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ELRCPartially AllowedMiscellaneous Application No. E135 of 2021· [2025] KEELRC 1447 (KLR)

Boniface Masinde & Company Advocates v Guaranty Trust Bank (Kenya) Limited (Miscellaneous Application E135 of 2021) [2025] KEELRC 1447 (KLR)

Employment and Labour Relations Court
22 May 2025
CBC. N. Baari
2,007 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a Kshs. 6.5 million advocate fee assessment because the Taxing Officer guessed the case value and ignored the fee rules, and sent the bill for fresh taxation.

What this practically means

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Executive summary

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This ruling determines a reference brought by the Client/Applicant under Rule 11(2) of the Advocates Remuneration Order, challenging the Taxing Officer's decision of 8th July 2024 on a bill of costs dated 29th July 2021 taxed at Kshs. 6,563,197. The Applicant sought a declaration that there was an agreement on fees at Kshs. 500,000/- (which would oust the Taxing Officer's jurisdiction), striking out of the bill, in the alternative setting aside of the taxation, remittal to a different Taxing Officer, and costs. The Advocate/Respondent opposed, contending that the correspondences relied on did not constitute a signed retainer agreement, that the purported agreement conflicted with Section 46(d) of the Advocates Act and was vitiated by coercion and undercutting contrary to Section 36, and that the taxing master exercised discretion properly. The court, applying the principles in Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board and Premchand Raichand Ltd vs Quarry Services of East Africa Ltd, held that although there was a retainer in the sense of instructions to act, the correspondences did not constitute a retainer agreement on remuneration under Section 45 of the Advocates Act, upholding the Taxing Master on that issue. However, the court found the Taxing Officer erred in principle by failing to consider the relevant Remuneration Order, failing to interrogate contested items, failing to give reasons, and assessing the subject matter on a speculative claim of Kshs. 57,979,165, producing a manifestly extravagant quantum. The reference was found merited in part: the taxation decision was set aside and the bill remitted for re-taxation before a different Taxing Officer other than Hon. D. Mbeja, with no orders on costs.

Key legal issues

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01

Whether there was a retainer agreement on remuneration between the parties

Holding

There was a retainer (instructions to act) but no retainer agreement on fees under Section 45 of the Advocates Act; correspondence without signatures does not constitute such an agreement

Reasoning

The court distinguished between a retainer (existence of instructions) and a retainer agreement on fees. It found the series of correspondences relied on by the Applicant did not amount to a fee agreement, upholding the Taxing Master's finding that no agreement on remuneration was entered into.

p. 4
02

Whether the Taxing Master committed an error of principle

Holding

Yes - the Taxing Officer failed to consider the relevant Advocates (Remuneration) Order, did not interrogate contested items, gave no reasons, and based the assessment on a speculative subject matter, producing a manifestly extravagant quantum

Reasoning

The court found the Taxing Officer made an omnibus determination without interrogating contested items or assigning reasons. The inclusion of Kshs. 57,979,165 as the value of the subject matter was speculative, resulting in an assessment that was manifestly extravagant, warranting interference on reference.

p. 4

Legal principles established

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  • On a reference from taxation, a judge will not normally interfere with the taxing officer's discretion unless the taxing officer erred in principle
  • If the quantum of an assessment is manifestly extravagant, a misdirection of principle may be a necessary inference
  • A retainer agreement on remuneration under Section 45 of the Advocates Act is not established by mere correspondence

Court orders

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  1. 1.An order setting aside the Learned Taxing Officer's decision of 8th July 2024 taxing the bill of costs dated 29th July 2021
  2. 2.The bill of costs dated 29th July 2021 remitted for re-taxation before a different Taxing Officer other than Hon. D. Mbeja
  3. 3.No orders on costs

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(2)
  • Advocates ActSection 45
  • Advocates ActSection 46(d)
  • Advocates ActSection 36
  • Employment ActSection 49
  • Advocates Remuneration (Amendment) OrderApplicable Schedule

Cases cited (2)

  • Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board Nairobi
    [2005] eKLR
  • Premchand Raichand Ltd Another -Vs- Quarry services of East Africa Ltd and Another
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order

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, "Boniface Masinde & Company Advocates v Guaranty Trust Bank (Kenya) Limited (Miscellaneous Application E135 of 2021) [2025] KEELRC 1447 (KLR)", Case Analysis (2025). Miscellaneous Application No. E135 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1447/eng@2025-05-22

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