Machakos County Government v Kapiti Plains Estate Ltd & another [2019] KEELC 3869 (KLR)
The bottom line
#The High Court dismissed Machakos County's attempt to avoid a KShs 366 million advocate's bill, confirming the lawyer was properly instructed and entitled to his fees.
What this practically means
#Executive summary
#Key legal issues
#Whether Philip Nzyuko Musya signed the impugned pleadings
The court found on comparison of signatures that Musya signed the Plaint; the forgery allegation was not proved
The court invoked Section 76(1) of the Evidence Act to compare Musya's undisputed signature on his Petition to the Chief Justice with the disputed signature on the Plaint and found them similar. Musya failed to call a handwriting expert as required to discharge the burden under Section 107 of the Evidence Act, had no letter of employment binding him exclusively to B. M. Mung'ata & Co. Advocates, and had admitted holding brief for Kabaka & Associates.
Whether the Plaintiff instructed the 2nd Respondent to file the suit
Yes; the Plaintiff gave instructions by letter dated 25th July 2014 and is estopped from denying the retainer
PW2 gave written instructions on 25th July 2014, PW3 swore the verifying affidavit confirming the firm filed the suit, and PW4 continued corresponding with the firm during the suit's pendency, including a reference to maintaining the 'decorum of Client and Advocate relationship'. Estoppel bars the Plaintiff from denying the retainer.
Whether there was a conflict of interest and breach of the Public Procurement and Assets Disposal Act, 2015 and the Leadership and Integrity Act
No conflict of interest arose and the procurement Act did not apply
The Act came into force on 7th December 2016, after the instructions of 25th July 2014 and the filing of the suit. The appointment letter expressly stated it was not a contract of employment and did not preclude the advocate's firm from undertaking its normal legal practice. The advocate did not instruct himself, and the Plaintiff's officers knowingly retained his firm.
Whether the 2nd Respondent is entitled to his fees
Yes; the Advocate-Client Bill of Costs stands for taxation
Having found a valid retainer, no forgery, no conflict of interest and no applicable procurement breach attributable to the advocate, the court held the advocate entitled to fees under the Advocates Act and Advocates Remuneration Order. The Plaintiff remains free to withdraw the underlying suit but must still settle the fees.
Legal principles established
#- A party who alleges a signature on a pleading is a forgery bears the burden of proving it, ordinarily through a handwriting expert, the court's power of comparison under Section 76(1) of the Evidence Act notwithstanding
- A client who swears a verifying affidavit in support of a plaint and whose officers gave instructions is estopped from denying that the suit was filed with its instructions
- An advocate cannot be denied his fees merely because the client's officers breached procurement law in procuring his services
Court orders
#- 1.The Application dated 17th April 2018 is dismissed with costs to the 2nd Respondent
- Jurisdiction invoked
- Original jurisdiction over taxation dispute under the Advocates Act and Advocates (Remuneration) Order; notice of motion in advocate-client bill of costs proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Machakos County Government v Kapiti Plains Estate Ltd & another [2019] KEELC 3869 (KLR)", Case Analysis (2019). Machakos High Court, Notice of Motion dated 17th April 2018 (arising from Advocate-Client Bill of Costs dated 24th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3869/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.