The Applicant’s Further affidavit
7.The Applicant filed a further affidavit by Dr. Martin Oloo sworn on 22nd November 2022 deposing that by a letter dated 1st February 2018, the firm received instructions from the Respondent to act on its behalf in Machakos HC Civil Suit No.76 of 2003. They acknowledged receipt and entered appearance in the matter. It is contended that Machakos HC Civil Suit No.76 of 2003 was a part of several other cases one of which was the suit subject matter of the present taxation. Machakos HCCC No. 9 of 2008: B2 Yatta Ranching Co-operative Society Ltd v County Government of Kitui & 11 others which later came to be known as Machakos ELC 109 of 2018 after the numerous cases filed were consolidated. That Pursuant to the consolidation of the cases, the Applicants filed a Memorandum of Appearance and Notice of Appointment of Advocates dated 6th August 2019.
8.The Applicant denied that the firm of Katunga Mbuvi & Co. Advocates represented the Respondent in Court and neither did they file any pleadings. The Applicant deposed that they only came to learn about the said firm when they wrote to them requesting for an update of the case and copies of pleadings and the Applicant responded stating their inability to honour the request.
9.The Applicant annexed correspondence and pleadings filed, including a replying Affidavit sworn by one Francis Mulu, the then Respondent’s Assistant Director of Lands. They also deposed that they attended Court and various meetings held at the Border Police Unit headquarters between representatives of the border police unit, Kitui County Government, office of the Attorney General, B2 Yatta Ranching Co-operative Society Ltd and the Commandant Border Police Unit.
10.Subsequently, on 15th June 2021, they were served with a Notice of Change of Advocates by the firm of M/S Kimanthi & Associates indicating that the Respondent had appointed them to act in their place. They aver that that the firm of Katunga Mbuvi & Co. Advocates have never featured anywhere as advocates on record for the Respondent.
11.The Applicant deposes that the allegations that the Applicant acted without instructions are inaccurate and laced with bad faith to deny the Applicant its due and just remuneration for services rendered.
Analysis and Determination
19.The present Advocate-Client Bill of Costs dated 27th April 2022 seeks payment of Ksh. 376,830,019/= for legal services stated to have been rendered by the law firm of Oloo & Oloo Advocates to the Respondent County Government of Kitui in Machakos ELC 109 OF 2018. The bill of costs was referred to this court on the ground that the Respondent denied existence of an Advocate-Client relationship between the parties.
20.Section 13 of the Advocates (Remuneration) Order provides for taxation of cost as between advocate and client on application of either party and states;
21.“Client” is defined under the Advocates Act; “includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs;”
22.The Respondent herein denies that it retained or employed the Advocate/Applicant and thus claims that there is no Advocate-client relationship. In Kinluc Holdings Ltd v Mint Holdings Ltd & another  eKLR the Court of Appeal adopted the definition assigned to the word “retainer” in the 3rd edition of Halsbury’s Laws of England at paragraph 84 as meaning:
23.The Applicant relies on the finding of Warsame, J. (as he then was) in Ochieng Onyango Kibet & Ohaga Advocates v Akiba Bank Limited  eKLR expressed a similar view and stated that:
24.Retainer is therefore no more that an authority given to an advocate to act in a particular matter and manner. It may be restrictive; it may be wide. And nevertheless it can be implied from the conduct of the client/advocate. Determination of whether or not there exists an Advocate-Client relationship is a jurisdictional issue that must be determined at the earliest. This was so found in the case of Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited  eKLR where the Court of Appeal stated;
25.As proof of the existence of an Advocate-Client relationship, the Applicant attached pleadings filed in Machakos ELC 109 of 2018 including a replying Affidavit sworn by one Francis Mulu, the then Respondent’s Assistant Director of Lands. They stated that by a letter dated 1st February 2018 the firm received instructions from the Respondent to act on its behalf in Machakos HC Civil Suit No.76 of 2003. They acknowledged receipt and entered appearance in the matter. It is contended that Machakos HC Civil Suit No.76 of 2003 was a part of several other cases one of which was the suit subject matter of the present taxation being Machakos HCCC No. 9 of 2008 B2: Yatta Ranching Co-operative Society Ltd v County Government of Kitui & 11 others which later came to be known as Machakos ELC 109 of 2018 after the numerous cases filed were consolidated. The Applicant stated that pursuant to consolidation of the cases, the Applicants filed a Memorandum of Appearance and Notice of Appointment of Advocates dated 6th August 2019.
