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ELCAllowed· [2017] KEELC 1814 (KLR)

Njoroge Nyagah & Co Advocates v Lexis International Limited (Miscellaneous Civil Application 262 of 2016) (Environment and Land) [2017] KEELC 1814 (KLR)

High Court of Kenya
22 September 2017
BEB. M. Eboso
1,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed a law firm can prove a client relationship through an executed sale agreement and emails, allowing its KShs 2 million legal bill to be taxed.

What this practically means

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Executive summary

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Njoroge Nyagah & Co. Advocates filed a bill of costs of KShs.2,060,606.40 against Lexis International Limited arising from an aborted land sale transaction involving Land Reference Number 1870/1/440. Before taxation could proceed, the respondent brought a Notice of Motion asking the court to determine whether it had retained the advocate, contending that the instructions came from Humphrey Wachira, an agent of the vendor, and were never affirmed by the respondent. The advocate, through Maryanne Njoroge, maintained that instructions were issued by the respondent through its agent and pointed to the executed agreement for sale and subsequent correspondence. The court, per B. M. Eboso J, noted that retainer is the contractual foundation of a bill of costs and that without it the taxing officer has no jurisdiction. Relying on authority that a retainer need not be written and may be inferred from conduct, the court found that Clause 7 of the agreement for sale, executed by the respondent's two directors, identified Njoroge Nyagah & Co. Advocates as the purchaser's advocates, which was adequate evidence of retainer. Email correspondence, including the respondent's Managing Director Mahesh Vekaria's discussions on fees (0.7% versus 1% of the land value), further corroborated the retainer and showed the respondent agreed to pay fees though the parties never agreed on the exact sum. The court held, on a balance of probabilities, that the respondent retained the advocate and ordered the Deputy Registrar to tax the bill of costs and issue a certificate of taxation.

Key legal issues

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01

Whether the respondent retained the advocate in the aborted land purchase transaction

Holding

The court found that the respondent did retain the advocate, on a balance of probabilities, based on the executed agreement for sale identifying the advocate and corroborating email correspondence.

Reasoning

Clause 7 of the executed agreement for sale identified Njoroge Nyagah & Co. Advocates as the purchaser's advocates, and the agreement was executed by the respondent's two directors, from which retainer could be inferred. Emails from the respondent's Managing Director, Mahesh Vekaria, discussing fees and settlement corroborated the retainer, confirming the respondent agreed to pay fees though the exact sum was never agreed.

p. 4

Legal principles established

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  • Retainer is the contractual foundation of a bill of costs; absent a retainer, the taxing officer has no jurisdiction to tax the bill.
  • A retainer need not be written and may be inferred from the conduct of the parties, including execution of documents identifying the advocate.

Court orders

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  1. 1.The Deputy Registrar is ordered to proceed to tax the Bill of Costs and issue a certificate of taxation in accordance with the law

Authorities

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Cases cited (2)

  • Omulele & Tollo Advocates v Mount Holdings Limited
    [2016] eKLR
  • Ochieng, Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited
    [2009] 1 EA 380 (as printed: [200] 1 LA 380)
Jurisdiction invoked
Advocate's bill of costs referable to the High Court for determination of retainer prior to taxation

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoroge Nyagah & Co Advocates v Lexis International Limited (Miscellaneous Civil Application 262 of 2016)  (Environment and Land) [2017] KEELC 1814 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1814/eng@2017-09-22

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