REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
MISCELLANEOUS NO. E089 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
AMONDI & COMPANY ADVOCATES……………….APPLICANT
VERSUS
JAMES OMONDI AGUMBA…………………..1ST RESPONDENT
DAVID MIREGWA NYANCHONGI………….2ND RESPONDENT
MACKENZIE OKINYI OWITI………………..3RD RESPONDENT
WYCLIFFE OTIENO MENGA…………………4TH RESPONDENT
WYCLIFFE WANYONYI………………………5TH RESPONDENT
JOHNSON JUMA MASIKA……………………6TH RESPONDENT
PRINCIPAL SECRETARY – STATE DEPARTMENT FOR AGRICULTURE…………………………………7TH RESPONDENT
CHEMELIL SUGAR COMPANY LTD…………8TH RESPONDENT
SOUTH NYANZA SUGAR COMPANY LTD….9TH RESPONDENT
MUHORONI SUGAR COMPANY LTD……..10TH RESPONDENT
NZOIA SUGAR COMPANY LTD…………….11TH RESPONDENT
RULING
Before the court for determination is the applicant’s Notice of Motion dated 11th December 2025, filed under Certificate of Urgency seeking Orders that:-
1. Spent.
2. Spent.
3. The court be pleased to enforce the retainer agreement dated 9th October 2025 between the Law Firm of AMONDI AND COMPANY ADVOCATES and the 1st – 6th respondents and the other employees they represent in the representative claim in Kisumu ELRC E091 of 2025 by Ordering the 7th – 11th respondents to preserve the agreed fees being the agreed percentage of 10% of the award whenever disbursements are made to the claimants for onward transmission to the Law Firm of AMONDI AND COMPNAY ADVOCATES Account at KCB KISUMU NO.1128907429.
4. The court be pleased to issue Orders enforcing the retainer agreement dated 9th October 2025 between the Law Firm of AMONDI AND COMPANY ADVOCATES and the 1st – 6th respondents and the other employees they represent in the representative claim KISUMU ELRC E091 of 2025 by Ordering the sums due to the Law Firm as Agreed fees being the agreed percentage of ten percent of the award to be wired directly by the 7th – 11 Respondents to the advocate’s Account at AMONDI AND COMPANY ADVOCATES KCB KISUMU AC NO.1128907429 or otherwise that the entire awarded sum in issue be disbursed to the advocate for onward transmission to the clients.
The motion was expressed under Sections 3 and 3A of the Civil Procedure Act, Sections 45 and 48 of the Advocates Act and Articles 10(2)(b) and 43 of the Constitution of Kenya and based on the grounds set forth on its face and the Supporting Affidavit of Kenneth Oduor Omondi Advocate.
The applicant’s case is that the Law Firm of AMONDI AND CO. ADVOCATES and the 1st – 6th Respondents and other employees they represent in the representative claim signed a Retainer Agreement dated 9th October 2025 under which the advocates remuneration was pegged at 10% of the total sums awarded to the claimants by the court and parties were desirous of recording a consent on the agreed issues even as partial payments are made hence the need to have the retainer agreement enforced with each partial payment of the award to the claimants.
That the 7th – 11 Respondents were intent on making partial payments to the 1st – 6th Respondents and other employees they represent in Kisumu ELRC No. E091 of 2025 and the amount was pegged at Kshs.1.9 billion being part salary arrears, payment in full of terminal dues of non-retained staff and a fraction of terminal dues for retained staff before the Christmas holidays, 2025.
That the applicant had written to the 7th – 11th Respondents to enforce the retainer agreement dated 9th October 2026 whenever disbursements were made but was unsure of whether the same shall be effected.
The affiant deponed that the retainer agreement was valid and the Advocates legal fees was not subject to taxation before the Taxing Officer and the Law Firm would be prejudiced and suffer loss if the 7th – 11th Respondents did not enforce the retainer agreement by deducting the agreed percentage of 10% and forwarding the same to the advocate or disbursing the sum awarded to the advocate for onward transmission to the clients.
By a Further Affidavit sworn on 19th February 2026, the applicant deponed that he had a very short notice of instructions and the redundancy date was 30th October 2025 and only 742 claimants signed the Letter of Authority for the Law Firm to represent them and the claim was filed on 9th October 2025.
The affiant deponed the retainer agreement was not disputed and the advocate and the 1st – 6th Respondents had entered into a consent dated 16th February 2026 for adoption.
1st – 6th Respondents’ case
The 1st Respondent deponed that he had authority of the 2nd, 3rd, 4th 5th and 6th Respondents and all other employees in KISUMU ELRC No. E091/2025.
That the 1st – 6th Respondent jointly represent and about 4000 employees of Chemelil Sugar Co. Ltd, Nzoia Sugar Co. Ltd, Muhoroni Sugar Co. Ltd and South Nyanza Sugar Co. Ltd.
The affiant further deponed that the terms of engagement between the applicant and the 1st – 6th Respondents and other employees represented in the suit were captured in the Retainer Agreement dated 9th October 2025 and other employees consented but only 742 employees had signed the same owing to alleged intimidation by certain union officials.
