Njuguna Kahari & Kiai Advocates v Gacanga (Environment and Land Miscellaneous Application E040 of 2023) [2024] KEELC 3868 (KLR)
The bottom line
#Kenya's High Court struck out a lawyer's Kshs 4.7 million fee bill because the firm could not prove the client actually hired it.
What this practically means
#Executive summary
#Key legal issues
#Whether retainer is a jurisdictional preliminary issue in advocate-client taxation
Yes; absence of a retainer deprives the Taxing Officer of jurisdiction to tax an Advocate/Client Bill.
The court adopted the Court of Appeal's holding in Konosi v Flamco that the Advocate-Client relationship springs from instructions, and without it the Taxing Officer is bereft of jurisdiction. Applying Owners of Motor Vessel 'Lilian S', jurisdiction must be decided at the earliest opportunity on the material before the court. A jurisdictional objection is a proper preliminary objection under Mukisa Biscuits.
Whether a retainer existed between the Applicant and the Respondent
No; the Advocate filed the Bill with no supporting documents and failed to discharge the burden of proving instructions.
The court held that an Advocate/Client Bill should be supported by documents, especially absent a written agreement, and that it is the litigant's duty to place material before the court; the court will not fact-find for parties. The Applicant filed only the Bill and relied on submissions, which cannot substitute for evidence. No retainer, written, oral or inferable from conduct, was demonstrated.
Legal principles established
#- The jurisdiction of the Taxing Master over an Advocate/Client Bill of Costs is premised on the existence of an Advocate-Client relationship, which must be determined before taxation.
- A retainer need not be written; it may be oral or inferred from conduct, but if contradicted and unevidenced, the Advocate is treated as having acted without authority.
- The burden of proving a retainer rests on the Advocate.
Court orders
#- 1.The Advocates-Client Bill of Costs dated 17th August 2023 is struck out with costs to the Respondent
- 2.The Bill of Costs in Misc. Application No. E039 of 2023 is also struck out with costs to the Respondent
- Jurisdiction invoked
- Reference from the Taxing Officer on a Preliminary Objection to an Advocate/Client Bill of Costs under the Advocates Act and the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna Kahari & Kiai Advocates v Gacanga (Environment and Land Miscellaneous Application E040 of 2023) [2024] KEELC 3868 (KLR)", Case Analysis (2024). Miscellaneous Application (Advocate/Client Bill of Costs dated 17th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3868/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.