Relief for Nyachoti & Co. Advocates as appellate court suspends payment of Sh 2.5 million fee


The Court of Appeal has set aside the ruling that ordered the firm of lawyer Philip Nyachoti to pay Muga Apondi Advocates Sh 2.5 million legal fees.

The money is alleged to have accrued as a result of Muga Apondi assisting Nyachoti in former MP Elizabeth Ongoro’s 2017 election petition after which he failed to pay him.

Court of appeal judges R N Nabuye, Gatembu Kairo and S ole Kantai set aside the ruling delivered on 30th October, 2019 in Milimani HC Election Petition No. 5 of 2017 and allow the Motion dated 3rd July, 2019.

“In the premises we hold that the learned Judge erred in the conclusions that he reached. The appeal has merit and is allowed,” ruled the bench.

The Judge found as fact that the respondent was instructed by the appellant to act in the election petition that was filed by the appellant as advocates for the petitioner.

The judges noted that in the course of hearing of that petition (or after filing that petition) Nyachoti engaged Apondi amongst other advocates, to assist in the prosecution of that and other petitions. Apondi was not paid his fees by the appellant in respect of that petition even after demanding the same. This prompted him, on 12th June, 2019 to file in the said Election Petition No. 5 of 2017 a document titled “MUGA APONDI, ADVOCATE PARTY AND PHILIP NYACHOTI PARTY BILL OF COSTS”

According to the judges, it is evident from the document filed by the respondent that he had difficulties in the way he would approach the court. It is filed in the said Election petition and is headed “MUGA APONDI, ADVOCATE PARTY AND PHILIP NYACHOTI PARTY BILL OF COSTS”. “As we have already seen there are two ways that bills of costs are drawn – Party and Party bill of costs or Advocate/Client bill of costs. It is difficult to understand the document that the respondent presented before the court,” added the judge.

According to his affidavit,  Nyachoti stated amongst other things that the respondent had filed a bill of costs against the appellant for Sh 2,590,000 yet neither him nor the respondent was a party in the said election petition.

“In those circumstances the respondent could not file a bill of costs against the appellant,” said Nyachoti.

According to the appellant, the respondent had in September 2017 approached him and volunteered to assist in prosecuting some of the election petitions filed on behalf of various parties by the appellant and he accepted the offer on the understanding that the respondent could be paid some fees by petitioners. However, such fees had not been agreed.

The court also heard that there were other (named) lawyers who were also instructed in the petitions and that the respondent, alongside those other lawyers, had been introduced to the petitioner in the said Election Petition  and had received direct instructions from the petitioner in that petition. 

“In those circumstances Rule 7 of the Advocates (Practice) Rules was not applicable as there was no Advocate/Client relationship between the appellant and the respondent and a bill of costs could not lie against the appellant,” said Nyachoti.

The appellant further took the position that the respondent’s fees await taxation of the Advocate/Client bill of costs filed by the appellant against the petitioner in Election Petition No. 5 of 2017.

While opposing the above through his replying affidavit, Apondi denied that he had volunteered any services in the election petition stating firmly that he had his own law firm and was a free-lance lecturer in various institutions of higher learning.

The respondent further stated that there was no arrangement where his fees would be paid directly by the said petitioner in Election Petition No. 5 of 2017. The respondent decried what he saw as technicalities being taken by the appellant “…. to deny the respondent access to legal fees that have been claimed almost two years after the trial Judge had given judgment and restricted what was due to each Counsel.”

The court heard that both parties filed written submissions in the High Court and the respondent attached to his submissions various documents including a 

summary of election petitions being handled by various lawyers in different courts, letters from the appellant to the respondent including a letter dated 24th July 2018 where it was proposed by the appellant that the respondent be paid a sum of Sh 800,000 “….. full and final settlement of the outstanding amount. This will be in addition to the payments already made to your firm.”

The high court judge found in his ruling delivered on 31st August 2019 that Rule 7(1) of the Advocates (Practice) Rules, 1966 applied to the relationship between the appellant and the respondent. The Judge dismissed the application ordering that the bill of costs filed by the respondent against the appellant proceed for taxation notwithstanding the Advocate/Client bill of costs filed by the appellant against the petitioner in Election Petition No. 5 of 2017.