Peter Kabui Mwangi v Roseline Njeri Muriuki & 8 Others

RULING 1) This Application dated 19/05/2025 is brought following a dispute originating from an Advocate-Client Bill of Costs filed on 25/01/2023 by M/s Wafula Washika & Associates, which led to a taxation Ruling on 11/10/2023 by Hon. N. Kurumbu in their favour. Although the law firm represented 5th the and 8th Defendants rather than the 3 rd Defendant/Applicant, they obtained a taxation award against 3rd the Defendant, who according to the application remained unaware of the proceedings until 16/05/2025, when Beta Recovery Auctioneers pinned a proclamation for Kshs. 204,683/= plus fees on their premises. Upon discovering this execution attempt, the 3 rd Defendant promptly filed the present application to challenge the fraudulent billing, stay execution, and prevent the imminent attachment of their property. 2) The Application is filed under Order 42 Rule 1 & Order 51 Rule 1 of the Civil Procedure Rules (Revised 2010), Section 79G and S. 95 of the Civil Procedure Act and Article 159 (2) of the Constitution of Kenya, 2010, the Inherent Powers of the Court and all enabling provisions of the Law. The Applicant seeks the following from Court: i. Spent. ii. THAT this Honourable Court be pleased to grant an order of stay of execution of certificate of taxation, warrant ELC NO. E013 OF 2021 of attachment and warrant of sale, 2|Page

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proclamation and or any other consequential order(s) issued in this matter pending the hearing and determination of this matter. iii. THAT this Honourable Court be pleased to grant an order of stay of execution of certificate of taxation issued on 30th April, 2025, warrant of sale and warrant of attachment, proclamation and or any other consequential order issued in this matter pending the hearing and determination of this application inter partes. iv. THAT the proceedings made from the date of filing the Advocate-Client Bill of Costs dated 24th February, 2023 and all consequential Ruling, and certificate of taxation, warrant of sale and attachment and proclamation and all consequential order thereof be declared a nullity. v. THAT the Honourable Court be pleased to set aside all the proceedings in this matter as relates to the Advocate-Client Bill of Costs dated 24th February, 2023, Ruling delivered on 11/10/2023, certificate of taxation, warrant of attachment, warrant of sale, proclamation dated 16th May, 2025 and or any other consequential order issued. vi. THAT this Honourable Court be pleased to enlarge time for filing a reference against the decision of the ELC NO. E013 OF 2021 3|Page

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taxing master delivered in Thika ELC Case No. E013 of 2021 on 11th October, 2023. vii. THAT this Honourable Court be pleased to set aside and/or vary the Ruling and the Certificate of Taxation delivered by the taxing officer. viii. THAT this Honourable Court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case. ix. THAT the Advocate-Client Bill of Costs be struck out for being fraudulent. x. THAT costs of this suit be provided for. 3) The Application is premised on allegations of fraud and unjust enrichment by the law firm M/s Wafula Washika & Associates, which obtained a taxation Ruling on an Advocate-Client Bill of Costs against the 3 rd Defendant/Applicant despite having never represented them in Court having instead acted for the 5 th and 8th Defendants. The Applicant asserts that they were entirely unaware of these proceedings until Beta Recovery Auctioneers served a proclamation on their premises on 16/05/2025, demanding Kshs. 204,683/= plus auctioneer's fees. Consequently, the Applicant seeks urgent Court intervention to stay and nullify all execution processes and proceedings arising from the fraudulent Bill of Costs to prevent the immediate seizure of their property and avert a travesty of justice. ELC NO. E013 OF 2021 4|Page

