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ELCAllowedEnvironment and Land Miscellaneous Application 52 of 2017· [2023] KEELC 16221 (KLR)

Koki Mbulu & Co Advocates v Shah & 2 others

Environment and Land Court
9 March 2023
JMJO Mboya
6,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that taxing officers can decide retainer disputes and that unwritten, conduct-based retainers are enforceable.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Mboya J) determined a reference by Koki Mbulu & Co Advocates challenging a ruling of the deputy registrar of 15 March 2017, in which the taxing master had declined to tax the advocate/client bill of costs dated 4 February 2016 and referred the question of retainer to a judge, despite having earlier ruled on 22 September 2016 that she had jurisdiction over retainer and dismissed a preliminary objection. The court framed three issues: whether the second ruling amounted to sitting on appeal over the registrar's own decision; whether the deputy registrar has jurisdiction to determine retainer; and whether a retainer existed. The court held that having pronounced herself on jurisdiction without any reference against that ruling, the deputy registrar was functus officio and could not make a contradictory finding. Relying on Konosi v Flamco, the court affirmed that the taxing master is statutorily vested with jurisdiction to determine retainer disputes. On the evidence, principally email correspondence of October 2015 sent by the 1st respondent from the 2nd respondent's domain on behalf of the 3rd respondent requesting an urgent legal opinion on the purchase of LR No 10897/4, the court found a retainer existed with all respondents, inferable from conduct despite being unwritten, applying Omulele & Tolo and section 2 of the Advocates Act. The reference was allowed: the 15 March 2017 ruling was set aside, a retainer was declared, the bill was remitted for taxation before a deputy registrar other than Hon S Mwayuli, and costs were awarded to the applicant.

Key legal issues

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01

Whether the deputy registrar could revisit her own earlier ruling on jurisdiction

Holding

She could not; having ruled on 22 September 2016 that she had jurisdiction over retainer, and no reference having been filed, she was functus officio and the 15 March 2017 ruling was a second bite at the cherry

Reasoning

The deputy registrar had on 22 September 2016 expressly held that the taxing officer had jurisdiction over retainer and dismissed the preliminary objection. No objection or reference was mounted against that ruling. Having pronounced herself on jurisdiction, she was functus officio and could not legitimately re-engage on the same question and render a contradictory ruling amounting to sitting on appeal over her own decision.

p. 4
02

Whether the deputy registrar has jurisdiction to determine retainer

Holding

Yes; jurisdiction is statutorily conferred by the Advocates Act and the Advocates Remuneration Order, following Konosi v Flamco

Reasoning

Relying on the Court of Appeal in Konosi v Flamco, the court held that the advocate-client relationship springs from instructions by the client, and the taxing officer is conferred jurisdiction by the Advocates Act and Remuneration Order to determine such disputes; absent the relationship the taxing officer would be bereft of jurisdiction, hence the question of retainer is for the taxing officer.

p. 9
03

Whether a retainer existed between the applicant and the respondents

Holding

Yes; a retainer was inferred from email correspondence sent from the 2nd respondent's domain by the 1st respondent as chairman of the 3rd respondent's trustees, requesting a legal opinion

Reasoning

The emails of 26 and 29 October 2015 were authored by the 1st respondent for and on behalf of the 3rd respondent, sent from the 2nd respondent's domain (denoting authority), copied to trustees, and sought an urgent legal opinion on the purchase of LR No 10897/4. Under section 2 of the Advocates Act a client includes any person with power, express or implied, to retain an advocate; a retainer can be oral or inferred from conduct.

p. 12

Legal principles established

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  • The taxing officer has jurisdiction to determine disputes as to the existence of a retainer in advocate-client bill of costs
  • A retainer need not be written; it can be oral or inferred from the conduct of the parties
  • A decision maker who has pronounced itself on a question of jurisdiction is functus officio and cannot revisit it to make a contradictory finding
  • The burden of proving a retainer lies on the advocate, on a balance of probability

Court orders

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  1. 1.The ruling of the learned deputy registrar dated and delivered on the March 15, 2017 be and is hereby set aside and/or rescinded
  2. 2.A retainer be and is hereby found to have existed between the applicant and the respondents in accordance with the provisions of section 2 of the Advocates Act, chapter 16 Laws of Kenya
  3. 3.The advocate/client bill of cost dated the February 4, 2016 be and is hereby remitted to the deputy registrar/taxing officer of this honourable court other than Hon S Mwayuli, for purposes of taxation in accordance with the obtaining Advocates Remuneration Order 2014
  4. 4.Costs of the reference awarded to the applicant, to be agreed upon and in default taxed by the taxing officer of the court

Authorities

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Legislation

  • Advocates Actsection 2
  • Advocates Remuneration Ordergenerally / 2014 Order

Cases cited (9)

  • Wilfred N Konosi T/a Konosi & Co Advocate v Flamco Ltd
    (2017)eKLR

    Taxing officer has statutory jurisdiction to determine retainer disputes in advocate-client taxation

  • Omulele & Tolo Advocates v Mount Holdings Ltd
    (2016)eKLR

    Definition of retainer; retainer need not be written, can be oral or inferred from conduct; burden on advocate

  • Ochieng, Onyango, Kibet & Ohaga v Akiba Bank Ltd
    (2007)eKLR

    Retainer need not be in writing and may be proved by evidence

  • Ahmednasir Abdikadir & Co Advocates v National Bank of Kenya Ltd
    (2007)eKLR

    Retainer may be oral or inferred from conduct

  • Muriithi Kireria & Associates Advocates v Kenya Planters Co-operative Union Ltd
    (2017)eKLR

    Retainer may be inferred from conduct of parties

  • Telkom K Ltd v John Ochanda (suing for and on behalf of 996 former employees of Telkom K Ltd)
    (2014) eKLR

    Functus officio doctrine - finality of decisions; exceptions

  • Di'lorenzo Ltd v Hassan Bulle & Co Advocates
    (2020)eKLR

    Need for board resolution before instructions issued on behalf of a corporate body (cited by 2nd respondent)

  • County Council of Bureti v Kennedy Nyamokeri T/a Nyamokeri & Co Advocates
    (2006)eKLR

    Need for resolution/authority before corporate instructions to advocates (cited by 2nd respondent)

  • Taparn v Roitei
    [1968] EA 618

    Inherent jurisdiction should not be invoked where specific statutory provision exists (quoted within Konosi excerpt)

Jurisdiction invoked
Reference against a taxing master's ruling under the Advocates Act and Advocates Remuneration Order; court's supervisory jurisdiction over the deputy registrar

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, "Koki Mbulu & Co Advocates v Shah & 2 others", Case Analysis (2023). Environment and Land Miscellaneous Application 52 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16221/eng@2023-03-09

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