[2022] KEHC 3011 (KLR)

Ann Kirima (Co-Administratix to the Estate of Gerishon Kamau Kirima v Rachier & Amollo Advocates LLP (Miscellaneous Cause 81 of 2018) [2022] KEHC 3011 (KLR) (Family) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3011 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Cause 81 of 2018

AO Muchelule, J

June 2, 2022

Between

Ann Kirima (Co-Administratix to the Estate of Gerishon Kamau Kirima

Applicant

and

Rachier & Amollo Advocates LLP

Respondent

(A MATTER ARISING FROM SUCCESSION CAUSE NO. 1298 OF 2011) IN THE MATER OF THE ESTATE OF GERISHON KAMAU KIRIMA (DECEASED))

Ruling

1. The firm of Rachier & Amolo Advocates LLP (the respondents) on 2nd July 2018 filed an advocate-client bill of costs against the estate of Gerishon Kamau Kirima through the co-administratrix (the applicant) in which the total amount sought was Ksh.666,391,392/=, less Ksh.4,000,000/= that had been deposited. Instructions fees alone was Kshs.300,000,000/= plus getting up fees of 80,762,875/=.

2. The applicant filed the present notice of motion under sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 rule 1 of the Civil Procedure Rulesand Rules 63, 66 and 73 of the Probate and Administration Rulesseeking that the bill of costs be struck out with costs being borne by the respondents. In the grounds and supporting affidavit sworn by the applicant Anne Wangari Kirima, it was her case that there was no retainer between the respondents and the estate of Gerishon Kamau Kirima (hereinafter referred to as “the deceased”), and therefore the respondents had not acted for the estate to be able to raise a bill of costs against it. The applicant stated that she was one of the two administratrices of the estate of the deceased, the other one being Teresiah Wairimu Kirima. Teresiah Wairimu Kirima is being represented by two law firms:- S. Musalia Mwenesi & Co. Advocates and Nyamu & Nyamu Advocates. The estate has other beneficiaries each of whom has retained a separate firm of advocates. Some beneficiaries are not represented. She stated that there was no time the estate retained the respondents to act for it, and therefore the respondents cannot raise a bill of costs against it. She stated that there was a time she was represented by the respondents but that she has since moved on to be represented by Muriu, Mungai & Co. Advocates.

3. In response, Dr. Paul Otiende Amollo filed a replying affidavit to state that the application was a mischievous attempt by the applicant to run away from her responsibility to pay legal fees on behalf of the estate of the deceased. He narrated the history of the relationship between the respondents and the applicant which begun prior to the demise of the deceased. He stated that the deceased was mentally unwell and that the applicant instructed the respondents to file Petition No. 19 of 2010 seeking authority to have the management of the businesses of the deceased to be run by the trustees of Kirima Trust being Anne Kirima (the applicant) and James Njuguna Kirima. An order was obtained on 9th September 2010 to that effect. Subsequently, the deceased died. The applicant, James Njuguna Kirima and the other members of the family instructed the respondents, it was deponed, to lodge a petition for letters of administration ad colligenda bona defuncti which was done in H.C. Succession Cause No. 913 of 2011. The applicant in an affidavit she swore to support the petition stated that she was the chairperson of Kirima Trust and one of the named executors of the deceased’s last Will and Testament dated 10th September 2010. The other executors were James Njuguna Kirima and Samuel Ndei Kirima. James Njuguna Kirima had supported the petition but Samuel Ndei Kirima had not, and had retained Nyamu & Nyamu & Co. Advocates. The applicant and James Njuguna Kirima sought the grant to allow them, before the full grant, to collect, get in, receive and manage the estate of the deceased, including preserving it. On 24th May 2011 the court ordered the three executors to jointly manage the estate of the deceased until further orders.

