https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12558

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT THIKA*** ***CIVIL APPEAL NO. E128 OF 2025*** ***DAVID M. MERAKA T/A*** ***MEREKA & COMPANY ADVOCATES…………………..…. APPELLANT*** ***-VERSUS-*** ***JOHN KIMANI MWANGI…………………………….…1ST RESPONDENT*** ***PINE CRIB APARTMENTS LIMITED………..………2ND RESPONDENT*** *(Being an Appeal from the Judgement of Hon. Y.M. Barasa delivered on 24th April 2025 in Thika MCCC No. E866 of 2024.)* ***BETWEEN:*** ***DAVID M. MERAKA T/A*** ***MEREKA & COMPANY ADVOCATES…………………..……………..…APPELLANT*** ***-VERSUS-*** ***JOHN KIMANI MWANGI…………………………….………………1ST RESPONDENT*** ***PINE CRIB APARTMENTS LIMITED………..……………………2ND RESPONDENT*** ***JUDGMENT*** **Introduction** 1. The Appellant filed the present appeal against the judgment delivered on 24/4/2025 dismissing his Originating Summons dated 2/12/2024 in which he sought payment of Kshs.1,000,000/= being legal fees allegedly owed by the Respondents for legal services rendered in ***Thika ELC No. 230 of 2018.*** 2. In the alternative, the Appellant had sought for the sale of ***L.R. NO. Gede/Majimboni/801*** to satisfy the said amount of the legal fees. This prayer was also dismissed. **Affidavit Evidence before the Trial Court.** 1. During the trial, the Appellant through affidavit evidence had stated that he had misplaced the written advocate-client agreement and he relied on the affidavits of his staff who stated that they saw the written agreements. 2. On their part, the Respondents did not deny engaging the Appellant to represent them in ***Thika ELC No. 230 of 2018.*** However, they stated that due to the simplicity of the matter, they agreed on a legal fee of Kshs.100,000/=. The Respondents further asserted that they did not enter into any agreement with the Appellant nor use the 2nd Respondent’s land as collateral. 3. The Appellant being dissatisfied with the said judgement appealed against it on the following grounds:- 1. *THAT the Learned Magistrate erred in law and in fact by dismissing the Appellant's Originating Summons dated 2nd December 2024 despite retainer having been agreed upon between the parties in* **ELC No. 230 of 2018***, Elisha Kuria Karigu & Others Vs. John Kimani Macharia & Pine Crib Apartments Limited where the Appellant entered appearance and thereafter filed defence and submissions.* 2. *THAT the Learned Magistrate erred in law and in fact by failing to take into account the Consent dated 5th September 2019 wherein the purchase price of* **LR No. 4871/211 1 (IR No.137694***) was Kshs.25,000,000/-pursuant to the term of the Novation Agreement executed between the parties and that the value of the subject matter at Kshs.25,000,000/-was available in the pleadings.* 3. *THAT the Learned Magistrate erred in law and in fact in that he failed to note that the only issue before him for determination was whether the instruction fees was Kshs.100,000/-or Kshs.1,000,000/- and nothing else.* 4. *THAT the Learned Magistrate erred in law and in fact in failing to find that it would not have been possible for the Respondents to instruct the Appellant to defend them at a fee of Kshs.100,000/- in a High Court matter whose value was Kshs.25,000,000/-and out of station at Thika ELC Court.* 5. *THAT the Learned Magistrate erred in law and in fact in that when the matter came up for mention on 24th April 2025, the Learned Magistrate failed to listen to the Appellant's pleas to be granted 7 days to file rejoinder submissions since the Respondents had not served the Appellants with their submissions and instead, proceeded to give a Ruling date next day on 25th April 2025 despite Appellants protest stating that "that's how I operate" and therefore failed to follow the established conduct set by the Judiciary.* 6. *THAT the Learned Magistrate erred in law and fact in failing to note that the Appellant had proved that the handwritten agreement was indeed misplaced and concluded without any evidence, that the Appellants evidence was weak and could not 2 ies anne tern d be relied upon while at the same time he failed to consider whether the Respondents evidence was weak or strong.* 7. *THAT the Learned Magistrate erred in law and in fact in failing to note that the dispute was between Advocate and Client and the witnesses available could only be the Appellants staff including Advocates who dealt with the matter and Court Clerks who filed the pleadings, filed sworn affidavits and the Respondents did not apply to the Honourable Court to have the said members of staff cross examined in order to prove the veracity or otherwise of matters deponed upon and in any event, an Affidavit of a staff in an Advocates office has the same weight as any other Affidavit unless proved otherwise which did not happen in this case.* 8. *THAT the Learned Magistrate erred in law and principle by failing to note that the Respondent did not produce any evidence that the fees were agreed at Kshs.100,000/-or otherwise and on a balance of probabilities, the Learned Magistrate failed to conclude that the Appellants version with respect to agreed fees of Kshs.1,000,000/- instead of Kshs.100,000/- was more credible despite the handwritten agreement having been misplaced.