[2013] KEHC 1616 (KLR)
The court found that the correspondence between the parties, including the respondent's letter of 17th April 2008 and the applicant's acceptance, constituted a valid and binding written retainer agreement as required by Section 45(1) of the Advocates Act. The agreement was in writing, signed by the client, and...
Source-derived case information.
- Citation
- [2013] KEHC 1616 (KLR)
- Parties
- Applicant: Omulele & Co. Advocates; Respondent: Synresins Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 27 & 28 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Strike Out Certificate of Costs
- Outcome
- Application allowed; certificates of costs and taxation proceedings vacated and expunged; costs awarded to respondent.
- Judges
- MM Kasango
- Legal Topics
- Advocate Client Costs, Retainer Agreements, Taxation of Costs, Enforceability of Fee Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Omulele & Co. Advocates
Applicant
Synresins Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Strike Out Certificate of Costs
Legal Issues
- 1 Whether the existence of a written retainer agreement between the parties barred the applicant advocate from taxing its bill of costs under Section 45 of the Advocates Act.
- 2 Whether the certificates of costs issued pursuant to the taxed bills of costs should be struck out or dismissed.
Ratio Decidendi
The court found that the correspondence between the parties, including the respondent's letter of 17th April 2008 and the applicant's acceptance, constituted a valid and binding written retainer agreement as required by Section 45(1) of the Advocates Act. The agreement was in writing, signed by the client, and specified the terms of remuneration. As such, Section 45(6) applied, barring the applicant from taxing its bill of costs. The applicant's failure to file a replying affidavit or controvert the respondent's evidence further strengthened the respondent's case. The court held that the taxation of costs and the resulting certificates of costs were unjustified and must be vacated and...
Court Disposition
Application allowed; certificates of costs and taxation proceedings vacated and expunged; costs awarded to respondent.
Orders
- The taxation on 31st January 2012 and the Ruling of the Taxing Master of 2nd March 2012 and the Certificate of Costs dated 24th May 2012 in High Court Misc. No. 27 of 2012 and High Court Misc. No. 28 of 2012 are hereby vacated and expunged from the record.
- The costs of the Notice of Motion dated 12th October 2012 in Mbsa Misc. No. 27 and 28 of 2012 are awarded to the Respondents.
Full Case Text
Judgment text and source record
108 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. APPLICATION NO. 27 OF 2013
OMULELE & CO. ADVOCATES ………………………………… APPLICANT
V E R S U S
SYNRESINS LIMITED ……………………………………….. RESPONDENT
AND
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. APPLICATION NO. 28 OF 2013
OMULELE & CO. ADVOCATES ………………………………… APPLICANT
V E R S U S
SYNRESINS LIMITED ……………………………………….. RESPONDENT
RULING
The Applicant in both the above matters is a firm of Advocates. Both matters relate to the Bill of Costs filed by the Applicant being Advocate/Client Bill of Costs. Those Bills of Costs relate to matters where the Applicant represented the Respondent being Mbsa CMCC No. 4133 of 2005 and 1905 of 2010.
The Applicant on 31st January 2012 filed in both matters an Advocates/Client Bill of Costs. In both matters the Bill of Costs proceeded to taxation and according to the Rulings of the Taxing Master of 2nd March 2012 in both matters the Bill of Costs were taxed at Kshs. 147,900/- and Kshs. 54,090/-. When the Certificate of Costs were drawn in both matters for reasons I cannot understand the amounts taxed were interchanged. That is in High Court Misc. No. 27 of 2013 the amount taxed was Kshs. 147,900/-. The Certificate of Costs that was issued in that matter reflected the amount taxed as Kshs. 54,090/-. In Misc. No. 28 of 2013 the amount taxed was Kshs. 54,090. The Certificate of Costs that was drawn in that matter reflected the amount taxed as Kshs. 147,900/-.
The dispute for determination before me is whether the Applicants Advocate was barred from taxing his Bill of Costs by virtue of Section 45 of The Advocates Act Cap 16.
The Respondent has filed a Notice of Motion dated 12th October 2012 in both matters. The Respondent by those Motions seeks the striking out or dismissal of Certificate of Costs in both matters on the ground that the Bill of Costs were filed when there existed a retainer agreement between the parties for payment of legal fees.
Section 45(1) recognizes that there can be agreements with respect to Advocates Remuneration. That subsection then provides-
“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.” (underlining mine).
It is clear for an agreement to meet the requirements of that Subsection it ought to be-
An agreement
In writing
Signed by the client or agent
What is the position here? There are series of letters which need to be considered to determine if Section 45(1) applies to the parties relationship. Firstly is a letter dated 15th April 2008 written by the Applicant to the Respondent? It is in the following terms-
“Our ref: OC/PROFILE/01/08
15th April, 2008
MR. ARUN DEVANI
MANAGING DIRECTOR
SYRENSINS LIMITED
P.O. BOX 18725
NAIROBI
By hand delivery
Dear Sir,
RE: LETTER OF INTRODUCTION
It was our pleasure meeting with you and Ms Ngure on 14th April, 2008.