4. Dr. Paul Otiende Amollo proceeded to state that Samwel Ndei Kirima through Nyamu & Nyamu Advocates contested the Will saying that there was another Will whose executors were himself, the applicant, James Njuguna Kirima and Catherine Wanjiku Kamau-Aura. The court asked that the parties do lodge petitions for the grant of probate. On 29th June 2011 the respondents filed the petition in H.C. Succession Cause No. 1298 of 2011. Some members of the family supported one Will while the others supported the other Will. The dispute was heard and the two Wills were invalidated. The applicant and Teresiah Kirima were appointed the administratrices of the estate of the deceased. The respondents continued to act for the applicant and filed an application for the confirmation of the grant which Teresiah Kirima and other beneficiaries opposed. It was subsequent to all these that the applicant took away instructions from the respondents.

5. According to the respondents, they had, at the instance of the applicant, always acted for the estate of the deceased and got her to collect, manage and preserve the estate of the deceased for the benefit of the beneficiaries.

6. In paragraphs 4, 5, 6, 7 and 8 of the replying affidavit, this is what was deponed:“4. Thatit is utterly ridiculous for a person who has been appointed as an administrator of the estate of the deceased pursuant to a petition filed by an advocate and argued by the same advocate, and who swears subsequent affidavits filed by the said advocates in her capacity as an administrator, to later turn around and claim, that the advocate had no instructions to act for the estate. To say that the advocate had no instructions to file the petition is actually tantamount to saying that the petition was a nullity ab initio. That would mean that even the applicant had no capacity to swear an affidavit as an administrator of that estate.5. Thatinstruction to file a petition for letters of administration cannot be issued by a single beneficiary of an estate. For an advocate to apply for letters of administration with respect to an entire estate, the decision must be given by all beneficiaries of the estate.6. Thatin this case there were 23 people all claiming to be beneficiaries of this one estate, the petition was done by Rachier & Amollo Advocates, and the same was heard and letters of administration were issued pursuant to the said petition to two people, Anne Kirima and Teresia Kirima. These letters of administration were accepted by all 23 beneficiaries, it is therefore not possible for any of 23 beneficiaries to claim that the advocate who filed the petition which gave birth to the letters of administration that they all supported had no authority to act on behalf of the estate.7. Thatas a consequence thereof, the allegation that there was no retainer and or advocate client relationship between the firm and the estate is untrue, malicious and ill intended as the instruction, authority and participation of the firm before and during the pendency of the succession cause can/will be clearly discerned from the conduct of both parties as shall be demonstrated in the subsequent paragraphs.8. Thatsection 82 and 83 of the Succession Act empowers the personal representative of an estate of a deceased person to enforce by way of a suit or otherwise all causes of action arising out of the death of the person and further to pay out of the estate of the deceased all those expenses of obtaining a grant of representation and all other reasonable expenses of administration.”It was their case that the legal services they offered were not to the applicant as an individual but in her capacity as the legal representative of the estate of the deceased in bid to protect the estate and prepare it for distribution to the beneficiaries of the estate.

7. In a ruling delivered on 23rd January 2017 Justice W. Musyoka, who was then handling the succession cause, directed that:-“(a)That all the issues raised in all the pending applications shall be disposed of within the context of the summons for confirmation for grant to be filed by the administrators, and the same shall be consolidated with the confirmation application.”The court was referring to the applications on advocates fees and school fees for the grandchildren of the deceased. It observed thus:-“Such applications raise questions as to whether advocates acting for parties to a succession cause, and in particular for the beneficiaries, fall within the definition of persons beneficially entitled; and similarly whether the grandchildren of the deceased would be persons beneficially entitled.”

8. According to the applicant, this ruling affects the present application, and therefore the quest for fees by the respondents should be dealt with during the application for the confirmation of the grant.

9. As for the respondents, the ruling did relate to advocates who were acting for the respective beneficiaries. It did not relate to the advocates acting for the estate, them included. Secondly, the ruling related to advocates who were still acting in the matter. They no longer acted in the matter and cannot participate in the application for the confirmation of the grant. Now that they no longer acted for the estate, they contended, they were free to tax their bill of costs.