That Kisumu ELRC E091/2025 was unique in that payment shall not wait final determination of the claim and parties intended to record a consent on the issues and the retainer agreement ought to be enforced.
The further affidavit sworn on 19th February 2026 reinforced the applicant’s Further Affidavit.
7th – 11th Respondents’ Grounds of Opposition
The respondents opposed the applicant’s Notice of Motion on the grounds that the 7th – 11th Respondents were not privy to the contract between the applicant and its clients and could not be compelled to enforce the retainer agreement, and there was no agreement between the individual employees. That it was unclear who had accepted the deduction apart from the 1st – 6th Respondents and Section 19 of the Employment Act provided for authority by employee on deductions from their salary or wage.
That there was no agency agreement between the signatories to the retainer agreement and the individual employees to sign the retainer agreement on their behalf and authority to act in court did not extend to authority to sign a contract on behalf of employees.
That the consent dated 15th December 2025 was illegal as there was no contractual relationship between the advocate representing the 6 employees and the rest of the 4000 employees and the court lacked jurisdiction to handle the matter for want of an employer/employee relationship.
Applicant’s submissions
Counsel submitted that the retainer agreement between the applicant/Advocate and 742 clients dated 9th October 2025 was uncontested and salary arrears and terminal dues ought to be remitted through the advocate on record.
As to whether the 7th – 11th Respondents were under a duty to enforce the retainer agreement, counsel submitted that although the 7th – 11th Respondents were not parties to the retainer agreement they had a duty to facilitate compliance with the Advocates Act (Advocates Accounts Rules by ensuring that the amounts due to the 742 clients were remitted to the advocate.
As to whether the Retainer Agreement met the threshold of Section 46(a) of the Advocates Act, counsel submitted that the agreement was valid as it was signed before the filing of KISUMU ELRC No. E091 of 2025 and there was neither a suit nor contentious proceedings in existence as held in Abok James Odera T/A A. J. Odera & Associates V John Patrick Machira T/A Machira & Co. Advocates.
On enforceability of a retainer agreement, counsel submitted that the role of the 7th – 11th Respondents was implement the consent dated 16th February 2026.
Reliance was also placed on the sentiments of the court in Booths Extrusions Ltd (Formerly Both Manufacturing Africa Ltd V Dumbeiya Nelson Muturi Harum & Co. Advocates [2014] eKLR on the advocates right to exercise a lien on the clients papers money or other chattels in their possession until payment of all costs and charges.
1st – 6th Respondents submissions
Counsel submitted that 742 claimants signed authorities to act and the retainer agreement dated 9th October 2025 authorising the advocate/applicant to file the claim and represent them and the retainer agreement was uncontested.
Counsel prayed that the application be allowed.
7th – 11th Respondent’s submissions
Counsel submitted that the Rule 75 and 76 of the Law Society of Kenya, Code of Standards of Professional Practice and Ethical Conduct and Prohibited “Contingent Fee” arrangements where the advocates fee was pegged on the outcome of the case and the law prohibited champerty agreements.
That in prayer No.3 the applicant sought a court Order against the 7th – 11th Respondents to preserve the agreed fees of 10% of the award wherever disbursements were made for transmission to the applicant yet these respondents were not privy to the agreement between the applicant and his clients and could not be compelled to enforce the agreement.
Counsel, further submitted that the retainer agreement was signed by 6 respondents only. The others did not and the same applied to the consent on record, and there was no indication that the other employees were involved.
Reliance was placed on the decision in Omulele & Tollo Advocates V Mount Holdings Ltd [2016] KECA 523 (KLR) on retainer agreements.
According to counsel, since the 7th – 11th Respondents were not parties to the retainer agreement, it could be enforced against them and the court had no jurisdiction to Order them to secure money for payment of a debt.
Counsel prayed for dismissal of the application.
Analysis and determination
It is common ground that many employees Muhoroni, South Nyanza, Chemelil and Nzoia Sugar Companies signed an authority authorising Amondi & Co. Advocates to represent them in a claim. The Letter of Authority was undated.
The signatories stated that they were “affected members” of the four companies.
]
Similarly, on 9th October 2025, Mr. James Omondi Agumba, David Miregwa Nyanchongi, Mackenzie Okinyi Owiti, Wycliffe Otieno Menga, Wycliffe Wanyonyi and Johnson Juma Masika, the 1st – 6th Respondents, entered into a retainer agreement with the Law Firm of Amondi and Co. Advocates to represent them in their quest to secure salary arrears and terminal dues.
The six (6) signatories alleged to represent about 4000 employees of the four (4) sugar companies but availed no evidence as to who the 4000 employees were or how the alleged employees authorised the six (6) respondents to act on their behalf. Not even a list of 1000 of the alleged 4000 employees was availed.
It is equally not is dispute that counsels for the applicant and the 1st – 6th Respondents entered into a consent dated 16th February 2026 to the effect that their clients had agreed that the application dated 11th December 2025 be compromised and the retainer agreement enforced.
