Aming’a, Opiyo, Masese and Company Advocates v Balton CP Limited [2021] KEELRC 2091 (KLR)
The bottom line
#A Kenyan court stopped an advocate's fee lawsuit because the client's legal services contract required disputes to go to arbitration.
What this practically means
#Executive summary
#Key legal issues
#Existence of a valid arbitration agreement and a dispute referable to arbitration
The court found a valid arbitration agreement in Clause 9 of the Agreement for Legal Services and an actual dispute over whether the balance of fees was due and earned, satisfying Section 6(1) of the Arbitration Act.
The court noted it was not in dispute that the parties' agreement contained an arbitration clause, nor that they disagreed over entitlement to the balance of fees. Determining entitlement required establishing when and whether the fees had been earned, which the parties' Fee Notes left contested. The disagreement over matters within the arbitration clause constituted a dispute referable to arbitration under Section 6(1) of the Arbitration Act.
Whether the Client's conduct (lodging a complaint and changing advocates) amounted to bad faith disentitling it from invoking the arbitration clause
The court held that filing a complaint against an advocate is not in itself bad faith, and even bad faith would not oust an otherwise valid arbitration clause; the estoppel and clean-hands objections failed.
The Advocate argued estoppel and clean hands, relying on D & S C Builders v Sidney Rees and other authorities, contending the Client had bypassed the arbitration clause by complaining to the Attorney-General and instructing new advocates. The court held a complaint by a client is not inherently indicative of bad faith, and answered negatively whether even bad faith could render the arbitration clause inoperative.
Whether there was 'no dispute' under Section 6(1)(b) because the claim was a mere claim for payment of fees
The court declined to treat the matter as a mere debt-enforcement claim devoid of dispute, holding that whether the fees had been earned at the time of withdrawal of instructions required determination.
The Advocate relied on authorities (Timax Building, Eastern and Southern Africa Trade and Development Bank) holding that claims for payment of sums due are not disputes referable to arbitration. The court distinguished these by noting that whether the balance of fees was due depended on whether the advocate had earned the tranches at the time of termination, an issue left blank in the Fee Note and thus genuinely disputed.
Legal principles established
#- The filing of a complaint by a client against an advocate does not in itself constitute bad faith, and even bad faith would not suffice to oust a valid arbitration clause
- Where a valid arbitration agreement exists and a dispute falls within it, the court must stay proceedings and refer the parties to arbitration under Section 6(1) of the Arbitration Act
Court orders
#- 1.That the dispute between the Client and the Advocate/Applicant be referred to arbitration in terms of the Agreement for Legal Services dated 26th September 2019
- 2.That there be stay of proceedings in the instant suit pending the outcome of the arbitration proceedings
- 3.That costs of the proceedings herein be determined by the arbitrator(s)
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act; Sections 6(1) and (2) of the Arbitration Act, Cap 49; inherent powers of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aming’a, Opiyo, Masese and Company Advocates v Balton CP Limited [2021] KEELRC 2091 (KLR)", Case Analysis (2021). Miscellaneous Civil Application dated 23rd September 2020; ruling on Client's application dated 23rd October 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2091/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.