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ELCPartially Allowed· [2019] KEELC 3613 (KLR)

Muri Mwaniki & Wamiti Advocates v Wings Engineering Services Limited [2019] KEELC 3613 (KLR)

High Court of Kenya
26 April 2019
LGL. Gacheru
1,278 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 ruled that whoever instructs an advocate is the client who pays the fees—not a third party named in the contract.

What this practically means

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Executive summary

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This first-instance ruling by the High Court at Thika (L. Gacheru, J) determined a Notice of Preliminary Objection dated 20th April 2017 raised by the Respondent/Client against a bill of costs lodged for taxation by the Advocate/Applicant, Muri Mwaniki & Wamiti Advocates. The Respondent argued that no advocate-client relationship existed because the firm was instructed by Eco Bank Kenya Limited, not by the Respondent, and that any demand for fees should be directed to the bank. The Applicant contended that by retaining the Advocates to handle the transaction to perfect the charge, an advocate-client relationship arose, and that the real issue was liability, not instructions. The court framed a single issue: whether an advocate-client relationship existed between the parties. Applying the definition of 'client' in Section 2 of the Advocates Act and the letter of offer between the bank and the borrower, the court found that it was the bank, not the Respondent, that gave instructions and was liable to pay the fees; under the letter of offer the bank was to deduct legal fees from the borrower's account and itself pay the Advocates. Following Desai Sarvia & Pallan Advocates v Tausi Assurance, Konosi v Flamco and Owners of the Motor Vessel 'Lillian S' v Caltex Oil, the court held that absent an advocate-client relationship the taxing officer has no jurisdiction. The Preliminary Objection was upheld and the Bill of Costs dismissed with costs to the Respondent/Client.

Key legal issues

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01

Whether an Advocate-Client relationship existed between the Applicant and the Respondent

Holding

No Advocate-Client relationship existed; the Respondent never instructed or retained the Applicant, and the instructions emanated from Eco Bank Kenya Limited

Reasoning

The court applied the statutory definition of 'client' in Section 2 of the Advocates Act, which includes a person who employs or retains an advocate or who is or may be liable to pay the advocate's costs. The Respondent did not employ, retain, or instruct the Advocates; it was the bank that gave instructions. The letter of offer provided that the bank would recover legal fees by debiting the borrower's account, meaning the bank itself was to pay the Advocates. Applying Desai Sarvia & Pallan Advocates v Tausi Assurance, liability follows instructions.

p. 1
02

Whether the taxing officer has jurisdiction to tax a bill of costs absent an Advocate-Client relationship

Holding

Without an Advocate-Client relationship the taxing officer has no jurisdiction and must decline to tax

Reasoning

Relying on Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited and Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, the court held that jurisdiction is foundational: a taxing master without an advocate-client nexus is bereft of jurisdiction and must down tools at the earliest opportunity, since jurisdiction is everything and a court without it cannot take any step in the proceedings.

p. 2

Legal principles established

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  • An advocate-client relationship springs from instructions by the client; absent such relationship, the Taxing Officer lacks jurisdiction to tax a bill of costs
  • The party who instructs the advocate is the client liable to pay the fees, even where a contract provides for recovery of legal charges from another party

Court orders

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  1. 1.The Preliminary Objection dated 20th April 2017 is upheld
  2. 2.The Bill of Costs is dismissed with costs to the Respondent/Client

Authorities

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Legislation

  • Advocates ActSection 2 (definition of 'Client')

Cases cited (4)

  • Omulele & Tollo Advocates v Mount Holdings Limited
    (2016) eKLR
  • Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited
    (2017) eKLR
  • Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited
    (2017) eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
Jurisdiction invoked
Advocates Act, referral for taxation of a Bill of Costs between advocate and client

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, "Muri Mwaniki & Wamiti Advocates v Wings Engineering Services Limited [2019] KEELC 3613 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3613/eng@2019-04-26

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