10. It is important to mention that there was no response to the averments contained in the respondents replying affidavit. The legal work that was carried out by the respondents over a long period of time was comprehensively laid out in the replying affidavit.

11. The respective counsel filed written submissions on the application and the replying affidavit. I have read and considered what each counsel had to say. It was agreed that the first question for determination was whether the respondent was retained to provide legal services from the estate of the deceased or for the applicant.

12. According to the applicant, due to the absence of instructions from the estate to the respondents to act for it, the taxing officer is bereft of jurisdiction to tax the bill before the court. Relying on Abdi Gedi Amin & 2 Others –v- Jaber Mahfudh Omar [2012]eKLR, the applicant’s case was that since the estate was not a natural person to give instructions, it could only operate through its administrators or legal representatives to give instructions; that no such instructions had been demonstrated by the respondents to have been given.

13. The respondents’ submissions were that they acted for the estate of the deceased, before and after the death; that instructions were given by the administratrix of the estate of the deceased who was legally representing the estate. They relied on section 37 of the Trustee Act which provides that trustees or personal representatives may instead of acting personally instruct an advocate to transact any business required in the administration of the estate. Relying on Abdi Gedi Amin case, they submitted that appointed administrators had authority to instruct advocates to protect the affairs of the estate, before or after the death of the deceased, and this is what happened herein. They further stated, and submitted, that what they did for the estate upon instructions benefitted the estate and all its beneficiaries.

14. Both sides relied on Omulele & Tollo Advocates –v- Mount Holdings Limited[2016]eKLR in which it was stated as follows:-“In the practice of law, when a client hires an attorney to represent him, the client is said to have retained the attorney. This act of employment is called the retainer.From the above definition, a retainer covers a broad spectrum. It encompasses instructions given to an advocate as well as fees payable thereunder. A retainer need not be written, it can be oral and can even be inferred from the conduct of the parties. However, if there is no evidence of retainer, except a statement from the advocate, which client contradicts, the court will treat the advocate as having acted without authority from the client.”

15. The respondent further relied on J. Mbugua & Associates –v- City Star Shuttie Ltd [2021]eKLR in which it was noted as follows:-“Where there is a general retainer given to an advocate by a client, it does not fall in the mouth of the client to argue that there were no instructions given to the advocate in respect of a particular matter falling within the series in which there was a general retainer unless it is shown that there were express instructions given to the advocate not to act in that particular matter. In that event the onus of proving lack of instructions would be on the person alleging the same. It is also trite than incorporated person is but just a legal person in the eyes of the law. It is therefore axiomatic that an incorporated body has of necessity to act through agents who are usually its Board of Directors by way of resolutions passed thereby. Where for example it is proved to the satisfaction of the court that legal proceedings were commenced by or on behalf of an incorporation by an advocate contrary to or in the absence of the instructions of an incorporation it is trite in this jurisdiction that such proceedings are liable to be struck out with costs being borne by the advocate concerned. This was the position in Tivuli Clearing & Forwarding Limited –v- Charles Kalujjee Lwang Nairobi (Milimani) HCCC No. 585 of 2004. ”

