https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12560

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI HIGH COURT** **HCCC MISC NO. E859 OF 2025** **MABONGA & CO. ADVOCATES.....................................APPLICANT** **VS** **AGRICULTURAL FINANCE CORPORATION** **AND AGRICULTURAL DEVELOPMENT** **CORPORATION ......................................................RESPONDENT** **RULING** 1. Before this Court is a contested Bill of Costs lodged by the Applicant on 1st of February 2025 seeking payment of instruction fees and opposed by the Respondents through a Replying Affidavit deponed on 4th of July 2025. The Applicant filed a reply to Respondents replying Affidavit on 30th of July 2025. **Applicant’s Submissions** 1. The Applicant through his written submissions dated 30th July 2025 narrowed down the issues of determination to two; whether he was entitled to legal fees and whether instructions were issued. 2. The Applicant submitted that it was not in dispute that he is an Advocate as defined under Section 9 of the Advocates Act. As such, the Applicant averred that he is entitled to equal protection and equal benefit of the Law as enshrined under Article 27(1) of the Constitution. That when he acted in this matter, he was at all material times entitled to similar rights and privileges accorded to all Advocates. 3. The Applicant submitted that there is no evidence that he was an employee of the 1st and 3rd Respondents, and even so, he is still entitled to fees as prescribed under Section 44 of the Advocates Act. He averred that his relationship with the Respondents is not a contract of service but for services hence the employment contract cannot be used to defeat substantive law. 4. The Applicant further submitted that instructions were issued by the 3rd Respondent to the Applicant to act on the schedule of cases forwarded. He submitted that retainer need not be in writing but the same could be implied from the conduct of the parties and that documents were signed by the Respondents. 5. The Applicant concluded by submitting that the subject matter is ascertainable and the taxing master is at liberty to consider the same as filed and accordingly tax the same to scale. **Respondents’ Submission** 1. The Respondents through their written submissions dated 15th July 2025 opposed this Bill of Costs and with reliance on the Replying Affidavit deponed by **ROSE MUOHI** on the 4th of July 2026 submitted on the following grounds; THAT, the Applicant lacks the locus standi to tax both his employer and the 3rd Respondents, there is conflict of interest, there is breach of ethics and fiduciary duty, the Bill of Costs is an unjust enrichment stemming from multiple revenue streams, there was no contractual obligation and that the amounts are exorbitant. 2. The Respondents averred that Applicant was employed as a Legal Officer by the 2nd Respondent and subsequently appointed to represent the 2nd Respondent in the Management Committee of the 3rd Respondent. That the Applicant’s services were terminated on the 17th of January 2025. Copies of the appointment and dismissal letters were adduced as evidence. 3. The Respondents submitted that the 3rd Respondent is a registered limited liability partnership jointly owned by the 1st and 2nd Respondents and annexed a partnership deed as evidence. The Respondents further enumerated the functions of the Management Committee as per a Charter which included management agency and overseeing rent arrears and collection. 4. It was further submitted that the Applicant as a member of this Management Committee was allocated the duty to help with the rent collection/recovery and that external Advocates were instructed to assist in the registration of leases. That subsequently a resolution, which was produced as evidence, was passed to have this role done in house. It is the Respondents’ submission that without their knowledge and instructions, the Applicant used his private firm to prepare and invoice tenants with lease preparation and registration as well as follow up on rent arrears. 5. The Respondent averred that the Applicant drew sitting allowances for meetings of the 3rd Respondent totaling to Kshs. 611,552.42/=. The Respondents prayed for the Bill of Costs to be dismissed in its entirety with costs. 6. The Respondents raised 7 issues of determination which can be clustered around capacity, instructions, legal implications, conflict of interest and breach of fiduciary trust. The Respondents argued that the Applicant had no capacity to enter into a contract with the Respondents in his private capacity as he was an employee, there were no instructions hence the advocate client relationship was absent. 7. The Respondent submitted that the Advocates Remuneration(amendment) order 2014, does not provide for Advocate-Client bill of costs in matters not filed, which is the scenario in this case with the matter not have been filed. Further, it was argued that the Applicant was not entitled to VAT as there was no proof of registration. 8. The Respondents also highlighted the aspect of violation of the Public Procurement Laws and tendering process where there were no resolutions and written instructions to guide the actions by the Applicant’s and that the Applicant violated the laws by taking up matters where he was conflicted. The Respondents concluded that the fees that ought to be charged is Schedule 6 and not Schedule 5. 9. The Taxing Master delivered a ruling on 27th November 2025 referring the case to come before a Judge for the determination of the issue of instructions. **Analysis and Determination** 1. Having considered the record, the affidavit evidence and the rival submissions, the following are the issues for determination by this Court: 2. Whether there existed an advocate-client relationship between the Applicant and the Respondents. 3. Whether the Applicant was issued with instructions to act as an Advocate that entitled him to fees. 4. Whether the allegations of conflict of interest, breach of fiduciary duty and unjust enrichment defeat the Applicant’s claim. **Whether there existed an advocate-client relationship between the Applicant and the Respondents.** 1. The law on an advocate’s entitlement to fees is founded upon the existence of a retainer. Without a retainer, there is no advocate-client relationship capable of supporting an Advocate-Client Bill of Costs. 2. Section 2 of the Advocates Act, CAP16 defines a client to include any person who retains or employs an advocate. Section 45 recognises that the relationship between an advocate and client may arise by agreement, while Section 44 empowers the making of the Advocates Remuneration Order prescribing remuneration payable to advocates. 