DG Wachira t/a DG Wachira & Company Advocates v James Muchene Ngei [2020] KECA 906 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the letters written by the appellant to the respondent constituted a fee agreement and their legal effect
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.
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.
Whether the High Court judge properly interfered with the Deputy Registrar's taxation decisions
The judge properly interfered because the taxing master applied a wrong principle in allowing taxation on the strength of an illegal/undercutting arrangement.
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.
Whether fees could be paid in kind and whether the surrounding payments (rent, NSSF payments, office partitioning, school fees) affected entitlement
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.
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.
Legal principles established
#- 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
#- 1.The consolidated appeals (Civil Appeals Nos. 35, 36, 37 and 38 of 2015) are dismissed
- 2.Costs of the appeals awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mulanya & Maondo Advocates v Noah Sapati Ole Mpamae [2020] KEELC 828 (KLR)[2020] KEELC 828 (KLR)27 Oct 2020
Cite this brief
#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.