https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11113

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOM APPEAL NO. E313 OF 2024** **CHERYL ONINDO T/A** **ONINDO ONINDO & ASSOCIATES............................................APPELLANT** **VERSUS** **ROFINA OYIERA OKUNE.......................................................RESPONDENT** **JUDGMENT** 1. This appeal is a classic collision between contract law and statutory fee capping. It exposes the fragile trust between an Advocate and a client. 2. The Appellant, an Advocate, claims fees totaling one-third (33.3%) of the decretal sum. The Trial Court dismissed the Appellant’s claim for these fees. The Appellant is dissatisfied. **Background Facts** 3. The Appellant's case is that in 2013 the Respondent instructed him to provide legal services in relation to a fatal road traffic accident involving her deceased daughter, **Rose Awinja Okune**. Owing to the Respondent's inability to meet the legal and court expenses, the parties executed an instruction note under which the Appellant agreed to finance the proceedings, including court fees and related expenses. This was with the understanding that he would recover his fees and costs from the proceeds of the claim. Pursuant to those instructions, the Appellant successfully obtained letters of administration *ad litem*, instituted and prosecuted a suit in the Magistrates' Court, and secured judgment in favour of the Respondent. 4. The Appellant contended that after the successful conclusion of the matter, the Respondent demanded the entire decretal sum. That she declined to honour the terms of the instruction note regarding payment of the Appellant's fees and expenses. Consequently, the Appellant instituted a suit seeking enforcement of the agreement between the parties, but the Trial Court dismissed his claim, prompting the present appeal. **5. Cheryl Onindo T/A Onindo Onindo & Associates** the above-named Appellant, being dissatisfied with the Judgment/decision/orders of the **Honorable Muthoni Njagi** made on 28th November, 2024, in Nairobi MCCOMMSU E885 OF 2023, appealed against the entire Judgment/decision and all consequential orders issued in accordance therewith upon the following grounds of appeal; - 1. *The Judgment of the court does not meet the requirements of a judgment as envisaged in the Civil Procedure Act/Rules.* 2. *The Magistrate erred in law and in fact in dismissing the plaintiff's suit with costs.* 3. *The Magistrate erred in law and in fact in not entirely addressing the issues before her.* 4. *The Honorable Magistrate erred in law and fact in not looking at the circumstances of the case and proceed to make a finding that the plaintiff's suit had merit.* 5. *The Magistrate erred in law and in fact in arriving at a finding that the Respondent's name was not in the instruction note dated 12/10/2013.* 6. *The Magistrate erred in law and in fact in arriving at a finding that the absence of the name of the witness in the instruction note dated 12/10/2013 vitiated the entire instructions in the in the instruction note.* 7. *The Magistrate erred in law and in fact in holding that the instruction note signed by the Respondent could not be enforced.* 8. *The Magistrate erred in law and in fact in not giving reasons as to why the instruction note was not enforceable as per the law.* 9. *The Magistrate erred in law and in fact in making a finding that because the Respondent disputed the instruction note, the same then could not be enforced.* 10. *The Magistrate erred in law and in fact in not looking at the evidence before her and making a finding that the Respondent was merely denying her denying the signature in the instruction note* 6. The Appellant prayed for the following Orders: * 1. *This appeal be allowed with costs.* 2. *The orders of the Magistrate, Honorable Muthoni Njagi, dismissing the Appellant's suit be set aside.* 3. *The Appellant’s suit in the Magistrate Court, MCCOMMSU E885 OF 2023, be allowed as prayed* 7. There was no response by way of submissions filed by the Respondent. **Issues for determination** 8. The Court has considered the Appeal, the Record of Appeal, the written submissions as well as oral highlights by Counsel for the Appellant. The Court frames a single issue for determination as follows: *(a) Whether the instruction note is a valid, enforceable contract****.*** *(b) Whether an advocate can charge fees exceeding the statutory 25% cap.* *(c) What reliefs lie in this Appeal?* **Analysis** 9. It is settled law that the duty of a first Appellate Court is to evaluate afresh the evidence adduced before the Trial Court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 10. This was aptly stated in the case of ***Selle & Another vs Associated Motor Boat Co Ltd & others [1968] EA 123.*** The Court therein held that the Appellate Court was not bound by the findings of fact of the Trial Court but that in re-considering and re-evaluating the evidence to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. **(a) Whether the instruction note is a valid, enforceable contract.** 11. The Appellant submitted that the Trial Court erred in finding that the instruction note on legal fees was unenforceable. Under **Section 45 of the Advocates Act**, Advocates and clients are permitted to enter into written fee agreements before, during, or after proceedings. This is as long as the agreement is signed by the client or an authorized agent. The Act does not require such an agreement to be witnessed. The Appellant argued that the instruction note contained the Respondent’s correct particulars and signature, and that the Court failed to evaluate the evidence demonstrating its validity properly. 12. The Appellant further contended that the Trial Court failed to analyze relevant documents bearing the Respondent’s admitted signatures. That it ignored material contradictions in her testimony, and wrongly accepted her denial of the instruction note without supporting evidence. It is argued that the judgment did not comply with **Order 21 Rules 4** and 5 of the Civil Procedure Rules because the Court failed to adequately address the issues for determination, provide reasons for its findings, or identify the legal basis upon which it declared the instruction note unenforceable. 