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4) The Application is supported by the Affidavit of Charles Kiarie the 3rd Defendant/Applicant sworn on 19/05/2025 in which he averred that he only became aware of the impugned proceedings on 16/05/2025 when Beta Recovery Auctioneers pinned proclamation documents on his premises for Kshs. 204,683/= plus auctioneer’s fees of Kshs. 41,200/=, annexed as Annexure 2, which execution arises from a taxation Ruling delivered on 11/10/2023 by Hon. N. Kurumbu in favour of M/s Wafula Washika & Associates, annexed as Annexure 1. The Deponent further deposes, as corroborated by pleadings showing the firm represented the 5th and 8th Defendants annexed as Annexure 3, that M/s Wafula Washika & Associates never represented him nor filed any legal documents on his behalf. 5) Based on advice from his Advocates on record, which information he verily believes to be true, the Deponent states that the Advocate-Client 24/01/2023 and filed on Bill 25/01/2023 of Costs was dated fraudulent, obtaining a Ruling through misrepresentation to unjustly enrich the law firm against a non-client. He concludes that his property is at immediate risk of attachment, rendering the Motion urgent, and prays that the orders sought be granted in the interest of justice to forestall a travesty of justice. 6) The Application is opposed. The Respondent’s Law Firm filed a Replying Affidavit sworn on 25/05/2025 by John Simiyu ELC NO. E013 OF 2021 5|Page

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Wanyonyi, an Advocate of the High Court of Kenya who allegedly is practicing under the firm handling the matter for the 3rd Defendant alongside three co-Defendants. He deposes in opposition to the Notice of Motion dated 19/05/2025, asserting that the Application is incompetent, fatally defective, and legally untenable for being improperly brought under a Notice of Motion rather than the mandatory procedure under Paragraph 11 Rules 4 and 76 of the Advocates Remuneration Order, 2014. 7) The Deponent avers that following a physical meeting at Kimbo in Ruiru East, his firm was expressly instructed by the 3rd, 5th, 8th and 9th Defendants to enter appearance and defend them against the suit, whereupon the 3 rd Defendant engaged him around November–December 2021 by remitting approximately Kshs. 20,000/= in file opening and Court filing fees from mobile number +254 720 910 714 to +254 727 946 857, and subsequently executed and transmitted his draft Replying Affidavit dated 9/12/2021 via email address kiariecharles808@gmail.com to simiyujohnAdvocates@gmail.com on 10/12/2021 at 3:18 PM, annexed as an email communication. 8) He deposes that based on these instructions, he duly filed a Notice of Appearance dated 8/12/2021 via the Court’s efiling portal (thikaefiling.co.ke) on 10th December 2021 at 3:30 PM, annexed as email correspondence, and successfully represented the 3rd Defendant to secure status quo orders ELC NO. E013 OF 2021 6|Page

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maintaining his possession of the suit property before the Plaintiff unilaterally settled with and withdrew claims against the 5th and 8th Defendants. 9) The Deponent further deposes that upon the 3 rd Defendant’s repudiation of fee obligations, his firm instituted an Advocate-Client Bill of Costs dated 24/01/2023, which was served upon the Court and Defendants via thikaelc@gmail.com on 19/04/2023 at 11:29 a.m, annexed as proof of filing and service, culminating in a scale taxation by the Taxing Master at Kshs. 135,455/= increased by 50% to Kshs. 203,183/=. Rebutting allegations of fraud and unjust enrichment, the Deponent states that the 3 rd Defendant’s incoming Advocates, Prof. Kiama & Co. Advocates, filed a Notice of Change of Advocates against his firm, annexed as email correspondence from Prof. Kiama, which directly refutes the contention that no representation existed. Concluding that the Application is an abuse of Court process, bad in faith, and aimed at defeating a validly obtained taxation Ruling service, the after Deponent the Applicant prays that knowingly the ignored Application be dismissed with costs to prevent grave prejudice to the Respondent law firm and the Interested Party. 10) In the Supplementary Affidavit sworn on 25/05/2025 by John Simiyu, the Deponent deposes in further support of his Replying Affidavit of the same date that the Applicant remitted the sum of Kes 20,000.00 via his then mobile phone ELC NO. E013 OF 2021 7|Page

