[2023] KEHC 27252 (KLR)

Makumi Mwangi & Company Advocates v Chege (Miscellaneous Succession Application E45 of 2021) [2023] KEHC 27252 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27252 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Succession Application E45 of 2021

SM Mohochi, J

November 17, 2023

IN THE MATTER OF THE ADVOCATES ACT, CAP 16 LAWS OF KENYA AND IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE & CLIENT

Between

Makumi Mwangi & Company Advocates

Advocate

and

Anne Njeri Chege

Client

Ruling

1. This matter was filed as a taxation cause on the 9th December 2021 and placed before the Deputy Registrar on the 11th May 2022, whereby the same was referred to this court by consent, for determination of the ‘retainer’ and subject to grounds of opposition raised by the “Client-Respondent” per Section 2 of the Advocates Act as read with paragraph13 of the Remuneration Order, this court on the 7th July 2022, directed parties to file their respective written submissions on the issue of “retainer”.

2. The parties ultimately complied on the 11th July 2023, with the court granting the Advocates for the Client a further fourteen (14) day leave to file a supplementary affidavit and supplementary written submissions and the court reserved a ruling date.

3. The Following documents have been filed in support of and or in opposition to the Taxation;i.Respondent/Client, ground of opposition dated 7th April 2022;ii.Respondent/Client, Written Submissions dated 19th July 2022;iii.Advocate’s written Submissions on Client’s Ground of opposition Dated 27th June 2023;iv.Advocate’s Replying Affidavit dated 27th June 2023; andv.Respondent/Client, Affidavit in support dated 9th August 2023

4. It is noteworthy that the Advocate does not have a formal instruction, retainer note or a memorandum of agreement and the Client/Respondent denies ever having instructed them. On their part the Advocates seek to construct an “advocate-client” relationship to be inferred from emails communication between them and the Client/Respondent.

Advocate’s- Applicant’s Case 5. The Advocates contend that, the Client's retained their services for provision of legal services in regard to Succession Cause No 226 OF 2010 before the High Court At Kitale and subsequently Succession Cause No 14 OF 2020 before the High Court At Nakuru.

6. The Advocates Replying affidavit dated 27th June 2023 produced as annexure BNM1 email communication between them and the Client wherein the parties have discussed the progress of the succession cause and the content of various documents to be filed in the succession cause.

7. The Advocates contend that, they are the ones who introduced Mr Atudo of M/s Mbugua Atudo & Macharia Advocates to the Client, as confirmed by the Advocates email of 2nd March 2018 marked as BNM2.

8. The Advocates further posit that, the firm of M/s Mbugua Atudo & Macharia Advocates was to act on behalf of Tiras Mburu, the Administrator, in the court matter and not the Client herein as it was not convenient for the Advocates herein to so act due to geographical constraints.

9. The Advocates have produced as an annexure marked BNM4 a copy of the Client's cheque for KShs.20,000/, issued in the Advocates favour; being the deposit paid by the Client to the Advocates at the time when the Client issued instructions to the Advocates with regard to the succession cause.

10. That, taking in to account the content of the various documents produced by the Advocates, they contend that, they have sufficiently demonstrated that the Client did issue them with instructions with regard to the succession cause.

11. Ms. Beth Njeri Mwangi advocate, depones that, she personally handled the primary suit (Succession Cause No 226 OF 2010 before the High Court At Kitale and subsequently Succession Cause No 14 OF 2020 before the High Court At Nakuru) and that the communication between the Advocates and the client was conducted predominantly via email.

12. The Advocates rely on the High Court decision in the matter Associates Advocates v Kenya Planters Co-operative Union [2017] eKLR where the Court noted:- the term retainer is used to describe a contract between an Advocate and client for the provision of legal services. There can therefore be no retainer unless the elements of a contract are present, principally consensus ad idem (agreement) between the parties. The existence of the agreement, consistent with principles of contractual creation, can be evidenced in writing or orally. Aside, I also bear in mind the observations of Scott L.J in Groom v Crocker [1938] 2 All ER 394 413 where he stated that: -“A solicitor, as a professional man, is employed by a client just as much as is a doctor or an architect or a stockbroker, and the mutual rights and duties of the two are regulated entirely by the contract of employment. The relationship is normally started by a retainer, but the retainer will be presumed if the conduct of the two parties shows that the relationship of solicitor and client had in fact been established between them" (emphasis added).

13. 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.

14. Thus, in a case where the client did not sign and return the letter of engagement, a written retainer never came into existence but the court held that a personal retainer was agreed orally and implied by the client's conduct in employing the attorney to carry out the work as requested: see Fladgate LLP v Lee Harrison [2012] EWHC 67.

15. 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).

16. 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.- Like in most civil cases, the proof is on a balance of probabilities and easily attainable where there is in existence a written agreement. However, where it is an oral agreement which is disputed or it is presumed conduct and the evidence consists of the Advocates word against that of the client, all else being equal the court will side with the client. As was stated by Denning L.J in Griffins v. Evans [1953] 1 WLR 1424, 1428“the word of the client is to be preferred to the word of the solicitor"..

