[2017] KEHC 2935 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MISC. CIVIL APPLICATION NO. 7 OF 2017

ERICKSON MOGUSU

T/A N.E. MOGUSU & ASSOCIATES ………..ADVOCATE/APPLICANT

VERSUS

MASH EAST AFRICA LIMITED ………………..CLIENT/RESPONDENT

RULING

This file was placed before me to determine whether there was a retainer between the firm of Ms N.E. Mogusu & Associates and Mash East Africa Limited. This following the filing of a bill of costs dated 1st February 2017 for taxation by the former. Mash East Africa Limited has through the firm of Macharia-Mwangi & Njeru Advocates denied there was a retainer.

The issue was addressed through written submissions. Counsel for the Client urged this court to consider meaning of retainer in Halsbury's Law of England, Third Edition Paragraph 84and George Ndungu Kimani T/a George N. Kimani & Co. Advocates V. Ronald Schaich [2013]eKLRand find that there was no retainer between the Client and the Advocate herein. It was submitted that instructions in that matter were to the firm of L.G. Menezes & Company Advocates where Mr. Erickson Mogusu Nyamweya the proprietor of N.E. Mogusu Advocates was working. E-mails, correspondences between the Client and L.G. Menezes Advocates were exhibited. So was a cheque evidencing payment to the said firm and correspondences between the firm and Kenya Revenue Authority which the Client had sued and which litigation is the subject of these proceedings.

Counsel for the Client further submitted that even were the Advocate's argument that he was instructed by the firm of L.G. Menezes and Company Advocates he cannot claim instruction fees from the Client but the firm that instructed him. On this Counsel cited Obaga & Company Advocates V. Kipkebe Limited [2009]eKLR.

Lastly Counsel argued that there is no explanation why the Advocate would wait for more than two years to file the bill of costs save for the court to be obfuscated of facts that the

firm was never instructed by the Client.

Counsel further cited the persuasive authority of Hezekiel Oira T/A H. Oira Advocate V. Kenya Broadcasting Corporation [2015]eKLR, Section 2 of the Advocates Act, Blacks Law Dictionary 6th Edition 1990, Strounds Judicial Dictionary of Words & Phrases 1986 Vol. 4 at page 2283 and Words & Phrases Legally Defined, 2nd Edition, Vol. 4 by J.B. Saunders.He urged this court to strike out with costs the Bill of Costs filed by the Advocate on 1st February 2017,

The Advocate relied on the Statutory Declaration of Erickson Nyamweya Mogusu sworn on 28th March 2017, the annextures thereto together with two cases -

Omulele & Tollo Advocates V. Mount Holdings Limited [2016]eKLR.

Mereka & Company Advocates V. Zakhem Construction (Kenya)[2014]eKLR.

In the Statutory Declaration he deposes that instructions were given to his firm by one Shalo Lenox, the Managing Director of the Client. That the said instructions were made through a telephone conversation between him and Mr. Shalo Lenox on 19th February 2017. Mr. Shalo Lenox had allegedly expressed frustration with the firm of L.G. Menezes Advocates. He also deposes that he agreed to accept the instructions only on condition he was paid and communicated this to Mr. Shalo Lenox. That upon doing so Mr. Shalo Lenox asked him to send an invoice and he did so. Thereafter the said Mr. Shalo Lenox informed him that they had sent a cheque for Kshs.50,000/= on account of disbursements. Once the cheque reached the firm it was banked and the firm proceeded to file a Petition No. 29 of 2014 and served it upon the Client but when he attended court for hearing of the application he was served with a Notice of Change of Advocates. He deposes that he is aware that the Client continued to utilize the drafts by his firm and the allegation that there was no retainer is far-fetched, malicious and merely intended to avoid paying the firm's just legal fees. He further deposes that it will be unjust for the Client not to pay and that in any event the Applicant should have filed an application and not raised this issue in submissions.

From the record it is apparent that the parties herein first went to the Taxing Officer for taxation of the advocate's bill of costs where the issue of retainer was raised. In her ruling delivered on 25th June 2017 the Taxing Officer downed her tools, as she should have correctly done, and directed the parties to take the necessary steps to have the issue of retainer resolved by a Judge. The record also shows that on the same day, after the ruling was delivered Mr. Nyamweya, Advocate, requested for a mention date before a Judge. The request was granted and the matter was fixed for mention on 10th May 2017 before a Judge. Come 10th May 2017 the matter was placed before me for directions. Mr. Nyamweya appeared for the Advocate while Mr. Felix Onyango held brief for Mr. Kimani for the Client. At that appearance the Advocates for the Client intimated they wished to file written submissions and asked for time to do so. By the next appearance the Advocate for the Client had filed its submissions and Mr. Nyamweya, for the Advocate submitted he wished to rely on his Statutory Declaration and two authorities. The matter was then left to the court to determine the issues. Mr. Nyamweya's submission that these proceedings ought to have been canvassed by way of an application is perplexing. He acquiesced in the manner it commenced. The Taxing Officer has no jurisdiction to entertain a bill of costs where the retainer is disputed and she correctly referred the issue to this court. Moreover whether the matter was commenced by an application or in the manner it did it is now before me and the parties having proceeded, Mr. Nyamweya having acquiesced to the procedure, it behoves this court to write a ruling.

My understanding of what constitutes a retainer upon a reading of all the material placed before me is that it is a contractual relationship which begins when an advocate agrees to render professional services to a client. The agreement may be express or implied from the conduct of the parties and need not always be in writing. In Omulele & Tollo Advocates V. Mount Holdings Limited [2016]eKLRthe Court of Appeal stated:-

“From the above definition, 'retainer' covers a broad spectrum. It encompasses the instructions given to an advocate as well as the 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 a client contradicts, the court will treat the advocate as having acted without authority from the client (see. Halbury's Law of England, (supra) at page 14 para 765).”

The Court of Appeal in the same case places the onus of proof upon the advocate. The court stated -

“As with any other agreement, the onus of proving the existence of the retainer agreement lies with he that wishes to enforce it. This is in line with the ordinary rules of contracts and evidence. (See Kenya National Captial CorporationLimited v. Albert Mario Cordeiro & Another [2014]eKLR and Section 107 of the Evidence Act ..…………..

The same onus of proof applies to a retainer. As said earlier, where a client disowns an oral retainer or even the existence of a retainer relationship, it is for the advocate who claims under that retainer to prove to court that such a relationship indeed existed, otherwise the court will deem that he acted without instructions.”

So has the firm of N.E. Mogusu & Associates proved that it had instructions to act? That is the issue for determination.

Mr. Nyamweya deposes that he was instructed orally by Mr. Lenox Shalo of the Client firm. To demonstrate this he has annexed an e-mail correspondence sent by himself to the said Mr. Lenox Shalo. It is however instructive that the subject of that e-mail is not indicated unlike in the email correspondences between Lenox Shalo and Menezes, Oloo and Chatur Advocates which invariously makes reference to “HIGH COURT PETITION FOR THE RELEASE OF OUR BUS KAQ 200G DETAINED BY THE KRA SINCE 27. 07. 2013”.Even granted that instructions to act can be oral the absence of the “subject” in the e-mail which followed the alleged telephone conversation makes it difficult for this court to arrive at the conclusion that the correspondence was in regard to the petition in this case. As for the bank account from which it could also be deduced that the payment was made following the giving of instructions my view is that the bank statements per se does not prove that the payment was made in regard to this matter let alone that it was drawn by the Client. What would have sufficed is a copy of the cheque and the correspondence forwarding it to the Advocate because I would suppose that it was forwarded through a letter. A copy of the cheque would have confirmed if it was drawn by the Client and the correspondence would have confirmed the purpose of the payment. As it is there is nothing at all to demonstrate that the Client corresponded with the Advocate or paid any monies to him with respect to this matter. In the circumstances I find that the Advocate has not discharged the burden of proving on a balance of probabilities that a retainer existed between him and the Client.

Accordingly his bill of costs filed on 1st February 2017 is struck out with costs to the Client. It is so ordered.

Signed, dated and delivered at Kisumu this 12th day of October 2017

E. N. MAINA

JUDGE

In the presence of:-

Mr. Mirembe for the Advocate/Applicant

Mr. Omondi T for the Client/Respondent

Serah Sidera – Court Assistant