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How Lawyer Nelson Havi Used Legal Loophole To Demand More Money From A Client

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2 years ago

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Former Law Society of Kenya President Nelson Havi.

Former Law Society of Kenya President Nelson Havi is locked in a viscous court battle with a client over legal fee that is claimed to have been bloated. The client is accusing Havi of going against their initial agreement while the lawyer is hanging on a legal loophole to legitimize his claim.

Communications Authority of Kenya chairperson Mary Wambui is contesting a Sh133.7 million invoice raised by Havi & Company Advocates, claiming that she was to pay Sh12.18 million round figure for all eight cases with a value of Sh5.86 billion in which the law firm represented her.

When an advocate and client differ over legal fees, the former files a bill of costs before the deputy registrar, who is referred to as a taxing master. The client can then contest the bill before the deputy registrar decides.

Mr Havi won the first round of the battle, as deputy registrar Stephany Bett in December refused to strike out his bill of costs.

The losing party can challenge the decision by filing a reference before a High Court judge.

Ms Wambui has now challenged that decision at the High Court, insisting that she had a prior agreement with Mr Havi to pay Sh12.18 million for all eight cases.

But Mr Havi insists that Ms Wambui’s challenge cannot be called a reference from the deputy registrar, as no determination has been made on his bill of costs.

Mr Havi represented Ms Wambui, her daughter Purity Njoki, and seven companies owned by the CA chairperson in eight cases filed against them by the Kenya Revenue Authority (KRA) in 2021.

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In the cases, the KRA also sued several banks, as the taxman sought to attach accounts to recover Sh5.86 billion.

The Loophole

On June 29, 2023, Mr Havi filed eight bills of costs, one for each case in which he represented Ms Wambui and her group, seeking Sh133.7 million.

Ms Wambui then filed an application seeking to strike out the bills, as she claimed that there was a prior agreement for Sh12.18 million which she had settled in full.

On December 6, 2023 deputy registrar Ms Bett dismissed the applications, holding that there was no evidence of an agreement on a fixed fee between the advocate and his client.

Ms Wambui argued that a letter from Havi & Company Advocates demanding Sh12.18 million was an agreement to pay the amount as a final fee for all eight cases.

Deputy registrar Bett agreed with Havi & Company Advocates in ruling that the letter Ms Wambui cited did not cite the Sh12.1 million as a final fee.

Ms Bett held that such an agreement for a fixed fee must be clear on what the final fee is, and must be signed by the client. She added that there was no evidence of a binding agreement capping the legal fees at Sh12.18 million.

“In this case, both the letters are not signed by the client. Whereas an agreement my view, for a document to be said to constitute a valid and binding agreement for purposes of section 45 of the Advocates Act, the same must not only be unequivocal that it signifies what the final precise final amount is but must be signed by the person to be charged who in this case is the client,” Ms Bett ruled when dismissing Ms Wambui’s objection to the bill filed by Mr Havi.

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In her case before the High Court, Ms Wambui now claims that the deputy registrar was wrong to find that a fee agreement must be signed by both the advocate and the client.

She further claims that Ms Bett relied on the wrong principles of law in refusing to strike out Mr Havi’s bill of costs.

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