1. I have considered the application dated 27 July, 2023 together with the supporting affidavit sworn on even date and the supplementary affidavit sworn on 23 October, 2023. I have also considered the replying affidavit sworn on 3rd August, 2023 together with the submissions of the parties and the applicable law.
2. The background to the dispute concerns a fee agreement between the Applicant and the respondent. It is not in contention that an instruction fee and initial deposit had been agreed between the parties. However, the fee arrangement did not bear fruition as the relationship between the parties was terminated prematurely.
3. The Applicant seeks to stay taxation proceedings on the basis that the parties entered into an agreement on fees and to strike out the respondent’s bill of costs dated 12th July, 2023.
4. On the other hand, the Respondent was of the view that it ought to be paid for the work done prior to termination of the agreement, and that the taxing master is the appropriate person to determine such amount.
5. The Applicant submitted that section 45 of the Advocates Act is applicable in the circumstances because there is an agreement of fees between the parties and as such the fees are not subject to taxation.
6. The relevant part of the Advocates Act reads as follows:
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.
(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.
7. In re Nicholas Kaaka Kapore (Deceased) [2020] eKLR the court stated that:
“An agreement for fees contemplated under section 45 is a contract whose terms and conditions must be clear and unambiguous. There must be consensus or meeting of the mind between the parties and it must also be entered into freely without undue influence or promise.”
8. In Rachuonyo & Rachuonyo Advocate v National Bank of Kenya Limited [2020] eKLR, the court stated that:
“Parties are bound by the terms of the Retainer Agreement and the Appellant is estopped from seeking intervention from taxation under the Advocates Remuneration Order Where there is a Retainer Agreement the Taxing Officer lacks jurisdiction to tax the Bill of Costs.”
9. I am in agreement with the principles set out above. However, I have looked through the various exhibits attached to the supporting affidavit and I am unable to find a retainer agreement signed by the parties with clear and unambiguous terms. What I do see are a series of unilateral statements contained in various emails, and WhatsApp messages.
10. The Applicant argued that the correspondence between the parties formed a valid agreement from which the terms of the same may be ascertained. However, to my understanding, while this may be the case, a reliance on section 45 still requires that correspondence to provide a clear and unequivocal understanding of all the terms to the agreement. In this case, something more substantial, and capable of interpretation by the court was required than the present correspondence.
11. Looking at the said e mails and messages, it is not entirely clear what the precise terms of the agreement were, nor what was to happen in the event of premature termination as is the present case. In the circumstances, the present situation may be more similar to the one described in Nicholas Kaaka Supra where the court stated that, while:
“I am fully cognizant of the import of section 45 (c) of the Act with regard to agreement for remuneration fees between an advocate and a client, and I am not in any way down grading it. However, for a court to uphold such an agreement it must be satisfied on a balance of probabilities that the agreement was freely entered into and that parties were clear on its terms. It should never leave any doubt as to what parties meant or agreed to enter into. This is because of the binding nature of such an agreement as contemplated by section 45 (1) (c).”
12. Therefore, I am of the view that the Applicant has not met the threshold required under section 45 of the Act and accordingly, the Respondent ought not be prevented from taxing his bill of costs to ascertain the work done, and appropriate fee for the same.
13. Based on the reasons set out above, the application is dismissed with costs.