Severino Ambale Makoba v Joginder Singh Behan

Court of Appeal, Kisumu 15th June 1978

Madan, Wambuzi & Law JJ A

Civil Appeal No 44 of 1977

Advocate - agreement to pay fee - need for agreement to be in writing -fee paid following oral agreement - professional services rendered to client -whether fee refundable - Advocates Act (Cap 16), section 49(1)(b).

Although an agreement to pay an advocate’s fees in contentious business is required by section 49(1)(b) of the Advocates Act to be in writing, where such a fee has been agreed orally and paid by the client and there was good consideration for it in the shape of professional services, section 49 cannot subsequently be invoked by the client for the recovery of the fee from the advocate.

No cases were referred to in the judgment.

Appeal

Severino Ambale Makoba appealed to the Court of Appeal (Civil Appeal No 44 of 1977) from the dismissal by Miller J in the High Court (Civil Appeal No 115 of 1976) of his appeal from the decision of the Senior Resident Magistrate, Kisumu, refusing his claim for a refund of a fee paid by him to an advocate, Joginder Singh Behan, the respondent.

The appellant appeared in person.

MZA Malik (instructed by AH Malik & Co) for the Respondent.