M. F. Khatib t/a Khatib & Company Advocates v Mbaruk (Environment and Land Miscellaneous Case E004 of 2025) [2026] KEELC 4844 (KLR) (27 July 2026) (Ruling) Neutral citation: [2026] KEELC 4844 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MOMBASA ENVIRONMENT AND LAND MISCELLANEOUS CASE E004 OF 2025 A OMBWAYO, J JULY 27, 2026 BETWEEN M. F. KHATIB T/A KHATIB & COMPANY ADVOCATES ................ APPLICANT AND MBARUK AYUB ALI MBARUK ....................................................... RESPONDENT RULING 1. The Respondent filed a replying afidavit dated 14/04/2025 wherein he raised two issues; Limitation of time and existence of Retainer agreement between the parties. In the replying afidavit, the Respondent has contended that legal fees ought to be recovered within six years and therefore its time barred. 2. On 28/1/2026, the taxing Oficer delivered a ruling directing that the issues of limitation of time and retainer be determined by the Court. On 16/2/2026, this Court directed that parties do submit on the two issues, 3. The applicant submits that the nature of service contracted for by the Respondent in this matter was to represent the Respondent in the transaction involving sale of land No. 14, 15, 16, 17 of title No. 1895/I/MN Original No. 18946/7 sold to Grace Wangeci Kanyi, Charles Omodo Suji, Francis Mutiso Mutune, Hashim Mohamed and Christine Jerotich Kendele on diverse dates and the last one was on 14/6/2018. The applicant submits that there are several authorities in our jurisdiction as to the manner in which limitation of time operates in recovery of legal fees. 4. He cites the case of Abicha & Company Advocates Versus Trident Insurance Company Limited (2013) Court held that in relation to continuous work by Solicitor, such as the bringing and prosecuting or defending suit, limitation of time will begin to run from the date of termination of action or the lawful ending of the retainer and in miscellaneous work, time begins to work from the completion of the whole work. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4844/eng@2026-07-27 1
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5. He further cite the case of Mbugua & Mbugua Advocates Versus Kenindia Assurance Company Limited (2015) KEHC 7465 (klr) the Court held that, limitation of time in continuous work begins to run after the last service delivered. It emphasized on the last service rule. 6. He also cites the case of Akide & Company Advocates Versus Kenindia Assurance & Company Limited also held that, the last service rendered in continuous work marks the beginning of limitation of time. 7. The applicant argues that in the instant case, the nature of work was a continuous work which was to be concluded by delivery of the title deed and signing of discharge form to oficially mark the termination of the retainer. The Advocate still has the original ownership documents in respect of the suit property and the Respondent did not provide any proof of the termination of the retainer. The applicant contends that the limitation time has not started running against the Applicant and or the Claim for legal fees is still within time. 8. On retainer, the applicant argues that the sale agreement subject of this Bill of Costs clearly show the seller is the respondent. The sale agreements are drawn by the Applicant and witnessed by the Applicant. There is no explanation when the retainer was terminated and no proof was attached in the replying afidavit. 9. The Applicant made efiorts to reach out to the respondent for payment of fees whereupon, the Respondent verbally terminated the retainer and refused to pay the fees. In Wakini Kiarie & Company Advocates Versus Kenya Orient Insurance (2021) KLR the Court held thus; “ there is no evidence before this Court that judgment has been entered or termination of the retainer and in the absence of such information, this court cannot proceed on the assumption that the Bill of costs is time barred. 10. Ultimately, the applicant submits that he has proved retainer and the bill of costs has been filed within time. The respondent has not filed submissions. 11. I have considered the application and do find that the respondent has neither demonstrated that the claim is time barred nor when the retainer was terminated. The cause of action accrues when the last transaction is carried out. The respondent does not say when the last transaction was done. This court finds that the claim is not time barred. SIGNED BY/FOR: HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-27 12:21:11 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4844/eng@2026-07-27 2
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