Mabonga t/a Mabonga & Co. Advocate v Agricultural Development Corporation & 2 others (Environment and Land Originating Motion E014 of 2025) [2026] KEELC 2747 (KLR)

That further the assertion that the Registrar had no jurisdiction to tax the Bill of Costs is legally incorrect when the taxation was carried out under the Advocates (Remuneration) Order and in accordance with the procedure prescribed by that Order. That the Deputy Registrar retains jurisdiction unless the retainer dispute is real, and incapable of determination which was not the case here. 4. The matter was canvassed by way of written submissions, the applicant filed submissions dated 24th March 2026 whereas the Respondent filed submissions that are undated both parties reiterating the contents in their respective pleadings. 5. Upon considering the application and the filed submissions the only issue for determination is whether the court should stay the execution of the ruling delivered on 18th September 2025. 6. The applicant has challenged the taxation ruling based on lack of jurisdiction of the taxing oficer to tax a bill of costs where retainer is challenged. It asserted that the issue of retainer must first be determined by the court before the bill is taxed. I have perused through the pleadings filed in relation to the bill of costs. The applicant herein filed a replying afidavit dated 18th July 2025 which afidavit raised the issue of the respondent not being in any contractual relationship with the applicant and that no instructions had been issued to the firm to follow up on rent arrears through his Law firm or in the preparation of leases. From the said afidavit, it is clear that the applicant raised the issue of retainer. The issue of whether or not an advocate was duly retained in the case of Kenindia Assurance Co Limited -VsOlendo [2023] KEELRC 2638.The Court held that a Taxing Oficer acts without jurisdiction if they proceed to tax a Bill where the retainer is disputed. The proper course of action would have been to determine on the issue of retainer first as a Taxing Oficer has the jurisdiction to hear and determine the issue of retainer as it is a core issue on whether a matter can be sustained or not. I am guided by the decision of the Court of Appeal in Wilfred N. Konosi t/a Konosi & Co. Advocates -Vs- Flamco Limited NRB CA Civil Appeal No. 154 of 2014 [2017] eKLR where the Court in holding that the Deputy Registrar had jurisdiction to determine, as a preliminary issue of whether an advocate/client relationship existed as a prelude to taxation held as follows: “ The issue whether an advocate-client relationship exists in taxation of a Bill of Costs between an advocate and his/her client is core. The jurisdiction is conferred on the Taxing Oficer by law. It is derived from the Advocates Act and the Advocates Remuneration Order. The Taxing Oficer sits in taxation as a Judicial Oficer. His or her task is to determine legal fees payable for legal services rendered. The jurisdiction cannot arise by implication nor can parties by consent confer it. And inherent jurisdiction cannot be invoked where adequate statutory provision exists. It was held in Taparn vs Roitei [1968] EA 618 that inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case. The Advocates Act and the Advocates Remuneration Order confer on the Taxing Oficer jurisdiction to tax bills of costs between advocates and their clients (as well as between party and party in litigation) so as to determine legal fees for legal services rendered. The nexus between the advocate and his or her client is the advocate/client relationship which springs from instructions by the client to the advocate. Absent such relationship, the Taxing Oficer would be bereft of jurisdiction to tax a bill. 7. In the impugned ruling the issue of retainer has not been addressed and the taxing master going ahead to tax the bill of costs without 1st addressing the issue of retainer, therefore acted outside of its jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2747/eng@2026-05-07 2

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Final disposition Consequently, I find merit in the Notice of Motion application dated 14th October 2025 and I exercise my discretion and make the following orders; i. The impugned orders in the ruling dated 18th September 2025 are hereby set aside pending the determination of this reference ii. That the issue of retainer shall first be determined by a difierent Taxing Master before proceeding to the quantum of costs iii. Parties shall meet their own respective costs to this application. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 7TH DAY OF MAY 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Kuso for Munene _ for the Applicant N/A for Respondent Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2747/eng@2026-05-07 3

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