Following our said meeting, please find enclosed our Firm Profile.
We confirm that the agreed monthly retainer in respect of the legal services to be provided by us is Kshs. 50,000/- beginning 1st April, 2008 payable monthly in arrears.
We are grateful for appointing us as your legal advisors and look forward to working with you.
Yours faithfully,
Christopher Omulele Esther Njiru Omulele
omulelechris@yahoo.com eomulele@wakili.com
The Respondent responded to that letter by theirs dated 17th April 2008 in the following terms-
“April 17, 2008
Our Ref: AD/AO/1229/08
Mr. Christopher Omulele/Mrs. Esther Njiru Omulele
Omulele & Company Advocates
Shankardas House, 4th Floor,
Moi Avenue,
P.O. Box 2050-00200
Nairobi
Dear Christopher/Esther,
Thank you for your letter dated 15th April, 2008.
I am simply clarifying a few silent (sic) points:
1. You will as part of retainer handle all company legal
maters that is cases, disputes, defenses, conveyance
etc.
2. Except all disbursements such as court fees, the
retainer includes all legal fees and as such no extra legal fees will be payable. Please clarify this for my Directors. We have a board meeting on the 23rd of April 2008.
3. It would also include us having a formal meeting
minimum twice a month at our offices with you. The dates to be fixed and casted (sic).
4. Between yourself and Catherine Ngure from our offices
you will provide us with the minutes of each meeting within 24 hours via email.
5. At the end of each month you will provide us with a
summary of all the outstanding issues and positions.
In absence of Catherine Ngure mobile number 0721249074, if Catherine is not available please feel free to leave a message with my Secretary Aysha Osman mobile 0721-486930, landline 533358/651845.
Kindly confirm this is in order and separately send us details of your bank account so that we can be remitting the money through bank transfers.
Kind regards.
Arun Devani Ayub Varyant
Managing Director CEO”
At the end of that letter there is handwritten words as follows-
“I, Omulele Christopher hereby accept the foregoing terms and undertake to abide by the same.”
Signed 28th April 2008.
The Applicant further wrote a letter dated 28th April 2008 in these terms-
“Your ref: AD/AO/1229/08
28th April 2008
MR. ARUN DEVANI
MANAGING DIRECTOR
SYNRESINS LIMITED
P.O. BOX 18725-00500
NAIROBI
Dear Sir,
RE: TERMS OF THE RETAINER
We refer to your letter dated 17th April 2008.
We confirm that the terms set out in your letter dated 17th April 2008 (copy attached) are in order.
We look forward to working with you.
Yours faithfully,
Christopher Omulele Esther Njiru Omulele
omulelechris@yahoo.com eomulele@wakili.com”
The Respondent submitted that since the Applicant had not controverted the facts contained in those letters either by a replying affidavit or grounds of opposition the Court should then find that a retainer agreement does exist and would bar the Applicant from taxing the Advocates/Clients Bill of Costs. The Respondent relied on the case NJOGU AND COMPANY ADVOCATES -VS- NATIONAL BANK OF KENYA LTD [2007]IEA 296 where it was held-
“An advocate is permitted to enter into an agreement with any particular client for any particular business, but he has an obligation to conform to the requirements of the Advocates Act, including the prohibition of touting and under-cutting. An advocate who makes an agreement for fees, removes himself from being entitled to scale fees.”
The holding of that case was in compliance with Section 45(6) which provides-
“Subject to this Section, the costs of an Advocate in any case where an agreement has been made by virtue of this Section shall not be subject to taxation ….”
As stated before the Applicant did not file a replying affidavit to the Motion. Accordingly any factual submissions by the Applicant would be rejected. For example the statement that the firm of Omulele & Co. Advocates is solely owned by Christopher Omulele is a factual submission which should have been proved under oath. The Applicant also referred to an authority a copy of which was not provided to the Court and the Court therefore has not had the benefit of considering it.
The Applicant submitted in opposition that the Respondent's letter
dated 17th April 2008 was exploratory seeking to establish a relationship and does not therefore meet the requirements of a retainer agreement.
I see it differently the letter was an offer by the Respondent to pay a
fixed amount for services which the Applicant accepted so in that one letter and also in the Applicant's letter dated 28th April 2008 there is an agreement and there is compliance with Section 45(1) in that the Client (the Respondent) signed the retainer agreement.
In the Court's view the Respondent has proved that there was a
retainer agreement and accordingly there was no justification for the Applicant to tax its costs.
Therefore-
The taxation on 31st January 2012 and the Ruling of the Taxing Master of 2nd March 2012 and the Certificate of Costs dated 24th May 2012 in High Court Misc. No. 27 of 2012 and High Court Misc. No. 28 of 2012 are hereby vacated and expunged from the record.
The costs of the Notice of Motion dated 12th October 2012 in Mbsa Misc. No. 27 and 28 of 2012 are awarded to the Respondents.
Dated and delivered at Mombasa this 1st day of November, 2013.
MARY KASANGO
JUDGE