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ELCDismissedNot stated in the excerpt· [2021] KEELC 3542 (KLR)

Stanley KM Wandaka t/a Kinuthia Wandaka & Co. Advocates v Naomi Kanyua Musyoki [2021] KEELC 3542 (KLR)

Environment and Land Court
26 April 2021
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a ruling by the Environment and Land Court at Kajiado on a notice of motion dated 27th June 2019 in which Naomi Kanyua Musyoki sought a stay of proceedings and the striking out of a Bill of Costs dated 1st November 2018 drawn by the firm of Kinuthia Wandaka & Co. Advocates in respect of Kajiado ELC No. 184 of 2017 (formerly Machakos HCC No. 299 of 2012). She denied ever instructing the firm, contending it acted for her estranged husband Silvanus Musyoki, and argued the Taxing Master lacked jurisdiction to tax in the absence of a retainer. The advocate opposed, asserting express and implied instructions and pointing to a Notice of Change of Advocates of 6th May 2018 replacing the firm. Framing the sole issue as whether the Bill of Costs should be struck out, the court applied Ochieng Onyango Kibet & Ohaga Advocates v Akiba Bank Limited and Zakhem Construction v Mereka & Company Advocates, holding that retainer may be implied from conduct and that the burden of proving it rests on the advocate on a balance of probability. On the evidence - the authority to act, the Respondent's admissions in matrimonial proceedings (annexure NK3), and her letter of 19th October 2017 - the court found an implied advocate/client relationship and held the Respondent estopped from denying the retainer. The application was dismissed with costs to the Advocate/Applicant.

Key legal issues

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01

Whether an advocate/client relationship existed between the Applicant firm and the Respondent in the absence of a written retainer

Holding

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

Reasoning

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.

p. 2
02

Whether the Bill of Costs dated 1st November 2018 should be struck out for want of retainer

Holding

The application to strike out the Bill of Costs was dismissed because the retainer was proved on a balance of probability

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application awarded to the Advocate/Applicant

Authorities

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Legislation

  • Civil Procedure Actsections 3 and 3A
  • Advocates (Remuneration Order)paragraphs 2, 10, 13 and 11(2)

Cases cited (5)

  • Mugambi & Company Advocates v John Okal Ogwayo & Another
    (2013) eKLR
  • Erickson Mogusu t/a Mogusu & Associates v Mash East Africa Limited
    (2017) eKLR
  • Ochieng Onyango Kibet & Ohaga Advocates v Akiba Bank Limited
    [2008] 1 EA 380
  • Zakhem Construction (Kenya) Ltd v Mereka & Company Advocates
    (2017) eKLR
  • Mereka & Company Advocates v Zakhem Construction (Kenya)
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Paragraphs 2, 10 and 13 of 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, "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.