John Bwire & Associates Advocates v Sanlam Ltd

dated 14th October 2025. Prayer 3 of the Notice of Motion misdescribes it as "dated 17th October 2025". No application of that date exists, and the misdescription is plainly a clerical slip that prejudices no one. Throughout this ruling, the Reference means the Chamber Summons dated 14th October 2025. Both applications were led on 24th October 2025 and are supported by adavits sworn by Ms. Eleonora Cozzi, a director of the Client, on 15th October 2025. She also swore a Supplementary Adavit on 14th April 2026. 4. The Advocate, as respondent to both applications, opposed each through separate Grounds of Opposition, both dated 10th November 2025. B. Background 5. The material facts are largely common ground. On 26th April 2016, the Client entered into a management contract with Africa Kivulini Management Limited ("the Tenant") for the management of its hotel at Watamu, which the pleadings describe as Sunpalm Beach Resort or Sunpalm Beach Hotel. The hotel stands on Plot No. 408, which is registered in the Client's name. 6. A dispute arose over unpaid rent. The Tenant sued the Client and two others in Malindi ELC No. 20 of 2020. At that time the Client was represented by Wanyanga & Company Advocates. On 29th October 2020, the parties recorded a consent. It restrained the Client and the 3rd Defendant from evicting the Tenant from, or interfering with its management of, "the hotel premises known as Sunpalm Beach Resort in Watamu" pending hearing of the suit. It also directed the Tenant to deposit in court all outstanding rent within fourteen days, and all future rent until the suit was determined. 7. The Tenant did not deposit the rent. By January 2021 the arrears stood at Kshs. 22,943,937/=. The Client then instructed the Advocate to take over the matter. The Advocate led a Notice of Change of Advocates dated 12th January 2021 on behalf of "Sunpalm Limited the 2nd Defendant". 8. On the same day, the Advocate led a Notice of Motion under certicate of urgency in the name of "Sunpalm Limited, 2nd Defendant/Applicant". It sought injunctions restraining the Tenant from removing equipment, furniture and xtures from "Sunpalm Beach Resort Watamu", unlimited access to the resort for inspection, an order directing the police at Watamu to enforce the orders, and an order to "review, discharge and/or set aside the Consent Order made on 29th October, 2020". The supporting adavit was in the name of Ms. Eleonora Cozzi. 9. In a ruling delivered on 28th May 2021, J.O. Olola J. noted that the Tenant disputed the arrears, admitting only Kshs. 900,000/=. On 3rd October 2022, the Tenant led a Notice to Withdraw Suit under Order 25 rule 1 of the Civil Procedure Rules. According to the Taxing Ocer's ruling, the Counterclaim dated 11th March 2020 was withdrawn on 6th March 2024 with no order as to costs. 10. The Advocate then lodged the Advocate-Client Bill of Costs dated 10th March 2025 for Kshs. 9,147,785/=. The Client opposed it through Grounds of Opposition dated 19th July 2025 and 1st August 2025. The bill was canvassed by written submissions and taxed at Kshs. 1,233,940/= on 13th October 2025. 11. By a letter dated 21st October 2025, the Advocate demanded payment of the taxed sum within seven days, failing which it would "proceed to execute". That letter prompted the Stay Application. The Client's case 12. The Client's case, as set out in its grounds, adavits and submissions, is in substance that the Advocate is not entitled to any fees at all. Its main contentions are these: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6145/eng@2026-10-01 2

page 2 of 5

a. The Advocate was instructed to enforce the consent of 29th October 2020 and recover Kshs. 22,943,937/= in arrears. Instead, it sought to set the consent aside, which no client owed such a sum would ever instruct. b. The Notice of Motion of 12th January 2021 sought orders in favour of "Sunpalm Beach Resort Watamu", an unregistered name that was not a party to the suit and has no legal personality. This changed the substratum of the suit. c. The Advocate raised the question of eviction, which was not before the court, since a tenant cannot evict a landlord from its own premises. d. The Advocate failed to resist the Tenant's withdrawal of the suit while the consent was still in force. As a result, the Client lost the rent arrears and was left with large electricity and water bills. e. Items 1(a), (b) and (c) of the bill contradict each other, and there is no written retainer showing instructions to set aside the consent. f. The Advocate's conduct amounted to professional misconduct, which the Client intends to pursue before the disciplinary bodies and in a suit. 13. Notably, at paragraph 6 of the supporting adavit to the Reference, Ms. Cozzi depones that the Taxing Ocer "was correct to have taxed Kshs. 7,913,845/= o". Her complaint is that the Taxing Ocer "failed to consider that the Applicant in the bill of costs was not entitled to costs". 14. On the Stay Application, the Client contends that the Advocate threatened execution by letter without following the procedure for enforcing a taxing ocer's decision, and that the Reference would be rendered nugatory if execution proceeds. On the binding nature of consent orders, it relies on Flora N. Wasike v Destimo Wamboko [1985] KECA 149 (KLR), reported as (1988) 1 KAR 625, Ismail Sunderji Hirani v Noorali Esmail Kassam (1952) 19 EACA 131 and Simon Emonger Enangei v Sumprose Okalo Madegwa, Busia ELC No. 143 of 2013. The Advocate's case 15. The Advocate contends that the Client retained it in Malindi ELC No. 20 of 2020, that it came on record and acted for the Client on the Client's instructions and documents, and that it is entitled to be paid for those services. 16. On the Reference, the Advocate submits that the court's jurisdiction is that conferred by paragraph 11 of the Advocates (Remuneration) Order. It relies on Joreth Limited v Kigano & Associates [2002] KECA 153 (KLR), as applied in Kariuki t/a Gacau Kariuki & Company Advocates v Njoroge [2025] KEHC 3327 (KLR), and on Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR), FA Badia & Company Advocates v Malambu & another [2024] KEHC 16672 (KLR) and Gilani and Company Advocates v Ebrahim [2023] KEHC 19895 (KLR). It argues that the Taxing Ocer gave reasons for every item and that the Client has not shown any error of principle, or an award so high or so low as to amount to an injustice. It adds that the Client has oered no proof that the Advocate acted contrary to instructions, and that he who alleges must prove. It also contends, in its grounds, that a large part of the bill was in fact taxed o, that remitting the bill would amount to forum shopping, and that the Client failed to le a proper reference. 17. On the Stay Application, the Advocate submits that Order 42 rule 6(2) of the Civil Procedure Rules requires proof of substantial loss, absence of unreasonable delay, and security. It accepts that the application was led promptly. However, it argues that the taxed sum is a money award that can be https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6145/eng@2026-10-01 3

