In the Matter of Advocate/Client Bill of Costs - Kipkorir, Tito & Kiara Advocates v Maniatta Limited

b) THAT the Respondent be condemned to pay costs of the application. 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Kimsop Tito sworn on even date. THE APPLICANT’S CASE 3. The deponent averred that on 12th October 2022, the client/Respondent instructed their firm to provide legal services in relation to a proposed purchase of office Suit No. B5 (II), together with parking bays numbers B1-10, BI11, and BI-12, erected on L.R. No. 209/21716, for Kshs 44,000,000/=. 4. He further averred that despite executing the instructions, the Respondent refused to pay the legal fees for the services rendered, prompting the filing of a bill of costs dated 27th September 2024, which was eventually taxed on 11th September 2025 for Kshs 609,350/=. Subsequently, a certificate of costs was issued, and the Respondent failed to settle the fees despite being notified. 5. In conclusion, he urged the court to allow the application as prayed. ELC L. MISC. NO. E250 OF 2024 2

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THE RESPONDENT’S CASE 6. The Respondent filed a replying affidavit, sworn by Anthony Thuo Kanai, Advocate, in opposition to the application. The deponent contended that no retainer existed between the parties, as evidenced by an email dated 14th October 2022. 7. He further averred that prior to the taxation of the bill of costs, the Respondent filed a preliminary objection dated 24th June 2025 disputing the existence of a retainer between the parties, which objection was dismissed without any reasons being given. He further averred that the Taxing Master proceeded to tax the bill without affording the Respondent an opportunity to file its objections. 8. He contended that the Respondent filed its objection to the ruling on 11th September 2025, seeking reasons for the dismissal, but those reasons had not been furnished to date. 9. Prior to the hearing of the application, the Respondent filed a Chamber Summons Paragraph/Rule 11(1) dated 27th April and (2) of 2026, the under Advocates (Remuneration) Order and Section 44 of the Advocates Act, seeking the following orders: ELC L. MISC. NO. E250 OF 2024 3

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a) THAT this Honourable Court be pleased to vary and/or set aside the Honourable Officer’s ruling dated 11th September 2025 in relation to the preliminary objection dated 24th June 2025, whereby the Respondent had objected to the existence of a retainer relationship which the Taxing Officer dismissed, and this Honourable Court be pleased to find that there existed no retainer relationship between the parties. b) THAT the Honourable Court be pleased to vary and/or set aside the Honourable Taxing Officer’s ruling dated 11th September 2025 by striking out the Applicant’s Bill of Costs dated 27th September 2024 on the basis that there existed no retainer relationship between the Applicant and Respondent, and further, the Applicant did not render any legal services to the Respondent. c) THAT the costs of this application be provided for. 10. The application is based on the grounds appearing on its face together with the supporting affidavit of Anthony Thuo Kanai Advocate, sworn on the even date. THE APPLICANT’S CASE 11. The deponent contends that the Applicant challenged the ruling dated 11th September 2025, in which the Taxing Officer dismissed the Respondent’s preliminary objection challenging the existence of a retainer between the parties, Accordingly the Applicant had no basis for taxing the bill of costs. ELC L. MISC. NO. E250 OF 2024 4

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12.He argued that the Taxing Officer erred in law by failing to determine whether an advocate/client relationship existed between the Applicant and the Respondent in relation to the sale agreement dated 1st January 2023. He contended that the Respondent attached an email dated 14 th October 2022 stating that Michalis, not the Respondent, had given instructions to the Applicant. He further contended that the Respondent had not been incorporated as at October 2022, when the Applicant was negotiating the sale agreement on behalf of Michalis. In conclusion, he urged the Court to grant the application as prayed. THE RESPONDENT’S CASE 13. The Respondent filed a replying affidavit sworn by Kimsop Tito in opposition to the application. The deponent contends that the Court lacks jurisdiction to determine the reference because it was filed out of time, as the ruling was delivered on 11th September 2025 whereas the present application was filed on 27th April 2026. He argued that the preliminary objection was dismissed because the issue of retainer was a matter of fact. He further argued that it was unclear whether the Applicant’s reference was against the dismissal of the preliminary objection or against the taxation. He maintained that the Applicant was attempting to relitigate the issue of retainer, which the Taxing Officer had already determined. ELC L. MISC. NO. E250 OF 2024 5

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14. The application was canvassed by way of written submissions, which were filed out of time. ANALYSIS AND DETERMINATION 15. Having considered the applications, the responses and the submissions on record, the following issues arise for determination: a) Whether judgment should be entered in accordance with the certificate of Taxation; b) Whether the Impugned Ruling Should Be Set Aside; and c) Whether there existed a retainer between the Applicant and Respondent 16. Section 51(2) of the Advocates Act provides as follows: The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.” ELC L. MISC. NO. E250 OF 2024 6

