Severino Ambale Makoba v Joginder Singh Behan [1978] KECA 8 (KLR)
The bottom line
#A Kenyan client cannot force an advocate to refund fees already paid, even where the fee agreement was only verbal.
What this practically means
#Executive summary
#Key legal issues
#Bindingness of an oral advocate-client fee agreement under section 49(1) of the Advocates Act
The oral agreement to pay Shs 2,000 was not binding on the client because no written agreement signed by the client or his authorised agent was produced; the advocate could not have sued to recover the fee had it not been paid.
Section 49(1) of the Advocates Act permits an advocate and client to make an agreement fixing instruction fees, but such an agreement is valid and binding only if in writing and signed by the client or his duly authorised agent. No such writing was produced in the Magistrate's Court or the High Court. The fee agreement was therefore unenforceable as a contract, though the fee had in fact been paid and receipted.
Whether a client may recover a fee actually paid under an oral agreement
No. Where the advocate rendered the professional services, there was good consideration for the payment and the client cannot recover the fee; section 49 does not intend restitution in such circumstances.
The court distinguished the enforceability of the agreement from the right to restitution of money paid. Although the oral agreement was not binding, the fee was paid and the advocate gave advice and did work on the suit. Compelling an advocate who has rendered services to refund the fee would be manifestly unjust. Failure of consideration was a question of fact, on which the two courts below had concurrently found against the appellant.
Legal principles established
#- An advocate's fee agreement is valid and binding under section 49(1) of the Advocates Act only if in writing and signed by the client or his duly authorised agent; an oral fee agreement is not binding and is unenforceable by the advocate
- A client who has actually paid a fee under an oral agreement, where the advocate rendered the professional services, is not entitled to a refund; section 49 does not require restitution in those circumstances
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs, the respondent having not asked for costs
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal from the High Court (Appellate Jurisdiction), under the applicable appellate legislation; the judgment does not cite the specific provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Severino Ambale Makoba v Joginder Singh Behan [1978] KECA 8 (KLR)", Case Analysis (1978). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/8/eng@1978-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.