Anthony Thuo Kanai t/a Thuo Kanai Advocates v Cannon Assurance Limited & another [2020] KEELC 3686 (KLR)

The applicant was employed as legal officer on a written contract fixing duties, working hours and salary. His duties (conveyancing, litigation, legal opinions) required the qualifications of an advocate, which is why the employer hired him. The court found the applicant could not work in two capacities, as employee and independent advocate, over the same subject matter, and that use of his firm's name in documents did not create a retainer.

The court examined Rule 4 and Rule 4(ii), holding that Rule 4 prohibits sharing profit costs with unqualified persons and Rule 4(ii) permits an employed advocate, by agreement, to set off profit costs from his employer's opponents or third-party costs against salary and office expenses. No such agreement with the employer on charging fees for in-house services was proved, so no fees were chargeable under the rule.

Rule 4A prohibits an advocate employed by an unqualified person from drawing documents or rendering services for which fees are charged to third parties and retained by the employer. The employer charged and retained fees with the applicant's knowledge and participation. Breach of Rule 4A is professional misconduct and section 31 violation is an offence, so the court will not let the applicant profit from the illegality.

The applicant relied on a petition, a Court of Appeal appeal and rulings by other taxing officers. The court held that the specific issue of advocate/client relationship was not raised and conclusively determined in the prior proceedings between the same parties, and that a taxing officer is not bound by decisions of other taxing officers.