An advocate has suffered a setback after losing a claim for Sh1 billion in legal fee against the Kilifi County government.
The fee was charged for drafting a 2014 agreement between Kilifi and a private firm engaged to collect cess and parking fees revenue during the rein of the then governor and current Senate Speaker Amason Kingi.
Stephen Kithi Ngombo claimed the payment as special damages for legal fees due for the drafting of first and second agreement for the engagement of Raindrops Ltd to collect the revenue projected annually at Sh1 billion or more for a period of 15 years and conservatively totaling Sh15 billion, which was the first agreement.
However, Justice Stephen Githinji rejected the advocate's claim, noting that it was time-barred as it was filed outside the time frame permitted under Section 3 (2) of the Public Authorities Limitations of Actions Act Cap 29.
This provision states that no proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.
Court records show that the advocate executed his duties of negotiations and drawing the two agreements but filed the claim for his billions in 2022, which is eight years from the time he completed his task.
“I find that the claim is time barred. The claim cannot therefore be realised through a legal action in a court of law but probably through other means like mediation, or rather out of court settlement. As such, this claim must fail,” Justice Githinji said in a ruling dated December 17.
The judge noted that the advocate failed to offer a plausible explanation as to why he took eight years to file this claim.
The county in its defense largely denied the advocate’s claims.
Justice Githinji nevertheless agreed that there was a valid contract and that the parties were at liberty to enter into a remuneration agreement under Section 45 of Advocates Act.
The advocate’s case is that in December 2013, he received instructions from the county to negotiate terms of and prepare an agreement between the devolved unit and Raindrops Limited (as agent) involving collection of cess and parking fees revenue.
“I carried out the task as per instructions given, up to the execution of the first agreement on February 20, 2014 which was duly registered on the same day and the revenue stamp affixed on April 3, 2014,” said Mr Kithi.
He stated that again on February 20,2014, the county issued him with instructions to further negotiate the terms of and amend the first agreement which led to the execution of the second agreement on March 28, 2014, registered on the same day and a revenue stamp affixed on April 3, 2022.
“The claim before the court is for non-payment of legal fees due and payable by the defendant to the plaintiff in respect of the two agreements on collection of county revenue,” he said.
On cross examination by the county lawyer Ole Kina, Mr Kithi said his fee was payable upon him writing a fee note to the client.
He clarified that upon completion of the first agreement, his fee was payable but he was engaged in negotiation for the second engagement within three days after the first agreement and was further engaged until the county asked him to write a termination letter.
“If in writing and signed by the client –advocate it would be valid and binding. The Advocates Act protects advocates fair remuneration on the basis of taxation based on the Advocates Remuneration Order,” the judge said.
The judge added that parties are bound by the terms of the contract and that courts cannot rewrite contracts between them.
