Kivuitu Maundu & Co. Advocates v Christopher Wainaina Mburu

3. The application was heard by the Deputy Registrar, and in a ruling delivered on 28th September, 2023, he allowed the revision and reduced the costs to Kshs.243,031.00/=. The items reviewed included the instruction fees, with a lower figure of Kshs.10,000,000/= used as the value of the subject matter, and credit was given for fees found to have already been paid. 4. Upon issuance of a certificate of taxation dated 14th February, 2024, the applicant filed an application dated 6th March, 2024, seeking that the Court enter judgment for the certified costs of Kshs.243,031/ =, including the application’s costs and interest until payment in full. 5. The Respondent also filed an application dated 23rd December, 2024 that seeks the following orders; i. That this honourable court be pleased to hear and determine this matter in the first instance and service of the application be dispensed with; ii. That this application be certified urgent; iii. That Mr. Hamisi Rashid Mzari of Justice Defenders Kenya do formally come on record as advocate for the applicant/respondent herein in place of KY & A Advocates; iv. That the notice of change of advocate annexed herein be deemed as duly filed and served; v. That the honourable court be pleased to enlarge the time limited by Order 11 (2) of The Advocates (Renumeration) Order to serve the respondent the objection to the decision of the Taxing Master dated 28th September,2023; vi. That the honourable court be pleased to extend the time limited by Order 11 (2) of The Advocates (Remuneration) Order to appeal/apply to the Objection to the decision of the Taxing Officer dated 28th September, 2023; vii. That this honourable court be pleased to issue an Order for stay execution of the judgment and certificate of taxation dated 14th February, 2024 together with all consequential orders pending the hearing and determination of this application; viii. That the honourable court be pleased to order the Advocate/Respondent in this application to produce under oath documents in support of item nos. 1 to 34; item 35 is charged excessively; 37 to 39; 41 to 44; and documents and receipts in support of items 47 to 51 and items 53 to 69 of the Advocate/Client Bill of Costs; ix. That this honourable court order the Advocate/Respondent to produce proof of payment of legal fees paid by the Client/Applicant to her so far; x. That this honourable court be pleased to issue any orders that it may deem fit under the circumstances; xi. That costs of this application be provided for. 6. The Applicant opposed the application via a replying affidavit dated 18th August, 2025 and also filed a Preliminary Objection dated 17th January, 2025. 7. This ruling is on these two pending applications. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6142/eng@2026-04-27 2

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The applicant’s (advocate) case 8. The Applicant asserts that the Respondent (client) has yet to settle the fees and that, since the costs were certified, the sum in the certificate of costs should be entered as judgment. The Applicant also seeks costs of their application dated 6th March, 2026 and interest on the costs. 9. On the Respondent’s application dated 22nd December, 2024, the Applicant contends that the same is an afterthought and meant to delay the hearing of the application for entry of judgment. 10. In their submissions, the Applicant argued that the 15-month delay is prolonged and that the Respondent should not be granted leave to file a reference, as no explanation was ofiered for the delay in filing the application. 11. Their Preliminary Objection argued that this Court has no jurisdiction to hear an appeal against the ruling of 28th September, 2023. They, however, did not include the P.O arguments in their submissions. The Respondent’s (client) case 12. The Respondent filed a consent allowing Hamisi Rashid Mzari Advocate to come on record in place of KY & A Advocates. 13. He did not file a response to the application dated 6th March, 2024 seeking entry of judgment. 14. In his application dated 23rd December, 2024, the Respondent disputed the bill and the taxation, criticizing the previous counsel for poor advice and for not appealing the taxing master’s decision despite receiving instructions. The record indicates that the then advocates filed a notice of appeal dated 11th October, 2023. 15. The Respondent asks that the court allow him time to lodge an appeal/objection to the decision of the taxing master dated 28th September, 2023. Analysis and determination 16. I have reviewed the applications, accompanying affidavits, affidavit in response and the respective submissions. The key issues for determination are; i. Whether the court should grant leave to appeal/lodge an objection to the taxing master’s decision of 28th September, 2023; ii. Whether the certified costs should be entered as judgment of the court and an order made on the costs of the application and interest. 17. The main law regulating legal fees and taxation is the Advocates Act (Chapter 16 of the Laws of Kenya), particularly through its subsidiary regulation, the Advocates (Remuneration) Order. 18. Order 11 of the Advocate’s (Remuneration) Order (A.R.O) provides as follows: “ 11. Objection to decision on taxation and appeal to Court of Appeal (1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. (2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6142/eng@2026-04-27 3

