Mabonga t/a Mabonga & Company Advocates v Agricultural Development Corporation & 2 others (Environment and Land Originating Motion E009 of 2025) [2026] KEELC 1511 (KLR)

in his Ruling dated 18th September 2025, the Deputy Registrar failed to consider the issues raised by the Objectors/Respondents. 3. She contends that the Applicant had no valid instructions to act for the Objectors. Further, that the issues of retainership of an Advocate's services by a client when in dispute can only be determined by a Judge of the Environment and Land Court hence the Deputy Registrar had no jurisdiction to determine the Bill of Costs. 4. She insists that the Deputy Registrar failed to acknowledge that the Respondents were not served with the substantive Bill of Costs and they were not aware that the said Bill of costs had been transferred from the High Court Civil Registry for want of jurisdiction to this Court, thus his decision ought to be set aside and substituted with an order striking out the said Bill of costs. 5. The application is opposed by the Advocate/Applicant vide the replying afidavit of Eurry S. Mabonga. He avers that the assertion that the Objectors/Respondents were not served are incorrect and misleading as they participated in the impugned taxation proceedings by filing a replying afidavit and making submissions before the taxing oficer. Further, that the taxation was carried out under the Advocates (Remuneration) Order and in accordance with the procedure prescribed thus the Deputy Registrar had jurisdiction to tax the said bill. 6. He reiterates that the assertion that the Advocates’ retainer is in dispute is a tactical afterthought. 7. The application was canvassed by way of written submissions. Submissions 8. The Respondents/objectors insist that the Deputy Registrar did not have jurisdiction to tax the impugned Bill of Costs since there was a dispute as to the retainer as there was no Advocate– client relationship between the Applicant and themselves, pursuant to Rule 12 of the Advocates Remuneration Order 2014. They submit that the taxing oficer was bereft of jurisdiction to tax the Bill of Costs but ought to have referred it, to this Court. Further, that since the Applicant’s Bill of Costs was never served upon them, there is no cause of action against them. 9. To buttress their averments, the objectors relied on the following decisions: Mugambi & Co. Advocates v John Okal Ogwayo & Another (2013) eKLR; Wafula Simiyu & Co. Advocates v East Land Hotel Limited (2016) eKLR; Wilfred N. Konosi T/AKonosi &Co. Advocates v Flamco Ltd, [2017] eKLR; Mereka & Co. Advocates v Zakhem Construction (Kenya) [2014] eKLR, and Ochieng Onyango, Kibet & Ohaga Advocates, v Akiba Bank Ltd [2007] eKLR. 10. On its part, the Advocate /Applicant submits that having fully participated in the impugned taxation proceedings, the Objectors/ Respondents should not be permitted to frustrate proceedings with belated, dishonest claims of non-service as participation cures any alleged defect of service. To this end, it relied on the case of Shah v Jamnadas [1959] EA 838. 11. On whether the taxing oficer had jurisdiction, it submits that pursuant to paragraph 10 of the Advocates (Remuneration) Order, a Deputy Registrar is the statutory domain of the taxing oficer. It reiterated that it ofiered legal services to the 3rd Respondent, which is a limited liability partnership with legal capacity to enter into legally binding contracts and in any case, a lack of retainer must be proved by the party objecting and the Objectors/ Respondents did not prove this position. 12. To buttress its averments, the Applicant relied on the following decisions: Omulele & Tollo Advocates v Mount Holdings Ltd [2016] eKLR and Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd [2006] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1511/eng@2026-03-16 2

