Mwendwa Mwinzi & Associates Advocates v Muraya (Environment and Land Miscellaneous Application E060 of 2022) [2024] KEELC 1122 (KLR)
The bottom line
#A Kenyan court ruled that a client who kept asking for updates and made payments had, by conduct, retained their advocate for an appeal and must pay the legal fees.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there existed an Advocate/Client relationship between the Applicant and Respondent.
- 2.Whether the Bill of Costs dated the 15th December, 2022 should be struck out.
Key legal issues
#Existence of an advocate-client relationship over the appeal
An implied advocate-client relationship existed covering the appeal despite absence of written instructions or a retainer.
The court examined correspondence: the client sought updates on the appeal, sent WhatsApp messages advising the advocate to await the appeal judgment, and issued a cheque of Kshs. 50,000 after being informed the appeal was dismissed. Relying on authorities that a retainer may be implied from conduct, and noting the lower court matter was still pending, the court held the relationship continued and the client never terminated it.
Whether the Bill of Costs should be struck out
The bill was proper and the application to strike it out was dismissed with costs.
Since an implied advocate-client relationship subsisted through the appeal, the advocate was entitled to render a bill for those services. The court found no merit in the applicant's claim that no instructions had been given, and declined to strike out the bill presented before the Taxing Officer.
Legal principles established
#- A retainer need not be in writing and may be implied from the conduct of the client who acquiesces in, adopts and continues to engage with the proceedings.
- An advocate's authority may be implied from the client's conduct, including seeking updates and making payments after learning of the appeal's outcome.
Court orders
#- 1.The Notice of Motion Application dated 20th January 2023 is dismissed with costs to the Advocate/Respondent
- 2.The Advocate-Client Bill of Costs dated 15th December 2022 stands and is to proceed to taxation
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction over striking out of an Advocate-Client Bill of Costs presented for taxation
Relief refused
#Striking out of the Advocate-Client Bill of Costs dated 15th December 2022
The court found an implied advocate-client relationship continued through the appeal, so the bill was proper
Costs of the application against the Advocate/Respondent
Application dismissed with costs to the respondent
Costs
Application dismissed with costs to the Advocate/Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
From the correspondence I have highlighted, I opine that there was indeed a relationship between the Client and Advocate.
It is trite law that a retainer need not only be in writing but can be implied from the parties conduct
the moment the client acquiesced and started seeking updates, making payment and advising the Advocate to await for the outcome of the Appeal, it was clear the relationship continued
In the foregoing, I do find not merit in the Notice of Motion Application dated the 20th January, 2023 and will dismiss it with costs to the Advocate/Respondent.
Issues in the judgment
#Prayer 2 of the application is internally inconsistent - it asks that costs of the application 'be met by the Applicant to the Bill', seemingly against the applicant's own interest
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwendwa Mwinzi & Associates Advocates v Muraya (Environment and Land Miscellaneous Application E060 of 2022) [2024] KEELC 1122 (KLR)", Case Analysis (2024). Notice of Motion dated 20th January 2023 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1122/eng@2024-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.