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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. (3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. (4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.” 19. The Respondent did not file any notice of objection to the taxation that was done in the ruling dated 14th June, 2023; instead, he filed an application dated 20th June, 2023, in which he asked for a review of the taxation. The application was brought under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, which provide for review of orders and decrees. 20. The issue in the application for review for reconsideration of instruction fees and already paid costs was not merely a clerical matter for correction; it prompted the taxing master to reconsider the assessment. The recourse available under Order 11 of the A.R.O for challenging taxation involves lodging a notice of objection pursuant to Rule 1 within a 14-day period from the receipt of the ruling. This notice should specify the items being contested. If the party wishes to pursue the objection further, it may, within 14 days of receiving the reasons provided by the taxing master under Rule 2, file a reference application for consideration before a judge. See Magdalena Alphonce Cheposowor v Cheposupko Lonyareng & 5 others [2021] eKLR. 21. Given that the A.R.O establishes an exclusive procedure for such matters, the Applicant was precluded from pursuing a review under the Civil Procedure Act. The taxing master was functus officio once the taxation ruling was delivered and could not revise the taxation unless it was remitted back for taxation following a reference application before a Judge. 22. The application dated 20th June, 2023, and the subsequent ruling of 28th September, 2023, are deemed irregular. Consequently, the orders and the certificate of taxation issued on 9th February, 2024, are hereby set aside. 23. The principle governing the relationship between a client and their advocate underscores that a client is bound by the actions of their legal representative, who is deemed the client’s agent. Nonetheless, Courts have discretion to grant relief in cases where the advocate’s mistake is gross and results in significant injustice to the client. 24. In Muriu, Mungai & Co. Advocates v UBA Kenya Bank Limited [2021] KEHC 13198 (KLR), the Court considered an application for extension of time and stated as follows; “ 11. A simple reading of the above provision reveals that the power to enlarge time discretionary and like any other exercise of judicial discretion, must be exercised judiciously and based on sound principles and grounds. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6142/eng@2026-04-27 4

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12. In the instant case, it is not disputed that the impugned ruling on taxation was delivered on 13th May 2020 and the copies of the ruling containing the reasons for the taxation sent to the parties via email on 10th July 2020. The present application was filed on 4th November 2020 which is at almost 4 months after the ruling was sent to the parties. The applicant has explained that it was under the impression that it could seek the leave of the court to file a cross reference when the respondent’s reference came up for mention for directions on 15th October 2020. 13. The respondent, on the other hand, argued that the applicant’s explanation for the delay was not plausible as it did not require the leave of the court to file a reference. 14. Considering the totality of all the circumstances of this case and the fact that the respondent’s reference is still pending determination by this court, I find that it will serve the interests of justice to allow the applicant an opportunity to pursue its reference court as any inconvenience caused to the respondent can be ameliorated by and award for costs.” 25. In reviewing the timelines associated with the application dated 20th June, 2023, which was filed subsequent to the ruling of 14th June, 2023, I conclude that the delay is not inordinate and has been adequately explained. It is also evident that the respondent has all along expressed interest in contesting the taxation. There is evidence of active engagement in the legal process, and the respondent has made a case for the court to exercise discretion in his favour. 26. The certificate of costs on record was issued pursuant to the ruling of 28th September, 2023 (the review application), which has been set aside. The Court cannot, therefore, enter judgment for those certified costs in line with the application dated 6th March, 2024. 27. The award of costs is at the discretion of the Court, which discretion is applied according to the specific circumstances surrounding each case. In light of the analysis presented in the preceding paragraphs, I am inclined to award the costs of the applications to the advocate. Disposition 28. I make the following orders with regard to the 2 applications; i. The Court extends time for the lodging of an objection to the taxation ruling delivered on 14th June, 2023. The objection is to be lodged within 14 days of this ruling. ii. The Ruling delivered by Hon. Lesootia S. on 28th September, 2023 on the Respondent’s Advocate application dated 20th June, 2023 is hereby set aside together with all consequential orders. iii. The Certificate of Taxation issued on 14th February, 2024 is hereby set aside. iv. The applicant (advocate) is awarded costs of the applications assessed at Kshs.35,000/=, to be paid within 14 days. v. If an objection is not lodged within the stipulated 14-day period and the assessed costs are not paid within the same 14-day period, the taxing master shall issue a certificate of taxation in accordance with the taxation ruling delivered on 14th June, 2023, without any further reference to the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6142/eng@2026-04-27 5

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29. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 27TH DAY OF APRIL, 2026. ………………………… C. KENDAGOR JUDGE In the presence of: Court Assistant – Noel Mwanzia for Applicant No appearance for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6142/eng@2026-04-27 6

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