Kenya Union of Commercial Food and Allied Workers v K’bahati t/a K’bahati & Co Advocates (Civil Appeal 161 of 2018) [2023] KECA 186 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a union that instructed lawyers in its own name must pay their fees, regardless of side arrangements with members.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was an advocate/client relationship between the appellant and the respondent
- 2.Whether the Court should interfere with the decision of the learned judge
Key legal issues
#Whether an advocate/client retainer existed between the union and the respondent firm
Yes. The respondent expressly sought the appellant's authorization by letter dated 19th November 2009, and the appellant engaged the respondent by instruction letter dated 20th November 2009, falling squarely within the definition of 'client' in section 2 of the Advocates Act.
The Court applied Black's Law Dictionary's first definition of retainer (a client's authorization for a lawyer to act). The respondent requested written instructions from the union as the named party before acting, and the union obliged by the 20th November 2009 letter appointing the firm as advocates on record. Correspondence between the parties evidenced the relationship, and the union's later termination of the firm's services confirmed it was the recipient of the services.
Whether the union could escape liability by contending it acted merely as agent of its members
No. Since the union was the named party and issued the express instructions, it is liable for the fees; the private arrangement with members does not bind the advocate, and the union may seek reimbursement from its members.
The letter authorizing the respondent was signed by the appellant itself, so it cannot claim the members alone were to pay. The letter between the union and the three claimants on payment obligations did not bind the respondent, who was not a party to it. The Court quoted with approval Waweru, J. in Nderitu & Partners Advocates v Mamuka Valuers that the party chargeable with the bill is the party liable to pay and may claim reimbursement from its principal.
Whether the Court should interfere with the High Court's discretionary decision
No. Guided by PIL Kenya Ltd v Oppong, the Court found no misdirection or wrong exercise of discretion and upheld the judgment of the High Court.
As a first appeal, the Court re-appraised the evidence afresh and reached its own conclusions, guided by Selle v Associated Motor Boat Company and Rule 29(1) of its Rules. On the exercise of discretion it would not interfere unless the judge misdirected himself or was clearly wrong, occasioning injustice. Having found the ruling fair, just and in tandem with the law, the Court declined to disturb it.
Legal principles established
#- An advocate/client relationship arises when an advocate receives express instructions from a client to represent them in a suit in which they are a party, and the instructing party is the one liable for the advocate's fees
- A person who gives instructions to an advocate is the client, even where the person purports to act on behalf of others; such a person may seek reimbursement from those on whose behalf they acted
- A contract on payment of legal fees is only enforceable between the parties that signed it; terms of a letter between the union and its members do not bind the advocate who was not a party
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment (application arising from taxation of the respondent's bill of costs)
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 29(1) of the Court of Appeal Rules
Relief refused
#The appellant's request that the Court find it was not the entity liable to bear the advocate's costs
The appellant was the named party and gave express instructions to the respondent; it may seek reimbursement from its members
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An advocate/client relationship arises when an advocate gets express instructions from the client to represent them in a suit where they are a party. Therefore, it is our view that the appellant was the client of the respondent in the High Court Case No. 632 of 2008 and as such is liable to settle the said Advocates' fees.
The upshot of the above is that we uphold the judgment of the High Court and dismiss this appeal with costs to the respondent.
As far as the Advocate is concerned, he must look to the Client for payment of his costs as it is the Client who instructed him to act in the matter. The Advocate cannot look to the principal for payment of his costs as he was not instructed by the principal.
the contract between the parties regarding the payment of legal fees is only enforceable between the parties that signed it
Issues in the judgment
#The judgment refers inconsistently to the same instruction letter: the High Court ruling quotes it as dated 20th November 2009 while the opening narrative and the respondent's letter of reply refer to a letter dated 12th November 2009; the date of the instruction letter is thus inconsistent within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v K’bahati t/a K’bahati & Co Advocates (Civil Appeal 161 of 2018) [2023] KECA 186 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/186/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.