Wairegi Kiarie & Associates v Damon [2022] KEHC 16994 (KLR)

Wairegi Kiarie & Associates v Damon (Miscellaneous Application E023 of 2021) [2022] KEHC 16994 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16994 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Application E023 of 2021

GWN Macharia, J

December 15, 2022

Between

Wairegi Kiarie & Associates

Advocate

and

Jacqueline Mack Damon

Client

Ruling

1. On May 27, 2021, the advocate herein lodged an advocate – client bill of costs in this court against the client for taxation. The bill emanated from instructions issued to the advocate to represent the client in Naivasha HCCC no 2 of 2020: Jacqueline Mack Damon v Jean Francois Raymon Louis Damon & 6 others.

2. In response to the bill, the client filed a Replying Affidavit in which she avers, inter alia, that the advocate’s bill cannot proceed to taxation as there is a legally binding and enforceable fees agreement between her and the advocate. The purported fee agreement is annexed to the Replying Affidavit and marked as annexture “JMD 2”.

3. In a ruling delivered on February 10, 2022, the taxing officer of this court, Hon E W Mburu referred the matter to this court for determination of the issue of retainer before the bill can proceed to taxation. That is therefore, the only issue for consideration in this ruling.

4. The client submitted that on or about January 13, 2020, the applicant raised the fee note marked “JMD 2” in respect of various matters that he was handling on the respondent's behalf. She contends that the sum of kshs 1,190,000/- indicated therein included the fees payable for the suit in respect of which the subject bill of costs was lodged, which was billed at kshs 370,000/-. Further, she submits that the said fee note constituted an offer whose acceptance she signified by paying a consideration, being a deposit of kshs 525,000/- and this led the applicant to proceed and draft the pleadings and file the suit in question. In support of the above position, the respondent relied on the cases of Majanja Luseno & Company Advocates v Leo Investments Limited & Another[2017] eKLR, Mastermind Tobacco (K) Ltd v Ngatia & Associates Advocates [2013] eKLR and Corporate Insurance Company Limited v Kang'ethe and Mola Advocates [2021] eKLR.

5. According to the advocate however, the fee note referred to does not meet the requirements of a fee agreement as provided under section 45 of the Advocates Act and in any case, it makes no reference to the case in respect of which the instant bill of costs pending taxation was lodged. In support of his submissions, the advocate relied on the case of Ataka Kimori & Okoth Advocates v Surestep Systems and Solutions Limited [2020] eKLR.

6. Section 45 of the Advocates Act stipulates as follows with regard to agreements on remuneration of advocates;“(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.”

7. From the above provision, it is clear that a fee agreement can only be considered valid and binding on the parties if it is in writing and signed by the client or his duly authorized agent.

8. I have looked at the interim fee note dated January 13, 2020 which the client purports was a binding fee agreement between her and the advocate. The fee note does not make any reference to Naivasha HCCC no 2 of 2021 in respect of which the bill of costs herein was filed. Further, it is evident that the said fee note does not meet the threshold of a fee agreement under section 45 of the Advocates Act as it is not signed by the client or his authorized agent. The use of the word “shall’ in the said provision means that this is a mandatory requirement which cannot be done away with.

9. In the premises, I find and hold that the respondent has not demonstrated the existence of a fees’ agreement between herself and the advocate. I therefore order that the file be remitted back to the taxing officer for taxation of the applicant’s bill of costs. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022G W NGENYE-MACHARIAJUDGEIn the presence of:1. Mr Wairegi for the applicant/advocate.2. Mr Muchiri for the respondent/client.