Professor Tom Ojienda & Associates v National Lands Commission [2020] KEELC 1277 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed a state agency was properly on record as a client because it had signed an instruction letter, and must pay the lawyer's costs.
What this practically means
#Executive summary
#Key legal issues
#Whether a retainer existed between the National Land Commission and Professor Tom Ojienda & Associates
A retainer existed by virtue of the signed letter of instructions dated 21st November 2014 (ref NLC/L/G/001) and the enclosed Terms of Reference, which were unchallenged
The Court applied the dictionary meaning of 'retainer' and superior-court decisions on the point. It found the letter bore the Client's letterhead, identified the suit, set out the scope of work and expressly stated the Commission intended to pay a retainer. Although the Client alleged the letter was unsigned, no unsigned copy was availed and the signed copy was not challenged.
Whether the Client made a case for dismissal of the Advocate's Chamber Summons and Bill of Costs
No - the dismissal application failed once the retainer was established
Having found a valid retainer, the Court held there was no reasonable basis to stay taxation or dismiss the Chamber Summons and Bill of Costs. The retainer finding was dispositive of the Motion, which the Court described as without merit and dismissed with costs to the Advocate.
Whether appointment of the Advocate without tender contravened the Public Procurement and Asset Disposal Act
Not determinative; the Advocate argued the appointment fell under 'urgent need' and the Client did not establish its procurement objection
The Client alleged the appointment breached procurement law because the Advocate did not tender. The Advocate responded that appointment of an advocate could be covered under 'urgent need'. The Court did not rest its decision on this ground, instead basing its finding on the signed letter of instructions and Terms of Reference.
Legal principles established
#- A signed, unchallenged letter of instructions appointing an advocate constitutes evidence of a retainer
- Where an application fails, the unsuccessful party bears costs under Section 27 of the Civil Procedure Act
Court orders
#- 1.The Client's/Respondent's Motion dated 10th July 2018 is dismissed with costs
- 2.The Client should pay the Advocate the costs of the Motion in accordance with Section 27 of the Civil Procedure Act
- 3.The ruling to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses
- Jurisdiction invoked
- Reference by the Deputy Registrar under the Advocates Act for determination of the issue of retainer before taxation of the Advocate/Client Bill of Costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Professor Tom Ojienda & Associates v National Lands Commission [2020] KEELC 1277 (KLR)", Case Analysis (2020). Notice of Motion dated 10th July 2018 (in Advocate's Bill of Costs proceedings, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1277/eng@2020-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.