* 9. *THAT the Learned Magistrate erred in law and fact in concluding that there was no valuation report hence it was difficult to ascertain the value of the subject matter yet it was very clear in the consent dated 5th September 2019 that the value of the subject matter was Kshs. 25,000,000/-* 10. *THAT the Learned Magistrate erred in law and in fact in failing to note that the matters raised in the Plaint dated 29th August 2018 were complex and relating to breach of contract on the subject property, allegations of fraud on the part of the Respondent and prayers for permanent injunction, prohibition and specific performance on the subject property, among others issues and Advocate/Client fees could not amount to Kshs.100,000/-.* 11. *THAT the Learned Magistrate failed and/or neglected to note the correspondence between the Appellants and the Respondent’s Advocates, Ms. Chege Kibathi & Company Advocates requesting for the release of title* ***LR No.Gede/Majimboni/801,*** *that the Appellant was holding as security for the fees of Kshs.1,000,000/- in addition to the fact that the said Advocates did advise the Appellant by way of mobile telecommunication that they were holding Kshs.600,000/-on behalf of the Respondent and would seek authority from the Respondent to release the said amount to the Appellant in part payment of the said fees of Kshs.1,000,000/-.* 12. *THAT the Learned Magistrate erred in law in finding that there was no link between the title on* ***LR No. Gede/Majimboni/801*** *deposited and the legal fees despite evidence showing that the same was held as security for payment of the fees of Kshs.1,000,000/- and in any event, no evidence was adduced to prove that the instructions with respect to the said title were different or separate and the Appellant continues to retain the said title despite empty threats by the Respondent to go to Court to seek orders for release of the said title.* 13. *THAT the Learned Magistrate erred in law by disregarding circumstantial and corroborative evidence of the agreement on legal fees merely because the written agreement was misplaced.* 14. *THAT the Learned Magistrate failed to properly analyze the pleadings, evidence, and submissions by the Appellant and thereby arrived at a wrong decision.* 15. *THAT Learned Magistrate erred in law by entering into the arena of dispute between the parties by adding evidence stating that there was no valuation report on the property which had not been pleaded by the parties in order to wrongly dismiss the Appellants Originating Summons dated 2nd December 2024.* 16. *THAT Learned Magistrate erred in law and in fact, in that, he was impartial, he deprived the Appellant its constitutional right to fair hearing by failing to grant the Appellant time to file his responding submissions and locked out the Appellant from the seat of justice by pronouncing the Judgment next day and failed to follow the established code of conduct by the Judiciary stating "that's how I operate" and thereby became impartial and hell bent in favoring the Respondent.* 17. *THAT Learned Magistrate erred in law and fact by delivering a Judgement which was shallow and lacking material content and research, was dismissive and failed to consider the Appellants substantive pleadings and documents as is required of a Judicial Officer.”* 4. Based on the foregoing the Appellant prayed to have the appeal allowed and the judgement delivered on 24/4/2025 set aside. The Appellant further sought judgement in his favour as prayed in the Originating Summons dated 2/12/2024 and costs of the appeal. **Appellant’s Submissions** 1. The Appellant contended that the trial magistrate erred in dismissing the claim despite uncontroverted evidence that an advocate-client relationship existed and that he had represented the Respondents throughout the suit to its conclusion. He submitted that the Respondents only disputed the quantum of fees and not the fact that legal services had been rendered, and therefore the court ought to have determined the appropriate remuneration instead of dismissing the entire claim. 2. The Appellant further argued that the trial court improperly disregarded the sworn affidavits of his clerks, which confirmed the existence and contents of the handwritten fee agreement for Kshs.1,000,000/= after the original agreement had been misplaced. He maintained that the affidavits constituted admissible secondary evidence and remained unchallenged, as the Respondents neither controverted the evidence nor sought to cross-examine the deponents. 3. The Appellant also faulted the Learned Magistrate for failing to consider the totality of the circumstantial and corroborative evidence, including his conduct of the litigation, the Respondents' admission that they had instructed him, the delivery of the title deed for ***LR No. Gede/Majimboni/801*** as security for payment of legal fees, and the Respondents' failure to explain why the title deed had been deposited with him. He argued that these facts established, on a balance of probabilities, the existence of the fee agreement and demonstrated that the title deed was intended as security for payment. 