17. The Advocates, submit, that although there was no written agreement between the parties for provision of legal services, the same can be clearly discerned from the communication between the parties and also from the client having rendered payment of KShs.20,000/- to the Advocates.

18. The Advocates invites, this court to make a finding that an “advocate-client” relationship did exist between the parties at all material times, and to allow the Advocate to tax its Bill of Costs as against the Client.

The Client-Respondent’s Case 19. The Client- Respondent filed grounds of opposition dated 7th April, 2022 opposing the Bill of Costs dated 23rd November, 2021. i.That the entire Application for taxation is an abuse of the Court process and vexatious as the Respondent has never instructed and/or retained the Applicant's services in Nakuru Succession Cause No.14 of 2020. ii.That it is clear, plain and obvious that it is the firm of Mbugwa, Atudo and Macharia Advocates that was retained by the Plaintiff and not the Applicant herein.iii.That the entire application is simply a decoy for unjust enrichment and is only intended to harass and defraud the Respondent.

20. The Respondent urges the court to invoke its original and unfettered jurisdiction and exercise inquisitorial powers and examine both the record of proceedings and filed documents to establish if indeed the Applicant at any point filed any “Notice of Appointment” as letter of instructions from the Respondent to act for him in this matter.

21. As per the grounds of opposition, it is the Respondent's assertion that he instructed the firm of Mbugwa, Atudo and Macharia Advocates and not the Applicant.

22. The Client-Respondent contends that, it is incumbent upon the Applicant once served with grounds of opposition raising the issue of retainer to file appropriate response.whichever form either by way of Affidavit or statement attaching any evidence demonstrating that indeed the Respondent instructed the said firm and if indeed they filed any documents in Court on behalf of the Respondent to that effect.

23. That, the Client-Respondent was not a party in the said proceedings and that only acted as a contact person, between Beth Njeri Mwangi and Tiras Mburu Chege who was the Objector.

24. That, the Client-Respondent came to know Beth Njeri Mwangi Advocate because she was handling a conveyance issue which is not related to the succession cause the subject of this taxation application.

25. That, the Client-Respondent introduced Tiras Mburu Chege to the Applicant-Advocate so that she could assist him to secure an Advocate in Kitale who she knew and trusted to deal with the Case on his behalf.

26. That, as a result of the said discussions, Applicant-Advocate linked the said Tiras Mburu Chege to the firm of Mbugua, Atudo and Macharia Advocates who came on record and handled the matter to its conclusion.

27. That, at no point did the firm of Makumi, Mwangi and Company Advocates file any documents in terms of appointment or appearance on the Client-Respondent behalf or on behalf of Tiras Mburu Chege otherwise the same can be easily traced in the Court file if indeed they did so.

28. That, any payment made to Beth Njeri Mwangi Advocates was to settle handling charges and disbursements for commissioning of documents which were being sent to her office her being the liaison person between Client-Respondent and the firm of Mbugua, Atudo and Macharia Advocates. That the said documents were always drawn and filed by the firm of Mbugua, Atudo and Macharia Advocates.

29. That, to the best of Client-Respondent’s knowledge, the said Beth Njeri Mwangi Advocate has never acted for any of the parties in the Succession Cause and therefore her application for taxation against herself even when it is plain and obvious that she was not a party but a witness to one Tiras Mburu Chege,

30. That, the Client-Respondent confirm that she is not a party in High Court Succession Cause No.14 of 2020 and at no time did she instruct the firm of Makumi, Mwangi & Company Advocates to act for her or represent any of her interest in the said matter.

31. The Client- Respondent submits that, in the instance case, it is clear and obvious that the Applicant has never acted for the Respondent in the matter. We wish to rely on the following authorities: -i.Nairobi High Court Misc. Appl. No. E494 OF 2019 AGN Kamau Advocates v Chabrin Agencies Ltdii.Court of Appeal at Nakuru Civil Appeal No.154 of 2014 Wilfred Konosi t/a Konosi & Co. Advocates v Flamco Limited.

Determination 32. The Court considered the pleadings and submissions filed by parties through their respective advocates and find the sole issue that emerge for determination is;a)Was there Retainer and/or Retainer Agreement between the parties and can the same be properly inferred?

Analysis 33. Section 45 of Advocates Act prescribes as follows, with regard to Agreements with respect to remuneration;(1)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 [Civil or Criminal Court] make an agreement fixing the amount of the advocate’s remuneration in respect thereof;(b)…..(c)……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.

34. Rule 69 of the LSK Code of Standards of Professional Practice and Ethical Conduct (June 2016) provide that,“it is good professional practice for Advocates to always encourage clients to issue written instructions before the Advocate’s engagement commences. The written instructions may take the form of either a letter of instructions issued by the client to the Advocate or a memorandum of agreement between the Advocate and the client. In the case of the memorandum of agreement the memorandum should be signed by both the client and the Advocate. The letter or agreement should clearly define the nature and scope of the engagement and the understanding between the parties as regards fees, either clearly stating the amount of fees to be charged or the basis on which fees will be charged”.

