[2024] KEHC 5304 (KLR)
The court held that in the absence of a valid written agreement for remuneration as contemplated under section 45 of the Advocates Act, the plaintiff was required to have his bill of costs taxed before the taxing master prior to seeking recovery of fees in the High Court. The High Court is not the taxing master and...
Source-derived case information.
- Citation
- [2024] KEHC 5304 (KLR)
- Parties
- Plaintiff: Samwel Owino Nyauke t/a Aluoch Odera & Nyauke Advocates; Defendant: George Odhiambo Adienge
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Case E004 of 2023
- Procedural Posture
- Civil Case / Judgment
- Outcome
- suit struck out
- Judges
- KW Kiarie
- Legal Topics
- Advocate Client Fees, Fee Agreements, Procedure for Recovery of Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Owino Nyauke t/a Aluoch Odera & Nyauke Advocates
Plaintiff
George Odhiambo Adienge
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff could recover advocate-client fees without following the procedure under the Advocates Act.
- 2 Whether a written agreement for remuneration existed as required by section 45 of the Advocates Act.
- 3 Whether the High Court had jurisdiction to determine the claim before taxation of the bill of costs.
Ratio Decidendi
The court held that in the absence of a valid written agreement for remuneration as contemplated under section 45 of the Advocates Act, the plaintiff was required to have his bill of costs taxed before the taxing master prior to seeking recovery of fees in the High Court. The High Court is not the taxing master and only acquires jurisdiction after taxation. Since the plaintiff disregarded the mandatory statutory procedure by filing the suit directly in the High Court without first having the bill taxed, the suit was procedurally defective and could not be sustained. Consequently, the suit was struck out for failure to comply with the Advocates Act.
Court Disposition
suit struck out
Orders
- The plaintiff's suit is struck out.
Full Case Text
Judgment text and source record
22 paragraphs
Samwel Owino Nyauke t/a Aluoch Odera & Nyauke Advocates v Adienge (Civil Case E004 of 2023) [2024] KEHC 5304 (KLR) (21 May 2024) (Judgment)
Neutral citation: [2024] KEHC 5304 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Civil Case E004 of 2023
KW Kiarie, J
May 21, 2024
Between
Samwel Owino Nyauke t/a Aluoch Odera & Nyauke Advocates
Plaintiff
and
George Odhiambo Adienge
Defendant
Judgment
1. Samwel Owino Nyauke, the plaintiff, is an advocate of the High Court of Kenya who trades as Aluoch Odera & Nyauke Advocates. He brought this suit against George Odhiambo Adienge, his client, for a claim of his unremitted Kshs fees. 230, 000/=.
2. The defendant was served but did not enter an appearance or file any defence. Therefore, the matter proceeded by way of formal proof.
3. In his statement, the plaintiff averred that on the 2nd day of December 2022, they entered into a written agreement with the defendant on the mode of payment of the balance of the fees for services rendered. The defendant failed to honour his undertaking, giving rise to this case.
4. The Advocates Act outlines the procedure for filing a lawsuit to recover advocates' fees, which can be found in sections 48 and 49. Section 49 (a) specifically provides as follows:Where, in the absence of an agreement for remuneration made by section 45, a suit has been brought by an advocate for the recovery of any costs and a defence is filed disputing the reasonableness or quantum thereof—(a)no judgment shall be entered for the plaintiff, except by consent, until the costs have been taxed and certified by the taxing officer;
5. Section 45 of the Advocates Act provides for agreements for remuneration between advocates and their clients, and such an agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized on that behalf.
6. Without the agreement under section 45 of the Advocates Act, the applicant should have filed the contested bill before the taxing master. The High Court is not the taxing master. The High Court's jurisdiction in matters of Advocate-client bills crystallizes after the taxation.
7. The plaintiff's suit herein disregarded the procedure and is struck out.
DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF MAY 2024KIARIE WAWERU KIARIEJUDGE