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ELCDismissedChamber Summons dated 29/6/2020 (Kitale ELC)· [2020] KEELC 346 (KLR)

Apollo Ambutsi & Co Advocates v Philip Okoth Okundi & another [2020] KEELC 346 (KLR)

Environment and Land Court
15 October 2020
MNMwangi Njoroge
2,191 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled advocates cannot use Section 45 to force clients to ratify fee agreements — clients who admit the debt and offer instalments deserve patience.

What this practically means

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Executive summary

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The applicant advocate, Apollo Ambutsi & Co. Advocates, was instructed by the respondents to defend them in Kitale ELC No. 111 of 2008, in which judgment was delivered in the respondents' favour on 7/5/2020. By a Chamber Summons dated 29/6/2020, the advocate sought ratification and approval of payment of Kshs.2,500,000/- being the balance of fees agreed at Kshs.3,000,000/- under a written agreement dated 25/7/2019, of which only Kshs.500,000/- had been paid instead of the agreed Kshs.1,000,000/- down payment. The respondents, through a replying affidavit, admitted the debt but pleaded financial hardship caused by the Covid-19 pandemic, offering to pay in instalments of Kshs.138,889/-. The court framed the sole issue as whether the applicant was entitled to the orders sought. Mwangi Njoroge J held that parties are bound by their agreements and courts should not rewrite them, but took judicial notice of the pandemic's disruptive effects. Examining Section 45 of the Advocates Act, the court found no basis, applying the ejusdem generis rule, for an advocate to apply for ratification of a fee agreement, since the section contemplates application by a discontented client, and the respondents had not repudiated the agreement. The court relied on Keshavji Jethabhai & Brothers Ltd v Saleh Abdulla on instalment payments, holding the respondents had demonstrated bona fides by paying a sizeable lumpsum. The application was dismissed with no orders as to costs, instalment levels left for the parties.

Key legal issues

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01

Whether the court has jurisdiction under Section 45 of the Advocates Act to ratify a fee agreement at the instance of the advocate

Holding

No; Section 45 contemplates applications by a discontented client, not by the advocate, and the ejusdem generis rule yields no basis for the advocate's application

Reasoning

The court examined Section 45 and found subsection (2) and (2A) predicated on client discontent. No subsection was expressly relied on by the applicant. Applying ejusdem generis to the provisions, no basis exists for ratification at the advocate's instance, especially where the respondents have not repudiated the agreement but only pleaded inability to pay in a lump sum.

p. 3
02

Whether payment of the outstanding fees should be enforced in a lump sum or by instalments

Holding

The respondents demonstrated bona fides by paying a sizeable lumpsum and pleading Covid-19 hardship; instalments are appropriate but the court declined to fix them

Reasoning

The court took judicial notice of the Covid-19 pandemic's disruptive effect on businesses. Citing instalment-payment principles from Keshavji Jethabhai & Brothers Ltd v Saleh Abdulla, it held the respondents had shown bona fides, and it would be inequitable to grant the application as framed; instalment levels remain for the parties at an appropriate time.

p. 2

Legal principles established

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  • A court should not rewrite an agreement or imply terms not contained therein; parties are bound to perform their part
  • A defendant/debtor showing bona fides may be allowed to pay a debt by instalments through fair payment proposals

Court orders

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  1. 1.The application dated 29/6/2020 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Advocates ActSection 45 (including subsections 1, 2, 2A, 3, 4, 5, 6)

Cases cited (4)

  • Maasai Kenya Ltd -vs- Hardware & Steel Centre Ltd & Another
    2013 eKLR
  • Hildegard Ndalut -vs- Lelkina Dairies Ltd & Another
    2005 eKLR
  • Keshavji Jethabhai & Brothers Limited -vs- Saleh Abdulla
    [1959] EA 260
  • Sawatram Ramprasad -vs- Imperial Bank of India
    [1933] AIR Nag. 33
Jurisdiction invoked
Section 45 of the Advocates Act (application by chamber summons)

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, "Apollo Ambutsi & Co Advocates v Philip Okoth Okundi & another [2020] KEELC 346 (KLR)", Case Analysis (2020). Chamber Summons dated 29/6/2020 (Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/346/eng@2020-10-15

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