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Court of AppealDismissedCivil Appeal No. 365 of 2014· [2017] KECA 653 (KLR)

Zakhem Construction (Kenya) Ltd v Mereka & Company Advocates [2017] KECA 653 (KLR)

Court of Appeal
24 March 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
2,830 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that hiring a lawyer doesn't require a signed agreement — your conduct and emails can create a binding lawyer-client relationship.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Musinga, Gatembu Kairu and Murgor, JJ.A.) dismissed this first appeal against a ruling of the High Court (R. E. Ougo, J.) of 5th November 2014 in Miscellaneous Civil Application No. 336 of 2012. The High Court had dismissed the appellant's preliminary objection and held that the respondent advocates were retained by the appellant in relation to a proposed shopping mall development on LR No. 7200/4 Ruaraka, permitting taxation of an advocate/client bill of costs of Kshs. 13,074,225. The appellant contended that the respondent acted on an unsolicited proposal, gave no instructions, and that no retainer could be implied. The Court reaffirmed that a retainer is the act of authorizing or employing an advocate to act, and that it need not be in writing but may be implied from the client's conduct. Examining the email correspondence, the Court found the appellant actively engaged with the project - requesting development proposals, engaging surveyors and project managers through the respondent, and conveying management's recommendations - and never repudiated the mandate, so it was estopped from denying the retainer. The Court, exercising its first-appeal duty to re-evaluate the evidence, found the respondent discharged its burden of proof. However, it clarified that establishing the retainer does not entitle the respondent to the fees claimed; the scope of instructions and fees are for the taxing master. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether an advocate/client retainer can be implied from the conduct of the parties

Holding

Yes. Retainer, being the act of authorizing or employing an advocate to act, can be implied from the client's conduct, participation and course of dealings; it need not be in writing.

Reasoning

The Court adopted the Halsbury definition of retainer as the act of authorizing or employing a solicitor, and endorsed the Ochieng Onyango formulation that authority may be implied from conduct. The email correspondence showed the appellant actively shaping and advancing the project proposal, engaging with surveyors and project managers through the respondent, and never disavowing the mandate, so the estoppel finding was well supported.

p. 5
02

Who bears the burden of proving the existence of a retainer

Holding

The advocate bears the burden of proving it was retained by the client; in this case the burden was discharged through the documentary course of dealings.

Reasoning

It was common ground that the respondent bore the burden of proving retention. The Court examined the affidavits and email correspondence, including the 5th August 2010 email from Ibrahim Zakhem requiring a development proposal, and concluded the appellant's participation and acquiescence established the retainer, so the burden was discharged.

p. 3
03

Effect of establishing a retainer on entitlement to fees

Holding

Establishment of a retainer permits taxation but does not itself guarantee the fees claimed; the nature and scope of instructions and the fees payable are for the taxing master.

Reasoning

The Court was careful to separate the threshold question of retainer from quantum. Even though the retainer was established and the preliminary objection rightly dismissed, the respondent is not automatically entitled to the Kshs. 13 million claimed; the taxing master must determine the nature and scope of instructions and the fees payable.

p. 6

Legal principles established

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  • A retainer of an advocate need not be in writing; it may be implied from the conduct of the client and the course of dealings between the parties.
  • On a first appeal, the Court of Appeal is not bound by the findings of the lower court and must review and evaluate the material placed before that court to draw its own conclusions.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Advocates ActSection 2

Cases cited (3)

  • Kinluc Holdings Ltd vs. Mint Holdings Ltd & Another
    [1998] eKLR
  • Ochieng Onyango Kibet & Ohaga Advocates vs. Akiba Bank Limited
    [2008] 1 E A 300
  • Selle and Another vs. Associated Motor Boat Company Ltd and others
    [1968] E. A. 123
On appeal from
High Court at Nairobi
Miscellaneous Civil Application No. 336 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (Advocates Act regime; appeal as of right against a ruling on taxation of an advocate/client bill of costs)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Zakhem Construction (Kenya) Ltd v Mereka & Company Advocates [2017] KECA 653 (KLR)", Case Analysis (2017). Civil Appeal No. 365 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/653/eng@2017-03-24

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