Tindika t/a Tindika & Company, Advocates v Kazungu

3. The Reference was canvassed by way of written submissions. The Client’s submissions are dated 30th July, 2026. The Advocate led written submissions in opposition. 4. The Advocate led an Advocate/Client Bill of Costs dated 11th November, 2024 claiming Kshs. 4,191,307.00 for professional services said to have been rendered to the Client in Kili CMCELC No. 8 of 2019 and Malindi High Court Miscellaneous Application No. 18 of 2019. In CMCELC No. 8 of 2019, the administrators of the estate of the late Salim Nzangu Bakari sued the Client, the Advocate and two others seeking the subdivision of Plot No. 404/III/MN (CR. 10352), a restriction against it and an injunction against its sale. The Miscellaneous Application sought the transfer of that suit to the High Court for the recording of a consent. 5. The Bill pegged the instruction fee at Kshs. 2,355,000.00 on an asserted property value of Kshs. 170,000,000.00. The Client opposed the Bill in its entirety. He denied having instructed the Advocate and contended that no valuation report supported the gure of Kshs. 170,000,000.00. 6. By a ruling delivered on 8th April, 2025, the Taxing Ocer taxed the Bill at Kshs. 1,182,481.60, taxing o Kshs. 3,008,825.00. On instruction fees, she found that the suit did not proceed to full trial, that no defence was led save for a Notice of Preliminary Objection, and that the Judge in Miscellaneous Application No. 18 of 2019 had held the suit property to be valued at Kshs. 20,000,000.00 as per the conditions of sale. Applying Paragraph 1 of Schedule 7 of the Order, she allowed Kshs. 650,000.00. She then taxed the remaining items individually, allowed the 50% advocate/client increase and VAT, and issued a Certicate of Costs dated 14th April, 2025. 7. By a letter dated 28th April, 2025, the Client’s advocates, Issa Mutungi & Company, wrote to the Taxing Ocer giving notice that the Client “objects to the taxation of the whole ruling” on the ground that “there is no Advocate-client relationship” between the Client and the Advocate in the two matters and asking for reasons. A follow-up letter dated 20th May, 2025 sought the same reasons. No further reasons were given. 8. Meanwhile, the Advocate moved the Court by a Notice of Motion dated 23rd April, 2025 seeking to convert the Certicate of Costs into a decree and for garnishee orders. By a ruling delivered on 12th June, 2025, the Court dismissed that application as premature, observing that the question whether the objection was led promptly and in compliance with Paragraph 11(1) ought rst to be resolved. 9. The Client then led a Chamber Summons dated 23rd June, 2025 seeking leave to le a Reference out of time. The Advocate led a Notice of Motion dated 18th July, 2025 seeking judgment for Kshs. 1,182,481.60 with interest at 14% per annum from 14th April, 2025. By a ruling delivered on 11th March, 2026, the Court extended time and directed the Client to le and serve the Reference within 21 days. It granted a temporary stay of execution, stayed the Notice of Motion dated 18th July, 2025 pending compliance, and directed that costs abide the outcome of the Reference. The present Reference followed. The Client’s case 10. The Client’s primary position is that there was no retainer between him and the Advocate. He says there is no retainer agreement or instruction note, and that his advocates requested proof of instructions by an email dated 25th April, 2025 but none was supplied. 11. In the alternative, he contends that the Taxing Ocer erred in principle in the following respects: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6307/eng@2026-10-08 2

