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Case Brief · caselaw.co.ke
High CourtDismissedNotice of motion dated 6th July 2009

Martin Mwangi v Elias Ngugi Nganga, Advocate

High Court of Kenya
26 March 2010
1,025 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 refused to strike out an advocate's bill of costs because no fee agreement signed by the client existed, sending the dispute to taxation.

What this practically means

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Executive summary

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The applicant, a former client, moved the High Court under section 45 of the Advocates Act seeking to strike out a bill of costs filed by his advocate on 30th June 2006. He argued that the parties had negotiated and agreed on legal fees of Ksh.150,000/- clear of all deductions, evidenced by correspondence and a cheque of Ksh.50,000/- in settlement of the balance, and that the advocate could not therefore tax a bill. The advocate opposed, maintaining that the Ksh.150,000/- figure was conditional on payment in full, clear of deductions, by 25th July 2006; the client defaulted and the bill was filed. An earlier taxation and certificate had been set aside, so the bill remained untaxed. The advocate relied on the proviso to section 45 requiring any fee agreement to be in writing and signed by the client; the client relied on Njogu & Company Advocates v National Bank of Kenya Ltd. Koome J respectfully agreed with Warsame J's holding in Njogu but distinguished it, since that case involved a signed written agreement reducing fees contrary to the Remuneration Order, whereas here the very existence of an agreement was disputed. The court held the correspondence amounted at most to a conditional offer, not an unequivocal agreement signed by the client, and that disputes over deductions and disbursements were for the taxing master. The application was dismissed with costs to the advocate, and the bill of costs was ordered to proceed to taxation.

Key legal issues

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01

Whether an oral/correspondence agreement on fees satisfies section 45 of the Advocates Act

Holding

No - an agreement valid and binding under section 45 must be in writing and signed by the client; the letters here amounted at most to an offer with conditions

Reasoning

The court held the correspondence showing fees of Ksh.150,000/- was at most an offer since there was no written agreement signed by the client as the Act requires. Further conditions (payment clear of deductions by 25th July 2006) and ambiguity over what constituted deductions meant there was no unequivocal agreement. The proper forum to determine fees, disbursements and deductions is taxation before the taxing master.

p. 2
02

Applicability of Njogu & Company Advocates v National Bank of Kenya Ltd

Holding

Distinguished - that case involved a signed written agreement reducing fees contrary to the Remuneration Order; here the existence of an agreement itself was in dispute

Reasoning

The court respectfully agreed with Warsame J's holding but found the facts different: in Njogu the parties had entered a written agreement reducing fees below the Advocates Remuneration Order and the advocate then challenged it as a nullity. Here no signed written agreement existed; the dispute was whether an agreement had been concluded at all, turning on offers and conditions in correspondence.

p. 2

Legal principles established

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  • For a fee agreement to be valid and binding under section 45 of the Advocates Act it must be in writing and signed by the client; correspondence raising conditions and ambiguities does not amount to an unequivocal agreement.

Court orders

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  1. 1.Application disallowed and dismissed with costs to the advocate
  2. 2.Bill of costs to proceed to taxation
Jurisdiction invoked
Section 45 of the Advocates Act

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, "Martin Mwangi v Elias Ngugi Nganga, Advocate", Case Analysis (2010). Notice of motion dated 6th July 2009. Source: 

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