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ELCAllowedNot stated in the judgment extract· [2026] KEELC 4844 (KLR)

M. F. Khatib t/a Khatib & Company Advocates v Mbaruk (Environment and Land Miscellaneous Case E004 of 2025) [2026] KEELC 4844 (KLR)

Environment and Land Court
16 February 2026
AOAntony O. Ombwayo
668 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant advocate filed a bill of costs against the respondent for legal fees arising from representation in a land sale transaction involving plots on title No. 1895/I/MN, with the last sale on 14/6/2018. In a replying affidavit dated 14/04/2025, the respondent raised two preliminary issues: limitation of time (contending that legal fees must be recovered within six years) and the existence of a retainer agreement. The taxing officer, by ruling of 28/1/2026, directed that these issues be determined by the court, and on 16/2/2026 the court called for submissions. The applicant submitted that the work was continuous in nature, to be concluded by delivery of the title deed and signing of the discharge form, and relied on Abicha & Company Advocates v Trident Insurance, Mbugua & Mbugua Advocates v Kenindia Assurance, Akide & Company Advocates v Kenindia Assurance, and Wakini Kiarie & Company Advocates v Kenya Orient Insurance to argue that limitation runs from the last service delivered or termination of the retainer. He maintained that he still held the original ownership documents, that no proof of termination of the retainer was exhibited, and that the claim was therefore within time. The respondent filed no submissions. Justice Antony O. Ombwayo held that the respondent had neither demonstrated that the claim was time barred nor shown when the retainer was terminated; the cause of action accrues when the last transaction is carried out, and the claim was accordingly found not time barred, with the retainer proved.

Key legal issues

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01

Limitation of time in recovery of advocates' fees for continuous work

Holding

The claim is not time barred; limitation had not begun to run as the last transaction and termination of retainer were not demonstrated

Reasoning

The court applied the last service/last transaction rule. In continuous work, time begins to run from the last service delivered or termination of the retainer. The respondent did not demonstrate when the last transaction occurred or when the retainer was terminated, and the applicant still held the original ownership documents, indicating the retainer had not been conclusively ended.

p. 2
02

Existence and termination of retainer

Holding

Retainer was proved; the respondent failed to show when and how it was terminated

Reasoning

The sale agreements subject of the bill of costs were drawn and witnessed by the applicant with the respondent as seller, establishing retainer. The respondent alleged verbal termination but attached no proof of termination to the replying affidavit, so could not establish that the six-year limitation period had commenced.

p. 2

Legal principles established

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  • The cause of action for recovery of advocates' fees accrues when the last transaction in continuous work is carried out, and limitation does not begin to run until termination of the retainer is demonstrated

Court orders

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  1. 1.The court found that the claim is not time barred
  2. 2.The issues of limitation of time and retainer were determined in favour of the applicant

Authorities

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Legislation

  • Limitation of Actions Act (implied - six year recovery period for legal fees)Not specifically cited in the extract

Cases cited (4)

  • Abicha & Company Advocates v Trident Insurance Company Limited
    (2013)
  • Mbugua & Mbugua Advocates v Kenindia Assurance Company Limited
    (2015) KEHC 7465 (KLR)
  • Akide & Company Advocates v Kenindia Assurance & Company Limited
  • Wakini Kiarie & Company Advocates v Kenya Orient Insurance
    (2021) KLR
Jurisdiction invoked
Reference from the taxing officer under the Advocates Act on preliminary issues of limitation and retainer referred to the Court

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, "M. F. Khatib t/a Khatib & Company Advocates v Mbaruk (Environment and Land Miscellaneous Case E004 of 2025) [2026] KEELC 4844 (KLR)", Case Analysis (2026). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4844/eng@2026-07-27

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