Muite, Sc v United States International University (Miscellaneous Civil Application E211 of 2022) [2025] KEELC 1474 (KLR)
The bottom line
#The Environment and Land Court ruled that a lead counsel hired by another law firm cannot demand fees directly from the client, only from the instructing firm.
What this practically means
#Executive summary
#Key legal issues
#Existence of Advocate-Client relationship between the Applicant and the Respondent in ELCC 1040 of 2016
There was no Advocate-Client relationship in ELCC 1040 of 2016; the Respondent was represented by Nyachae & Ashitiva Advocates, and neither they nor the Respondent engaged the Applicant.
The memorandum of appearance showed Nyachae & Ashitiva Advocates acted from the onset in ELCC 1040 of 2016. The Applicant's own supporting affidavit and the correspondence annexed (the letter of 21st July 2016 accepting instructions and the letter of 3rd August 2016) referred only to ELCC 840 of 2016 and ELCC 771 of 2016. The Applicant offered no evidence to contradict the Respondent's assertions or show instructions in ELCC 1040 of 2016.
Whether lead counsel engaged by the instructing firm can demand fees directly from the client
He cannot; his claim lies against the instructing Advocates under clause 49 of the LSK Code of Standards of Professional Practice and Ethical Conduct.
Applying clause 49 of the Code, responsibility for paying the fees of an engaged Advocate rests on the instructing Advocate unless the client agreed beforehand to be directly responsible. The agreement on fees between SC Muite and Ndungu Njoroge & Kwach Advocates was never disclosed. The Respondent sanctioned the engagement but no prior agreement that it would pay the lead counsel's fees was proved.
Res judicata in view of the decisions in ELC Misc. 12 and 13 of 2017
The Taxing Master erred in holding the references res judicata because the disallowance of item 1(b) for want of a Rule 60 certificate was not a judgment on the merits.
Restating the John Florence Maritime elements, the court held a judgment on merits must be based on evidence rather than technical or procedural grounds. The disallowance of item 1(b) rested on the absence of a certificate, leaving the instructing Advocates free to pursue the item should they secure the certificate. The reference therefore failed on the substantive ground even though the res judicata holding was wrong.
Legal principles established
#- Where an Advocate engages another Advocate, responsibility for paying the other Advocate's fees rests with the instructing Advocate unless there was a prior agreement with the Client that the Client would pay directly.
- An Advocate engaged as lead counsel by another firm has no Advocate-Client relationship with the opposing instructing client and cannot demand fees directly from that client.
- A decision on an item of costs disallowed for want of a certificate under Rule 60 of the Advocates Remuneration Order is not a judgment on the merits for purposes of res judicata.
Court orders
#- 1.The references by the Advocate/Applicant are dismissed.
- 2.Each party shall bear its own costs.
- 3.The ruling applies to ELC Misc. E212 & 213 of 2022.
- On appeal from
- Taxing Master (Environment and Land Court)
- Advocate-Client Bill of Costs dated 29th September 2022
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order (reference from decision of the Taxing Master)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muite, Sc v United States International University (Miscellaneous Civil Application E211 of 2022) [2025] KEELC 1474 (KLR)", Case Analysis (2025). ELC Misc. E211 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1474/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.