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High CourtDismissedNotice of Motion dated 8th May 2019 (file number not stated in judgment)

Advocate v Client (application for judgment on certificate of taxed costs)

High Court of Kenya
25 September 2020
986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If your client disputes the instructions or the debt, you cannot use summary judgment for legal fees; you must file a full recovery suit.

What this practically means

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Executive summary

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The advocate applied under section 51(2) of the Advocates Act for judgment against her client on a certificate of taxed costs of Kshs. 259,800 issued on 18th September 2014, on the ground that the taxed costs had become final but remained unsettled. Her affidavit asserted that she acted for the client in Kwale RMCCR No. 366 of 2010, Republic vs Rukia Ali, the client being the MP for Lunga Lunga constituency. The client denied having been the MP as alleged, denied instructing the advocate, and denied service of any bill of costs or demand. In submissions, the advocate invoked the wide statutory definition of 'client' and relied on an affidavit by the client's former driver, but also introduced new facts that the client was MP for Msambweni, not Lunga Lunga. The client submitted there was no evidence of instructions, no written agreement under section 45(1), and that judgment under section 51(2) is unavailable where retainer is disputed. The court held that submissions are not evidence and that the advocate was bound by her affidavit asserting the client was MP for Lunga Lunga, whereas the MP at the material time was Mwashetani, Khatib Abdallah. This created an arguable dispute as to retainer, displacing the section 51 remedy. The court held that where the beneficiary of services is not the person obligated to pay, an agreement is necessary, though strict compliance with section 45 is not required where there is part performance or the agreement does not fix remuneration; but a dispute as to liability requires a suit for recovery of fees under section 48. The application was dismissed with costs, which will abide the outcome of the recovery suit. The court declined to comment on the service issue since the taxation proceedings were unchallenged.

Key legal issues

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01

Whether judgment on a certificate of taxed costs may be entered where retainer is disputed

Holding

No; a disputed retainer displaces the section 51 remedy and the matter must proceed by suit under section 48.

Reasoning

The court found the advocate's own affidavit asserted the client was MP for Lunga Lunga, whereas the MP at the material time was Mwashetani, Khatib Abdallah. This created an arguable dispute as to whether the client gave instructions in a capacity he did not hold, making entry of judgment under section 51 inappropriate.

p. 2
02

Whether an agreement is required where the beneficiary of services is not the person obligated to pay

Holding

Yes, an agreement is necessary, though it need not strictly comply with section 45 if there is part performance or it does not fix remuneration.

Reasoning

The court accepted the wide statutory definition of client but held that where the beneficiary differs from the person liable to pay, an agreement is necessary. Strict compliance with section 45 is excused by part performance or absence of a fixed remuneration, but a dispute as to liability ousts the section 51 summary remedy.

p. 2
03

Whether submissions can supply evidence of retainer

Holding

No; submissions are not evidence nor pleadings, and the advocate is bound by her affidavit.

Reasoning

The court reminded itself that courts determine issues raised by pleadings and supported by evidence. The advocate's submissions introduced new facts (that the client was MP for Msambweni) inconsistent with her affidavit, which asserted he was MP for Lunga Lunga; the court held the advocate bound by her depositions.

p. 2

Legal principles established

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  • Judgment under section 51(2) of the Advocates Act is unavailable where retainer is disputed; the advocate must sue under section 48.
  • Where the person benefitting from services is not the person obligated to pay, an agreement is necessary, though strict compliance with section 45 is not required if there is part performance or the agreement does not fix remuneration.

Court orders

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  1. 1.The Notice of motion dated 8th May 2019 is dismissed with costs which will abide the outcome of the recovery suit
  2. 2.The advocate may pursue recovery of the taxed costs by a suit to have the question of retainer determined by evidence
Jurisdiction invoked
Section 51(2), 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, "Advocate v Client (application for judgment on certificate of taxed costs)", Case Analysis (2020). Notice of Motion dated 8th May 2019 (file number not stated in judgment). Source: 

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