page 3 of 5

refunded, so no substantial loss arises, and that the Client has neither furnished security nor oered to deposit the taxed sum. It stresses that execution is a lawful process and that a successful party is entitled to the fruits of its success, citing Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63. It also relies on, among others, Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR and Thuo v Waliula [2025] KEHC 2259 (KLR). 18. Having considered the applications, the adavits, the grounds of opposition and the submissions, I nd that the following issues arise: (i) Whether the Reference is competent. (ii) Whether a stay of execution should be granted. (iii) What orders should be made on costs. Analysis and determination Whether the Reference is competent 19. Paragraph 11 of the Advocates (Remuneration) Order provides: “ (1) Should any party object to the decision of the taxing ocer, he may within fourteen days after the decision give notice in writing to the taxing ocer of the items of taxation to which he objects. (2) The taxing ocer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection." 20. In Isaac Onyango & Co. Advocates v Hakika Transport Services Limited [2023] eKLR (ELRC Misc. Cause No. E029 of 2022), the court held that a reference under paragraph 11 in a matter between an advocate and client "should always be brought under a separate Miscellaneous Cause", annexing copies of all documents led before the Taxing Ocer, certied copies of the proceedings before the Taxing Ocer and any certicate of costs. The court also faulted the applicant for not ling a notice of objection under paragraph 11(1) before ling the reference. I respectfully agree. The notice of objection identies the items complained of, and the reasons the taxing ocer records in answer to it frame the reference; without it, the judge has no dened set of items to review. 21. Measured against that standard, the Reference is defective in three respects. First, it was led in the same cause in which the bill was taxed rather than as a separate miscellaneous cause, a point the Advocate takes at ground 11 of its Grounds of Opposition. Second, the Client has not placed before the court certied proceedings before the Taxing Ocer or any certicate of costs; it annexes only the ruling and some pleadings from the main suit. Third, and most signicantly, there is no notice of objection on record. The Client refers to a Notice of Objection dated 15th October 2025 but has not exhibited it, and the Chamber Summons is itself dated 14th October 2025, a day before that notice. Nowhere does the Client identify the items of taxation to which it objects; it accepts the sums taxed o. The requirement in paragraph 11(1) is not a technicality curable under Article 159(2)(d) of the Constitution, because it denes the scope of the reference itself. I nd that the Reference is incompetent. That nding disposes of the Reference, and I therefore do not go into its merits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6145/eng@2026-10-01 4

page 4 of 5

22. Having found the Reference incompetent, I express no view on the merits of the Client's complaints, whether as to the Taxing Ocer's assessment of the bill or as to the Advocate's conduct of Malindi ELC No. 20 of 2020. Paragraph 11(4) of the Advocates (Remuneration) Order empowers the court to enlarge the time xed by paragraph 11(1) or (2) for taking any step. The Client is at liberty, if so advised, to apply for such enlargement and to bring a properly constituted reference. Whether a stay of execution should be granted 23. The Stay Application seeks a stay pending the hearing and determination of the Reference. The Reference has now been struck out. The application has therefore been overtaken by events, and there is nothing left for it to protect. 24. For completeness, I observe that the Client's fear of imminent execution was misplaced. The Taxing Ocer's ruling is not in itself an executable decree. Under section 51(2) of the Advocates Act, the certicate of the taxing ocer is nal as to the amount of costs unless set aside or altered by the court, and the court may enter judgment for the sum certied where the retainer is not disputed. Execution may follow only upon such a judgment and the resulting decree. A demand letter cannot take its place and no judgment has been shown to have been entered. 25. Further, Order 22 rule 22 of the Civil Procedure Rules applies to a court to which a decree has been sent for execution, and Order 42 rule 6 applies to appeals. Neither applies squarely here. Even by analogy, the Client did not show any substantial loss beyond the payment of a liquidated sum that could be refunded and it oered no security. A successful party is entitled to the fruits of its success: Machira t/a Machira & Co. Advocates v East African Standard (No. 2) (above). In any event, a stay pending a reference that has been struck out cannot issue. The Stay Application fails. Costs 26. Under section 27 of the Civil Procedure Act, costs follow the event unless there is good reason to order otherwise. I see none. The Advocate shall have the costs of both applications. 27. In the result, I make the following orders: a. The Chamber Summons dated 14th October 2025 is incompetent and is hereby struck out. b. The Notice of Motion dated 15th October 2025 is dismissed. c. The Advocate shall have the costs of both applications. DATED, SIGNED AND DELIVERED, VIRTUALLY AT MALINDI THIS 1ST DAY OF OCTOBER 2026 …………….………….. J. M. ONYANGO JUDGE In the presence of: Mr. Sausi for the Applicant Ms Indesia for the Respondent Court Assistant: Happy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6145/eng@2026-10-01 5

page 5 of 5