Stanley KM Wandaka t/a Kinuthia Wandaka & Co. Advocates v Naomi Kanyua Musyoki [2021] KEELC 3542 (KLR)
The bottom line
#A Kenyan court confirmed a lawyer can prove you hired her through your conduct alone, so the fee bill against this client stands.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate/client relationship existed between the Applicant firm and the Respondent in the absence of a written retainer
An implied advocate/client relationship was established from the Respondent's conduct, including granting an authority to act, admissions in matrimonial proceedings, and her 2017 letter seeking case updates
The court reviewed the annexures: the Respondent granted the 1st Plaintiff authority to act on her behalf; in family division proceedings she admitted the firm was acting for her; and her letter of 19th October 2017 acknowledged she signed a document authorizing the firm to represent her in the Kajiado land case. The matter had been in court for six years before she changed advocates. The court concluded the retainer was implied from conduct and that the Respondent was estopped from denying it, notwithstanding the absence of a written retainer.
Whether the Bill of Costs dated 1st November 2018 should be struck out for want of retainer
The application to strike out the Bill of Costs was dismissed because the retainer was proved on a balance of probability
Applying Ochieng Onyango Kibet & Ohaga Advocates v Akiba Bank Limited and Zakhem Construction (Kenya) Ltd v Mereka & Company Advocates, the court held that while no written retainer existed, retainer can be implied from conduct. Since the advocate discharged the burden of proving the retainer on a balance of probability, the Taxing Master retained jurisdiction to tax the Bill of Costs and the striking-out application lacked merit.
Legal principles established
#- An advocate's authority to act may be implied from the conduct of the client even without written authority
- Where a retainer is denied, the burden of proving it lies on the advocate on a balance of probability
- A client who permits an advocate to act for her over a prolonged period is estopped from denying the retainer
Court orders
#- 1.The Respondent's Application dated 27th June 2019 seeking stay of proceedings and striking out of the Bill of Costs dated 1st November 2018 is dismissed
- 2.Costs of the application awarded to the Advocate/Applicant
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act and Paragraphs 2, 10 and 13 of the Advocates (Remuneration Order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley KM Wandaka t/a Kinuthia Wandaka & Co. Advocates v Naomi Kanyua Musyoki [2021] KEELC 3542 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3542/eng@2021-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.