Odhiambo v Nakuru Water & Sanitation Services

by the Applicant Advocates. On 16th April 2019, the Deputy Registrar (Hon. N. Makau) referred the file to this court for the purpose of determination of the issue as to whether or not the Applicants had been instructed to represent the 2nd Respondent. The reference was made after the 2nd Respondent contended that it had not given a legal brief to the Applicants as their Advocates in the said Civil Suit No. 29 of 2008 and so the Advocates cannot lawfully claim costs. 2. When this Court became seized of the matter on 8/10/2025, learned Counsel for the parties were directed to file and exchange written submissions on the dispute. Only Counsel appearing for the 2nd Respondent in the subject Bill of costs duly put in written submissions on the matter under reference. 3. Before setting out the 2nd Respondent's submissions and determining the matter, I shall state the 2 nd Respondent's reply to the Bill of Costs vide an affidavit of its Managing Director (James Aganga Gachatha). He Page 2 of 6

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avers that the subject matter of the suit before this court is a parcel of land known as Nakuru Municipality Block 11/663 of which the 1st Respondent is the beneficial owner. The 2nd Respondent is said to have been utilizing the land as the 1st Respondent's agent. The court is told that as per affidavits and other documents filed in the suit, it was the 1 st Respondent that instructed the Applicant Advocates to represent them in this suit. The 2nd Respondent therefore denies instructing the Applicant sand opines that any legal fees due to the latter is payable by the 1st Respondent. 3. It is submitted that the Bill of Costs arises from HCCC No. 29 of 2008 involving the Respondents and one Redempta Mbugua and Commissioner for Lands. Referring to the decision in County Council of Bureti vs Kennedy Nyamokeri T/A Nyamokeri & Co. Advocates (2006) eKLR the 2nd Respondent submits that it is imperative that instructions to Advocates by a public body be in writing. As no written instructions shown, there was no Advocate/Client relationship and Page 3 of 6

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the Taxing Officer has no jurisdiction to tax the Bill of Costs, argue Counsel. It is pointed out that it was in fact the 1st Respondent that instructed Counsel as per an affidavit signed in this regard. 4. Counsel further make reference to Section 45(1) Advocates Act which provides subject to section 46 of the Act, that and Advocate and the client may make an agreement fixing the amount of the Advocate's remuneration before, after or in the course of any contentious business in a civil court. 5. The court is therefore told that the Applicants have not discharged the burden of proof of their contentions as required under sections 107 and 109 of the Evidence Act. The court is urged to Strike out Bill of Costs with costs as against the 2nd Respondent. 7. The Applicant Advocates have not responded to the reference and, therefore, it is deemed that they concede the 2nd Respondent's contentions. Besides, there is no express or implied agreement between the parties put Page 4 of 6

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before the court by which any instructions were given to the Applicants as Counsel to represent the 2nd Respondent in HCCC No. 29 of 2008 adverted to hereinabove. As a public body it would reasonably be expected that the 2nd Respondent would issue instructions as to its legal representation in writing as persuasively submitted by Counsel. That the Applicants were in fact instructed by the 1st Respondent has not been rebutted. 8. Consequently, the Bill of Cost dated 26/7/2013 is struck out as against the 2nd Respondent only. No order is made as to the costs of this Reference. 9. Ruling accordingly. J. M. NANG’EA, JUDGE. Ruling, dated, signed and delivered virtually this 28th day of July, 2026. In the presence of: Applicants, Absent. Ms Mukundi Advocate for the 2nd Respondent Page 5 of 6

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1st Respondent, absent Court Assistant (Jeniffer). J. M. NANG’EA, JUDGE. Page 6 of 6

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