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number 0721569523 to the Deponent’s mobile phone number 0727946857 on 29/11/2021 as file-opening fees. The Deponent notes that this remittance was made a day after the 5th Defendant in the primary suit, Samuel Kamau, had paid a similar deposit of Kes 20,000.00, and proof of both mobile money transaction statements is annexed thereto and appears on page 3 of the Supplementary Affidavit. The Deponent further states that on 6/12/2021, the Applicant transmitted an additional sum of Kes 5,000.00 from the same mobile phone number 0721569523 to the Deponent’s number 0727946857 to facilitate the filing of Court responses as well as personal service of the Court processes upon the Plaintiff’s then Advocates, the firm of M/s Konosi & Company Advocates situated in Nakuru, as evidenced by the transaction statement annexed thereto and appearing on page 4 of the Supplementary Affidavit. 11) The Application was canvassed by way of written submissions which I have considered. 12) Having considered the Notice of Motion Application dated 19/05/2025, the Supporting Affidavit, the Replying Affidavit and Supplementary Affidavit sworn by John Simiyu Wanyonyi, as well as the written submissions, the following key issues fall for determination: 1. Whether the Applicant’s Notice of Motion is incompetent and procedurally defective for non- ELC NO. E013 OF 2021 8|Page

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compliance with the provisions of Paragraph 11 of the Advocates Remuneration Order. 2. Whether a retainer relationship existed between the Applicant the 3rd Defendant and the Respondent Advocate/law firm. 3. Whether the Applicant has satisfied the requisite legal standards for an extension of time to file a Reference out of time and for setting aside the Taxation Ruling dated 11th October 2023, the Certificate of Taxation, and the consequential execution processes. 13) On the preliminary issue of procedure, the Respondent Advocate contends that the Application is fatally defective for having been brought via a Notice of Motion under the Civil Procedure Rules rather than by way of a Reference as prescribed under Paragraph 11 of the Advocates Remuneration Order. It is a settled principle in Kenyan statutory interpretation that where a specific legal procedure is provided by statute or statutory rule, that procedure ought to be followed. Paragraph 11(1) and (2) of the Advocates Remuneration Order stipulates the mandatory procedure for challenging a decision of a Taxing Officer: "Should any party object to the decision of the taxing officer on the taxing of any bill of costs, he may within fourteen days after the decision give notice in writing to the taxing officer of the items ELC NO. E013 OF 2021 9|Page

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to which he objects... The taxing officer 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." 14) However, this Court must balance adherence to statutory procedure against the constitutional imperative enshrined in Article 159(2)(d) of the Constitution of Kenya, 2010, which decrees that "justice shall be administered without undue regard to procedural technicalities." This principle was illuminated in the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] KECA 113 (KLR) where the Court of Appeal held that deviations from and lapses in form and procedure which do not go to the jurisdiction of the Court, or to the root of the dispute, or which do not occasion prejudice or miscarriage of justice, should not be elevated to a level attracting draconian consequences like striking out pleadings. 15) Similarly, the Court in Wachira Karani v Bildad Wachira [2016] eKLR stated that the fundamental duty of the Court is to do justice between the parties, and that parties should be allowed a proper opportunity to have their case heard on the merits. Also, in Boniface Kiragu ELC NO. E013 OF 2021 10 | P a g e

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Waweru v James K. Mulinge [2015] eKLR it was held that non-compliance which does not go to the root of the proceedings and causes no prejudice should not render proceedings incompetent or a nullity. 16) Given that the Applicant alleges a total lack of notice of the taxation proceedings, fraud, and a complete absence of an Advocate-client relationship, approaching the Court by way of a Notice of Motion to seek an extension of time alongside orders setting aside execution processes does not divest this Court of jurisdiction. Equity and the overarching interests of justice demand that the substantive merit of the dispute be interrogated rather than driving the Applicant away on technical grounds. 17) Regarding the existence of an Advocate-client retainer, the Applicant vehemently asserts that the Respondent law firm never represented him, acted solely for the 5 th and 8th Defendants, and fraudulently instituted taxation proceedings against a non-client. In stark contrast, the Respondent Advocate has placed before this Court compelling, cogent, and uncontroverted documentary evidence establishing the creation and performance of a retainer. Section 107(1) of the Evidence Act (Cap 80, Laws of Kenya) establishes the burden of proof, providing that: "Whoever desires any Court to give judgment as to any legal right or liability dependent on the ELC NO. E013 OF 2021 11 | P a g e