35. Rule 77 of the LSK Code of Standards of Professional Practice and Ethical Conduct (June 2016) provide that;“In dealing with a complaint regarding overcharging or the rendering of inadequate services the regulatory bodies will give due consideration to the contents of the engagement letter or memorandum of agreement. It is the Advocate’s responsibility to ensure that such written instructions or memorandum of agreement is in place. The failure to ensure that a letter of instructions is issued by the client or a memorandum of agreement executed will be considered as prima facie evidence of professional misconduct”.

36. The firm of Makumi, Mwangi & Company Advocates asserts that the court could construct its advocate client relationships from the email communications where the firm of Mbugua Atudo Advocates was copied into.

37. The Advocates should have called the evidence of the firm on record Mbugua, Atudo & Co. Advocates, to further clarify their relationship and confirm that they were on record at the behest of the Advocates who are thus entitled to their fee.

38. This court is unpersuaded that the Advocate was instructed by the client, never filed appearance, outsourced the brief to Mbugua Atudo Advocates but no evidence is provided, then the client was never a party to the litigation but rather her relative.

39. This court is of the view that whereas circumstances may arise where a retainer relationship may be inferred in the absence of a formal instruction, retainer-note or a memorandum of agreement however the Advocates must demonstrate cogent reason as to why no formalisation of the same was ever undertaken as a basis of inviting the court into the inference creation.

40. I find that, the Applicant-Advocate has failed to demonstrate the role and place of Tiras Mburu Chege, and why they did not pursue the taxation on him, this was the principal litigant represented and that the onus lay on the Applicant to demonstrate the same.

41. Succession cause constitutes contentious matter that the prevailing legal framework would expect a professional advocate to commence instructions with formalisation of instructions and setting expectations anything fall of this would constitute professional misconduct.

42. This Court is well guided by the case of Omulele & Tollo Advocates v Mount Holdings Ltd C.A.75 of 2015 which held;“A retainer means the instruction, employment or engagement of an advocate by his client. On the other hand, a retainer agreement is merely a contract in writing prescribing the terms of engagement of an advocate by his client, including fees payable. Therefore, it is submitted while a retainer denotes a relationship between parties, the retainer agreement is merely the physical written document or manifestation of such a relationship…….It is erroneous as submitted By Counsel for the Respondent that retainer and retainer agreement mean one and the same thing.”

43. The onus of proof of ‘retainer’ must be on the Advocate where the same is disputed, as has been held Oruko and Associates v Brollo (K) Ltd HCCC No. 1465 of 2002 (unreported), County Council of Bureti v Kennedy Nyamokeri T/A Nyamokeri & Co Advocates Kericho HC Misc No. 102 of 2005 (unreported) and in Ragot and Company Advocates v West Kenya Sugar Wholesalers Ltd Kisumu HC. Misc 244 of 2002. In this particular instance the Applicant-Advocate never formally came on record and that the Advocates on records have not been invited in evidentiary aid of this Application.

Disposition 44. Having considered the rival pleadings and written submissions by the parties this court is unable to find that, a retainer relationship subsisted and existed and that, the Client's retained the Applicant-Advocate services for provision of legal services in regard to Succession Cause No 226 of 2010 before the High Court at Kitale and subsequently Succession Cause No 14 OF 2020 before the High Court at Nakuru.

45. Owing to the complexities and protracted nature of probate and administration matters in Kenya, the Advocates are thus expected to exhibit, the highest levels of professional legal standards which in my humble opinion would begin with onboarding of client(s) and formalising the instructions and that anything short of this would be construed to be professional misconduct.

46. This court has perused the Advocate’s “Bill of costs dated 9th December 2021, noting that, whereas it purports the primary instructions made on the 28th February 2018, were ostensibly to set-aside “the confirmation of Grant issued in the estate of John Chege Githira, no court attendance or filing of pleadings is demonstrated and that a significant bulk of the tasks and activities undertaken relate to secondary support and peripheral support that this court is of the view should be subsumed in the taxation by the Advocates on record.

47. This Court equally finds that the principal litigant herein, Tiras Mburu Chege should be the subject of taxation.

48. The Advocates on record in High Court at Kitale Succession Cause No 226 of 2010 and High Court at Nakuru Succession Cause No 14 OF 2020 may consider instituting relevant taxation cause(s) in recovery of their fee.

49. This court thus finds in the absence of a “retainer” the Application dated 9th December 2021 to be without merit and is accordingly dismissedIt is so ordered

SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAKURU ON THIS 17TH NOVEMBER 2023. MOHOCHI S.MJUDGEQuorumOmbui Advocate for the Client-RespondentNon-Appearance by the Applicant-Advocate