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ELCDismissedEnvironment and Land Miscellaneous Case E046 of 2024· [2026] KEELC 6307 (KLR)

Tindika t/a Tindika & Company, Advocates v Kazungu

Environment and Land Court
8 October 2026
3,731 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Client, Mike Kaingu Kazungu, brought a Chamber Summons under Paragraph 11 of the Advocates (Remuneration) Order seeking to set aside a taxation ruling of 8th April 2025 in which the Taxing Officer taxed the Advocate's Advocate/Client Bill of Costs at Kshs. 1,182,481.60, and to have the Bill remitted for re-taxation before a different taxing officer, with a stay of execution. The Client's primary ground was that no retainer existed; alternatively, that the Taxing Officer erred in principle on the scale applied, the property value used, various individual items, service charges and undated items. The Advocate maintained the Reference was incompetent for want of a compliant notice of objection, that a retainer was inferable from conduct, and that no error of principle was shown. The court framed four issues. It held the Reference competent only as to the retainer ground, since the notice of 28th April 2025 stated a ground defeating every item; the item-by-item complaints fell outside the notice and thus outside the Reference's proper scope. On the evidence - pleadings, a Memorandum of Appearance, Notices and a court ruling recording the firm as acting for the Client - the court found a retainer existed in both matters. On taxation, it held Schedule 7 was the correct scale for the magistrate's court suit, the value of Kshs. 20,000,000.00 was properly drawn from the settlement, and no error of principle or manifest excessiveness was demonstrated. The Reference was dismissed, the taxation upheld, the interim stays discharged or lifted, and costs of the Reference and the earlier Chamber Summons awarded to the Advocate/Respondent.

Key legal issues

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01

Competence of the Reference under Paragraph 11(1)

Holding

The Reference is competent only as to the retainer ground; the item-by-item complaints fall outside its proper scope.

Reasoning

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).

p. 5
02

Existence of a retainer

Holding

A retainer existed in respect of both CMCELC No. 8 of 2019 and Miscellaneous Application No. 18 of 2019.

Reasoning

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'.

p. 6
03

Error in principle in taxation

Holding

No error of principle; the correct schedule (Schedule 7) was applied and value taken from the settlement at Kshs. 20,000,000.00.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Chamber Summons dated 31st March, 2026 is dismissed.
  2. 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. 3.The temporary stay of execution granted on 11th March, 2026 is discharged.
  4. 4.The stay of the Advocate's Notice of Motion dated 18th July, 2025 is lifted.
  5. 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

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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, "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.