Severino Ambale Makoba v Joginder Singh Behan [1978] KECA 8 (KLR)
The bottom line
#A Kenyan client cannot force an advocate to refund fees already paid, even where the fee agreement was only verbal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an agreement for payment of an advocate's fee not in writing and signed by the client is binding under section 49(1) of the Advocates Act
- 2.Whether a client who has paid an agreed fee under an oral agreement to an advocate is entitled to claim a refund of it
- 3.Whether there was failure of consideration for the fee of Shs 2,000 paid
Key legal issues
#Bindingness of an oral advocate-client fee agreement under section 49(1) of the Advocates Act
The oral agreement to pay Shs 2,000 was not binding on the client because no written agreement signed by the client or his authorised agent was produced; the advocate could not have sued to recover the fee had it not been paid.
Section 49(1) of the Advocates Act permits an advocate and client to make an agreement fixing instruction fees, but such an agreement is valid and binding only if in writing and signed by the client or his duly authorised agent. No such writing was produced in the Magistrate's Court or the High Court. The fee agreement was therefore unenforceable as a contract, though the fee had in fact been paid and receipted.
Whether a client may recover a fee actually paid under an oral agreement
No. Where the advocate rendered the professional services, there was good consideration for the payment and the client cannot recover the fee; section 49 does not intend restitution in such circumstances.
The court distinguished the enforceability of the agreement from the right to restitution of money paid. Although the oral agreement was not binding, the fee was paid and the advocate gave advice and did work on the suit. Compelling an advocate who has rendered services to refund the fee would be manifestly unjust. Failure of consideration was a question of fact, on which the two courts below had concurrently found against the appellant.
Legal principles established
#- An advocate's fee agreement is valid and binding under section 49(1) of the Advocates Act only if in writing and signed by the client or his duly authorised agent; an oral fee agreement is not binding and is unenforceable by the advocate
- A client who has actually paid a fee under an oral agreement, where the advocate rendered the professional services, is not entitled to a refund; section 49 does not require restitution in those circumstances
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs, the respondent having not asked for costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the principal judgment: an oral agreement to pay an advocate's fee is not binding under section 49(1) of the Advocates Act, but a client who has paid the fee where services were actually rendered cannot recover it as there was good consideration and restitution would be manifestly unjust.
It would be manifestly unjust to compel an advocate who has rendered services to his client to refund the fee paid to him by a client because it was not paid under an agreement in writing; section 49 does not intend restitution in the circumstances as they existed in this case.p. 2
Wrote the judgment
Concurred that the appeal must fail, holding the question was essentially one of fact on failure of consideration, the two courts below having concurrently found that the appellant received the services he paid for.
The question before us is essentially of fact whether the consideration has failed. The two courts below concurrently came to the conclusion that the appellant in effect received the services he paid for.p. 2
Wrote the judgment
Concurred: the advocate gave advice and did work in connection with the suit, so there was no failure of consideration for the Shs 2,000 paid and the appellant was not entitled to recover it.
There was no failure of consideration for the payment of the Shs 2,000 by the appellant, and I agree that he is not entitled to recover that sum.p. 2
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal from the High Court (Appellate Jurisdiction), under the applicable appellate legislation; the judgment does not cite the specific provision
Relief refused
#Refund of the Shs 2,000 fee paid under an oral agreement
Good consideration existed in the professional services rendered; section 49 of the Advocates Act does not intend restitution in such circumstances
Further sum of money said to have been spent by the appellant
The appellant failed on the evidence as a whole to establish his claim in the courts below
Costs
No order as to costs - 'As Mr Malik for the respondent has not asked for costs, there will be no order.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appellant’s oral agreement to pay a fee of Shs 2,000 to the respondent is therefore not binding upon him; if not paid, the respondent could not successfully sue for the recovery of it even though the fee was expressly agreed to be paid by the client.
It would be manifestly unjust to compel an advocate who has rendered services to his client to refund the fee paid to him by a client because it was not paid under an agreement in writing; section 49 does not intend restitution in the circumstances as they existed in this case.
The two courts below concurrently came to the conclusion that the appellant in effect received the services he paid for.
I would dismiss the appeal. As Mr Malik for the respondent has not asked for costs, there will be no order.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Severino Ambale Makoba v Joginder Singh Behan [1978] KECA 8 (KLR)", Case Analysis (1978). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/8/eng@1978-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.