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12. i. She applied the wrong scale, which he describes as the conveyancing scale, instead of Schedule 6, Paragraph 1(a) of the Order for undefended proceedings. She did not show how she arrived at Kshs. 650,000.00. ii. Having noted that Nyakundi J. referred to the property as valued at Kshs. 22,000,000.00, she ought to have used that gure rather than Kshs. 20,000,000.00. He computes the proper instruction fee at Kshs. 495,625.00. iii. She allowed perusals, drawings and attendances at the registry under items 2, 3, 4, 5, 8, 9, 10, 11, 13, 14, 15, 16 and 17, although Schedule 7 does not provide for them. iv. The charges for service under items 6, 12 and 18 were excessive and unsupported by evidence. v. She allowed items 17 to 22 and disbursement item 6 although they are undated, contrary to Ngatia & Associates v Interactive Gaming & Lotteries Limited [2017] eKLR. On this basis, he says the Bill ought to have been taxed at Kshs. 862,391.82 at most. On competence, the Client submits that the question whether his notice of objection was sucient was settled by the ruling of 11th March, 2026 and that the Court cannot sit on appeal over its own decision. He adds that no provision requires the notice to list individual items where, as here, the objection is to the entire taxation. He relies on Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, Joreth Ltd v Kigano & Associates [2002] eKLR, Peter Muthoka & Another v Ochieng & 3 Others [2019] eKLR and Mwangi Keng’ara & Company Advocates v Mungai [2022] eKLR. He prays that the ruling and certicate be set aside and the Bill remitted for re-taxation before a dierent taxing ocer. The Advocate’s case 13. The Advocate’s rst answer is that the Reference is incompetent. Paragraph 11(1) of the Order requires an objector to give notice of “the items of taxation to which he objects”. The letter of 28th April, 2025 identied no item. A compliant notice is a condition precedent to a Reference. The Client cannot cure the omission by listing items for the rst time in his supporting adavit and submissions. He relies on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited [2017] eKLR and Kisia v Lubulella and Associates Advocates [2022] KEHC 550 (KLR). 14. On the retainer, Counsel depones that the Client instructed him personally. He says the Client brought the pleadings in CMCELC No. 8 of 2019 to his chambers. The rm then led a Memorandum of Appearance and a Notice of Preliminary Objection in the Kili suit, and a Notice of Appointment and Grounds of Opposition in Miscellaneous Application No. 18 of 2019. He annexes those documents as “RMT 3”. He also annexes, as “RMT 2”, documents showing that the rm acted for the Client in Malindi ELC No. 77 of 2016 (OS) and ELC Miscellaneous Application No. 49 of 2016, including an adavit sworn by the Client. 15. He submits that a retainer need not be in writing and may be inferred from conduct, relying on Omulele & Tollo Advocates v Mount Holdings Limited [2016] KECA 523 (KLR) and Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited [2017] KECA 456 (KLR). Having accepted the services, the Client cannot now deny the relationship. 16. Finally, he submits that no error of principle has been shown. He notes that the Taxing Ocer reduced the Bill from Kshs. 4,191,307.00 to Kshs. 1,182,481.60 after scrutinising it. He prays that the Reference https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6307/eng@2026-10-08 3

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be dismissed with costs and that judgment be entered for Kshs. 1,182,481.60 with interest at 14% per annum from 14th April, 2025. Analysis and determination 17. 18. I have considered the Reference, the adavits and annexures, the submissions and the authorities. The following issues arise for determination: i. Whether the Reference is competent, and if so, its proper scope. ii. Whether a retainer existed between the Client and the Advocate in the two matters. iii. Whether the Taxing Ocer erred in principle in taxing the Bill. iv. What orders should issue, including on costs. On the jurisdiction of the Court on a reference, the principles are settled. A judge hearing a reference does not re-tax the bill. The Court will interfere only where the taxing ocer erred in principle, or where the fee awarded is so manifestly excessive or inadequate as to justify an inference that it rests on an error of principle. See Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others [1972] EA 162, First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64 and Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR. Questions solely of quantum are matters the taxing ocer is particularly tted to deal with. The Court will intervene on quantum only in exceptional cases (Arthur v Nyeri Electricity Undertaking [1961] EA 492). Issue (i): Competence and scope of the Reference 19. The Client’s contention that this issue was settled by the ruling of 11th March, 2026 cannot stand. That ruling dealt with one question only: whether time should be extended. It did not determine whether the notice of objection complied with Paragraph 11(1). In its ruling of 12th June, 2025, the Court had expressly left that question open, to be resolved before the Certicate of Costs could be enforced. A decision enlarging time to le a reference does not pronounce on the reference’s competence. The Advocate is entitled to raise the point now. 20. Paragraph 11(1) and (2) of the Order provide: 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.” 21. I accept, as held in Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited, that the notice is not a mere technicality. It narrows the dispute, alerts the taxing ocer and the opposite party to the complaint, and allows the taxing ocer to give focused reasons. The question is whether the letter of 28th April, 2025 served those purposes. 22. In my view it did, as far as it went. The letter did not merely ask for reasons. It stated a specic ground of objection: that the Advocate had never been retained by the Client in either matter. That ground, if made good, defeats every item in the Bill. An objection of that kind is necessarily an objection to all items, and nothing is gained by requiring the objector to list each one. The Taxing Ocer and the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6307/eng@2026-10-08 4

