Owino & Company Advocates v Kisaka (Miscellaneous Case E041 of 2020) [2023] KEELRC 2325 (KLR)
The bottom line
#A Kenyan court refused an advocate's attempt to recover fees through taxation because a written, signed fee agreement with the client already governed their relationship.
What this practically means
#Executive summary
#Key legal issues
#Whether a retainer agreement/agreement on fees existed between the advocate and client
A written and signed agreement for legal fees dated 26th October 2018 existed and was valid
The court noted the alleged agreement bore the applicant firm's logo and was signed by Ooko S. Owino, whose signature matched that on the affidavits filed in court. The applicant's allegation of forgery was unsupported; under section 109 of the Evidence Act, he who alleges must prove. The court therefore found the fee agreement to exist.
Effect of a valid retainer agreement on taxation of a bill of costs
The agreement was valid and binding; the applicant/advocate was estopped from seeking taxation under the Advocates Remuneration Order and the taxing officer lacked jurisdiction
Relying on Rachuonyo & Rachuonyo v National Bank of Kenya and Mercy Nduta Mwangi v Invesco Assurance, the court held that where parties have contracted on fees under section 45 of the Advocates Act, they are bound by the agreement and the bill of costs could not be taxed. The certificate of taxation was therefore a nullity and judgment could not be entered on it.
Whether the respondent could challenge the taxation proceedings for non-service
An advocate cannot challenge a retainer agreement, which is almost similar to a consent; there was an affidavit of service and an email to the respondent/client and his then advocate
Although no evidence showed the respondent's then advocates were served with the bill of costs, an affidavit of service dated 23rd October 2020 and an email forwarding the taxation notice and bill were on record. In any event, the court held the law precludes challenging a retainer agreement, likening it to a consent.
Legal principles established
#- A valid advocate-client fee agreement in writing and signed by the client under section 45 of the Advocates Act is binding and ousts the taxing officer's jurisdiction to tax a bill of costs
- An advocate is estopped from seeking taxation under the Advocates Remuneration Order where a retainer agreement on fees exists
- For a retainer agreement to be valid and binding it must be in writing and signed by the client or his authorised agent
- He who alleges must prove - the burden of proving a particular fact lies on the person who wishes the court to believe in its existence
Court orders
#- 1.The applicant/advocate's notice of motion dated 14th December 2021 is dismissed
- 2.Each party to meet their respective costs
- Jurisdiction invoked
- Advocates Act, section 45; application to adopt a certificate of taxation as judgment of the court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Owino & Company Advocates v Kisaka (Miscellaneous Case E041 of 2020) [2023] KEELRC 2325 (KLR)", Case Analysis (2023). Nairobi ELRC Petition No 7 of 2019 (Miscellaneous Application dated 14th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2325/eng@2023-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.