[2022] KEHC 1625 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CIVIL APPLICATION NO. E338 OF 2021

KAMUTI WAWERU & COMPANY ADVOCATES.......APPLICANT/RESPONDENT

-VERSUS-

SHIVEN DEV LIMITED..................................................RESPONDENT/APPLICANT

RULING

1. The subject of this ruling is the Notice of Motion dated 22ndSeptember, 2021 brought by the respondent/applicant herein (“the applicant”) and supported by the grounds laid out on its face and the facts stated in the affidavit of Bijal Chandrakant Lakhamshi. The following are the orders being sought therein:

i. Spent.

ii. Spent.

iii. THAT the Honourable Judge do issue a declaration that there exists no retainer of the law firm of Kamuti Waweru & Company Advocates by Shiven Dev Limited.

iv. THAT the Honourable Court be pleased to issue a declaration that there is no advocate-client relationship between Kamuti Waweru & Company Advocates and Shiven Dev Limited for the performance of legal services alleged in the Bill of Costs dated 14th July, 2021.

v. THAT the Honourable Judge be and is hereby pleased to strike out and/or dismiss the Bill of Costs dated 14th July, 2021.

vi.THAT costs of the application be provided for.

2. The applicant/respondent (“the respondent”) resisted theMotion by putting in Grounds of Opposition dated 8thDecember, 2021 featuring six (6) grounds essentially arguing that the instant Motion is frivolous, vexatious, an abuse of the court process and fatally defective; a mere attempt at derailing the taxation proceedings. The respondent also put in the replying affidavit sworn by advocate Sammy Kamuti Waweru on like date, to which Bijal Chandrakant Lakhamshi rejoined with a supplementary affidavit he swore on 7thJanuary, 2022.

3. The Motion was dispensed with through written submissions.

4. I have considered the rival submissions and the respectiveauthorities cited.

5. It is clear that the gist of the matter before me is whether thereexisted a retainer between the applicant and the respondent atall material times.

6. On the one part, the applicant through its Managing DirectorBijal Chandrakant Lakhamshi states and submits that at no point did it ever retain the legal services of the respondent for the amount claimed in the Bill of Costs dated 14thJuly, 2021 od discuss the subject of legal fees, but that it is one James Kanyi, the director of Mirage Contractors and Suppliers Limited (“the vendor”) who engaged the services of the respondent.

7. The applicant states and submits that the abovementionedJames Kanyi was at all material times a client of the respondent and that it is he who instructed the respondent to draft the agreement in question and dated 8thJune, 2021 which both he and Bijal executed upon being satisfied of its contents.

8. The applicant further states that it was self-represented at thetime since its lawyer was not available to review the agreement, hence its decision to proceed to sign it in the presence of Sammy Kamuti Waweru, being the lawyer acting for James Kanyi and a partner at the respondent firm.

9. It is the assertion and submission of the applicant that theagreement in question later gave rise to criminal investigations arising out of alleged fraud on the part of James Kanyi through the vendor and the applicant, with the latter claiming that the former had sought to defraud it through the agreement.

10. In summary, the applicant is of the view that it never retainedthe respondent to draft or review the agreement in question and hence the Bill of Costs is unfounded. To buttress its point, the applicant cites among others the case ofMuriithi Kireria & Associates Advocates v Kenya Planters Co-operative Union Limited [2017] eKLRwhere the court rendered itself thus:

“The onus rests on the person who alleges the existence of a retainer to prove its existence where it is material to a claim. Thus an advocate must establish a retainer where he seeks remuneration and, likewise, it may have to be the client bearing the onus of proving the retainer where he or she wishes to make the advocate accountable for breaching a duty which the retainer would attract: see generally Ohaga –v- Akiba Bank Ltd [2008] 1 EA 300 and also section 107 of the Evidence Act (Cap 80). Generally, proof of a retainer will be deemed upon the establishment of facts and circumstances sufficient to establish a tacit agreement to provide legal services.”

11. For the respondent on the other part, advocate Sammy KamutiWaweru states that James Kanyi approached him on the material date and introduced him to Bijal, with the two (2) persons indicating their interest to enter into an agreement with urgency, which caused him to draft the abovementioned agreement, which he did and handed a copy to each of them to consult further on before returning to his offices on 8thJune, 2021 to execute in his presence.

12. The deponent further states that it was also agreed betweenhim and the parties on the aforementioned date that they would settle his legal fees in respect to the agreement; and that it is on that basis that he prepared and filed the Bill of Costs as a means of pursuing his fees.

