given for the demand letter the applicant allegedly received (dated 31st January 2025 in the replying affidavit narrative, referred to elsewhere as dated 1st January 2025)
Inconsistent reference to the 7th respondent in the replying affidavit narrative ('the 7th respondent herein was issued with a notice of taxation') where the notice of taxation should have issued to the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Viscjhi & another v Mulewa & others (Environment and Land Case 210 of 2017) [2026] KEELC 879 (KLR)", Case Analysis (2026). Chamber Summons dated 22nd April 2025 (ELC, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/879/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.