REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
MISC E399/2021 CONSOKIDATED WITH MISC E400/2021
WETANGULA ADAN & CO ADVOCATES………………….APPLICANT
-VERSUS-
JULIANA MUTHONI KITOLOLO & AUSTIN SALMON KITOLOLO………………………………………………….RESPONDENTS
RULING
1. By a Chamber Summons dated 15th August, 2022 brought under Rule 11(2) of the Advocates (Remuneration) Order, the Advocate/applicant sought an order to review and set aside the Taxing Officer’s ruling dated 14th July, 2022 and to remit its bill of costs dated 20th May, 2021 for fresh taxation
2. The grounds of the application are set out on the body of the Summons and the supporting affidavit sworn on 15th August, 2022 by Adano Damocha.
3. The grounds are that the Taxing Officer erred in finding that there was no evidence of an Advocate-Client relationship and in finding that Osman Batur ought to have been included as a client.
4. Further, that the Taxing Officer erred in finding that the bill of costs filed by the applicant was the same as the one addressed by Hon. Justice Eboso in a ruling delivered on 11th February, 2021.
5. In opposition, the respondents/clients filed a replying affidavit sworn on 29th May, 2023 by Juliana Muthoni Kitololo, one of the respondents.
6. She averred that a Client-Advocate relationship did not exist between the respondents and the applicant herein as the respondents did not instruct the Advocate. She deposed that in the year 2016, she entered into a Joint Venture Agreement with one Osman Batur Dedeoglu for the construction of residential apartments and penthouses whereby it was agreed that the said Osman would foot all of the costs associated with the project.
7. The respondents contended that they did not instruct the applicant herein to engage in any work in so far as the Joint Venture Agreement is concerned, and any work performed by them was done on the instruction of Osman. That the applicant did not provide evidence of instruction from the respondents engaging them to perform any work.
8. Further, that the various issues in relation to the applicant’s bill of costs dated 20th May, 2021 had been dispensed with by the ruling delivered by Hon. Justice Eboso in Miscellaneous Application No. 98 of 2017.
9. The applicants filed a further affidavit sworn on 25th July, 2023 by Ibrahim Adan, an Advocate practicing in the applicant’s firm in further response to the respondents’ replying affidavit.
10. It was averred that Austin Kitololo, one of the respondents herein, wrote to Mr. Ahmed Adan, a Managing Partner of the applicant, confirming that the applicant was the Advocate for both the respondents and Osman Batur Dedeoglu.
11. The respondents averred that they have evidence of emails and text messages to show that instructions to draft the Joint Venture Agreement were given jointly by the joint venture partners and that the respondents raised issues on certain clauses and requested for amendments of the said clauses.
12. Mr. Adan emphasized that the allegation that Mr. Osman was to cater for all the legal costs on behalf of the respondents false.
13. Both parties canvassed their respective arguments through written submissions which this Court has duly considered.
ANALYSIS AND DETERMINATION.
14. The crux of the matter is whether the respondents instructed the applicants to act as their Advocate.
15. Vide a ruling dated 14th July, 2022, the Taxing Officer found that the Joint Venture Agreement dated 14th January, 2016 entered into between the parties herein stipulated that the developer was to finance the construction project. That other than the Joint Venture Agreement, there was no instruction letter from the respondents to the Advocate asking them to act for them in any of the transactions on the bill of costs. The Taxing Master concluded that the applicant’s bill of costs did not indicate any relationship with the respondents.
16. On this issue, the applicant in its submissions relied on the case of Ochieng, Onyango, Kibet & Ohaga Advocates v. Akiba Bank Limited [2007] eKLR, where it was found that a retainer can be implied from the conduct of the Client/Advocate relationship.
17. The applicant further submitted that the respondents were estopped from denying the fact that they had instructed it to represent them due to the text message sent by one of the respondents, Austin Martin Kitololo, confirming that the applicant was acting for them.
18. The respondents on their part submitted that the applicant was solely instructed by Osman Batur to prepare the Joint Venture Agreement and the respondents only participated in the signing of the agreement. Further that the applicant already received payment from Osman Batur, and would therefore amount to unjust enrichment on the part of the applicant to demand for payment of legal fees from the respondents in excess of Ksh.20 Million.
19. Under the Section 2 of the Advocate’s Act, “client” means-
“ any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs”
20. In the case of Ochieng’ Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited [2007] eKLR, the Court held as follows on the issue of a retainer-
“The retainer is the foundation upon which the relationship of Advocate/client rests. Without a retainer the relationship cannot come into being. Retainer is the mode and method in which the Advocate accepts the offer of employment by the client. It can be express or by implication.