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Analysis and Determination 13. Upon consideration of the instant Chamber Summons application including the respective afidavits and rivalling submissions, the only issue for determination is whether the decision of the Hon. Deputy Registrar (Taxing Oficer) given on the 18th September 2025 in Nairobi Misc. Application No. E124 of 2025 should be set aside. 14. The Objectors raised several reasons by which they seek to challenge the impugned decision issued in Nairobi Misc. Application No. E124 OF 2025, being that they were not served with the Bill of Costs, that the Deputy Registrar had no jurisdiction to tax the said Bill of Costs because there was no ClientAdvocate relationship between the Applicant and themselves and there was a dispute as to the retainer. 15. The Applicant/Advocate insists that the Objectors were served and that they participated in the suit by filing pleadings and making submissions. It also avers that the retainer between them was not objected to and that the Deputy Registrar had jurisdiction to tax the Bill of Costs. 16. On whether the Objectors were served with the impugned Bill of costs, the Court will consider the afidavit of service and the record in Nairobi Misc. Application No. E124 OF 2025 to ascertain the issue of service and participation. On perusal of the Court record in Nairobi Misc. Application No. E124 of 2025, I note the Objector filed their replying afidavit sworn by Rose Muohi on the 18th July, 2025 and written submissions dated the 18th July, 2025 challenging the impugned Bill of Costs. On perusal of the said replying afidavit it refers to the Bill of Costs filed by the Applicant. I hence find that since the Objectors participated in the aforementioned miscellaneous cause, they were indeed served. On whether the Applicant had an advocate client relationship with the Objectors, I note the Applicant did not deny that he was employed as a legal oficer by the 2nd Objector and also belonged to the management committee, where he was tasked to prepare Leases for the tenants. Further, the Applicant has not denied that he received various allowances as a committee member and salary as an inhouse Counsel of the 2nd Respondent. This now brings as to the question whether an inhouse Counsel who used his private law firm to undertake assignments given to him, is entitled to costs in an Advocate Client relationship or if there was a retainer. 17. In the case of Ochieng’ Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited [2007] KEHC 2677 (KLR) it was stated that: “ …the burden of proof to establish the retainer is always on the shoulder of the Advocates. That is the correct proposition of the law. And more weight will be given to the contention of the client that he did not instruct the Advocate to act for him. I hasten to add that the yardstick for such proof is not beyond reasonable doubt. In fact it is the normal the perimeter of balance of probability.” 18. Further, the Court of Appeal held as follows in Omulele & Tollo Advocates –vs- Mount Holdings Limited [2016] eKLR: “ As with any other agreement, the onus of proving the existence of the retainer agreement lies with he that wishes to enforce it. This is in line with the ordinary rules of contracts and evidence.” 19. I note there was no evidence of a suit filed by the Applicant. Further, there was no evidence of express instructions issued to the Applicant by the Objectors/ Respondents. Since there was no evidence tendered, did the Deputy Registrar have jurisdiction to tax the impugned Bill of Costs since there was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1511/eng@2026-03-16 3

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a dispute concerning retainership. The Court of Appeal stated as follows in Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] KECA 431 (KLR): “ As a Judicial Oficer sitting to tax a bill of costs between an advocate and his or her client, a taxing oficer must determine the question whether he/she has jurisdiction to tax a Bill if the issue of want of advocate/client relationship is raised. An allegation that the advocate/ client relationship does not obtain in taxation of an advocate/client Bill of Costs must be determined at once. The Taxing Oficer has jurisdiction to determine that question. A decision in taxation where an advocate/client relationship does not exist is a nullity for want of jurisdiction.” 20. From the facts which are before me and the record in the Misc 124 of 2o25, while associating myself with the decisions cited, I find that there was no retainer nor an Advocate Client relationship between the Applicant and Objectors. Insofar as the Applicant insists that even if he was a legal oficer, he was entitled to fees as an Advocate, I find that the Taxing Oficer indeed erred in principle when he failed to take into account that the Applicant was a legal oficer of the 2nd Respondent and benefited from sitting allowances as a Committee member. I opine that the Applicant’s professional legal claims were not based on deliberate and documented instructions with proof of engagement. To my mind, there was an element of dishonesty and confiict of interest on the part of the Applicant. 21. In the foregoing, I find the instant Chamber Summons application dated 18th September, 2025 merited and I will proceed to set aside the whole decision of the Hon. Deputy Registrar (Taxing Oficer) given on the 18th September 2025. 22. Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF MARCH, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Kugo holding brief for Munene for Objector/ Applicant Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1511/eng@2026-03-16 4

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