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Advocate knew precisely what was being challenged and why. The position diers from Matiri Mburu (supra), where the letters only sought reasons and a copy of the ruling, and from Kisia v Lubulella and Associates Advocates (supra), where no compliant notice identifying the complaint was given. To strike out the Reference in these circumstances would be to give undue regard to procedural technicality, contrary to Article 159(2)(d) of the Constitution. 23. I therefore nd that the Reference is competent to the extent that it challenges the taxation on the ground that no retainer existed. The position is dierent for the item-by-item complaints in the supporting adavit and submissions. These concern the scale applied, the value of the subject matter, and the individual perusals, drawings, attendances, service charges and undated items. None of them was mentioned in the notice of objection. The Taxing Ocer was never asked to give reasons on them, and the Advocate rst learnt of them in the Reference. To entertain them as of right would defeat the very purpose of Paragraph 11(1). Strictly, they fall outside the proper scope of the Reference. 24. Nonetheless, the parties have joined issue on them. The Advocate has answered that no error of principle was committed. Issue (ii): Whether a retainer existed 25. A retainer is the client’s authority to the advocate to act. It need not be in writing. It may be oral and may be inferred from the conduct of the parties. However, where the only evidence of a retainer is the advocate’s word and the client contradicts it, the advocate will be treated as having acted without authority. See Omulele & Tollo Advocates v Mount Holdings Limited (supra). Section 2 of the Advocates Act denes a “client” to include any person who, as principal or on behalf of another, retains or employs an advocate, and any person who is or may be liable to pay an advocate’s costs. The burden of proving the retainer lies on the Advocate. 26. The Advocate has discharged that burden with documents, not merely assertion. The record shows the following: 27. a. A Memorandum of Appearance led in CMCELC No. 8 of 2019 by Tindika & Company, Advocates. It reads: “Please enter an appearance for MIKE KAINGU KAZUNGU and R.M TINDIKA t/a TINDIKA & COMPANY, ADVOCATES the 1st and 2nd Defendants herein.” b. A Notice of Preliminary Objection in that suit, led by the rm as “Advocates for the 1st and 2nd Defendants/Respondents”. c. A Notice of Appointment of Advocate in Miscellaneous Application No. 18 of 2019. It states that Mike Kaingu Kazungu and R.M. Tindika had appointed the rm “to act for them”. d. Grounds of Opposition in the Miscellaneous Application, led for the 1st and 2nd Respondents. e. The ruling of Nyakundi J. delivered on 20th February, 2020 in that application, which records “R.M. Tindika Advocates for the respondent”. The preliminary objection was dismissed but the transfer was directed to the Chief Magistrate’s Court, Malindi, not the High Court as the plaintis had sought. f. The plaint in CMCELC No. 8 of 2019 itself, in which the plaintis pleaded at paragraph 9 that the 1st Defendant was acting “through his Advocates M/S. Tindika and Company Advocates”. Against this, the Client oers a bare denial and the absence of a written retainer. He does not say that some other advocate acted for him in those proceedings. He does not say that the Advocate appeared without his knowledge, or that he ever repudiated the representation. The email of 25th April, 2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6307/eng@2026-10-08 5

