https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7574

J.W. & Frank Advocates LLP v Nguyai (Miscellaneous Application E522 of 2025) [2026] KEHC 7574 (KLR) (Commercial and Tax) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7574 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E522 of 2025 PM Mulwa, J May 28, 2026 IN THE MATTER OF THE ADVOCATES ACT (CAP 16 OF THE LAWS OF KENYA) Between J.W. & Frank Advocates LLP Applicant and Hon. Lewis Nguyai Respondent Ruling 1.This ruling determines the Notice of Motion dated 27th May 2025 brought pursuant to Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 45 (1) of the Advocates Act. The applicant seeks that judgment be entered against the Respondent for the amount of Kshs. 801,340.00/=, being the balance of the legal fees arising from the remuneration agreement dated 15th November 2023, interest at 14% until payment in full and costs be provided for. 2.The application is supported by the affidavit of Wanjiru Njubi, an Advocate practicing in the firm of J.W. & Frank Advocates LLP. She depones that the Respondent instructed the Applicant on 15th November 2023 to institute and act for him in a commercial dispute involving Equity Bank, Integra Auctioneering (K) Company and Alshawamekh Investments Ltd. 3.According to the deponent, the parties executed a remuneration agreement pursuant to which the Respondent paid a deposit of Kshs. 500,000/= and a further sum of Kshs. 198,660/=, leaving an outstanding balance of Kshs. 801,340/=. She avers that the Applicant diligently represented the Respondent, obtained temporary injunctive orders protecting the Respondent’s property, and prosecuted the interlocutory application until its determination on 16th April 2025. 4.It is further deponed that upon determination of the application, the Respondent appointed another firm of advocates without formally notifying the Applicant, the change only coming to the Applicant’s attention upon service of a Notice of Change of Advocates. The deponent states that despite demand, the Respondent has failed and/or neglected to settle the outstanding legal fees, hence the Applicant seeks entry of judgment for the outstanding sum together with the orders sought in the application. 5.The Respondent opposes the application by the replying affidavit sworn on 7th July 2025. He depones that the application is procedurally defective and constitutes an abuse of the court process as it seeks substantive final relief through a miscellaneous application rather than an ordinary suit. The Respondent disputes the existence of any concluded remuneration agreement, contending that although negotiations and exchanges took place between the parties, there was no consensus on the terms of engagement or the fees payable. 6.He further avers that communication exchanged between the parties, including WhatsApp messages, demonstrates that discussions on fees remained unresolved and contentious. The Respondent states that upon receipt of the Applicant’s letter dated 16th April 2025, he sought clarification regarding the fees and subsequently forwarded proof of payments already made, maintaining that the outstanding balance was Kshs. 151,340/= and not Kshs. 801,340/= as claimed by the Applicant. 7.According to the Respondent, the discrepancy in the sums claimed demonstrates the existence of a genuine dispute on the quantum of fees, thereby rendering the claim unsuitable for judgment under Sections 45 and 51(2) of the Advocates Act. He further contends that no certificate of taxation has been issued and that both the existence and scope of the retainer are disputed. 8.The Respondent maintains that the Applicant ought to pursue its claim through an ordinary civil suit where the disputed issues can be fully ventilated. He further avers that the Applicant did not complete the full scope of the instructions issued and that the services rendered were partial and incomplete. Consequently, the Respondent urges the Court to dismiss the application with costs for being incompetent, premature, and an abuse of the court process. 9.The parties canvassed the application by way of written submissions, which I have considered together with the pleadings and affidavit on record. Analysis and determination 10.The issue for determination is whether the Applicant has satisfied the threshold for entry of judgment pursuant to Section 45 of the Advocates Act. 11.Section 45 (1) of the Advocates Act provides:“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 or after or in the course of any contentious business in a civil court make an agreement fixing the amount of the advocate’s instruction fees 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.” 12.The effect of the above provision is that parties are at liberty to enter into a binding remuneration agreement regarding legal fee. The onus of proving the existence of the renumeration agreement lies with he that wishes to enforce it. Under the proviso to Section 45 (5) of the Act, an advocate who is a party to an agreement and who has acted diligently for the client is entitled to sue and recover for the whole retainer fee should his client default in payment thereof. 13.The Applicant contends that the parties entered into an agreement and produced an instruction note dated 15th November 2023 signed by the Respondent. The said document expressly stipulated the instruction fees payable at Kshs. 1,500,000/= together with the deposit payable upon filing. The Respondent does not deny instructing the Applicant, nor does he deny making payments towards legal fees. Indeed, he admits having paid various sums totaling Kshs. 898,660/=. 14.However, the Respondent disputes both the existence of a concluded remuneration agreement and the quantum allegedly outstanding. He contends that discussions on fees remained unresolved and that the Applicant’s claim is exaggerated. The Respondent further avers that the Applicant did not fully perform the scope of work contemplated under the alleged retainer. 15.The court is of the view that where there exists a bona fide dispute regarding the existence, scope or enforceability of a fee agreement, the court ought not summarily enter judgment without allowing parties to fully ventilate the disputed issues through formal proof and interrogation through substantive hearing. 16.From the material placed before the Court, it is evident that there exists a genuine dispute that cannot be resolved summarily on affidavit evidence alone. 17.On the Respondent’s contention that the application is incompetent for want of a certificate of taxation under Section 51(2) of the Advocates Act, I agree with the Applicant that where parties have entered into a valid remuneration agreement under Section 45, taxation would ordinarily be unnecessary since the fees payable are contractually agreed. However, that position does not assist the Applicant where the existence and scope of the agreement itself remain contested. 18.In the premises, I find that the Notice of Motion dated 27th May 2025 is devoid of merit. 19.Consequently, the same is hereby dismissed. Given the nature of the dispute between advocate and client, I direct that each party shall bear its own costs. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 28TH DAY OF MAY 2026.P.M. MULWAJUDGEIn the presence of:Ms. Wanjiru for PlaintiffMs. Kimani for RespondentCourt Assistant: Lispa