…
In my view retainer is no more than an authority given to an Advocate to act in a particular matter and manner. It may be restrictive, it may be wide. And nevertheless it can be implied from the conduct of the client/Advocate relationship.”
21. An Advocate-Client relationship is established by a retainer agreement which grants the Advocate the authority to represent the client in legal matters. Of importance is that the retainer may be express, by being contained in a written agreement, or it may be implied by the conduct of the parties.
22. In this case, the applicant alleged that it had an Advocate-Client relationship with the respondents and provided proof of this in its further affidavit sworn on 25th July, 2023.
23. Annexure “IA 1” in the further affidavit is a text message from one of the respondents, Austin Martin Kitololo, to Mr.Adan a partner in the applicant firm, stating:
“ Ahmed hi.
I suggest since you are the advocate for both parties (Kitololo and Osman), you call an urgent meeting to break the impasse. The meeting can be held tomorrow or the day after.
Godbless”
24. A further attachment marked “IA 2” to the affidavit comprises emails and text messages between the applicant and the respondents. Pages 44 and 46 thereto, are emails from Austin Kitololo to the applicants giving them instructions to make amendments and to prepare an addendum to the Joint Venture Agreement. It is also clear from the text messages and various emails between the parties herein that various meetings were held between them in the applicant’s offices to discuss issues in relation to the Joint Venture Agreement.
25. From the said annexures, I am of the considered view that an Advocate-Client agreement did exist. Although it was not contained in a written retainer agreement, the evidence shows that the applicant expended time and legal expertise to cater to the respondents’ legal needs.
26. Although the applicant also represented Mr. Osman and probably received legal fees for it, this does not exclude the respondents from paying their part of the legal fees.
27. Despite the fact that Mr. Osman, under the Joint Venture Agreement was to cover the costs of the development, this did not translate to the payment of the legal costs of the applicant acting as Advocate for the respondents. I therefore hold that the Taxing Officer erred in finding that there was no evidence of an Advocate-Client relationship.
28. Based on the foregoing, I find merit in the instant application and grant the same as prayed. The ruling of the Taxing Officer dated 14th July, 2022 is hereby set aside. The bill of costs dated 20th May, 2021 shall be taxed afresh by a different Taxing Officer.
DELIVERED, DATED and SIGNED at NAIROBI on this 8th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Adano for the Advocate/applicant
No appearance for the respondents
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
MISC E399/2021 CONSOKIDATED WITH MISC E400/2021
WETANGULA ADAN & CO ADVOCATES………………….APPLICANT
-VERSUS-
JULIANA MUTHONI KITOLOLO & AUSTIN SALMON KITOLOLO………………………………………………….RESPONDENTS
RULING
1. By a Chamber Summons dated 15th August, 2022 brought under Rule 11(2) of the Advocates (Remuneration) Order, the Advocate/applicant sought an order to review and set aside the Taxing Officer’s ruling dated 14th July, 2022 and to remit its bill of costs dated 20th May, 2021 for fresh taxation
2. The grounds of the application are set out on the body of the Summons and the supporting affidavit sworn on 15th August, 2022 by Adano Damocha.
3. The grounds are that the Taxing Officer erred in finding that there was no evidence of an Advocate-Client relationship and in finding that Osman Batur ought to have been included as a client.
4. Further, that the Taxing Officer erred in finding that the bill of costs filed by the applicant was the same as the one addressed by Hon. Justice Eboso in a ruling delivered on 11th February, 2021.
5. In opposition, the respondents/clients filed a replying affidavit sworn on 29th May, 2023 by Juliana Muthoni Kitololo, one of the respondents.
6. She averred that a Client-Advocate relationship did not exist between the respondents and the applicant herein as the respondents did not instruct the Advocate. She deposed that in the year 2016, she entered into a Joint Venture Agreement with one Osman Batur Dedeoglu for the construction of residential apartments and penthouses whereby it was agreed that the said Osman would foot all of the costs associated with the project.
7. The respondents contended that they did not instruct the applicant herein to engage in any work in so far as the Joint Venture Agreement is concerned, and any work performed by them was done on the instruction of Osman. That the applicant did not provide evidence of instruction from the respondents engaging them to perform any work.
8. Further, that the various issues in relation to the applicant’s bill of costs dated 20th May, 2021 had been dispensed with by the ruling delivered by Hon. Justice Eboso in Miscellaneous Application No. 98 of 2017.
9. The applicants filed a further affidavit sworn on 25th July, 2023 by Ibrahim Adan, an Advocate practicing in the applicant’s firm in further response to the respondents’ replying affidavit.
10. It was averred that Austin Kitololo, one of the respondents herein, wrote to Mr. Ahmed Adan, a Managing Partner of the applicant, confirming that the applicant was the Advocate for both the respondents and Osman Batur Dedeoglu.