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from his advocates asked for the proceedings and “letters of instructions” with a view to discussing settlement. It is not a denial. The Client’s own adavit sworn on 28th April, 2021 in ELC No. 77 of 2016 (OS) refers to “my Advocate Mr. R. M. Tindika”. Although that concerned a dierent matter, it conrms an ongoing professional relationship between the two. 28. Pleadings were led in court in the Client’s name, and the court recorded the Advocate as appearing for him. In the absence of any credible explanation, the only reasonable inference is that the Advocate acted on the Client’s instructions. I nd that a retainer existed in respect of both CMCELC No. 8 of 2019 and Miscellaneous Application No. 18 of 2019. Issue (iii): Whether the Taxing Ocer erred in principle 29. Instruction fees. The Client’s complaint proceeds on the premise that the Taxing Ocer applied the scale for sales and purchases of land. That premise is mistaken. The ruling expressly applies Paragraph 1 of Schedule 7 of the Order. Schedule 7 is the scale for proceedings in the subordinate courts. CMCELC No. 8 of 2019 was a suit in the Chief Magistrate’s Court at Kili. The Taxing Ocer therefore applied the correct schedule to the instructions in that suit. Schedule 6, on which the Client’s alternative computation rests, governs proceedings in the High Court and courts of equal status. It is not the applicable scale for a suit in a magistrate’s court. 30. On the value of the subject matter, the governing principle is that value is determined from the pleadings, the judgment or the settlement. Only where none of these discloses it may the taxing ocer assess the fee at her discretion. See Joreth Ltd v Kigano & Associates (supra) and Peter Muthoka & Another v Ochieng & 3 Others (supra). The plaint pleaded no value. The dispute was, however, compromised by an agreement dated 31st January, 2019. Nyakundi J. found that agreement to peg the value at Kshs. 20,000,000.00 under clause 3 of its conditions of sale. In adopting that gure, the Taxing Ocer took the value from the settlement. She also rightly rejected the unsupported gure of Kshs. 170,000,000.00 claimed in the Bill. That nding was in the Client’s favour. A valuation report was not required where the value could be ascertained from the record. See Rachuonyo & Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR. 31. The complaint that Kshs. 22,000,000.00 ought to have been used is, with respect, self-defeating. A higher value would increase the instruction fee, not reduce it. In any event, the Client’s own computation proceeds on Kshs. 20,000,000.00. The gure of Kshs. 22,000,000.00 appeared in the transfer application, but the Judge identied Kshs. 20,000,000.00 as the value under the agreement. The Taxing Ocer cannot be faulted for following that nding. 32. As to quantum, the Taxing Ocer identied the applicable schedule and the value of the subject matter. She considered that the suit did not proceed to trial and that the defendants led only a Notice of Preliminary Objection, with no defence. On that basis, she reduced the fee claimed from Kshs. 2,355,000.00 to Kshs. 650,000.00. Her ruling could have set out the arithmetic more fully. However, the Client has not demonstrated that the sum falls outside the Schedule 7 scale for a subject matter of Kshs. 20,000,000.00, nor that it is manifestly excessive. His alternative gures rest on an inapplicable schedule and are internally inconsistent. For example, the sum said to be taxed o is Kshs. 1,889,375.00 in the adavit but Kshs. 650,000.00 in the submissions. No error of principle has been shown on item 1. 33. Perusals, drawings and attendances. The Client says the Taxing Ocer taxed items o and then awarded them. That misreads the ruling. Items 2, 3, 4, 5, 7, 20 and 21 were taxed o entirely, which is the outcome he seeks. Items 8, 9, 11, 14, 15, 16 and 17 were not awarded as drawn but taxed down. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6307/eng@2026-10-08 6

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For example, item 9 was reduced from Kshs. 1,100.00 to Kshs. 360.00, item 14 from Kshs. 1,850.00 to Kshs. 900.00, and item 11 from Kshs. 3,000.00 to Kshs. 500.00. 34. The approach taken is consistent with principle. Work done in the Kili suit falls under Schedule 7, which does not separately provide for drawings, perusals or registry attendances. Those items were taxed o. Work done in Miscellaneous Application No. 18 of 2019, and in the taxation proceedings before this Court, falls under Schedule 6. The Taxing Ocer taxed those items under the relevant paragraphs of that Schedule. No error of principle arises. 35. Service charges. Items 6 and 18 were allowed as drawn at Kshs. 3,500.00 and Kshs. 4,000.00 for service from Mombasa. Whether these sums are reasonable is a matter of quantum within the Taxing Ocer’s discretion. Nothing exceptional has been shown to warrant interference. 36. Undated items. Items 17 to 22 relate to steps taken after the Bill was drawn: collecting the Notice of Taxation, serving the Bill, attending the taxation, and the Certicate of Costs. By their nature, these steps could not be dated when the Bill was prepared. Each of them is veriable from the court record. The absence of a date on such items is not, in my view, an error of principle that would justify setting aside the taxation. 37. I am therefore not persuaded that the Taxing Ocer erred in principle, or that the sum of Kshs. 1,182,481.60 is so manifestly excessive as to justify interference. The prayer for re-taxation before a dierent taxing ocer must also fail. Apart from disagreement with the outcome, no ground has been laid for it. 38. The upshot is that the Reference lacks merit. I make the following orders: a. The Chamber Summons dated 31st March, 2026 is dismissed. b. The ruling of the Taxing Ocer delivered on 8th April, 2025 is upheld. The Certicate of Costs dated 14th April, 2025, certifying Kshs. 1,182,481.60, stands. c. The temporary stay of execution granted on 11th March, 2026 is discharged. d. The stay of the Advocate’s Notice of Motion dated 18th July, 2025 is lifted. e. The costs of the Reference and of the Chamber Summons dated 23rd June, 2025 (which were to abide the outcome of the Reference), are awarded to the Advocate/Respondent. DATED, SIGNED AND DELIVERED, VIRTUALLY AT MALINDI THIS 8TH DAY OF OCTOBER 2026. …………….………….. J. M. ONYANGO JUDGE In the presence of: 1. Ms Memia for the Applicant 2. Mr. Tindika for the Respondent Court Assistant: Happy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6307/eng@2026-10-08 7

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