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existence of facts which he asserts must prove that those facts exist." 18) Also, Section 109 of the Evidence Act dictates that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. In evaluating the nature of an Advocate-client retainer, this Court is guided by the decision in the Court of Appeal in Omulele & Tollo Advocates v Mount Holdings Limited [2016] KECA 523 (KLR) held as follows;-where the Court held: "…‘retainer’ covers encompasses the a broad instructions spectrum. It given an to Advocate as well as the fees payable thereunder. A retainer need not be written, it can be oral and can even be inferred from the conduct of the parties. However, if there is no evidence of retainer, except a statement from the Advocate, which a client contradicts, the Court will treat the Advocate as having acted without authority from the client (see. Halsbury’s Laws of England, (supra) at page 14 para 765)." 19) Further in Ochieng’ Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited [2007] KEHC 2677 (KLR) (Persuasive), Warsame J, as he then was had held as follows: ELC NO. E013 OF 2021 12 | P a g e

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“…The act of authorizing an Advocate to act on behalf of a client constitutes the Advocate’s retainer by the client. It is not the law that an Advocate must obtain a written authority from the client before he commences a matter. The participation and authority of an Advocate in a matter can be implied or discerned from the conduct of the client.In my view retainer is no more than an authority given to an Advocate to act in a particular matter and manner. It may be restrictive; it may be wide. And nevertheless, it can be implied client/Advocate from the conduct relationship. of The the bank recognized the Respondent was brought on board and on their behalf to salvage a delicate situation, which the earlier Advocate thought may not succeed. That is a recognition that the agent acted for them in their best interest. The act by M/S Mohamed Madhani & Co. Advocates to appoint the Respondent to act on behalf of the bank though initially without authority becomes the act of the principal when the bank subsequently ratified that decision.” 20) The Respondent has produced mobile money transmission statements demonstrating that on 29/11/2021, the Applicant remitted Kes 20,000.00 from mobile number ELC NO. E013 OF 2021 13 | P a g e

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0721569523 to the Advocate’s mobile number 0727946857 as file opening fees, followed by an additional Kes 5,000.00 on 6/12/2021 for filing and personal service upon the Plaintiff’s Advocates. Furthermore, the Respondent annexed email correspondence dated 10/12/2021 demonstrating that the Applicant, using his personal email address (kiariecharles808@gmail.com), transmitted a signed copy of his Replying Affidavit to the Advocate’s firm. The Respondent subsequently entered a formal Notice of Appearance on 10/12/2021 via the Court’s e-filing portal and represented the Applicant in securing status quo orders over the suit property. 21) Most damaging to the Applicant's narrative of non- representation is the electronic correspondence from Prof. Kiama & Co. Advocates attaching a Notice of Change of Advocates served upon the Respondent law firm. Under Order 9 Rule 9 of the Civil Procedure Rules, 2010: "When there is a change of Advocate, or when a party decides to act in person having previously acted by Advocate, notice of the change or of the intention to act in person shall be given to the Court and to every other party to the cause or matter, or his Advocate." 22) It defeats legal logic for an incoming Advocate to serve a Notice of Change of Advocates pursuant to Order 9 Rule 9 upon a law firm that allegedly never represented the client in ELC NO. E013 OF 2021 14 | P a g e

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the first instance. Consequently, the Applicant’s allegations of fraud, misrepresentation, and lack of retainer are wholly unsubstantiated, demonstrably false, and flatly contradicted by the evidentiary record. 23) I find that there is well supported evidence of an Advocate client relationship between the parties herein and I am unable to fault the conclusion reached by the Taxing Master of the existence of such relationship and the Applicant is estopped from denying that he did instruct the Respondent to act on his behalf. Once the extent of the Advocates’ instruction was clear and (s)he undertook steps in furtherance of those instructions, he would have earned some fee. 24) On the prayer for enlargement of time to file a Reference out of time and the setting aside of the Taxation Ruling and Certificate of Taxation, the principles governing the exercise of judicial discretion under Section 95 of the Civil Procedure Act (Cap 21, Laws of Kenya) and Order 50 Rule 6 of the Civil Procedure Rules are well established. The Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 5 Others [2014] eKLR laid down the canonical parameters governing applications for extension of time, stating: "Extension of time is not a right of a party. It is an ELC NO. E013 OF 2021 equitable remedy that is available to a 15 | P a g e