16. There was no dispute that the applicant and James Njuguna Kirima were trustees of Kirima Trust. In that capacity, they instructed the respondents to petition the court for orders to protect and preserve the properties and businesses of Gerishon Kamau Kirima who was still alive but was unwell. On 3rd September 2010 they were granted the order. When Gerishon Kamau Kirima died, the two, together with other members of the family, got the respondents to petition for letters of administration colligenda bon defuncti to collect, get in, receive and manage the estate of the deceased before there was a full grant. At that the point there was a written Will in which the applicant, James Njuguna Kirima and Samuel Ndei Kirima were executors. There was letter dated 12th May 2011 by the applicant to the respondents stating that the purpose of the petition was to collect and preserve the estate of the deceased pending the issuance of the grant of probate. Before that petition could be heard, another Will had emerged in which the executors were the applicant, James Njuguna Kirima, Samuel Ndi Kirima, Stephen Kirima and Catherine Wanjiku Kamau-Aura. Nyamu & Nyamu & Co. Advocates were instructed by Samuel Nderi Kirima on the basis of the second Will and they filed another petition for the grant of letters of administration intestate ad colligenda bona defuncti to protect and preserve the estate. With the two petitions on record, the court on 24th May 2011 issued orders appointing the applicant, James Njuguna Kirima and Samuel Ndei Kirima as administrators to jointly manage the estate of the deceased pending further orders. Eventually in October 2013 the court invalidated the two Wills and the applicant and Teresia Kirima were appointed as administratices of the estate of the deceased, a function they perform to date. The respondents continued to act for the applicant up to end of 2017, or thereabouts.

17. The deceased left three houses. The applicant comes from the first house, Stephen Njuguna Kirima comes from the second house and Teresiah Kirima is the widow of the third house.

18. In a succession matter, an advocate comes into the cause following instructions, either by the administrator of the estate or by a beneficiary in the estate. Where a beneficiary has instructed the advocate, that is an easy matter as he will be the one called upon to pay the resultant legal fees. Where the advocate has been instructed by the administrator, then the legal fees will be paid by the estate. This is because under sections 79, 82 and 83 of the Act the administrator is the legal representative of the estate for all purposes of the grant and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him. He has powers to sue and be sued on behalf of the estate. He has to collect, preserve and manage the entire estate of the deceased, pay any liabilities, and eventually distribute the net estate to the identified beneficiaries.

19. It is expected that where the estate has more than one administrator, they will instruct one advocate to act for the estate. Where they cannot agree and each has his own advocate, depending on the circumstances of the case, the court may ask each to bear the legal fees instead of burdening the estate. But, where each administrator is, in good faith, seeking through the separate instructions to protect, preserve and manage the estate of the deceased, the estate will bear the legal fees. There will be instances where, like in this case, the deceased left a polygamous family and each family was represented even before the grant was issued. Again, each case depends on its own circumstances. It should be borne in mind that an administrator is a trustee of the estate. He has a fiduciary duty to manage the estate in such a way that it is not prone to wastage or damage.

20. Throughout the relationship between the respondents, on one side, and the applicant and James Njuguna Kirima, on the other, it was quite clear that the latter were instructing the former to petition the court to have them preserve and manage the property of the deceased, when he was alive and unwell, and to secure manage and protect the estate, when he had died, and all the time this was not only for their personal benefit but for the benefit of all the beneficiaries. Throughout the annexed correspondence, it was clear that the applicant and James Njuguna Kirima were not seeking to protect their personal benefits in the estate. It was clear from the filed petitions what their intentions, as expressed to the respondents, were. They were at one time executors, before the respective Wills were nullified, and the applicant became an administratrix. I consequently determine that, either before the deceased died or after his death, the instructions to the respondents were to seek orders to preserve and manage the property and estate of the deceased and that the instructions were given by the applicant and James Njuguna Kirima for, and on behalf, of the estate of the deceased and the beneficiaries. The respondents are consequently to be paid their legal fees for the services they rendered to the estate of the deceased. The legal fees shall be borne by the estate of the deceased. The legal fees shall be subjected to taxation by the Taxing Officer.

21. As for the ruling of 23rd May 2017, it related to legal fees that the advocates still acting for the respective parties were seeking. The advocate/client relationship between the respondents and the estate had ceased to exist, and the respondent were entitled to payment of their fees or they tax their bill of costs.

22. Finally, therefore, the application dated 8th June 2021 has no merits and the same is dismissed with costs.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2022A.O. MUCHELULEJUDGE