Tindika t/a Tindika & Company, Advocates v Kazungu
The bottom line
#A Kenyan court upheld a Kshs 1.18 million fee award against a client who denied hiring the lawyer, confirming that a retainer can be proven from conduct.
What this practically means
#Executive summary
#Key legal issues
#Competence of the Reference under Paragraph 11(1)
The Reference is competent only as to the retainer ground; the item-by-item complaints fall outside its proper scope.
The 11th March 2026 ruling only extended time and did not pronounce on competence. The notice of 28th April 2025 stated a specific ground - no retainer - which, if made good, defeats every item, so it sufficed as an objection to all items. The item-by-item complaints were never raised in the notice, so the taxing officer was never asked for reasons on them; entertaining them would defeat Paragraph 11(1).
Existence of a retainer
A retainer existed in respect of both CMCELC No. 8 of 2019 and Miscellaneous Application No. 18 of 2019.
The advocate discharged the burden with documents: a Memorandum of Appearance, Notice of Preliminary Objection, Notice of Appointment and Grounds of Opposition filed in the client's name, plus a court ruling recording the firm as appearing for the respondent. The client offered only a bare denial, no explanation, and his own 2021 affidavit referred to 'my Advocate Mr. R. M. Tindika'.
Error in principle in taxation
No error of principle; the correct schedule (Schedule 7) was applied and value taken from the settlement at Kshs. 20,000,000.00.
Schedule 7 governs subordinate court proceedings and CMCELC No. 8 of 2019 was a magistrate's court suit, so Schedule 6 was inapplicable. Value came from the settlement as found by Nyakundi J. The Kshs. 22,000,000.00 complaint was self-defeating since a higher value would increase the fee. Individual items were taxed off or down consistently with the applicable schedules; service charges and undated post-bill items raised no error of principle.
Legal principles established
#- A judge on a reference does not re-tax a bill; the court interferes only where the taxing officer erred in principle or the fee is manifestly excessive or inadequate so as to suggest error of principle.
- A notice of objection that states a ground defeating every item in the bill is necessarily an objection to all items; the objector need not list each item.
- A retainer need not be in writing; it may be inferred from conduct, but where the only evidence is the advocate's word against the client's contradiction, the advocate is treated as having acted without authority.
- The burden of proving a retainer lies on the advocate.
- The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; only if none discloses it may the taxing officer assess at discretion.
Court orders
#- 1.The Chamber Summons dated 31st March, 2026 is dismissed.
- 2.The ruling of the Taxing Officer delivered on 8th April, 2025 is upheld; the Certificate of Costs dated 14th April, 2025 certifying Kshs. 1,182,481.60 stands.
- 3.The temporary stay of execution granted on 11th March, 2026 is discharged.
- 4.The stay of the Advocate's Notice of Motion dated 18th July, 2025 is lifted.
- 5.The costs of the Reference and of the Chamber Summons dated 23rd June, 2025 are awarded to the Advocate/Respondent.
- Jurisdiction invoked
- Paragraph 11 of the Advocates (Remuneration) Order, pursuant to leave granted by the Court on 11th March 2026; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tindika t/a Tindika & Company, Advocates v Kazungu", Case Analysis (2026). Environment and Land Miscellaneous Case E046 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6307/eng@2026-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.