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17. It is trite law that a Certificate of Taxation issued by a Taxing Officer is conclusive evidence of the amount due and payable unless it is set aside or varied. 18. In the present matter, it is not in dispute that the Applicant’s bill of costs was taxed on 11 th September 2025 at Kshs 609,350/=, and that a Certificate of Costs was subsequently issued. 19. The Respondent has expressly disputed the existence of a retainer. The issue was raised before the Taxing Officer through the preliminary objection dated 24th June 2025. The Respondent thereafter challenged the Taxing Officer’s decision and subsequently filed the chamber summons dated 27th April 2026. 20. The dispute over the retainer is relevant to the Applicant’s entitlement to costs. In the circumstances, it would be premature to enter judgment on the Certificate of Costs before determining the chamber summons. 21. Regarding the second issue, it is settled that a judge hearing a reference from a Taxing Officer will not interfere with the exercise of the Taxing Officer’s discretion. The Court's intervention is justified where an error of principle is demonstrated. In Kipkorir Titoo & Kiari Advocates vs ELC L. MISC. NO. E250 OF 2024 7

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Deposit Protection Fund Board (2005) 1 KLR 528, the Court of Appeal held that: “On a reference to a judge from the taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer erred in principle in assessing the costs- an example of an error of principle is where the costs allowed are so manifestly excessive s to justify an inference that the taxing officer acted on erroneous principles.” 22. The same principle was affirmed in the case of First American Bank of Kenya v Shah & others [2002]1 EA 64, stated as follows: I find that on authorities this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision on taxation was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an interference that it was based on an error of principle. 23. The Respondent contends that this Court lacks jurisdiction on the ground that the application challenging the taxation was filed on 2nd June 2026, well outside the period prescribed by paragraph 11 of the Advocates Remuneration Order. ELC L. MISC. NO. E250 OF 2024 8

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24. Paragraph 11(1) of the Advocates Remuneration Order requires a party who objects to the taxing officer's decision to give written notice of the items objected to within fourteen days of the decision. Under paragraph 11(2), the taxing officer must record and forward the reasons for the decision. The objector may then, within 14 days of receipt of the reasons, apply to a Judge by Chamber Summons. 25. The issue September is therefore 2025 whether contained the reasons for ruling the of 11 th taxation decision. If it did not, and no reasons were subsequently furnished to the Respondent, the Court must consider the effect of that omission before holding that the fourteen-day period has expired. 26. The Respondent raised a preliminary objection challenging the existence of a retainer between the parties. The question of retainer goes to the foundation of the Applicant’s entitlement to present an advocate/client bill of costs against the Respondent. 27. The Taxing Officer dismissed the objection but, on the material before this Court, failed to provide reasons for that decision. A judicial or quasi-judicial authority must give reasons for its decision. 28. The Court cannot ascertain whether the Taxing Officer considered the evidence relating to the alleged retainer or the basis for concluding that the preliminary objection was unsustainable. The absence of reasons for the decision is central to the taxation. Without reasons, this Court cannot ELC L. MISC. NO. E250 OF 2024 9

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determine whether the Taxing Officer considered the evidence relied upon by the Respondent or the Applicant’s assertion that the Respondent had instructed it. 29. Accordingly, this Court finds that the failure to give reasons for dismissing the preliminary objection constituted an error of principle warranting this Court's intervention. 30. Regarding the second issue, the Applicant asserts that the Respondent instructed its firm on 12th October 2022 regarding the sale. The Respondent disputes that assertion and maintains that Michalis gave the instruction. It was further contended that the Respondent had not been incorporated as at 2022. 31. The Taxing Officer did not give reasons for dismissing the preliminary objection. This court would therefore be called upon to determine the issue of retainer in the first instance, without the benefit of the Taxing Officer's reasoning, which would be inappropriate. In these circumstances, the proper remedy would be to remit the issue for a reasoned determination. I therefore decline to determine the question of retainer at this stage. 32. In the end, I find that the application partially succeeds in the following terms: ELC L. MISC. NO. E250 OF 2024 10

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a) The decision of the Taxing Officer contained in the ruling dated 11th September 2025 dismissing the Respondent's preliminary objection is hereby set aside b) The issue of whether there existed a retainer between the Applicant and the Respondent is hereby remitted to a different Taxing Officer for hearing and determination. c) The Notice of Motion dated 4th March 2026 is hereby held in abeyance pending the determination of the issue of retainer. d) Costs shall abide the outcome of the matter. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 25TH DAY OF SEPTEMBER, 2026. ………………………… HON. T. MURIGI JUDGE IN THE PRESENCE OF: Thuo for the Respondent Wamatu holding brief for Kimosop for the Applicant Vena-Court assistant ELC L. MISC. NO. E250 OF 2024 11

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