13. Was the instruction note binding? **Section 45 of the Advocates Act** provides, ***45. Agreements with respect to remuneration*** ***(1) Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may—*** ***(a) before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;*** ***(b) before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;*** ***(c) before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.*** 14. The Appellant produced a written instruction note signed by the Respondent dated 12th October, 2013. The instruction note clearly shows that the Respondent signed the said instruction fee, agreeing that the Advocate's fees was to be 1/3 of the total amount awarded by the Court. 15. In the Trial Court, the Respondent contended that the signature was not the Respondent’s signature, and it is on this basis that the Trial Court concluded that the instruction note was not valid and the same could not be enforced. 16. The standard of proof for fraud is higher than that on a balance of probabilities, though not as high as beyond a reasonable doubt. As regards the standard of proof, the Court in the case of ***Kinyanjui Kamau –vs George Kamau [2015] eKLR*** expressed itself as follows; - ***“…it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –vs- Ndolo [2008]1 KLR (G & F) 742 wherein the court stated that: “…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in Criminal Cases…”*** 17. The Respondent failed to provide any evidence to the Trial Court to prove that the signature did not belong to her. Therefore, the instruction note was binding and could not be merely replaced by the alleged verbal agreement as averred by the Respondent. 18. To this Court the validity of this Instruction note in as much as it made for provision of the legal services is now water under the bridge. 19. The Advocate offered himself to provide legal services and the client signed up for the same. As far as the instruction note was signed in respect of provision of legal services, the same is enforceable. The reason for which it was signed is in any event spent as such services were rendered. 20. The main dispute which is not lost to this Court is the issue of legal fees and the quantum thereof. **(b) Whether an advocate can charge fees exceeding the statutory 25% cap.** 21. The practice of law is an Honourable profession, not a commercial bazaar for merchants and traders. Whereas merchants and traders play an important role in the economy of our Nation, their place is not in the practice of the legal profession. While **Section 45 of the Advocates Act** permits Advocates and clients to enter into remuneration agreements, it is not a blank check to exploit the client. 22. Freedom of contract is not absolute. It must bow to the principle of fairness. An agreement for legal fees is not merely a private contract; it is a contract between an officer of the Court and a vulnerable client. 23. The Advocates (Remuneration) Order provides the ceiling for reasonable remuneration. It is the yardstick by which the Court measures fairness. While the law allows for contingency or success fees, these are generally capped at 25% of the recovered amount to protect the public. A fee of 33.3% is an outlier. It is prima facie unconscionable. It offends the spirit of the Remuneration Order and the Advocates Act. 24. The jurisprudential debate concerning legal fees finds its statutory resolution in **Section 46(d) of the Advocates Act**, which states as follows: ***“any agreement by which an advocate agrees to accept, in respect of professional business, any fee or other consideration which shall be less than the remuneration prescribed by any order under section 44 respect of that business or more than twenty-five per centum of the general damages recovered less the party and party costs as taxed or agreed; or”*** 25. This provision expressly invalidates agreements that stipulate fees exceeding 25% of general damages recovered. While the law permits the freedom of contract under **Section 45**, that freedom is not a license to bypass the protective umbrella of **Section 46(d)**. The 25% threshold is not merely an advisory guideline; it is the legislative boundary set to protect the public from unconscionable bargains. Any agreement—such as the one presented here, purporting to grant 33.3%—offends the clear letter of **Section 46(d)**. It is not open to an Advocate to contract for a fee that the statute itself deems inherently suspect. See **Leonard K. Mbuvi T/A Katunga Mbuvi & Co. Advocates v Clinix Health Care Ltd (6th Accused Person) [2019] KEHC 11267 (KLR).** 26. The Court is not blind to the agreement signed. However, the existence of an agreement does not oust this Court’s supervisory jurisdiction. See **D Njogu & Company Advocates v National Bank of Kenya Ltd [2016] KECA 85 (KLR).** ***(c) What reliefs lie in this Appeal?*** 27. Pragmatism dictates that the Court does not strike down the agreement entirely if part of it is enforceable. However, the Court protects the Respondent. The fees must be taxed. The matter is said to be already before the Advocates Disciplinary Tribunal which has the jurisdiction to tax the bill involving the Advocate and the client. The Courts also do have similar jurisdiction to call the Advocate to render a bill of costs for taxation. The Court reminds itself of its core duty to facilitate the expeditious and cost-effective determination of disputes before the parties. It is therefore prudent and cost effective that the Bill of costs be taxed by the Advocates Disciplinary Tribunal. The dispute is already before them. After all any party dissatisfied has a recourse to our Courts by way of an Appeal. 28. As these Court processes have taken a while, the parties should expedite the hearing and determination of the dispute before the Advocates Disciplinary Tribunal. 29. In light of the above, the Court finds that the Appeal is not merited, but for reasons other than those set out by the Trial Court. 30. As to costs, the same lie at the discretion of this Court and ordinarily follow the event. The Court is of the considered opinion that there shall be no orders as to costs, since the Appeal was not opposed. **Determination** 31. The Court proceeds to make the following orders in relation to this Appeal. * + - 1. *The Appeal is HEREBY dismissed for lack of merit.* 2. *There shall be no orders as to costs.* 32. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 22ND DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: N/A for the Appellant. Miss Obiria for the Respondent. Mr. John Paul - Court Assistant.