Kamunda t/a Kamunda Njue & Company Advocates v Njoka

3. The Applicant drew and served the impugned Bill of Costs against the Respondent personally. The Respondent opposed taxation by way of a Replying Adavit sworn on 20th January, 2026 and a Notice of Preliminary Objection dated 4th February, 2026, raising three grounds, namely: (i) that the estate of the deceased is a distinct juristic person, that the Respondent acted only as a duciary holder of a grant ad litem, and that the Bill cannot competently be taxed against him personally when other personal representatives who have since taken out full letters of administration have been excluded from the proceedings; (ii) that in the absence of express instructions from the estate itself, the Taxing Ocer is bereft of jurisdiction to tax the Bill; and (iii) that the Application is frivolous and vexatious. 4. The Applicant opposed the Preliminary Objection through a Replying Adavit and written submissions, contending that the Respondent personally instructed the rm, personally executed all pleadings, witness statements and adavits in the underlying suit, and personally received the benet of the legal services rendered, and that the question of the advocate-client relationship is in any event a mixed question of fact and law unsuited to determination by way of preliminary objection. 5. Both parties led detailed written submissions with supporting authorities, which the Court has carefully considered alongside the pleadings and adavits on record. C. Issues for Determination 6. Arising from the pleadings and rival submissions, the following issues fall for determination: a. Whether the grounds raised in the Notice of Preliminary Objection dated 4th February, 2026 meet the threshold of a proper preliminary objection in law; b. Whether, on that threshold being met or otherwise, a valid Advocate/Client relationship capable of sustaining the Bill of Costs exists between the Applicant and the Respondent in his personal capacity; c. Whether the non-joinder of the other personal representatives of the estate renders the Bill of Costs incompetent; and d. What orders should issue. Legal Analysis and Determination 7. The locus classicus on what constitutes a proper preliminary objection remains Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law, JA held that a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued, may dispose of the matter. Sir Charles Newbold, P. added the now-famous caution that a preliminary objection is in the nature of a demurrer, argued on the assumption that the facts pleaded by the opposing side are correct, and that it cannot properly be raised if any fact has to be ascertained or if what is sought is an exercise of judicial discretion. Points that are blurred by contested factual detail are, on this authority, improperly raised by way of preliminary objection and ought instead to be canvassed on the merits, on evidence. 8. This threshold has been consistently applied by the Superior Courts, including in disputes over Advocate/Client Bills of Costs, where the existence or otherwise of the advocate-client relationship, though jurisdictional in character, has repeatedly been treated as a question the Taxing Ocer or the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5760/eng@2026-09-24 2

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Court must resolve by reference to the correspondence, retainer documents and conduct of the parties on record, rather than as a bare point of law divorced from the facts pleaded. 9. Section 44 of the Advocates Act connes the jurisdiction of the Taxing Ocer, and by extension this Court on a matter such as the present, to the taxation of costs as between an advocate and client. The Court of Appeal in Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Ltd [2017] eKLR held that the existence of an advocate-client relationship is the core question in any such taxation, that the jurisdiction is conferred by statute and cannot arise by implication or by the consent of the parties, and that the nexus is the relationship springing from instructions given by the client to the advocate; absent that relationship, the Taxing Ocer is bereft of jurisdiction. Similarly, in Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi, JA held that jurisdiction is everything, and that a court or tribunal that lacks it must down its tools at the earliest opportunity. 10. It is trite, however, that a challenge to the existence of the advocate-client relationship is not, without more, self-proving. Where the pleadings disclose a live and contested dispute as to who, in fact and in what capacity, instructed the advocate — as is manifestly the case here, given the parties' conicting accounts of le references KN/D/ELC/425/2022 and KN/D/261/2018, the roles respectively played by the Respondent and one Ndung'u Mwambura Ndung'u, and whether instructions in the two les were confused or duplicated — that dispute is factual in character and cannot be resolved on the pleadings alone. To that limited extent, the second ground of the Preliminary Objection, framed as an outright denial of any instructions from the estate, does not meet the Mukisa Biscuit threshold, since its resolution would require this Court to weigh rival averments and, potentially, receive evidence. 11. The rst ground is more precisely framed as a proposition of law: that because the Respondent acted only in a duciary, representative capacity under a grant ad litem, and not in his personal capacity, he cannot be personally billed for the Applicant's fees. Taking the Applicant's pleaded case at its highest, as the Mukisa Biscuit test requires — namely that the Respondent personally sought out the rm, personally gave instructions, and personally executed the pleadings and adavits led in Embu ELC Cause No. E033 of 2022 — this ground raises a question capable of resolution as a matter of law, without recourse to disputed evidence. 12. A grant ad litem, as this Court has previously had occasion to observe, confers on its holder a restricted mandate limited to instituting and prosecuting or defending a specied suit on behalf of an estate; it does not, of itself, alter the ordinary incidents of the relationship the holder creates with an advocate retained to act in that suit. The learned authors and courts of comparable common law jurisdictions have consistently drawn a clear distinction between, on the one hand, a representative's entitlement to indemnity out of the estate for costs properly and reasonably incurred in its administration, and, on the other, the representative's own personal liability to the advocate retained. The two are not mutually exclusive; rather, the indemnity is the representative's remedy against the estate, not a shield against liability to the advocate who rendered the service. 13. This distinction is well settled in comparative jurisprudence. In Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 and, more recently, Edwin Coe LLP v Popat [2013] EWHC 2178 (QB), the English courts armed the settled presumption that a person who retains a solicitor is personally liable for that solicitor's proper charges, a presumption that is not displaced merely because the litigation is conducted in a representative capacity or because a third party ultimately funds or benets from it. The point was rearmed as recently as this year in O'Boyle v Wallis [2026] EWHC 1386 (Ch), where the English High Court held that an estate representative appointed to conduct litigation on an estate's behalf remains personally answerable for costs arising from that conduct, her recourse being an indemnity out of the estate rather than an escape from personal liability to her own legal representatives. Kenyan courts have reached materially similar conclusions in the context of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5760/eng@2026-09-24 3

