M. S. Shariff & Co Advocates v Omari Mbwana Zonga [2020] eKLR Case Summary

Court
High Court of Kenya at Mombasa
Category
Civil
Judge(s)
P. J. O. Otieno
Judgment Date
September 25, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
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Case Brief: M. S. Shariff & Co Advocates v Omari Mbwana Zonga [2020] eKLR

1. Case Information:
- Name of the Case: M. S. Shariff & Co Advocates v. Omari Mbwana Zonga
- Case Number: Misc Application No. 52 of 2014
- Court: High Court of Kenya
- Date Delivered: September 25, 2020
- Category of Law: Civil
- Judge(s): P. J. O. Otieno
- Country: Kenya

2. Questions Presented:
The central legal issues presented to the court include whether the client (Omari Mbwana Zonga) is liable to pay the advocate (M. S. Shariff & Co Advocates) for legal services rendered, and whether the advocate is entitled to judgment based on the certificate of costs issued.

3. Facts of the Case:
The advocate, M. S. Shariff & Co Advocates, filed a Notice of Motion seeking judgment against the client, Omari Mbwana Zonga, based on a certificate of costs amounting to Kshs. 133,825.00, which had been issued after taxation. The advocate claimed that she provided legal services to a third party at the request of the client, who was alleged to be a Member of Parliament for Lunga Lunga constituency. The client denied these claims, asserting that he had not retained the advocate and had not received any bill of costs or demand for payment.

4. Procedural History:
The application was filed on May 8, 2019, and was supported by an affidavit from the advocate. The client responded with a replying affidavit on October 11, 2019, denying any liability. The court directed that the matter be canvassed through written submissions, which were submitted by both parties on the specified dates. The court reviewed the affidavits and submissions to determine the validity of the claim.

5. Analysis:
- Rules: The court considered Section 51(2) of the Advocates Act, which allows for judgment based on a certificate of costs when there is no dispute regarding retainer. The definition of a "client" under Section 2 of the Act was also examined.
- Case Law: The court referenced the need for an explicit agreement regarding the retainer and costs, noting that previous case law supports the notion that if retainer is disputed, the matter must be resolved through a recovery suit under Section 48 of the Act.
- Application: The court found that the advocate had not established a clear contract for the provision of legal services that obligated the client to pay. The client’s denial of the relationship and lack of evidence of retainer led the court to conclude that the matter could not be resolved through the current application and must instead be pursued in a separate suit.

6. Conclusion:
The court dismissed the advocate's application for judgment, determining that the issue of retainer was genuinely disputed. The advocate was directed to pursue the recovery of costs through a separate suit, allowing for the question of liability to be determined by evidence.

7. Dissent:
There were no dissenting opinions in this case, as it was decided by a single judge.

8. Summary:
The High Court of Kenya dismissed the application by M. S. Shariff & Co Advocates for judgment against Omari Mbwana Zonga due to a disputed retainer. The decision underscores the necessity of clear agreements in legal service relationships and the requirement for evidence when liability is contested. The case highlights the procedural avenues available for advocates to recover fees when disputes arise regarding the terms of engagement.

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