However, by that date, the court had already given directions on the filing and exchange of submissions and a hearing slated for 17th February 2026 when the applicant sought adoption of the consent as an Order of the court. Counsel for the 7th – 11th Respondents informed the court that she had filed Grounds of Opposition and proposed that the application be canvassed by way of written submissions.
Directions were issued and a mention slated for 24th February 2026 to confirm compliance and a ruling was reserved. The consent was not adopted as an Order of the Court. The principles that govern retainer agreements are well settled.
Under Section 45 of the Advocates Act entitled:
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) … 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.
In Omulele & Tollo Advocates V Mount Holdings Ltd (supra) the Court of Appeal held:
“An agreement entered into pursuant to the above Section is what can be termed as a ‘retainer agreement’. As the Section indicates under such agreement, the parties ‘fix’ or put a cap on the advocate’s instruction fee meaning that both parties are beholden to the amount. From the foregoing it should thus be clear that the presence of a retainer is what in turn gives rise to a retainer agreement. In other words, only when the engagement and the terms thereof have been agreed upon can the same be reduced into writing. It also follows that for a retainer agreement to be valid and binding the same must have been put in writing and signed by the client and or his agent… for a retainer agreement to exist, the terms thereof must have been reduced into writing”.
The provisions of Section 45 of the Advocates Act reproduced above, place beyond peradventure the principle of privity of contract that a contract binds and can only be enforced by the parties to it save in exceptional circumstances recognized by law. See Dunlop Pneumatic Tyre V Selfridge & Co. Ltd [1915] A.C 847 at 853.
As the parties seeking to enforce the retainer agreement on record, the applicant and the 1st – 6th Respondents proved the existence of the agreement by attaching copies of the agreement and deponing on it in their affidavits.
As to whether the 7th – 11 respondents were legally bound to ensure enforcement of the retainer agreement dated 9th October 2025, the court in agreement with the applicant’s submission that they were not privy to the retainer agreement.
Pushing the argument to its logical conclusion, these respondents were not bound by its terms as clearly spelt out by the provisions of Section 45(1) of the Advocates Act and the definition of money under the provisions of the Advocates Act (Advocates Account Rules) did not render the 7th – 11th Respondents liable to implement the retainer agreement as none of the parties thereto acted on their behalf for an agent or trustee/beneficiary relationship to arise or any other situation to the recognized as an exceptions to the doctrine of privity of contract.
Notably, relying on the sentiments of the Court of Appeal in Abok James Odera V John Patrick Machira t/a Machira & Co. Advocates (supra) cited by the applicant’s counsel, the court is satisfied that the applicants retainer agreement is valid and enforceable.
The crux of the matter is against whom it is enforceable.
The provisions of Section 45(1) of the Advocates Act provide an answer to the foregoing question, that a retainer agreement that has been reduced into writing and signed by the client or his duly authorised agent “shall be valid and binding on the parties”.
The persons bound by the retainer agreement are the parties thereto.
The court is further guided by the sentiments of the Court of Appeal in Omulele & Tollo Advocates V Mount Holdings Ltd (supra) where the court held:
“Under the proviso to Section 45(5) of the Act an advocate who is party to a retainer agreement and who has acted diligently for the client is entitled to sue and recover for the whole retainer fee should his client default in payment thereof. In fact, as long as the advocate has been diligent, his entitlement to the fixed sum is so outright that he need not tax his costs nor give statutory notice to the client prior to his pursuit of the said fee. Consequently, it behoves such advocate to ensure that the retainer agreement once made, is reduced into writing…”
See also National Bank of Kenya Ltd V Otieno Ragot & Co. Advocates [2020] KECA 828 KLR.
The court is guided accordingly.
A cursory glance at prayer No. 3 and 4 of the applicant’s Notice of Motion, reveals that they are Orders the 7th – 11th Respondents to preserve the applicant’s fees and forward it to the law firm and having the sums due to the applicant under the retainer agreement deposited by the 7th – 11th Respondents to the Advocates account at KCB Kisumu A/C No.1128907429, respectively.
The effect of the Orders sought and the consent dated 16th February 2026 is to compel the 7th – 11th Respondents to implement the retainer agreement which none of them was privy to.
To the question whether the retainer agreement dated 9th October 2025 is enforceable, the court returns that it is enforceable against the 1st – 6th Respondents and all other persons who were parties thereto.
As adverted elsewhere in this ruling, the 1st – 6th Respondent provided no material to show that the alleged 4000 employees authorised the six (6) of them to sign the retainer agreement.
This is important because under Section 45 of the Advocates Act the agent must be dully authorised.
Since the effect of the retainer agreement was to facilitate deduction of the salary arrears of employees and their terminal benefits, their consent was necessary as contended counsel for the 7th – 11th Respondents and no agency relationship was demonstrated.
In light of the foregoing it is the finding of the court that the applicant’s Notice of Motion dated 11th December 2025 lacks merit and it accordingly dismissed with no Orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 19TH DAY OF MARCH 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
FOOTNOTES
ENDNOTES
| DRAFTDRAFTRULING Kisumu ELRC Misc. No. E089 of 2025 | Page 18 of 18 |