https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7811

Swanya t/a Swanya & Co. Advocates v Nairoві Сіty County (Civil Case E521 of 2024) [2026] KEHC 7811 (KLR) (Commercial and Tax) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7811 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case E521 of 2024 BK Njoroge, J June 4, 2026 Between Victor Ogeto Swanya Trading as Swanya & Co. Advocates Plaintiff and Nairoві Сіty County Defendant Judgment 1.This is a Judgement arising out of a dispute between the Advocate and a Client over the issue of fees. The Advocate is seeking to enforce an agreement for fees. The Defendant which is a public institution, is on the other hand seeking to avoid settlement of the fees on inter alia the reasons that the fees charged are excessive. Background Facts 2.The Plaintiff is an Advocate while the Defendant is a public institution and was at all times the instructing Client to the Advocate. 3.By the Plaint dated 30th August, 2024, the Plaintiff averred that the Defendant instructed the Plaintiff, by a letter dated 17th December, 2021, to represent it in Nairobi ELC Petition No. 08 of 2021, Communist Party of Kenya vs Nairobi Metropolitan Services & 5 Others. The Plaintiff diligently handled to conclusion, culminating in a judgment delivered on 3rd March, 2022. 4.Subsequently, on 4th March, 2022, the parties entered into an all-inclusive fee agreement of Kshs. 325,310,200/-. This has neither been varied nor set aside. In partial fulfillment of this obligation, the Defendant sought and obtained approval from the Office of the Controller of Budget. This is under Article 207(3) of the Constitution and Section 109(6) of the Public Finance Management Act, 2012. This was to pay Kshs. 85,000,000/- from the County Revenue Fund. However, the Plaintiff avers that the Defendant diverted and misappropriated the said funds for other purposes. 5.Following the Plaintiff’s inquiry into the diversion of funds, the Defendant allegedly acted in retaliation. This is by purporting to reduce the agreed legal fees to Kshs. 14,009,160/- on 26th April 2024. This was contrary to the provisions of the Advocates Act. The Defendant proceeded to pay the reduced sum. This amount was credited toward the outstanding balance, now standing at Kshs. 311,301,040/-. 6.The Plaintiff maintained that the fee agreement remains valid and binding under Section 45 of the Advocates Act. He accordingly claimed the outstanding balance together with interest at 14% per annum from 4th March, 2022 until payment in full. He asserted that the Defendant has unjustifiably failed to meet its contractual obligations. 7.Thus, the Plaintiff prayed for judgment against the Defendant for:(i)Ksh.311,301,040/-;(ii)Interest thereon at 14% per annum from 4th March 2022 until full payment; and(iii)Cost of the suit. 8.The Defendant responded by filing the Statement of Defence dated 24th September, 2024, denying the averments made by the Plaintiff. In particular, the Defendant averred that any alleged fee agreement relied upon by the Plaintiff was made by an unauthorized officer and is therefore null and void. 9.Further, the Defendant maintained that it acted in good faith in assessing and paying the Plaintiff’s legal fees in accordance with the Advocates Remuneration Order. It contended that if the Plaintiff was dissatisfied with the assessment, the proper course would have been to subject the bill to taxation. This is rather than instituting the present suit. It is further asserted that the sums already paid constitute the proper legal fees due. That any additional claim by the Plaintiff would amount to unjust enrichment. It also maintained that the suit had been filed in the wrong manner and maintained its rights to file a Notice of Preliminary Objection seeking to have the suit struck out. 10.The Plaintiff’s Motion for summary Judgement was dismissed by this Court differently constituted (B.M. Musyoki J.) on 31st January, 2025. 11.By a consent dated 8th July, 2025. The parties agreed to proceed for hearing on the following terms;“Consent Of The Parties On The Hearing Of The Main Suit.TO: The Deputy Registrar,Kindly Record The Following Consent Of The Parties.1)The parties admit and adopt the Witness Statement of the Plaintiff dated 30th August 2024 and the Witness Statement of Wasonga Ogola dated 5th May 2025 filed by the Defendant as their respective evidence in the suit without calling or requiring the attendance of the makers of the said statements for cross-examination.2)The parties admit the List and Bundle of Documents dated 30th August 2024 filed by the Plaintiff and adopt documents 1 to 18 as exhibits, and the Court receive the same without calling the makers of the said Documents.3)The parties do file their respective List of issues in the next 7 days.4)The parties agree to proceed by way of written submissions on the contested legal issues, and the Plaintiff shall file and serve the Defendant within 14 days of this Order. The Defendant shall reply within 14 days of service.5)The matter should be placed before the Judge to confirm compliance and set a date for judgment” Issues for determination 12.The Court has carefully considered the Plaintiff and Defendant’s case, against the evidence provided as well as the written submissions. The Court has also considered the oral highlights by Counsel for the parties. The Court frames a single issue for determination as follows;a.Whether the Court should enter Judgement for the Advocates fees as claimed. Analysis 13.It is undisputed that the Defendant engaged the services of the Plaintiff and that the Plaintiff raised a fee note of Kshs. 1,178,408,748.28. The said fee note was assessed by the then Acting County Solicitor at Kshs. 325,310,200. Thereafter, the fees charged by the Plaintiff were re-assessed at KShs. 14,009,160. It is this reassessment that is the point of contention in this suit. 14.It was the Plaintiff’s case that