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representative suits: in Martin Tindi & Co. Advocates v Bimbita Mgalla Dzumba & 46 Others [2020] eKLR, the High Court armed an advocate's entitlement to recover fees from a party who had acted in a representative capacity in the underlying suit, notwithstanding the representative character of that role. 14. Applying these principles, and accepting for present purposes the facts as pleaded by the Applicant, the mere fact that the Respondent held a grant ad litem and sued in a representative capacity does not, as a matter of law, immunise him from personal liability on an Advocate/Client Bill of Costs properly drawn against him. His remedy, if any, lies in an indemnity from the estate he represented, not in a preliminary objection defeating the Taxing Ocer's jurisdiction. Ground one of the Preliminary Objection, so understood, fails as formulated. 15. The Respondent further contends that the exclusion of the other administrators of the estate — who have since taken out full letters of administration — renders the Bill of Costs incompetent. Order 1 Rule 9 of the Civil Procedure Rules, reinforced by Article 159(2)(d) of the Constitution, is unambiguous that no suit or proceeding shall be defeated merely by reason of the non-joinder or misjoinder of parties, the Court being enjoined to deal with the real matters in controversy. Nonjoinder, where established, ordinarily sounds in an order for joinder, not in the wholesale defeat of the proceedings, and, in any event, whether the other administrators have any surviving interest requiring their joinder in a Bill of Costs directed at instructions the Respondent is pleaded to have given personally is itself a question requiring an evidentiary foundation, not resolution by preliminary objection. 16. The authorities cited by the Respondent on non-joinder, including the Lilian S line of jurisdictional authority, are unhelpful to him at this stage precisely because they go to jurisdiction properly so called, which, as already found, is not ousted by the pleaded facts. This ground, too, does not meet the Mukisa Biscuit threshold and, in the alternative, fails on its merits for the reasons given. 17. The characterisation of the Application as frivolous and vexatious is a conclusion, not a point of law capable of independent determination on a preliminary objection. It adds nothing to the rst two grounds and is accordingly not sustainable as a freestanding basis for the Preliminary Objection. Disposition 18. Having found that the grounds of the Notice of Preliminary Objection dated 4th February, 2026 are, in part, improperly raised as they are blurred by contested factual questions unsuited to determination on a preliminary objection, and, to the extent that ground one raises a pure point of law, that it fails on the applicable law as discussed above, the Preliminary Objection cannot succeed. 19. For the avoidance of doubt, this Ruling does not foreclose the Respondent's right, on the taxation proceeding to its merits, to place before the Taxing Ocer evidence bearing on the extent and reasonableness of instructions given, any overlap or duplication between le references KN/D/ ELC/425/2022 and KN/D/261/2018, and any amounts already discharged, all of which go to quantum and remain live for determination at taxation. Nor does it foreclose any application the Respondent may be advised to bring for the joinder of the other personal representatives of the estate, should he consider that necessary to protect his position or to seek contribution or indemnity. Final Orders Accordingly, this Court makes the following orders: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5760/eng@2026-09-24 4

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a) The Respondent's Notice of Preliminary Objection dated 4th February, 2026 is hereby dismissed. b) The Advocate/Client Bill of Costs dated 5th August, 2025 shall proceed to taxation before the Taxing Ocer on its merits. c) The costs of the Preliminary Objection shall abide the outcome of the taxation. d) Either party shall be at liberty to apply. RULING DELIVERED VIRTUALLY/IN OPEN COURT AT EMBU THIS 24TH DAY OF SEPTEMBER, 2026. ...................................... ENOCK CHERONO JUDGE, EMBU In the presence of; 1. Mr. Kamuri Gachoki for the Respondent 2. M/S Chebet H/B Mr. Kamunda for the Applicant 3. Ruth C/A https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5760/eng@2026-09-24 5

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