[2022] KEHC 15368 (KLR)

Kenya Union of Post Primary Education Teachers v Judith Guserwa t/a Guserwa & Co Advocates (Civil Appeal 473 of 2017) [2022] KEHC 15368 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15368 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 473 of 2017

JK Sergon, J

November 11, 2022

Between

Kenya Union of Post Primary Education Teachers

Appellant

and

Judith Guserwa t/a JA Guserwa & Co Advocates

Respondent

((Being an appeal against the judgment and decree delivered by P. Gesora (Mr.) (Chief Magistrate) on 7th August, 2017 pursuant to the ruling delivered on 7th August, 2017 in Milimani CMCC no. 128 OF 2017))

Judgment

1. The respondent herein instituted a suit against the appellant by way of the plaint dated December 13, 2016 and sought for the sum of Kshs 11,927,668/= being the balance of professional fees payable to the respondent by the appellant, plus costs of the suit and interest thereon.

2. The respondent pleaded in the plaint that her firm was at all material times retained and instructed by the appellant to act for it in various legal matters and cases, including those particularized under paragraph 4.

3. The respondent further pleaded in the plaint that it was also an agreement between the parties that the respondent’s legal fees would be paid upon conclusion of the respective cases before the month of December, 2015 and which the appellant failed and/or refused to comply with.

4. Upon service of summons, the appellant entered appearance and filed its statement of defence dated February 8, 2017 to deny the allegations made in the plaint.

5. The respondent subsequently filed the application dated March 22, 2017 and sought to have the appellant’s statement of defence struck out and for judgment to be entered in her favour on admission of the claim. The application was opposed by the appellant.

6. Upon close of submissions, the trial court by way of the ruling delivered on August 7, 2017 partially allowed the application and entered judgment in favour of the respondent and against the appellant in the sum of Kshs 5,486,146. 40.

7. Being dissatisfied with the aforementioned ruling and entry of judgment, the appellant has sought to challenge the same on appeal and has put forward the following grounds of appeal in its memorandum of appeal dated September 4, 2017:i.That the learned trial magistrate erred in law and in fact in holding that the appellant had admitted part of the respondent’s claim against it.ii.Thatthe learned trial magistrate erred in law and in fact by holding that the appellant was indebted to the respondent.iii.That the learned trial magistrate erred in law and in fact by proceeding to issue judgment on a suit for recovery of costs by an advocate before taxation contrary to the mandatory provisions of law.iv.Thatthe learned trial magistrate erred in law by disregarding the High Court authorities that were presented to him.v.That the learned trial magistrate erred in law by disregarding the mandatory provisions of section 49(a) of the Advocates Act.vi.Thatthe learned trial magistrate erred in law and in fact by failing to distinguish between an ordinary civil suit and a suit for recovery of costs by an advocate.vii.That the learned trial magistrate erred in law and in fact by failing to hold that the appellant had already paid all the legal fees owed to the respondent despite the evidence presented to him.viii.That the learned trial magistrate erred in law and in fact by failing to order that the respondent files her bill of costs for taxation by the taxing officer despite having been satisfied that there was no agreement for remuneration between the appellant and the respondent.

8. This court directed the parties to file written submissions on the appeal.

9. By way of its submissions dated July 26, 2022 the appellant contends that while it is true that it engaged the professional legal services of the respondent at all material times, there was no proper agreement on fees entered into between the parties.

10. The appellant further contends that since the suit was for the recovery of fees/costs owed to an advocate, the trial court erred in entering judgment before the costs could proceed for taxation before a taxing officer, as stipulated under the provisions of sections 48 and 49 of the Advocates Act.

11. To lay emphasis on its argument above, the appellant also cites the case ofAtaka, Kimori & Okoth Advocates v Surestep Systems And Solutions Ltd [2020] eKLR in which the court held that:'The form of that a legal fee agreement is required to take is addressed in section 45(1) of the Advocates Act, and two critical requirements in the proviso to the section is that that it is required to be in writing and signed by the client or his agent. As explained in Halsbury’s Laws of England, Fourth Edition Reissue, Volume 44(1) at paragraph 180:'A solicitor is entitled by statute to make a written agreement (called a contentious business agreement) with his client, as to his remuneration in respect of any contentious business done or to be done by him, providing that he shall be remunerated by a gross sum, or by reference to an hourly rate, or by a salary, or otherwise, and whether at a higher or lower rate than that at which he would otherwise have been entitled to be remunerated.To bind the client the agreement must be signed by him. It may be contained in a letter or any other document provided that all the terms of the agreement which relate to the remuneration appear in it and are sufficiently specific and the intention of the parties is clearly shown.'

