Gatheru Gathemia T/A Gatheru Gathemia & Company Advocates v Abdul Waheed Sheikh and Abdul Hammed Sheikh as Trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust
The bottom line
#A Kenyan court ruled that an advocate who accepted Ksh 19 million in agreed periodic fees cannot demand more through taxation.
What this practically means
#Executive summary
#Key legal issues
#Existence of a retainer agreement under section 45 of the Advocates Act
The court found that the parties had a retainer agreement acted upon, with periodic payments of about Ksh 19 million, which ousted the taxing master's jurisdiction
The court examined annexed correspondence, invoices, receipts and acknowledgements showing monthly fee payments accepted by the advocate. Applying section 45 and case law on retainers, it concluded the parties' conduct and communications evidenced a binding remuneration agreement, substantially complied with by the client, so the advocate could not pursue additional fees through taxation.
Whether the taxing master erred in principle
No misdirection or error of principle was found; the taxing master's ruling was affirmed
The court applied the principle that interference is warranted only for an error of principle or where the fee is manifestly excessive or low. It found the taxing master carefully considered the material on intention, conduct and meeting of minds, and correctly found a retainer agreement existed with payments toward its fulfilment.
Estoppel of the advocate from claiming additional fees
The advocate was estopped from pursuing additional fees through taxation after accepting periodic payments
Having negotiated, accepted and received payments on an almost monthly basis to the tune of admitted Ksh 19 million, the advocate could not revert to taxation for more. The court held that courts cannot aid a party to escape a bad bargain and parties are bound by their contracts.
Legal principles established
#- A party aggrieved by a taxing master's decision must file a reference under paragraph 11 of the Advocates Remuneration Order within 14 days of receiving reasons
- An agreement fixing an advocate's remuneration is only binding where it is in writing and signed by the client or his authorised agent
- A judge on a reference will not interfere with a taxing master's exercise of discretion unless there is an error of principle
- The burden of proving the existence of a retainer lies on the party wishing to enforce it
Court orders
#- 1.The taxing master's ruling delivered on 21.4.2026 is affirmed
- 2.The reference and the application dated 5.5.2026 are dismissed with costs
- Jurisdiction invoked
- Paragraph 11 of the Advocates Remuneration Order (reference against a taxing master's decision on an Advocate/Client bill of costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatheru Gathemia T/A Gatheru Gathemia & Company Advocates v Abdul Waheed Sheikh and Abdul Hammed Sheikh as Trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust", Case Analysis (2026). Miscellaneous Application No. E187 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6245/eng@2026-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.