4. Lastly, the Appellant submitted that the trial court failed to properly analyse the pleadings, documentary evidence and submissions, treated the absence of the handwritten agreement as determinative, failed to distinguish between contested and uncontested issues, and denied him a fair hearing by failing to consider his rejoinder submissions after he informed the court that he had not been served with the Respondents' submissions. 5. As at the time of writing this judgement, the Respondents had not filed their submissions in opposition to the appeal despite proof of service of the court’s direction requiring them to file the same. **Analysis and Determination.** 1. This being the first Appellate court, its duty is as summarized by the Court of Appeal in**Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123**: which is "… to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’ 2. I have considered the Memorandum of Appeal dated 19/5/2025, the Record of Appeal dated 25/8/2025 together with the submissions of the Appellant and I will extract the following issue for determination is: - 1. ***whether the learned magistrate erred in finding that the Appellant had failed to prove the advocate-client legal fees of Kshs.1,000,000/.*** 3. It was the Appellant’s case that the parties herein agreed on legal fees of Kshs.1,000,000 for representation in ***Thika ELC No. 230 of 2018.*** The Appellant stated that the agreement was handwritten but had been misplaced and he sought payment of the said sums. 4. The evidence adduced at trial court by the Appellant included the Memorandum of Appearance and statement of defence filed in the said suit; the consent entered into in ***ELC No.230 of 2018***; the affidavits of the Appellant’s clerks whereby it was averred that the handwritten agreement existed and proof that he held the title deed belonging to the 2nd Respondent, which was alleged to have been a security for legal fees. 5. It is evident from the documents filed in the trial court that indeed the Appellant represented the Respondents in the aforementioned suit, a fact that was not denied by the Respondents. 6. However, the only documents availed to the court as evidence that was supposed to support the exact figure of legal fees was the affidavits by the Appellant’s staff. Legal fees can only be proved by an agreement, failure to which the law is that it should be taxed by the taxing master and judgment entered as per the certificate of taxed costs. In the case of ***Macharia Mwangi & Njeru Advocates vs Ecobank Limited, Civil Appeal No. E474 of 2021***, the Court of Appeal stated: - "An advocate's fees are recoverable only where the parties have entered into a valid remuneration agreement under section 45 of the Advocates Act or, in the absence of such agreement, after taxation of the Advocate–Client Bill of Costs by the taxing officer under the Advocates Remuneration Order." 7. No valid remuneration agreement was shown to the trial court and an affidavit without the supporting agreement is not sufficient evidence of what figure of legal fees ought to be paid between the parties. I do agree with the trial court that indeed the evidence adduced did not prove that the parties agreed to legal fees of Kshs.1,000,000/- as claimed by the Appellant. 8. Similarly, there was no taxed advocate – client bill of costs shown to the trial court. Under section 107 of the Evidence Act, he who alleges has the obligation to prove. My finding is that there is no proof that the parties had agreed on legal fees of Kshs.1,000,000/- and it would be an injustice for the court to order the Respondents to pay such an amount without proper evidence that it was indeed agreed upon. 9. Counsel stated that the title number ***LR No. Gede/Majimboni/801*** was deposited with him as security for payment of legal fees. I have considered this submission, but again that agreement that the title was being deposited as security for payment of a figure of Kshs.1,000,000/- has not been shown to the court. 10. In the case of ***Mbogo vs.Shah (1968) EA 93,*** the court stated:- “ …***I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself, or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in******doing so arrived at the wrong conclusion.*”** 1. In the instant case, my finding is that the trial court did not misdirect itself in finding that the Appellant failed to prove his case on a balance of probability and I find no reason to interfere with its findings. 2. **The upshot of the matter is that the Appeal herein lacks merit and the same is dismissed with costs to the Respodents.** **Judgment** delivered, dated and signed virtually at **Nairobi** this **31st** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadys* – Court Assistant *Ms. Kendi Marangu h/b for Mr. Mereka* for the Appellant. *N/A* for the Respondent.