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Court of AppealDismissedCivil Appeal No. 37 of 2015 (lead file, consolidated with Civil Appeals Nos. 35, 36 and 38 of 2015)· [2020] KECA 906 (KLR)

DG Wachira t/a DG Wachira & Company Advocates v James Muchene Ngei [2020] KECA 906 (KLR)

Court of Appeal
7 February 2020
3,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan advocate who wrote letters fixing low fees and promising no further charges lost his bid to recover Shs.3.6 million in costs.

What this practically means

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Executive summary

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Four consolidated appeals by D.G. Wachira, trading as an advocate, challenged a consolidated ruling of the High Court (Ougo, J., 31 October 2014) which set aside certificates of taxation issued in his favour by a Deputy Registrar in four miscellaneous applications totalling over Shs.3.6 million in advocate-client costs. The relationship between the advocate and the client, James Muchene Ngei, had initially been cordial: the client paid the advocate's office rent, funded partitioning of his chambers, allowed him occupation of a house, and paid school fees for his children. Two letters written by the advocate were central: a September 2004 letter fixing his fees at Shs.150,000 and Shs.65,000 for two suits, and a January 2006 letter in which he disclaimed any further fees in all the client's matters save disbursements, in appreciation of payments in kind. The High Court held these letters reflected an undercutting arrangement contrary to rule 3 of the Advocates Remuneration Order and that the advocate could not 'steal a match' on the client by taxing full bills. The Court of Appeal, in a unanimous judgment delivered on 7 February 2020, agreed. Although the letters were unsigned and so did not constitute a valid section 45 agreement, the Court applied Njogu & Co. Advocates v National Bank of Kenya Ltd, holding that an advocate who knowingly enters a fee agreement contrary to the Remuneration Order cannot invoke the court's aid to tax bills that would avoid that illegality. The appeals were dismissed with costs to the respondent.

Key legal issues

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01

Whether the letters written by the appellant to the respondent constituted a fee agreement and their legal effect

Holding

The letters did not amount to a valid section 45 agreement as they were not signed by the respondent, but the advocate was bound by their contents and could not tax bills of costs contrary to them and the Remuneration Order.

Reasoning

The Court agreed with the High Court judge that an advocate cannot 'steal a match' on the client. The September 2004 letter fixed specific fees and the January 2006 letter disclaimed further fees in exchange for payments in kind. Although unsigned and thus not a section 45 agreement, allowing the advocate to tax full advocate-client bills would reward him for evading the Remuneration Order's minimum fee rule (undercutting), which the law does not permit.

p. 5
02

Whether the High Court judge properly interfered with the Deputy Registrar's taxation decisions

Holding

The judge properly interfered because the taxing master applied a wrong principle in allowing taxation on the strength of an illegal/undercutting arrangement.

Reasoning

The Court noted the accepted principle that a judge should not interfere with a taxing master's assessment of quantum absent a wrong principle or injustice. Here the judge faulted the Deputy Registrar for reaching findings that the advocate was entitled to fees despite the letters and the relationship, and set aside the certificates of taxation. The Court 'fully agreed with the findings of the judge', so the interference was justified on principle.

p. 6
03

Whether fees could be paid in kind and whether the surrounding payments (rent, NSSF payments, office partitioning, school fees) affected entitlement

Holding

The relationship had become muddled with payments in kind at the advocate's own request; the advocate, having thrown the professional approach 'off the window', could not claim further fees.

Reasoning

The record showed the respondent occupied the appellant's house rent-free, paid the advocate's office rent to NSSF, paid for office partitioning, and paid school fees for the appellant's children. In exchange the January 2006 letter disclaimed further fees save disbursements. The Court held that had the advocate maintained proper professional distance, the outcome would differ; the muddled relationship and his own letters defeated his claim.

p. 6

Legal principles established

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  • An agreement between advocate and client fixing remuneration is valid and binding only if in writing and signed by the client or an authorised agent, and if so made it is not subject to taxation.
  • An advocate who enters into an agreement for fees contrary to the Advocates Remuneration Order (undercutting) cannot maintain proceedings to tax an advocate-client bill of costs; the court will not assist a party to an illegal agreement.
  • An advocate who has muddled the advocate-client relationship, including writing letters disclaiming further fees, cannot turn around and disown those letters to claim fees on taxation.

Court orders

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  1. 1.The consolidated appeals (Civil Appeals Nos. 35, 36, 37 and 38 of 2015) are dismissed
  2. 2.Costs of the appeals awarded to the respondent

Authorities

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Legislation

  • Advocates Actsection 37
  • Advocates Actsection 44
  • Advocates Actsection 45
  • Advocates Actsection 45(6)
  • Advocates Actsection 46
  • Advocates Actsection 48
  • Advocates Remuneration Orderrule 3
  • Civil Procedure Actgenerally (Chamber Summons procedure)

Cases cited (1)

  • Njogu & Co. Advocates v National Bank of Kenya Limited
    [2016] eKLR
On appeal from
High Court of Kenya at Nairobi
Miscellaneous Civil Applications Nos. 143, 145, 146 and 172 of 2013 (consolidated ruling)
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers (Civil Procedure Act and Advocates Act appeals), not Article 163(4)(a). The judgment does not cite a specific jurisdictional provision.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "DG Wachira t/a DG Wachira & Company Advocates v James Muchene Ngei [2020] KECA 906 (KLR)", Case Analysis (2020). Civil Appeal No. 37 of 2015 (lead file, consolidated with Civil Appeals Nos. 35, 36 and 38 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/906/eng@2020-02-07

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