Olendo t/a Olendo, Orare & Samba Company Advocates v Kenindia Assurance Company Limited (Miscellaneous Application E016 of 2022) [2025] KEELRC 1002 (KLR)
The bottom line
#A Kenyan court threw out an advocate's fee award because the taxing officer never first decided whether a lawyer-client relationship actually existed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Taxing Master over disputed retainer
The Taxing Officer has jurisdiction to determine whether an advocate/client relationship exists and must determine it as a preliminary issue; failure to do so is an error of principle vitiating the taxation
Relying on the Court of Appeal in Konosi v Flamco and Kitatel Kachapin, the court held that the jurisdiction to determine retainer is conferred on the Taxing Officer by the Advocates Act and the Advocates Remuneration Order. Where want of advocate/client relationship is raised, it must be determined at once; a taxation in the absence of such relationship would be a nullity. The Taxing Officer here neither addressed nor determined the retainer question despite it being vociferously contested, which was a fundamental omission amounting to an error of principle.
Furnishing of reasons under Rule 11(2)
The taxing officer was obliged to furnish reasons for the objected items since they were not all contained in the ruling
Rule 11(2) is mandatory, though authority holds that reasons need not be separately furnished if already part of the ruling (Ahmed Nasir v National Bank of Kenya). Here the taxing officer did not provide reasons for all items in the ruling, so they ought to have been furnished to the objector. The absence of reasons compounded the errors of principle and justified interference.
Whether the taxation should be interfered with
Yes - the failure to determine retainer as a preliminary issue, plus contested items and missing reasons, amounted to errors of principle warranting setting aside and reassessment
Applying the settled principles in Donholm Rahisi Stores, Ex Parte Muchiri W. Njuguna and Kipkorir, Tito & Kiara, the court found the omission on the retainer question to be a fundamental error of principle that vitiated the assessment. Various items were also contested, some by both counsels, and no reasons were given for most items. The reference was therefore merited and the ruling set aside, with the bill remitted to a different taxing officer.
Legal principles established
#- A Taxing Officer has jurisdiction to determine whether an advocate/client relationship exists, and must do so as a preliminary issue when retainer is disputed
- A court will interfere with a taxing officer's decision only where an error of principle is shown or the award is manifestly excessive or so low as to amount to an injustice
- Rule 11(2) of the Advocates Remuneration Order is mandatory and the taxing officer must furnish reasons for the decision on objected items
Court orders
#- 1.The Applicant's Chamber Summons dated 15th May, 2023 is merited and is allowed
- 2.The Ruling of the taxing officer dated 26th April, 2023 be and is hereby set aside
- 3.The Bill of costs dated 20th January, 2022 be and is hereby remitted for assessment by a taxing officer other than Beryl M. A. Omollo
- 4.Parties shall bear their own costs
- Jurisdiction invoked
- Rule 11 of the Advocates (Remuneration) Order, 2014 - reference to a Judge from the decision of a Taxing Officer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olendo t/a Olendo, Orare & Samba Company Advocates v Kenindia Assurance Company Limited (Miscellaneous Application E016 of 2022) [2025] KEELRC 1002 (KLR)", Case Analysis (2025). Misc Application No E016 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1002/eng@2025-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.