Gathenji & Company Advocates v David N. Thuku & another [2017] KEELC 2284 (KLR)
The bottom line
#The High Court confirmed a law firm was validly retained and can tax its bill of costs, even though the clients deny ever instructing it.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate/client retainer existed between Gathenji & Co. Advocates and the respondents
The court found that a retainer existed with effect from 1st March 2010, when the applicant filed a notice of change of Advocates, until the applicant was removed from the record by a notice of change of Advocate in the Court of Appeal matter.
The court relied on the documentary record: the applicant filed a notice of change of Advocates in 2010, served it on S.T.G. Muhia & Associates and Kinoti Kibe & Co. Advocates, continually appeared for the respondents in the High Court matter, prepared and filed appeal documents, and Mr. Muhia's correspondence described the respondents as mutual clients. The respondents' attempt to have Mr. Muhia disown the applicant's representation failed when he declined to sign such an affidavit.
The proper mechanism for determining the dispute referred from taxation
The reference was properly before the judge pursuant to Paragraph 12 of the Advocates Remuneration Order, the parties having agreed on 20th February 2017 that the judge decide the retainer issue on the documents and submissions already filed, dispensing with the case-stated procedure to save time.
Paragraph 12(1) & (2) allows the taxing officer, with consent of both parties, to refer any dispute arising out of taxation to the High Court following the case-stated procedure to a judge in chambers. Here the parties, who had appeared before the Deputy Registrar on several occasions, agreed that the judge decide the issue on filed affidavits and submissions. The court accepted this as an agreed simplification of the prescribed procedure.
Legal principles established
#- An advocate who has acted for clients who later engage another advocate is entitled to his fees for the period of the retainer.
- With the consent of both parties, a taxing officer may refer any dispute arising out of the taxation of a bill for the opinion of the High Court, the procedure following that of a case stated to a judge in chambers.
Court orders
#- 1.The Preliminary Objection which was the basis of the reference is struck out with costs to the applicant
- 2.The file be taken back to the Deputy Registrar who was handling the taxation to proceed with the same
- Jurisdiction invoked
- Paragraph 12(1) & (2) of the Advocates Remuneration Order - reference by the taxing officer of a matter in dispute arising out of the taxation of a bill for the opinion of the High Court, with the consent of both parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathenji & Company Advocates v David N. Thuku & another [2017] KEELC 2284 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2284/eng@2017-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.