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ELCDismissedNot stated in the judgment· [2024] KEELC 4302 (KLR)

CM Advocates LLP v Cole (Sued as the administrator of the Estate of Josephine Eleanor Moikobu) (Miscellaneous Application E241 of 2021) [2024] KEELC 4302 (KLR)

High Court of Kenya
27 May 2024
MOMogeni
3,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed that a lawyer-client retainer doesn't need a signed written agreement and can be proven by conduct, payments and correspondence.

What this practically means

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Executive summary

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The applicant advocates' firm, CM Advocates LLP, filed a reference by chamber summons dated 28 November 2023 seeking to vacate and set aside the ruling of Taxing Master Judith Omollo delivered on 16 November 2023, which struck out the firm's bill of costs dated 21 June 2021 claiming Kshs 3,586,182.20; alternatively, it sought remission of the bill for re-assessment. The applicant contended the Taxing Master erred in finding a retainer agreement under section 45 of the Advocates Act, in relying on facts raised for the first time in submissions without a replying affidavit, and in treating a draft agreement signed by only one of two administrators as a binding retainer. The respondent, through a replying affidavit sworn by Andrew Omandi Cole on 14 April 2024, maintained that a retainer for fees existed from a 12 July 2016 engagement letter, evidenced by payments of the agreed Kshs 2 million fee and correspondence, and that the Taxing Master rightly estopped the advocate from taxation. The court framed a single issue: whether a retainer existed. Reviewing authorities on the meaning of 'retainer', it held that a retainer need not be in writing and may be inferred from the parties' conduct; the respondent's exhibited payments and correspondence established an advocate/client relationship that persisted until termination in February 2021. The reference was dismissed with costs, the Taxing Master's ruling being found well founded.

Key legal issues

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01

Whether a retainer agreement existed between the firm of CM Advocates LLP and the Respondent

Holding

A retainer existed between the applicant and the respondent, inferable from the engagement letter, the respondent's acceptance and payments, and the parties' correspondence; hence the Taxing Master's ruling striking out the bill was well founded.

Reasoning

The court reviewed dictionary and judicial definitions of 'retainer', distinguishing a retainer from a written retainer agreement. Drawing on Gikonyo J, Ringera J and Njagi J authorities, it held that a retainer need not be in writing and may be implied from the acts of the parties. The respondent exhibited an engagement letter, receipts of payment (AOC-2), and correspondence (AOC-3) evidencing an advocate/client relationship which the applicant did not deny at taxation. The relationship lasted until terminated in February 2021.

p. 6

Legal principles established

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  • A retainer does not have to be in writing; it may be inferred from the conduct of the parties or the circumstances of the case.

Court orders

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  1. 1.The Application dated 28/11/2023 is dismissed with costs

Authorities

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Legislation

  • Advocates Actsection 45(1)
  • Advocates Actsection 45(2)
  • Advocates Actsection 46
  • Advocates Actsection 44
  • Advocates Actsection 51(2)
  • Advocates (Remuneration) Order 2014schedule 5

Cases cited (11)

  • Pancras T Swai v Kenya Breweries Limited
    [2014] eKLR
  • Robert Ngande Kahathi v Francis Kivuva Kitonde
    [200] eKLR
  • Avenue Car Hire & Another v Silpha Wanjiru Muthengu
    Civil Appeal No 302 of 1997
  • Micheal Cole Lugalia (suing as administrator of the estate of Ezekiel Majani Lugalia) vs Jonathan Ligure Ayodi
    [2016] eKLR
  • Amuga & Company vs Kisumu Concrete Products Limited
    [2021] eKLR
  • Del Monte Kenya Limited v Kenya National Chamber of Commerce and Industry (KNCCI) Murang's Chapter & 2 Others
    [2021] eKLR
  • Njeru Nyaga & Co. Advocates v George Ngure Kariuki
    High Court of Kenya at Nairobi (Commercial & Admiralty Division) Case No. 723 of 2012
  • A.n. Ndambiri & Co Advocates v Mwea Rice Growers Multipurpose Co-op Limited
    NBI HC Misc App No 698 Of 2004
  • Owino Okeyo & Co Advocates v Fuelex Kenya Limited
    [2005] eKLR
  • Hezekia Ogao Abuya T/a Abuya & Co. Advocates Vs Kunguru Food Complex Limited
    Misc. Appl. No. 400/2001
  • Nyakundi & Co. Advocates
Jurisdiction invoked
Reference against a Taxing Master's ruling under the Advocates Act (section 45) and the Advocates (Remuneration) Order 2014

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, "CM Advocates LLP v Cole (Sued as the administrator of the Estate of Josephine Eleanor Moikobu) (Miscellaneous Application E241 of 2021) [2024] KEELC 4302 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4302/eng@2024-05-27

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