the correspondence dated 4th March, 2022 gave rise to the contractual obligation in question. The Defendant, through a letter dated 4th March, 2022, offered an all-inclusive fee of Ksh. 325,310,200/-. This offer was accepted by the Plaintiff through a letter dated 4th March, 2022. The agreement arose from an offer by the Defendant and an acceptance by the Advocate. The acceptance letter by the Defendant states as follows;“Re: Elc Petition No. 08 Of 2021 Communist Party Of Kenya-vs- Nairobi Metropolitan & 3 Others And Nairobi City Government & Another Interested Party.Reference is made to the above and to yours dated 3rd March 2022.a.Instructions to come on recordApplication for County is to be enjoined Into the suit, and defend the County’s interest based on subject matter's value Kshs.139,985,000.00b)raised by (1/2) Kshs. 69,992,500.00c)Getting up fees (1/3) Kshs. 69,992,500.00d)Add 16% VAT Kshs. 44,795,200.00e)Add misc fees as per schedule 9 Part 11(2) Kshs. 545,000.00 TOTAL KSHS. 325,310,200.00This bill has been verified in accordance with the Advocates Remuneration order 2014.Kindly do let us know if this is acceptable.Yours faithfullyAbwao Erick OdhiamboCounty Solicitor.” 15.It was the Defendant's submission that the fees as assessed was utterly excessive. This is considering that the matter where the Plaintiff represented it was just a Petition where the subject matter was not monetary in nature. Rather it was one that was challenging the process of renovating Uhuru Park. It alleged inter alia that there was no public participation before commencement of the works in the said park. 16.Section 45 of the Advocates Act provides as follows:45.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, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;(b)before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;(c)before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, 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.(2)A client may apply by chamber summons to the Court to have the agreement set aside or varied on the grounds that it is harsh and unconscionable, exorbitant or unreasonable, and every such application shall be heard before a judge sitting with two assessors, who shall be advocates of not less than five years’ standing appointed by the Registrar after consultation with the chairman of the Society for each application and on any such application the Court, whose decision shall be final, shall have power to order—(a)that the agreement be upheld; or(b)that the agreement be varied by substituting for the amount of the remuneration fixed by the agreement such amount as the Court may deem just; or(c)that the agreement be set aside; or(d)that the costs in question be taxed by the Registrar, and that the costs of the application be paid by such party as it thinks fit.(2A)An application under subsection (2) may be made within one year after the making of the agreement, or within three months after a demand in writing by the advocate for payment under the agreement by way of rendering a fee note or otherwise, whichever is the later.(3)An agreement made by virtue of this section, if made in respect of contentious business, shall not affect the amount of, or any rights or remedies for the recovery of, any costs payable by the client to, or to the client by, any person other than the advocate, and that person may, unless he has otherwise agreed, require any such costs to be taxed according to the rules for the time being in force for the taxation thereof: Provided that any such agreement shall be produced on demand to a taxing officer and the client shall not be entitled to recover from any other person, under any order for the payment of any costs to which the agreement relates, more than the amount payable by him to his advocate in respect thereof under the agreement.(4)Where any agreement made by virtue of this section is made by the client as the guardian or committee of, or trustee under deed or will for, any person whose property will be chargeable with the whole or any part of the amount payable under the agreement, the advocate shall, before payment thereunder is accepted or demanded and in any event within six months after its due date, apply by chamber summons to the Court for approval of such agreement, and every such application shall be dealt with in accordance with subsection (2).(5)If, after an advocate has performed part only of the business to which any agreement made by virtue of this section relates, such advocate dies or becomes incapable of acting, or the client changes his advocate as, notwithstanding the agreement, he shall be entitled to do, any party, or the legal personal representatives of any party, to such agreement may apply by chamber summons to the Court to have the agreement set aside or varied, and every such application shall be dealt with in accordance with subsection (2): Provided that, in the case of a client changing his advocate, the Court shall have regard to the circumstances in which the change has taken place and, unless of opinion that there has been default, negligence, improper delay or other conduct on the part of the advocate affording to the client reasonable ground for changing his advocate, shall allow the advocate the full amount of the remuneration agreed to be paid to him.(6)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 nor to section 48. 17.It is noteworthy that vide the letter dated 4th March, 2022, Ref; LA/C/459/22 the Defendant offered the Plaintiff an all-inclusive bill of Kshs. 325,310,200/-, which offer was accepted by the Plaintiff. This was then followed by the Memo dated 6th April 2022, in which the Defendant directed that a payment voucher of Kshs.90, 000, 000 be prepared in favour of the Plaintiff. The said payment voucher was prepared and dated 13th April, 2022. Subsequently, partial payment of Kshs.85,000,000 was initiated and approved for payment by the Controller of Budget. 