12. It is therefore the submission by the appellant that in entering judgment on admission, the trial court proceeded on wrong principles of law.

13. In her reply submissions, the respondent argues that sufficient documentation was tendered to demonstrate an agreement on the legal fees payable by the appellant and hence the trial court acted correctly in entering judgment on admission in the abovementioned sum.

14. The respondent further argues that the trial court drew guidance from judicial authorities and hence arrived at a correct finding.

15. For the foregoing reasons, the respondent urges this court to dismiss the appeal with costs and to uphold the decision by the trial court.

16. I have considered the appellant’s written submissions on appeal and the authorities relied upon. Moreover, I have re-evaluated the material and evidence which the trial court had the opportunity to look at.

17. It is clear that the appeal essentially lies against the decision by the learned trial magistrate allowing the respondent’s claim on admission against the appellant to succeed to the extent of the sum of Kshs 5,486,146. 40. I will therefore address the eight (8) grounds of appeal raised contemporaneously hereinbelow.

18. In her supporting affidavit to the application dated March 22, 2017 the respondent stated that upon representing the appellant in various court cases, the latter made part payment towards legal fees and undertook to pay the balance but failed to do so, thereby prompting the institution of the suit for recovery of advocate costs.

19. The respondent therefore sought for judgment on admission against the appellant.

20. In response, the appellant by way of the replying affidavit sworn by its secretary general, Akello T Misori on April 6, 2017 stated that no agreement on the amount of fees payable was ever entered into between the parties and that any outstanding balances on legal fees had been cleared by the appellant.

21. The deponent also stated that the appellant therefore denied owing the respondent the sums set out in the plaint and hence there was no basis for striking out the statement of defence on record.

22. In rejoinder, the respondent stated that it was an arrangement between the parties that accruing fees would be paid upon demand and hence the issue of taxation of legal costs would not arise in the circumstances.

23. In his ruling, the learned trial magistrate reasoned that an advocate-client relationship existed between the parties herein at all material times.

24. The learned trial magistrate also reasoned that while the documentation tendered by the respondent did not allude to a specific agreement for payment of legal fees, the respondent had tendered the letters dated September 24, 2015 showing a commitment by the appellant to pay to the respondent the sum of Kshs 2,286,164/= by way of monthly instalments of Kshs 500,000/= and to further pay the outstanding sum of Kshs 4,000,000/= by way of monthly instalments of Kshs 500,000/=; and that the respondent had similarly served upon the appellant a fee note claiming the sum of Kshs 2,956,329. 60.

25. The learned trial magistrate stated in his ruling that the abovementioned letter was not disputed by the appellant and hence the respondent was entitled to the same.

26. In conclusion, the learned trial magistrate stated that in respect to the other claims, since the same were disputed, they could not be granted at that stage. Consequently, the learned trial magistrate entered judgment on admission in the sum of Kshs 5,486,146. 40.

27. Upon my re-examination of the pleadings and material tendered, I note that it is not in dispute that the appellant had procured the legal services of the respondent at all material times.

28. Upon my further re-examination of the pleadings and material on record, I also note that the appellant had availed copies of various cheques and receipts to show payments made towards the legal fees of the respondent, which supports the averments made by the respondent that the legal costs payable were agreed by the parties beforehand in respect to some of the matters.

29. From my study of the pleadings and material tendered before the trial court and similar to the finding arrived at by the learned trial magistrate, I came across two (2) separate letters both dated September 24, 2015 by the appellant where it committed to paying to the respondent outstanding sums, in respect to various cases which were pending in court at all material times. It is noteworthy that the appellant has not disputed the validity of the aforementioned letters.

30. In my view, the above amounts to an admission of the sums owing by the appellant and hence supporting the reasoning by the learned trial magistrate that the respondent would naturally be entitled to those sums without necessitating taxation proceedings; in the absence of any credible evidence to indicate that the same had been paid in full by the appellant to the respondent.

31. In view of all the foregoing circumstances, I am satisfied that the learned trial magistrate arrived at a correct finding in entering judgment on admission in respect to the abovementioned sums and I see no reason to interfere with his finding.

32. In the end, the appeal is found to be without merits. It is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. .......................................JK SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent