Advocate v Client (application for judgment on certificate of taxed costs)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether judgment on a certificate of taxed costs may be entered where retainer is disputed
No; a disputed retainer displaces the section 51 remedy and the matter must proceed by suit under section 48.
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.
Whether an agreement is required where the beneficiary of services is not the person obligated to pay
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.
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.
Whether submissions can supply evidence of retainer
No; submissions are not evidence nor pleadings, and the advocate is bound by her affidavit.
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.
Legal principles established
#- 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
#- 1.The Notice of motion dated 8th May 2019 is dismissed with costs which will abide the outcome of the recovery suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.