Oyomba Mosota & Wamwea Advocates v Michelle S Nirenstein & Mara Napa Camps & Conservation Center Trust (Miscellaneous Civil Application E007 of 2024) [2025] KEELC 4983 (KLR)
The bottom line
#A Kenyan court enforced a lawyer's fee agreement even though the client never signed it, because her conduct showed she accepted the terms.
What this practically means
#Executive summary
#Key legal issues
#Validity of an unsigned retainer agreement
The court found that a valid retainer agreement existed between the parties despite the client's signature not being appended; the client's continued instructions and the parties' conduct signified acceptance of the terms, and the taxing master erred in holding there was no retainer agreement
Section 45(1) requires writing and signature for an agreement fixing remuneration, but the client amended the scope of work, the Advocates never objected, issued a Deposit Request Note consistent with the agreement, issued a demand letter and filed suit per the amended agreement. Conduct demonstrated acceptance; equating the retainer relationship with the written document was an error. The agreement was therefore upheld and the taxed fees set aside.
Whether the Advocates' cross-Reference on instruction fees should succeed
Dismissed; the fees as agreed were not based on the value of the properties and the taxing master's ruling fell with the Clients' successful application
The court found the legal fees discussed on 5th January 2024 and quoted in the retainer agreement were not attributable to the value of the subject properties. The Advocates only sought to shift to the Remuneration Order basis by unilateral email on 24th May 2024. The Deposit Request Note remained unrevised. The Advocates' Reference therefore had no merit.
Legal principles established
#- Under section 45(1) of the Advocates Act, a retainer agreement is valid and binding provided it is in writing and signed by the client or an authorised agent; however, a retainer need not be in writing and may be inferred from the parties' conduct
- The burden of proving a retainer agreement lies on the party seeking to enforce it
Court orders
#- 1.Set aside the Ruling of Hon. Daniel Ngayo of ELCMISC/E007/2024 in its entirety (Clients' prayer 1)
- 2.Set aside the instruction fees taxed at Kshs. 3,000,000/= and tax the same as per the retainer agreement dated 8th January 2024 (Clients' prayer 2)
- 3.Set aside the Advocate-Client fees taxed at Kshs. 5,760,270.80/= and tax the same as per the retainer agreement dated 8th January 2024 (Clients' prayer 3)
- 4.Uphold the retainer agreement dated 8th January 2024 (Clients' prayer 4)
- 5.Dismiss the Advocates' Chamber Summons Application dated 6th February 2025 entirely
- 6.Costs to the Clients/Applicants on both applications
- On appeal from
- Chief Magistrates' Court at Narok (Taxing Master)
- ELCMISC/E007/2024
- Jurisdiction invoked
- Reference against a taxing master's decision under Rule 11 of the Advocates' (Remuneration) (Amendment) Order 2014; sections 1A, 3A, 3B of the Civil Procedure Act and Article 159 of the Constitution invoked by the Client's application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oyomba Mosota & Wamwea Advocates v Michelle S Nirenstein & Mara Napa Camps & Conservation Center Trust (Miscellaneous Civil Application E007 of 2024) [2025] KEELC 4983 (KLR)", Case Analysis (2025). Two cross References: Advocates' Chamber Summons dated 6th February 2025 and Client's Chamber Summons dated 5th February 2025, arising from Advocate-Client Bill of Costs taxed in ELCMISC/E007/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4983/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.