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ELRCPartially AllowedMiscellaneous Cause (Reference) arising from Misc Cause No. 123 of 2017· [2018] KEELRC 1573 (KLR)

Jackline Chepkemoi Kimeto v Obura Mbeche & Company Advocates [2018] KEELRC 1573 (KLR)

High Court of Kenya (Employment and Labour Relations Court bench)
4 June 2018
HWHellen Wasilwa
1,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a client whose lawyer hid a conflict of interest shouldn't have to pay the lawyer's instruction fees.

What this practically means

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Executive summary

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The Applicant, Jackline Chepkemoi Kimeto, moved the Court by two applications dated 28th August 2017 seeking, first, a stay of execution of the certified ruling of the Taxing Master dated 1st August 2017 in Misc Cause No. 123 of 2017 and, second, by a Reference under Order 11(2) of the Advocates (Remuneration) Order, to set aside the Taxing Master's ruling as it related to item No. 1 (instruction fees) of an Advocate/Client Bill of Costs dated 27th October 2016, or alternatively to have the Court re-assess the fee or remit the bill for review. The bill had been taxed at Kshs.565,447/=, with instruction fees of Kshs.237,740/=. Her central complaint was that her instructions to the respondent advocates were tainted: Miss Mary Bonyo, a partner in the firm who personally received the instructions and issued the demand notice, was married to or cohabiting with a partner in the firm representing the opposing party in Cause No. 1375 of 2015, and failed to disclose this conflict before taking instructions. She further contended that her submissions on this point were ignored at taxation, and that she had to pay a new firm Kshs.400,000/= in instruction fees. The respondents, through a replying affidavit of Geoffrey Orao Obura, maintained the taxation was sound and that the Application was designed to avoid the obligation to pay. The Court found the conflict of interest apparent from the demand notice and the reply from the firm of Mohamed Muigai, held that instructions taken without full disclosure were not taken in good faith, that the conflict could not be cured by handing the file to another counsel in the same firm, and allowed the Application. It re-directed the taxation of the bill to the Taxing Master with the conflict in mind, and ordered costs in the cause.

Key legal issues

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01

Effect of undisclosed conflict of interest on entitlement to instruction fees

Holding

Where instructions were obtained without full disclosure of a conflict of interest, the client should not be condemned to pay instruction fees

Reasoning

The Court found that Miss Bonyo, a partner in the respondent firm, received the client's instructions and issued the demand notice while married to or cohabiting with a partner in the firm representing the opposing party in Cause No. 1375 of 2015. The conflict was apparent from the demand notice and the reply by the firm of Mohamed Muigai. Miss Bonyo should have disclosed it before taking instructions; failing that, instructions taken beyond that point were not in good faith, and the conflict could not be cured by transfer of the file to a junior advocate in the same firm.

p. 2
02

Whether the Taxing Master's ruling on item No. 1 was erroneous

Holding

The Application attacking the Taxing Master's ruling on item No. 1 was found to have merit on the ground that the fee was taxed without due consideration of the Applicant's submissions on the legality of how instructions were obtained

Reasoning

The Applicant deponed that her submissions challenging the instruction fee on account of the conflict were ignored by the Taxing Master, who nonetheless awarded instruction fees of Kshs.237,740/=. The Court accepted that the conflict of interest issue was real and should have informed the taxation of item No. 1, and therefore found the Reference had merit and directed re-taxation.

p. 2

Legal principles established

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  • An advocate who fails to disclose a conflict of interest at the onset cannot in good faith take instructions, and any instructions taken beyond the point where the conflict was apparent are tainted
  • A conflict of interest involving an advocate in a firm is not cured by the matter being handed over to another counsel in the same firm

Court orders

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  1. 1.The Application is allowed and the taxation of the Advocate/Client Bill of Costs dated 27th October 2016 is re-directed to the Taxing Master, taking into consideration the issue of conflict of interest, to the extent that the Applicant should not be condemned to pay instruction fees where instructions were given without full disclosure of the conflict situation
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrders 40 and 50
  • High Court (Practice & Procedure) RulesRule 3(1) and (2)
  • Advocates (Remuneration) OrderOrder 11(2)
On appeal from
Taxing Master (Misc Cause No. 123 of 2017)
Misc Cause No. 123 of 2017
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 and 50 of the Civil Procedure Rules; Rule 3(1) and (2) of the High Court (Practice & Procedure) Rules; Order 11(2) of the Advocates (Remuneration) Order; inherent powers of the Court

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, "Jackline Chepkemoi Kimeto v Obura Mbeche & Company Advocates [2018] KEELRC 1573 (KLR)", Case Analysis (2018). Miscellaneous Cause (Reference) arising from Misc Cause No. 123 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1573/eng@2018-06-04

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