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deserving party at the discretion of the Court... The underlying principles that a Court should consider are: first, that extension of time is not a right of a party; second, the party seeking extension must lay a basis to the satisfaction of the Court; third, the delay must not be inordinate; fourth, the reason for the delay must be plausible and well explained; fifth, the degree of prejudice to the Respondent if the application is granted; and sixth, the public interest involved." 25) In the present case, the Respondent proved service of the taxation application dated 24/01/2023 via email on 19/04/2023 to the designated Environment and Land Court Registry portal pursuant to the electronic service provisions under the Civil Procedure Rules. The Applicant, having been properly seized of the primary suit and having later instructed incoming Counsel who served a Notice of Change, chose to turn a blind eye to the Court proceedings. A litigant who knowingly abandons his suit or neglects Court processes cannot subsequently plead ignorance when execution ensues. As was succinctly stated by Sir William Duffus P stated, in Patel v. East Africa Cargo Handling Services Ltd ([1974] EA 75), where the Court held that its primary function is to ensure justice, rather than allowing procedural rules to limit its discretion. He stated that; ELC NO. E013 OF 2021 16 | P a g e

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"The main concern of the Court is to do justice to the parties and the Court will not impose conditions on itself to fetter the wide discretion given to it by the rules." 26) Furthermore, Section 51 of the Advocates Act (Cap 16, Laws of Kenya) provides for the taxation of costs as between Advocate and Client. The taxation in this matter was conducted strictly Remuneration Order, to scale 2014, under where the the Advocates Taxing Master exercised statutory jurisdiction to tax the bill down from Kes 351,100.00 to KES 135,455.00 before applying the mandatory 50% increase for an Advocate-Client Bill of Costs, yielding Kes 203,183.00. The Applicant has failed to point out any error of principle committed by the Taxing Master to warrant setting aside or varying the taxation award. As held in First American Bank of Kenya Ltd v. Shah and Others [2002] 1 EA 64: "The Court will not interfere with the decision of the Taxing Officer on a question of taxation unless it is shown that the Taxing Officer has acted upon a wrong principle or that the fee allowed is so manifestly excessive or inadequate as to compel the interference of the Court." 27) The instant application is an afterthought, frivolous, vexatious, and an improper attempt to defeat a valid judicial outcome through dishonest assertions. ELC NO. E013 OF 2021 17 | P a g e

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28) In the premises, I find that the Applicant's Notice of Motion dated 19/05/2025 is devoid of merit, bad in law, and an abuse of the Court process. Accordingly, the Court issues the following Orders: i) That the Applicant’s Notice of Motion Application dated 19/05/2025 be and is hereby dismissed in its entirety. ii) That the interim orders of stay of execution, if any, granted pending the hearing and determination of this application be and are hereby vacated forthwith. iii) That the Respondent Law Firm (M/s Wafula Washika & Associates / John Simiyu Wanyonyi Advocates) is hereby granted leave to proceed with execution enforcement processes pursuant to the Ruling dated 11/10/2023 and the Certificate of Taxation dated 30/04/2025. iv) That the costs of this Application are awarded to the Respondent law firm. v) File Closed. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 5TH DAY OF OCTOBER 2026. ………………… ELC NO. E013 OF 2021 18 | P a g e

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MOGENI J JUDGE In the presence of: Plaintiff/Applicant – Absent Mr. Simiyu for the Respondent Mr. Melita - Court Assistant …………………… MOGENI J JUDGE ELC NO. E013 OF 2021 19 | P a g e

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