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ELRCDismissedApplication dated 13 December 2024 (Advocate-Client Reference)· [2025] KEELRC 1943 (KLR)

Chepkwony & Associates Advocates v Cathmed Limited (Miscellaneous Application E010 of 2024) [2025] KEELRC 1943 (KLR)

High Court of Kenya
30 June 2025
1,438 words in judgment
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The bottom line

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Kenya's High Court dismissed an advocate's fee challenge because contradictory dates made the court record unreliable, confirming that written fee agreements are mandatory.

What this practically means

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Executive summary

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The applicant advocate, instructed to defend the respondent in Malindi ELRC Cause No. E003 of 2024, filed an application dated 13 December 2024 under articles 47, 50 and 159 of the Constitution and Rule 11(2) of the Advocates Remuneration Order, seeking to set aside the Deputy Registrar's ruling of 10 December 2024, which taxed her Advocate-Client Bill of Costs at Kshs. 430,000 - an amount already paid by the respondent. She contended that the taxing officer erred in finding an oral agreement on fees, since section 45(1) of the Advocates Act requires any fee agreement to be in writing and signed by the client, and that the scale fees under Schedule VI of the Advocates (Remuneration) (Amendment) Order should have applied. The respondent, through its director Marco Bononcini, maintained that it paid Kshs. 430,000 pursuant to the applicant's own requisition notes, that the parties agreed this settled the fees, and that the bill was baseless as instructions were withdrawn before the matter was set down for hearing. The court did not reach the merits of the taxation. Instead, it identified irreconcilable inconsistencies in the record: the Notice of Change of Advocates, dated 22 July 2023, was filed on 17 December 2024 yet allegedly served on 31 July 2024 and received on 13 December 2024; the ruling of 10 December 2024 predated events it purported to address; and the demand letter and bill of costs bore impossible dates. Holding that such errors should be rare in fee matters and that Article 159 could not cure them, the court dismissed the application with costs to the respondent and directed the parties to revert to the trial court.

Key legal issues

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01

Validity of an oral fee agreement under section 45 of the Advocates Act

Holding

The applicant argued (and the authorities cited support) that a fee agreement under section 45 must be in writing; absent a written agreement the Advocates Remuneration Order scale fees apply. However, the court did not reach the merits.

Reasoning

The applicant relied on Ahmednasir Abdikadir & Company Advocates v National Bank of Kenya Ltd and Kkuta Maimai Hamisi Peris Pesi Tobiko v IEBC to submit that a section 45 agreement must be written and signed by the client. The respondent countered that the parties agreed the fees paid settled the matter, relying on Otieno Ragot & Company Advocates v Kenya Airports Authority. The court found the record so inconsistent that the reference could not be determined on its merits.

p. 2
02

Effect of irreconcilable dates and inconsistencies on the face of the record

Holding

The dates in the record were internally contradictory - the Notice of Change of Advocates was said to be dated 22 July 2023, filed 17 December 2024, yet served 31 July 2024 and received 13 December 2024, and a ruling was delivered on events said to occur after it. The application was therefore dismissed.

Reasoning

The court catalogued the contradictions: the Notice of Change of Advocates could not have been served before it was filed, and the ruling of 10 December 2024 related to events 'not yet achieved'. The demand letter and bill of costs likewise contained chronologically impossible dates. The court held that such errors 'should be rare' in matters arising from professional attendance, and Article 159 could not salvage the application.

p. 3

Legal principles established

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  • A valid agreement fixing an advocate's remuneration under section 45(1) of the Advocates Act must be in writing and signed by the client
  • A reference from taxation cannot be sustained where the record itself contains material inconsistencies; procedural latitude cannot cure an incoherent record
  • Instructions to an advocate cannot logically post-date the filing of documents in court on the strength of those instructions

Court orders

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  1. 1.Parties shall revert to the trial court and address the matter
  2. 2.The instant application is dismissed with costs to the respondent
On appeal from
Deputy Registrar
Advocate-Client Bill of Costs dated 1 August 2024
Jurisdiction invoked
Articles 47, 50 and 159 of the Constitution; Rule 11(2) of the Advocates Remuneration Order; Order 51 Rule 1 of the Civil Procedure Rules

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, "Chepkwony & Associates Advocates v Cathmed Limited (Miscellaneous Application E010 of 2024) [2025] KEELRC 1943 (KLR)", Case Analysis (2025). Application dated 13 December 2024 (Advocate-Client Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1943/eng@2025-06-30

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