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Court of AppealDismissedCivil Appeal No. 154 of 2014· [2017] KECA 431 (KLR)

Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] KECA 431 (KLR)

Court of Appeal of Kenya
12 July 2017
GKG. B. M. KariukiFSF. SichaleSKS. ole Kantai
2,954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that advocates claiming fees must prove a client relationship existed, and an unexplained payment alone is not enough.

What this practically means

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Executive summary

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The appellant advocate appealed against a High Court ruling (Wendoh, J., 4 May 2012) dismissing his Chamber Summons under Rule 11 of the Advocates Remuneration Order, which had sought to set aside the Deputy Registrar's decision striking out his advocate/client Bill of Costs against Flamco Limited for want of an advocate/client relationship. The Court of Appeal, in a single judgment of the court delivered by Kariuki, Sichale and ole Kantai JJA on 12 July 2017, dismissed the appeal with costs. It held, as a first appeal, that it was entitled to re-evaluate the evidence. The core holdings are that a Taxing Officer has jurisdiction to determine, and must determine at once, whether an advocate/client relationship exists when that issue is raised in taxation, since a taxation decision made in the absence of such a relationship is a nullity for want of jurisdiction; and that the burden of proving the retainer rests on the advocate. Instructions need not be in writing and may be oral or inferred from conduct, but the only evidence here was a Kshs 110,000 cheque exhibited by the respondent's director, who alleged the payment was obtained without explaining the circumstances and sought a refund. The Court held that unexplained part-payment per se cannot establish an advocate/client relationship, and no correspondence was exhibited demonstrating instructions. The decisions of Uhuru Highway (relied on by the appellant) were distinguished by the appellant's own framing; Omulele, Abincha and Doge were held inapplicable or distinguishable. The decision below was affirmed.

Key legal issues

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01

Jurisdiction of the Taxing Officer over want of advocate/client relationship

Holding

The Taxing Officer has jurisdiction to determine the existence of an advocate/client relationship when raised, and must do so before proceeding; absent such relationship any taxation is a nullity

Reasoning

Jurisdiction to tax bills is conferred by the Advocates Act and the Advocates Remuneration Order; it cannot arise by implication or party consent, and inherent jurisdiction cannot be invoked where adequate statutory provision exists. The nexus between advocate and client springs from instructions; absent that relationship the Taxing Officer is bereft of jurisdiction, and following the 'MV Lilian S' principle the proceedings must stop at once.

p. 4
02

Proof of advocate/client relationship and effect of part-payment

Holding

Instructions may be oral or inferred from conduct, but the advocate bears the onus of proving them; part-payment alone, unexplained, does not prove a retainer

Reasoning

The only evidence was a cheque for Kshs 110,000 exhibited by the respondent's director, who alleged the payment was obtained without explaining circumstances and sought a refund. The appellant's affidavit merely emphasised the payment and filed bill without showing instructions. Written instructions are good practice but not mandatory; the failure was evidential - the onus was on the advocate and was not discharged.

p. 5

Legal principles established

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  • A Taxing Officer has jurisdiction to determine, at once, the question whether an advocate/client relationship exists where it is raised in taxation; a taxation decision made absent such relationship is a nullity
  • The mere fact of a payment by a putative client to an advocate does not, without evidence of the circumstances of the payment, establish an advocate/client relationship
  • The burden of proving the advocate/client relationship rests on the advocate claiming fees

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Advocates ActChapter 16, Laws of Kenya
  • Advocates ActSection 48(1)
  • Advocates Remuneration OrderRule 11
  • Advocates (Remuneration) OrderRule 24
  • Limitation of Actions ActCap 22, Section 4(1)(a)

Cases cited (8)

  • County Council of Bureti vs. Kennedy Nyamokeri T/A Nyamokeri & Co Advocates
    [2006] eKLR (Misc 102 of 2005)
  • Uhuru Highway Development Ltd and Others versus Central Bank of Kenya and others (2)
    [2002] 2 EA 654 (CAK)
  • Omulele & Tillo Advocates vs. Mount Holdings Limited
    [2016] eKLR
  • Abincha & Co Advocates versus Trident Insurance Co. Ltd
    [2013] eKLR
  • Doge vs. Kenya Canners Ltd
    [1989] KLR 127
  • Selle Vs. Associated Motor Boat Company
    [1968] EA 123
  • Taparn vs Roitei
    [1968] EA 618
  • The "MV Lilian S"
    [1989] 1 KLR
On appeal from
High Court of Kenya at Nakuru
Miscellaneous Civil Application No. 500 of 2010
Jurisdiction invoked
First appeal from the High Court under the Advocates Act and Rule 11 of the Advocates Remuneration Order framework

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] KECA 431 (KLR)", Case Analysis (2017). Civil Appeal No. 154 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/431/eng@2017-07-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.