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ELCAllowedMisc. Application dated 5/7/2018 (arising from Misc. Applications Nos. 50 and 51 of 2017)· [2021] KEELC 2248 (KLR)

Robson Harris and Co Advocates v Equip Agencies Limited & 2 others; Kipyator Kibet and Associates Advocates (Interested party) [2021] KEELC 2248 (KLR)

High Court of Kenya
9 August 2021
KBK. BOR
2,329 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court set aside a lawyer's Kshs. 1.1 million fee agreement, ruling clients were misled and the advocate can only be paid for work actually done.

What this practically means

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Executive summary

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The Respondents (clients) applied by notice dated 5/7/2018 to set aside a consent on advocate-client costs recorded on 16/11/2017 settling the Applicant law firm's fees at Kshs. 1,100,000, and to have costs assessed. They contended they had instructed the firm in January 2012 to transfer the Suit Property to the surviving joint owner and the children of the late Indubhai S. Patel by transmission following confirmation of a grant, but the firm prepared a commercial transfer, sought a valuation and stamp duty of Kshs. 6,000,000, and demanded fees of Kshs. 1,874,900 based on a property value of Kshs. 150,000,000. Instructions were withdrawn before registration, yet a bill of Kshs. 2,329,728 was filed and settled by consent, allegedly procured through misrepresentation and collusion with the Interested Party, a former pupil of the firm. The Applicant maintained the fees followed the Advocates Remuneration Order and the consent was not fraudulently obtained; the Interested Party denied collusion. The court held that Section 60 of the Land Registration Act required only registration of the death certificate to delete a deceased joint owner's name, that the transfer was never completed because instructions were withdrawn, and that the Applicant was entitled only to fees for work actually done. Finding the consent was recorded on the basis of misrepresentation and mistake, the court set it aside, directed that the costs payable to the advocates be assessed by the taxing master, and awarded the Respondents the costs of the application. Judgment delivered virtually at Nairobi on 9 August 2021 by K. Bor, Judge.

Key legal issues

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01

Whether the consent on advocate-client costs dated 16/11/2017 should be set aside

Holding

Yes; the consent was procured by misrepresentation and mistake because the advocate had prepared a commercial transfer instead of a transmission and claimed full instruction fees for an uncompleted transfer.

Reasoning

The court found that Chepchirchir Sego's affidavit disclosed misrepresentation or a mix-up on the instructions. The Respondents had instructed a transfer by transmission on death of a joint owner, requiring only registration of the death certificate under Section 60 of the Land Registration Act, yet the advocate prepared a commercial transfer and sought stamp duty of Kshs. 6,000,000. Instructions were withdrawn before registration, so full instruction fees were not payable and the consent resting on them falls away.

p. 4

Legal principles established

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  • A consent order recorded on the basis of misrepresentation or mistake can be set aside
  • On death of a joint proprietor, only proof of death need be furnished to the Land Registrar for deletion of the deceased's name under Section 60 of the Land Registration Act
  • An advocate is only entitled to fees for work actually undertaken before instructions were withdrawn

Court orders

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  1. 1.The consent on costs dated 16/11/2017 is set aside
  2. 2.The costs payable to Robson Harris and Company Advocates to be assessed by the taxing master
  3. 3.The Respondents are awarded the costs of the application dated 5/7/2018
Jurisdiction invoked
Inherent jurisdiction to set aside a consent order recorded in court; advocate-client costs under the Advocates Remuneration Order

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, "Robson Harris and Co Advocates v Equip Agencies Limited & 2 others; Kipyator Kibet and Associates Advocates (Interested party) [2021] KEELC 2248 (KLR)", Case Analysis (2021). Misc. Application dated 5/7/2018 (arising from Misc. Applications Nos. 50 and 51 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2248/eng@2021-08-09

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