26.The Applicant also annexed correspondence from the Respondent to themselves and further deposed that they attended Court on behalf of the Respondent and various meetings held at the Border Police Unit headquarters between representatives of the border police unit, Kitui County Government, Office of the Attorney General, B2 Yatta Ranching Co-operative Society Ltd and the Commandant Border Police Unit.
27.Further, the Applicant denied that the firm of Katunga Mbuvi & Co. Advocates ever represented the Respondent in Court and they did not file a memorandum of appearance or pleadings. The Applicant deposed that they only came to learn about the firm when they wrote to them requesting for an update of the case and copies of pleadings and they responded stating their inability to honour the request.
28.The Court has perused all the documents filed by the Applicant in support of the claim that there existed an Advocate-Client relationship and noted that there is no document that shows direct instructions passing from the Respondent to the Applicant in relation to the suit Machakos ELC 109 of 2018. The applicant has further not shown that the suit ELC 76 of 2003 was related to the case 9 of 2018 or 109 of 2018 as stated in supporting affidavits. Looking at the documents filed for cases ELC 76 of 2003 and 109 of 2018 the parties in the two suits are different. The only letter of instructions from the Respondent to the Applicant is the letter dated 1st February 2018 and it relates to ELC 76 of 2003. The said letter was specific to the said suit and indeed the Applicant subsequently raised an invoice dated 6th February 2018 requesting for a deposit of legal fees.
29.In the Courts view none of the letters attached to the Applicants affidavits deal with instructions to act in ELC 109 of 2018. There is also no proof that the two suits or any others were consolidated with the present suit for the Court to presume that the instructions given to the Applicant in ELC 76 of 2003 would serve as instructions in ELC 109 of 2018.
30.The Applicant stated that they had done the bulk of the work in the suit for the benefit of the Respondent. They relied on the cases of Ochieng Onyango and Kibet & Ohaga Advocates v Akiba Bank Limited and Mereka & Company Advocates v Zakhem Construction Kenya eKLR: for the submission that it is not the law that an advocate must obtain a written authority from a client before he commences a matter but authority of an advocate in a matter can be implied or discerned from the conduct of the client
31.The Respondent denied the existence of an Advocate-client relationship with the Applicant on the ground of being a public entity and any payments it makes are public funds which must be expended in accordance with the Constitution, the County Government Act and Public Finance Management Act. The Respondent further stated that it could only give instructions in writing and upon procuring the services in terms of the Public Procurement and Asset Disposal Act (PPAD Act) as read together with Section 131(1) of the County Government Act, on public finance expenditure and Section 121 of the Public Management Act.
33.The Respondent relies on Article 227(1) which provides for procurement of public goods and services as follows: -
25.It is not in contention that the Respondent is a public entity and that Article 227 of the Constitution applies to it. A public entity is defined under The Public Procurement and Asset Disposal Act (No. 33 of 2015) (PPAD Act) to include “a county government or any organ or department of a county government;” The PPAD is the act of parliament that prescribes a framework for policies on procurement. It is described as;
25.In that regard, the Act defines “procurement” to mean “the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise, or by any other contractual means of any type of works, assets, services or goods including livestock or any combination and includes advisory, planning and processing in the supply chain system.”
26.The Act further defines “procuring entity” as a public entity making a procurement or asset disposal to which this Act applies; and “procurement contract” as an agreement concluded between the procuring entity and a contractor (or contractors) resulting from a tendering proceeding.
