Malonza t/a Malonza & Company Advocates v Mwania & 3 others (Sued as trustees of Mulolongo Brothers Association) (Environment & Land Case 241 of 2017) [2022] KEELC 3433 (KLR)
The bottom line
#A Kenyan advocate lost a Kshs. 14.7 million fee claim because he couldn't prove the association he sued had actually hired him.
What this practically means
#Executive summary
#Key legal issues
#Whether an implied retainer existed between the plaintiff advocate and the defendants as trustees of the Association
No retainer was proved. Release of the mother title alone could not imply a retainer since surrender of the mother title was necessary for subdivision in any event; and legal fees were paid by individual members, not the defendants or the Association.
The court defined a retainer drawing on Black's Law Dictionary, Halsbury's Laws of England and local authorities, holding that an oral retainer is possible but the advocate claiming under a disputed retainer must prove it from the parties' conduct. The plaintiff's pleadings shifted between 739 and 839 titles; he conceded he was paid by individual members and that neither the defendants nor the Association paid legal fees. Accordingly the agency relationship was not established.
Whether the defendants' counterclaim for refund of monies was merited
The counterclaim failed in its entirety.
The defendants did not produce evidence of payment of Kshs. 5,430,000/- by the 100 members, had no names or particulars of those members, and no authority to sue on their behalf. Claims for land rent, rates, deed plan processing and survey fees were paid to third parties (Municipal Council of Mavoko and surveyors), not to the plaintiff, and the Ndichu & Associates payment predated the plaintiff's engagement.
Legal principles established
#- An advocate may receive instructions orally, but where the retainer is disputed, the advocate bears the burden of proving that the conduct of the parties unequivocally demonstrates the advocate-client relationship
- Even where a retainer is implied, the nature, scope and extent of what the advocate was employed to do must be discernible from the circumstances and the parties' conduct
- A party is bound by their pleadings
Court orders
#- 1.The plaintiff's suit is dismissed for lack of merit
- 2.The defendants' counterclaim is dismissed for lack of merit
- 3.No order as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (plaint filed in first instance; matter concerns processing of titles over land in Machakos County)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malonza t/a Malonza & Company Advocates v Mwania & 3 others (Sued as trustees of Mulolongo Brothers Association) (Environment & Land Case 241 of 2017) [2022] KEELC 3433 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3433/eng@2022-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.