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ELCPartially AllowedTwo cross References: Advocates' Chamber Summons dated 6th February 2025 and Client's Chamber Summons dated 5th February 2025, arising from Advocate-Client Bill of Costs taxed in ELCMISC/E007/2024

Oyomba Mosota & Wamwea Advocates v Michelle S Nirenstein & Mara Napa Camps & Conservation Center Trust (Miscellaneous Civil Application E007 of 2024) [2025] KEELC 4983 (KLR)

Environment and Land Court
3 July 2025
5,461 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court enforced a lawyer's fee agreement even though the client never signed it, because her conduct showed she accepted the terms.

What this practically means

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Executive summary

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This judgment determines two cross-applications arising from the taxation of an Advocate-Client Bill of Costs by the taxing master, Hon. Daniel Ngayo (RM), on 22nd January 2025 in ELCMISC/E007/2024. The taxing master had held there was no valid retainer agreement between Oyomba Mosota & Wamwea Advocates and their client, Michelle S Nirenstein, and taxed the bill at Kshs. 5,760,270.80, including instruction fees of Kshs. 3,000,000/=. Both parties were aggrieved: the Advocates filed a Reference seeking reassessment of the instruction fees on the basis that the value of the subject property was ascertainable from the pleadings, while the Client applied under Rule 11 of the Advocates' (Remuneration) (Amendment) Order 2014 to set aside the ruling and have fees taxed according to a retainer agreement dated 8th January 2024. The dispute concerned litigation over the ownership, management and control of the Mara Napa Camps & Conservation Centre Trust. The court examined section 45(1) of the Advocates Act and extensive authority on retainers, holding that although the client never signed the retainer agreement, the retainer relationship and agreement were valid: the client amended the scope of work, the Advocates never objected, issued a Deposit Request Note, a demand letter and instituted suit in accordance with the amended agreement. The court held that a retainer can be inferred from conduct. The Client's application was allowed entirely in terms of prayers 1, 2, 3 and 4, setting aside the taxing master's ruling and upholding the retainer agreement dated 8th January 2024, while the Advocates' Reference was dismissed entirely. Costs of both applications were awarded to the Client.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the purported retainer agreement relied upon by the client is valid and enforceable under section 45 of the Advocates Remuneration Act
  2. 2.Whether the Clients are entitled to the orders sought, including the reassessment of fees or the enforcement of the purported retainer agreement
  3. 3.Who should bear the cost of the instant application

Key legal issues

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01

Validity of an unsigned retainer agreement

Holding

The court found that a valid retainer agreement existed between the parties despite the client's signature not being appended; the client's continued instructions and the parties' conduct signified acceptance of the terms, and the taxing master erred in holding there was no retainer agreement

Reasoning

Section 45(1) requires writing and signature for an agreement fixing remuneration, but the client amended the scope of work, the Advocates never objected, issued a Deposit Request Note consistent with the agreement, issued a demand letter and filed suit per the amended agreement. Conduct demonstrated acceptance; equating the retainer relationship with the written document was an error. The agreement was therefore upheld and the taxed fees set aside.

p. 2
02

Whether the Advocates' cross-Reference on instruction fees should succeed

Holding

Dismissed; the fees as agreed were not based on the value of the properties and the taxing master's ruling fell with the Clients' successful application

Reasoning

The court found the legal fees discussed on 5th January 2024 and quoted in the retainer agreement were not attributable to the value of the subject properties. The Advocates only sought to shift to the Remuneration Order basis by unilateral email on 24th May 2024. The Deposit Request Note remained unrevised. The Advocates' Reference therefore had no merit.

p. 10

Legal principles established

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  • Under section 45(1) of the Advocates Act, a retainer agreement is valid and binding provided it is in writing and signed by the client or an authorised agent; however, a retainer need not be in writing and may be inferred from the parties' conduct
  • The burden of proving a retainer agreement lies on the party seeking to enforce it

Court orders

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  1. 1.Set aside the Ruling of Hon. Daniel Ngayo of ELCMISC/E007/2024 in its entirety (Clients' prayer 1)
  2. 2.Set aside the instruction fees taxed at Kshs. 3,000,000/= and tax the same as per the retainer agreement dated 8th January 2024 (Clients' prayer 2)
  3. 3.Set aside the Advocate-Client fees taxed at Kshs. 5,760,270.80/= and tax the same as per the retainer agreement dated 8th January 2024 (Clients' prayer 3)
  4. 4.Uphold the retainer agreement dated 8th January 2024 (Clients' prayer 4)
  5. 5.Dismiss the Advocates' Chamber Summons Application dated 6th February 2025 entirely
  6. 6.Costs to the Clients/Applicants on both applications

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrates' Court at Narok (Taxing Master)
ELCMISC/E007/2024
Jurisdiction invoked
Reference against a taxing master's decision under Rule 11 of the Advocates' (Remuneration) (Amendment) Order 2014; sections 1A, 3A, 3B of the Civil Procedure Act and Article 159 of the Constitution invoked by the Client's application

Relief refused

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Advocates' Reference seeking reassessment of the instruction fees and remittal of the bill to another taxing officer

The court found no merit in the Advocates' Application dated 6th February 2025

p. 10

Costs

The Clients'/Applicants' Application allowed with costs to the Clients/Applicants; the Advocates' Application dismissed entirely with costs to the Clients/Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Therefore, it is the finding of this Court that there was a retainer agreement between the Clients herein and the Advocates, and the ruling by the taxing master of 22nd January 2025, was not well-founded, wherein he held that there was no retainer agreement.
p. 10Existence of a valid retainer agreement
this court finds and holds that there is merit in the Clients/ Applicants' Application dated 5th February 2025, and the said Application is allowed entirely in terms of prayers number 1, 2, 3, and 4 with costs to the Clients/Applicants.
p. 10Final orders
However, the court finds no merit in the Advocates/ Applicants' Application dated 6th February 2025, and consequently, the said Advocates Chamber Summons Application is dismissed entirely with costs to the Clients/ Respondents.
p. 10Final orders - dismissal of Advocates' Reference
From the foregoing case law, a retainer does not have to be in writing, but the same can be inferred from the conduct of the parties or the circumstances of the case.
p. 10Retainer inferred from conduct
It is so ordered.
p. 10Disposition

Issues in the judgment

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minor

The court, in its own summary of the retainer terms, appears to concede the agreement was not signed while nonetheless holding it valid and enforcing it, creating tension with section 45(1)'s signature requirement which the court itself quotes

minor

Discrepancy in the total taxed figure cited in the Advocates' Application (Ksh. 5,70,270.80) versus the amount elsewhere stated (Kshs. 5,760,270.80/=)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oyomba Mosota & Wamwea Advocates v Michelle S Nirenstein & Mara Napa Camps & Conservation Center Trust (Miscellaneous Civil Application E007 of 2024) [2025] KEELC 4983 (KLR)", Case Analysis (2025). Two cross References: Advocates' Chamber Summons dated 6th February 2025 and Client's Chamber Summons dated 5th February 2025, arising from Advocate-Client Bill of Costs taxed in ELCMISC/E007/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4983/eng@2025-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.