27.Section 121 of Public Finance Management Act states with regard to procurement for county government entities that “all procurement of goods and services and disposal of assets required for the purposes of the county government or a county government entity are to be carried out in accordance with Article 227 of the Constitution and the public Procurement and Disposal Act (Cap. 412C).” while Section 131 (1) County Government Act while dealing with financial provision states that; The funds and financial management of county governments are to be provided under the law relating to public finance.
28.With regard to preparation of contracts with public entities Section 134 of PPAD Act states that the accounting officer is the person responsible for preparation of contracts after following the relevant tendering process. Section 135 provides for creation of procurement contracts including what is to be incorporated in the agreement and the persons to sign the contracts and states;
1.The existence of a contract shall be confirmed through the signature of a contract document incorporating all agreements between the parties and such contract shall be signed by the accounting officer or an officer authorized in writing by the accounting officer of the procuring entity and the successful tenderer.
2.An accounting officer of a procuring entity shall enter into a written contract with the person submitting the successful tender based on the tender documents and any clarifications that emanate from the procurement proceedings.
3.The written contract shall be entered into within the period specified in the notification but not before fourteen days have elapsed following the giving of that notification provided that a contract shall be signed within the tender validity period.
4.No contract is formed between the person submitting the successful tender and the accounting officer of a procuring entity until the written contract is signed by the parties.
5.An accounting officer of a procuring entity shall not enter into a contract with any person or firm unless an award has been made and where a contract has been signed without the authority of the accounting officer, such a contract shall be invalid.
25.From the foregoing Section 135 PPAD Act, it is clear that for a legally binding contract retaining the services of an advocate to exist between themselves and a public entity such as the Respondent, there must be a written contract signed by the parties. The contract is required to be with the person submitting a successful tender and to whom an award has been made.
26.Further, Section 72 of the Act places the responsibility for complying with Act and regulations on contractors, suppliers and consultants on the procuring entity alone. This was stated in the case of Royal Media Services v Independent Electoral & Boundaries Commission & 3 others  eKLR which though it dealt with the Public Procurement and Disposal Act, 2005, the dicta therein applies equally to this case as the provisions are similar to the current legislation with the law placing the responsibility of compliance with the Act on the contractor, supplier or consultant intending to supply goods or services to a public entity. Tuiyott J., had this to say;
25.The case of Mugoye & Associates Advocates v Kiambu County Assembly Speaker  eKLR Mwita J. relied on by the Respondent dealt with a similar situation to the one in this case where the Advocate offered legal services to a public entity. The Court stated;
25.In the present case the Court agrees with the observations of Mwita J in the Mugoye case (supra) that the Applicant/advocates seem to have taken the risk of offering their professional services premised on a false belief that they would be paid as it may have happened in the earlier case in ELC 76 OF 2003. The Judge further stated that;
25.As a final observation, the Court noted that the Applicant/Advocate attached to their submissions a document named Form of Contract dated 31st January, 2019 and marked it as MO-13. The said document was not annexed to the affidavits filed by any of the parties and the court finds filing of the same unprocedural and improper. The Respondent was not given an opportunity to consider it and respond and the same ought not to form part of the record. The said document is hereby struck out.
26.Considering the Constitutional provisions cited above, the law and the foregoing authorities, the Court finds that the Applicant/Advocate failed to show that they were retained or employed by the Respondent to offer legal services in Machakos ELC 109 of 2018: B2 Yatta Ranching Co-operative Society Limited vs County Government of Kitui and 11 others. The Court finds no evidence that there was an Advocate –Client relationship between the firm of Oloo & Oloo Advocates and the County Government of Kitui in the said suit. The Court is satisfied that the objection by the Respondent is well founded and must succeed with the result that the Advocate – Client Bill of Cost dated 27th April 2022 is hereby struck out. Each party will bear their own costs.