11. The respondents averred that they have evidence of emails and text messages to show that instructions to draft the Joint Venture Agreement were given jointly by the joint venture partners and that the respondents raised issues on certain clauses and requested for amendments of the said clauses.
12. Mr. Adan emphasized that the allegation that Mr. Osman was to cater for all the legal costs on behalf of the respondents false.
13. Both parties canvassed their respective arguments through written submissions which this Court has duly considered.
ANALYSIS AND DETERMINATION.
14. The crux of the matter is whether the respondents instructed the applicants to act as their Advocate.
15. Vide a ruling dated 14th July, 2022, the Taxing Officer found that the Joint Venture Agreement dated 14th January, 2016 entered into between the parties herein stipulated that the developer was to finance the construction project. That other than the Joint Venture Agreement, there was no instruction letter from the respondents to the Advocate asking them to act for them in any of the transactions on the bill of costs. The Taxing Master concluded that the applicant’s bill of costs did not indicate any relationship with the respondents.
16. On this issue, the applicant in its submissions relied on the case of Ochieng, Onyango, Kibet & Ohaga Advocates v. Akiba Bank Limited [2007] eKLR, where it was found that a retainer can be implied from the conduct of the Client/Advocate relationship.
17. The applicant further submitted that the respondents were estopped from denying the fact that they had instructed it to represent them due to the text message sent by one of the respondents, Austin Martin Kitololo, confirming that the applicant was acting for them.
18. The respondents on their part submitted that the applicant was solely instructed by Osman Batur to prepare the Joint Venture Agreement and the respondents only participated in the signing of the agreement. Further that the applicant already received payment from Osman Batur, and would therefore amount to unjust enrichment on the part of the applicant to demand for payment of legal fees from the respondents in excess of Ksh.20 Million.
19. Under the Section 2 of the Advocate’s Act, “client” means-
“ any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs”
20. In the case of Ochieng’ Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited [2007] eKLR, the Court held as follows on the issue of a retainer-
“The retainer is the foundation upon which the relationship of Advocate/client rests. Without a retainer the relationship cannot come into being. Retainer is the mode and method in which the Advocate accepts the offer of employment by the client. It can be express or by implication.
…
In my view retainer is no more than an authority given to an Advocate to act in a particular matter and manner. It may be restrictive, it may be wide. And nevertheless it can be implied from the conduct of the client/Advocate relationship.”
21. An Advocate-Client relationship is established by a retainer agreement which grants the Advocate the authority to represent the client in legal matters. Of importance is that the retainer may be express, by being contained in a written agreement, or it may be implied by the conduct of the parties.
22. In this case, the applicant alleged that it had an Advocate-Client relationship with the respondents and provided proof of this in its further affidavit sworn on 25th July, 2023.
23. Annexure “IA 1” in the further affidavit is a text message from one of the respondents, Austin Martin Kitololo, to Mr.Adan a partner in the applicant firm, stating:
“ Ahmed hi.
I suggest since you are the advocate for both parties (Kitololo and Osman), you call an urgent meeting to break the impasse. The meeting can be held tomorrow or the day after.
Godbless”
24. A further attachment marked “IA 2” to the affidavit comprises emails and text messages between the applicant and the respondents. Pages 44 and 46 thereto, are emails from Austin Kitololo to the applicants giving them instructions to make amendments and to prepare an addendum to the Joint Venture Agreement. It is also clear from the text messages and various emails between the parties herein that various meetings were held between them in the applicant’s offices to discuss issues in relation to the Joint Venture Agreement.
25. From the said annexures, I am of the considered view that an Advocate-Client agreement did exist. Although it was not contained in a written retainer agreement, the evidence shows that the applicant expended time and legal expertise to cater to the respondents’ legal needs.
26. Although the applicant also represented Mr. Osman and probably received legal fees for it, this does not exclude the respondents from paying their part of the legal fees.
27. Despite the fact that Mr. Osman, under the Joint Venture Agreement was to cover the costs of the development, this did not translate to the payment of the legal costs of the applicant acting as Advocate for the respondents. I therefore hold that the Taxing Officer erred in finding that there was no evidence of an Advocate-Client relationship.
28. Based on the foregoing, I find merit in the instant application and grant the same as prayed. The ruling of the Taxing Officer dated 14th July, 2022 is hereby set aside. The bill of costs dated 20th May, 2021 shall be taxed afresh by a different Taxing Officer.
DELIVERED, DATED and SIGNED at NAIROBI on this 8th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Adano for the Advocate/applicant
No appearance for the respondents
Ms B. Wokabi – Court Assistant.