Wambo Muyala and Company Advocates v Karithi (Miscellaneous Application 360 of 2019)  KEHC 11136 (KLR) (Civ) (31 May 2022) (Ruling)
Neutral citation:  KEHC 11136 (KLR)
Republic of Kenya
Miscellaneous Application 360 of 2019
SJ Chitembwe, J
May 31, 2022
Wambo Muyala and Company Advocates
Frank David Gatura Karithi
1.On August 19, 2021, the deputy registrar after perusing the respondent’s Notice of Objection dated July 8, 2021 declined to assume jurisdiction stating that the issue of retainer needs to be determined first by a judge and referred the file to this court.
2.The respondent filed a Notice of Objection dated July 8, 2021 on the grounds reproduced below;
3.For the taxing officer to embark on taxing a bill of costs, it must be established that there exists an advocate/client relationship and that the advocate was instructed in accordance with the law.
4.Differently stated, the dispute raises a jurisdictional question as opposed to an issue outside the jurisdiction of the taxing master. This being a jurisdictional question on whether or not the bill of costs was properly before her for taxation, the taxing master had jurisdiction to determine the question whether there existed an advocate/client bill of costs or whether there was an agreement on the fees payable. It was not necessary to refer the matter to a judge. This is because the issue raised is a jurisdictional question. I am fortified in this proposition, by the Court of Appeal decision in Wilfred N Konosi t/a Konosi & Co Advocates v Flamco Limited  eKLR which held that:-
5.I have nothing useful to add to the above proposition of the law, save to emphasize that the issue in question was perfectly within the jurisdiction of the taxing master because it was a jurisdictional issue.
6.There is no dispute as to whether the advocate was instructed to institute court proceedings. The taxing master is well placed to determine whether there was an agreement on the fees payable between the advocate and the client. Should it be found that there was no such agreement, then the taxing master shall proceed to tax the bill. On the other hand, if there is proof of agreement on the fees and that what was agreed upon was duly paid then the taxing master would decline to tax the bill of costs. The file is hereby sent back to the taxing master to determine the preliminary issue.
DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF MAY 2022........................S CHITEMBWEJUDGEDATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF MAY 2022......................J K SERGONJUDGE