13. In its submissions, the respondent argues that by virtue of itsconduct, the applicant established a retainer with it, thereby giving rise to an advocate-client relationship which carries with it the obligation to honor the payments sought in the Bill of Costs dated 14thJuly, 2021.

14. Upon my perusal of the record, it is not in dispute that theagreement dated 8thJune, 2021 was entered into between the vendor and the applicant herein. It is also not in dispute that the said agreement was drafted by the respondent and signed by the relevant parties in the presence of the respondent’s partner, Sammy Kamuti Waweru. What is in issue is whether the circumstances surrounding the agreement would give rise to a retainer and consequently, an advocate-client relationship between the parties.

15. I turn to the case of Omulele & Tollo Advocates v Magnum

Properties Limited [2016] eKLR cited in the respondent’s submissions, where the court while borrowing from previous decisions, described a retainer in the following terms:

“…I note that in Black’s Law Dictionary the word retainer is explained as follows: -

“In the practice of law, when a client hires an attorney to represent him, the client is said to have retained the Attorney. This Act of employment is called the retainer. The retainer agreement between the client and the Attorney sets forth the nature of services to be performed, costs expense and related matters…

The act of authorizing or employing a solicitor to act on behalf of a client constitutes the solicitor’s retainer by that client: - consequently, the giving of a retainer is equivalent to the making of a contract for the solicitor’s employment.”

16. The court went ahead to succinctly state that a retainer neednot be in writing but can be inferred from the circumstances ofthe case at hand and from the conduct of the parties involved.

17. Furthermore, the court in the recent case of Nyachoti andCompany Advocate v Giriama Ranching Company Limited[2021] eKLRechoed the above as follows:

“In Ahmednasir Abdikadir & Co. Advocates –vs- National Bank of Kenya Ltd (2007) eKLR, Osiemo J. (as he then was), observed that:-

“Justice L. Njagi pointed out as follows in HCCC No. 416 of 2004, Nyakundi & Company Advocates- vs- Kenyatta National Hospital Board (unreported) and gave the definition and form of retainer from Halsbury’s Laws of England, 4th Edition, at paragraph 99, page 83 where it stated:

“the act of authorizing or employing a solicitor to act on behalf of a client constitutes the solicitor’s retainer by that client. Thus, the giving of a retainer is equivalent to the making of a contract for the solicitor’s employment…”

Njagi J. pointed out that in the same work, it is further explained that a retainer need not be in writing, unless under the general law of contract, the terms of the retainer or the disability of a party to it makes writing requisite. It is then further stated, the Judge added, at paragraph 103:

“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…” ”

18. Upon my upon my perusal of the record, I am of the view thatwhile it is apparent that the respondent’s advocate drafted the agreement in question, I have not come across anything credible to indicate that the applicant herein had personally engaged the professional services of the respondent in respect to the agreement.

19. To my mind and going by the circumstances set out by theparties, it appears more plausible than not that James Kanyi was at all material times the client of the respondent and that the applicant was brought on board simply due to the fact that it was the intended purchaser in the agreement. Both parties have mentioned that prior to the execution of the said agreement, the respondent’s agent was given a copy of the draft agreement to consult on, and he explained in his affidavits that he was unable to meet with his lawyer for purposes of reviewing the draft, which led him to returning and executing the agreement since it appeared to be a standard agreement in any case. I find this explanation to be reasonable in the circumstances.

20. In my view, the respondent did not bring any credible evidenceto indicate the existence of or clear intention to establish an advocate-client relationship with the applicant through authorizing the respondent to act for it or represent its interest in a professional or other capacity, in order to give rise to a retainer for which legal fees would be claimed.

21. In view of the foregoing circumstances, I am convinced thatthere did not exist a retainer or advocate-client relationship between the respondent and the applicant in respect to the agreement dated 8thJune, 2021 the Bill of Costs dated 14thJuly, 2021 is unfounded.

22. Consequently, I find that the Motion dated 22nd September,2021 to be with merits giving rise to issuance of the following orders:

(i) There exists no retainer of the law firm of Kamuti Waweru & Company Advocates by Shiven Dev Limited.

(ii) There is no advocate-client relationship between Kamuti Waweru & Company Advocates and Shiven Dev Limited for the performance of legal services as alleged in the Bill of Costs dated 14th July, 2021.

(iii) The Bill of Costs dated 14th July, 2021 is hereby struck out with costs to the respondent/applicant herein.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

..........................

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Applicant/Respondent

……………………………. for the Respondent/Applicant