18.It is settled that an agreement under Section 45 of the Advocates Act may be constituted by exchange of correspondence. This may mutually set out the actual fees payable as was the case herein. There was an offer by the Plaintiff which was followed by a counter offer by the Defendant. The counter offer was accepted by the Advocate who is the Plaintiff herein. (See: Rene & Hans Advocates LLP v County Government of Nairobi [2024] KEHC 11979 (KLR)) 19.Later on, through the letter dated 26th April, 2024, the Defendant reassessed the amount to Kshs.14,009,160. This was asserted as the full and final fees payable with the claim that the initial fee was excessive. 20.The explanation given by the Defendant in its submission was that upon realizing that the assessed fees in respect to the claim herein was erroneous, it decided to do a re-assessment of the fees payable. That as a public institution, the Defendant is bound by the principles of Public Finance as provided for under Article 201 of the Constitution particularly Article 201(d) which provides as follows;“(d)public money shall be used in a prudent and responsible way” 21.Section 109(6) of the Public Finance Management Act, 2012, states as follows;“(6)The County Treasury shall obtain the written approval of the Controller of Budget before withdrawing money from the County Revenue Fund under the authority of—(a)an Act of the county assembly that appropriates money for a public purpose;(b)an Act of Parliament or county legislation that imposes a charge on that Fund; or(c)this Act in accordance with sections 134 and 135.” 22.The Court wishes to bring to the attention of the Defendant Section 45 (2) Advocates Act which provides;“A client may apply by chamber summons to the Court to have the agreement set aside or varied on the grounds that it is harsh and unconscionable, exorbitant or unreasonable, and every such application shall be heard before a judge sitting with two assessors…Section 45 (2A) Advocates ActAn application under subsection (2) may be made within one year after the making of the agreement, or within three months after a demand in writing by the advocate for payment under the agreement by way of rendering a fee note or otherwise, whichever is the later. 23.The Court notes that the Defendant did not adduce any evidence or make any averments as to the steps it took to set aside the agreement on the grounds that it was unactionable or excessive. What is notable is that the Defendant, on its own motion, decided to review the agreement, totally disregarding the above-mentioned provision. 24.In light of the above, the Court finds that there was a valid agreement for payment of legal fees. That the said agreement was never set aside. Thus, the Defendant is bound by the agreement, and the Court cannot interfere. The Court reminds the parties that it is not in the business of rewriting agreements between the parties. 25.In conclusion the Court has this to say. The initial interim fees demanded by the Plaintiff was 1,178,408,748.28/=. A billion shillings fee note is bound to raise eye brows in any quarters. The County Attorney negotiated the fees downwards to Kshs. 325,310,200.00. 26.The Court is not persuaded that the County Attorney was not an authorised Officer to negotiate and reach an agreement on fees. If the County Attorney cannot bind the County on the issue of legal fees, the Defendant has not stipulated which other officer has such authority. 27.It may well be that the County Government of Nairobi has had a change of heart on the fees negotiated in this matter. That perhaps the principles of prudent use of public finance dictate that such funds should be used to provide medicines to County hospitals, build roads, provide street lighting and other such works for the public good. It may also well be that the fees are excessive and exorbitant. The Court was not present when the initial deal was negotiated and cut on the fees. 28.Despite the law granting the County Government a lee way to challenge the fee agreement, this opportunity was not taken. Even in this suit there was no attempt to seek to be relieved from the effects of the fee agreement by way of a Counterclaim seeking to be relieved from the terms thereof. What the Court witnessed was weak half-hearted attempts to resile from an agreement by the County Government. No witness took to the stand to be cross examined. The Court was left to peruse witness statements and documents. 29.It is as if the Court is being told, the fees claimed are too high and the Court in its good conscience ought not to allow them. However, this conscience cannot be left at the hallowed doors of this Court. The Court is bound to follow the law and does follow the law. If the County Attorney acting in good conscience and using all his training and position was of the view that this was a fair fee to the Advocate, his conscience will hold him to it. As it were, the Court has not even been notified of any action taken against any person who approved the fees. 30.On the issue of interest, the Court notes that there was no claim for interest in the fee note. No justification for interest at 14% has been made pursuant to Rule 7 of the Advocates Remuneration Order. Interest will be at Court rates from the date of Judgement. 31.As to costs, the same lie at the discretion of this Court. There is no reason to deny the successful Plaintiff the costs of this suit. Determination 32.The Court enters judgement in favour of the Plaintiff as against the Defendant as follows;(i)Ksh.311,301,040/-;(ii)Interest thereon at Court rates from the date of Judgement until full payment; and(iii)Cost of the suit together with interest at Court rates until payment in full. 33.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 04TH DAY OF JUNE, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Ojiambo for the Plaintiff.Mr. Cheruiyot for the Defendant.Mr. Johnm Paul - Court Assistant.