3. It is trite law that a retainer need not necessarily be reduced into writing. It may be express or implied from the conduct of the parties. In the case of **Omulele & Tollo Advocates v Mount Holdings Limited [2016] KECA 523 eKLR,** the Court stated: **“A retainer need not be in writing. It may be oral or inferred from the conduct of the parties. Once an advocate demonstrates that legal services were rendered upon the client’s request or with the client’s authority, the advocate is entitled to remuneration.”** 1. Similarly, in **Ochieng, Onyango, Kibet & Ohaga Advocates v Akiba Bank Ltd [2007] KEHC 2677 eKLR,** the Court held: **“The existence of a retainer may be inferred from the acts and conduct of the parties and from correspondence exchanged between them.”** 1. The burden therefore lies upon the Applicant to demonstrate, on a balance of probabilities, that instructions emanated from the Respondents authorizing him to act as an advocate rather than merely as an employee. 2. The evidence adduced in this case shows no indication that the there was an Advocate-Client relationship and that the services were incurred were outside his employment. **Whether the Applicant was issued with instructions to act as an advocate** **that entitled him to fees** 1. The Applicant submits that instructions were issued by the 3rd Respondent through schedules of cases forwarded to him and various documents executed by the Respondents. His argument is that these documents constitute sufficient evidence from which a retainer can be implied. 2. Conversely, the Respondents maintain that all duties performed by the Applicant arose solely from his employment as Legal Officer and his appointment to represent the 2nd Respondent in the Management Committee of the 3rd Respondent. They contend that no Board resolution, engagement letter, procurement process or written instructions appointing the Applicant’s law firm as external advocates were ever issued. 3. The Respondents further produced evidence showing that the Management Committee had resolved that lease preparation and registration would thereafter be undertaken in-house after dispensing with external advocates. 4. It is notable that while the Applicant relies upon schedules of work and documents transmitted to him, there is no evidence before this Court showing that the Respondents instructed the Applicant’s law firm as opposed to the Applicant in his official capacity as Legal Officer. 5. Where an Advocate is already serving as an employee of a client, the Court must carefully distinguish services rendered pursuant to a contract of employment from those rendered pursuant to an independent retainer as an advocate. 6. An Advocate cannot recover instruction fees merely because legal work was undertaken. The legal work must have been undertaken pursuant to a professional retainer. 7. In the present matter, the Applicant has not demonstrated that the Respondents departed from the existing employer-employee relationship to enter into a separate professional engagement with his law firm. 8. As to entitlement of fees, the Applicant argues that although he was an employee, his relationship with the Respondents in the matters giving rise to the Bill was contractual for professional services and therefore separate from the employment relationship. 9. That proposition is legally sound as a general principle. An advocate who is also an employee is not automatically disentitled from recovering professional fees where there exists an independent retainer. 10. However, the existence of employment heightens the evidential burden upon the Applicant to demonstrate that the legal services fell outside the scope of employment and were undertaken pursuant to a separate engagement. 11. In the present case, the evidence demonstrates that; the Applicant was employed as Legal Officer; he represented the employer within the Management Committee; rent recovery formed part of his allocated responsibilities; he received allowances for committee meetings; and there is no Board resolution appointing his law firm. 12. Those circumstances strongly suggest that the impugned services formed part of the Applicant’s official responsibilities rather than an independent legal brief. **Whether the allegations of conflict of interest, breach of fiduciary duty and unjust enrichment defeat the Applicant’s claim.** 1. The Respondents have further argued that the Applicant acted in conflict with his fiduciary obligations by utilising his private law firm to charge fees for work assigned to him as an employee. 2. Employees owe fiduciary duties of loyalty, good faith and avoidance of conflicts of interest. If indeed the Applicant caused his private firm to undertake work allocated to him by virtue of his office without obtaining informed approval from the Respondents, serious ethical questions would arise. 3. While this Court is not determining disciplinary liability, those circumstances reinforce the Respondents’ contention that no independent professional engagement existed. 4. As to which is the appropriate schedule, the Respondents submitted that Schedule V of the Advocates Remuneration Order is inapplicable because no proceedings were filed. 5. The Court notes that an Advocate–Client Bill may be taxed notwithstanding that litigation was never commenced, provided an advocate-client relationship is first established. 6. The issue is therefore not whether proceedings existed but whether a retainer existed. 7. Since this Court has found that the Applicant has failed to establish an independent retainer, the question regarding the applicable Schedule becomes moot. **Disposition** 1. The Court finds that although the Applicant undoubtedly rendered legal services relating to the Respondents’ affairs, he has failed to demonstrate that those services were rendered pursuant to a separate Advocate-Client retainer independent of his employment as Legal Officer. 2. The evidence before this Court instead establishes that the impugned work formed part of the Applicant’s official responsibilities arising from his employment and appointment to the Management Committee. 3. In the absence of proof of a retainer, no Advocate-Client relationship capable of supporting taxation has been established. 4. Consequently, the Court therefore finds that 5. The Applicant has failed to establish the existence of an Advocate-Client relationship founded upon a valid retainer. 6. The Applicant is not entitled to instruction fees under the Advocates Act. 7. The Advocate-Client Bill of Costs is therefore incompetent and cannot be entertained under the Advocates Remuneration Order. 8. Consequently, the Advocate-Client Bill of Costs herein is hereby struck out with costs to the Respondents. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **ANNE M. OKUTOYI** **JUDGE** In the Presence of: **Mr. Mabonga-Advocate/Applicant.** **N/A Respondents.** **Ms. Mokeira-Court Assistant.**