[2022] KEHC 15045 (KLR)

James Aggrey Mwamu t/a Mwamu and Company v Gathinji (Miscellaneous Civil Application 29 of 2020) [2022] KEHC 15045 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15045 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Civil Application 29 of 2020

FA Ochieng, J

November 8, 2022

Between

James Aggrey Mwamu t/a Mwamu and Company

Applicant

and

Ndungu Gathinji

Respondent

Ruling

On 10th February 2020 the Advocate’s firm of Mwamu And Company Advocates filed an;“Advocates Client Bill of Costs.” 1. In the said Bill of Costs, the Respondent is Ndungu Gathinji.

2. For ease of reference, I will cite the Respondent to the Bill of Costs as “the Client”.

3. Upon receipt of service of the Bill of Costs, the Client filed an application dated 11th December 2020. The application sought the striking out of the Bill of Costs, on the grounds that the Client had never retained the Advocate to act for him or to represent him in any court case or matter.

4. In answer to the application the Advocate filed a replying affidavit in which he provided details of how he was instructed, and also about the services he rendered.

5. When canvassing the application the Client pointed out that the Bill of Costs filed by the Advocate was in relation to “an unknown matter.”

6. Based on the decision in Ochieng Onyango Kibet & Ohaga Advocates Vs Akiba Bank Limited [2008] 1 E.A. 380, the Client submitted that the law requires an advocate to demonstrate that he obtained written instructions from the Client.

7. However, it appears to have escaped the attention of the Client that the following legal position was spelt out in the authority which he cited, being Halsbury’s Laws Of England, 4th Edition at page 103;“Meaning of ‘retainer’: The act of authorizing or employing a solicitor to act on behalf of a client constitutes the solicitor’s retainer by the client.Implied retainer: Even if there has been no written retainer, the Court may imply the existence of a retainer from the acts of the parties in the particular case.”

8. In the case of Wilfred N. Konosit/a Konosi & Co. AdvocatesvFlamco Limited, Civil Appeal No. 154 of 2014, the Court held that the onus reposed on the Advocate to demonstrate that there existed the relationship of Advocate-Client. Where the advocate did not discharge that onus, the Taxing Officer had jurisdiction to strike out the Bill of Costs.

9. In the case of Muriithi Kireria & Associates Advocates Vs Kenya Planters Co-operative Union Limited, High Court Misc. Application No. 478 of 2014 the Court held as follows;“19. Thus, besides a written retainer agreement or proven oral agreement, a retainer will be deemed to exist where the conduct of the parties point to a relationship of advocate and client. A written agreement need not exist.”

10. It is an accepted position that good practice is to have documented retainers.

11. In that case, the advocate gave a narrative of how he was engaged to act for the client, and also set out the actions he took in the course of representing the client.

12. Having evaluated the conduct of the parties Onguto J. held that, in the circumstances, a retainer would be implied.

13. In this case, I find that the client did not challenge the narrative presented by the advocate. The said narrative included a description of the physical stature of the client.

14. The advocate stated how the client introduced himself, personally, and how the client told him about his twin responsibilities as a Director of Drumond Investment, who were the Receiver-Managers of Muhoroni Sugar Factory.

15. The advocate told the Court that the client handed over to him, a letter dated 12th April 2010. The letter was from the Kenya Anti-Corruption Commission.

16. It was the advocate’s position that the Client asked him to defend him against the claim by the Kenya Anti-Corruption Commission.

17. The advocate also told the Court that the client sought his advice on a suit which had been filed against him by Messrs Rachier Amolo & Company Advocates.

18. The advocate deponed that he gave advice to the client on the elements and the details which he needed to include in his defence, to the said suit, which was for a claim of Kshs 100 Million.

19. Thirdly, the advocate deponed that the client was charged with a criminal offence in which it was alleged that he had corruptly diverted funds belonging to Muhoroni Sugar Factory (Under Receivership).

20. According to the advocate, he personally represented the client in the Court, where he successfully applied for Cash Bail. He then worked with the client’s son in ensuring that the funds required as cash bail was obtained. In particular, the advocate sought the release of the client from custody, so that he could be escorted to the bank, where he obtained the required funds for the cash bail.

21. Thereafter, the Advocate says that he took personal charge of processing the bail documents until the Client was released from custody.

22. As those facts were set out on oath, by the Advocate; and have not been disputed by the Client, I find that the Client definitely gave instructions to the Advocate. In effect, the Client retained the Advocate.

23. I further find that the Advocate undertook services after he had been instructed.

24. Accordingly, the Advocate was entitled to draw up a Bill of Costs for the services he rendered.

25. Accordingly, the Client’s application dated 11th December 2020 is dismissed. The Client will pay to the Advocate the costs of the application. I so order because there is no basis upon which the Court could deviate from the cardinal rule which stipulates that costs shall follow the event.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2022. FRED A. OCHIENGJUDGE