1. Introduction

1.1 MW and Company Advocates LLP (MWC Legal) is full-service law firm based in Kenya that offers high-quality legal services and solutions to its clients. MWC Legal has established regional networks in the East African Community (EAC) capitals offering high quality legal services in order to match our clients’ business footprints and ambitions. Our focus is to provide legal and commercial business solutions to clients to meet client needs, expectations and realities. Client satisfaction is the ultimate goal of our legal practice. Values are integral to MWC Legal in all its dealings. We are guided by our core values of competence, passion, expediency and integrity in execution of client instructions.

1.2 We are a limited liability partnership (LLP) duly registered in Kenya under the Limited Liability Partnerships Act, Cap 30, Laws of Kenya. Our office is at MWC Legal, AK 119, House No. 4 Adjacent to the Malawi Chancery/High Commission & Toyota Kenya, Westlands, Nairobi.

2. Terms and Conditions

2.1 These Terms, together with our letter of engagement to you, form our agreement with you to provide legal services and apply to each matter we work on with you. If there is a conflict between these Terms and our letter of engagement, these Terms will prevail, unless the engagement letter expressly overrides them.

2.2 We may update these terms from time to time in response to legal, regulatory and technological changes, and any other relevant changes. By continuing to instruct us, you are deemed to accept our current Terms of Business.

3. Our Services

3.1 Our focus is to provide legal and commercial business solutions to clients to meet client needs, expectations and realities. We therefore require your full cooperation and assistance and all those working with you or for you. We will rely on you to provide or cause others to provide us with the information and assistance necessary to provide our services in a timely and effective manner.

3.2 We only advise on matters within the scope of our instructions, as set out in our letter of engagement. Unless your letter of engagement clearly says otherwise, we will not advise you on the financial or tax aspects of any matter, or on your wider tax or financial interests or on accounting and commercial issues (including on the viability and prudence of this matter) even if a relevant issue arises during the course of our work together. You may therefore wish to seek separate specialist advice on these matters.

3.3 Our advice is intended solely for you. We therefore do not accept or assume responsibility to anyone other than the clients identified in our letter of engagement. Unless we agree otherwise in writing, you must not share our advice with anyone else.

3.4 While we take reasonable measures to keep abreast of developments in law and policies we are unable to guarantee that we have received timely notification of any such developments.

3.5 If our services to you are delayed by an event outside our control, we shall contact you as soon as possible to let you know and do what we can within our means to reduce the delay. As long as we do this, we will not be obliged to compensate you for the delay, but you always have rights to terminate your instructions in accordance with these Terms.

4. Client Obligations

4.1 You agree to:

(a) Provide us with clear, timely and consistent instructions, and respond fully, frankly and quickly to our requests for information and co-operate with us and those we instruct on your behalf. The information you give us must be full and accurate, to the best of your knowledge and belief. We don’t verify the information you give us, unless we have expressly agreed to do so.
(b) Tell us straight away if your contact details change.
(c) Take all reasonable steps to properly secure your communications with us through among other things protecting the email and computer systems used for your matter.
(d) Respect our regulatory restrictions.
(e) Pay money on account and our invoices in accordance with these Terms and our letter of engagement.
(f) Verify any change of our payment details received by email. If you are told about any change of our bank details by email, then even if it appears to come from our firm, you must call us on the numbers provided on our website www.mwc.legal immediately to check the email is genuine.

5. Communication

5.1 For convenience and speed, we will correspond with you by email and rely on communications coming from your email account. However, noting that email is inherently insecure we shall not be responsible for loss or damage caused by email use. In any event, we will not accept any emailed instructions from you to alter your banking details or instructions on where money should be sent without separately verifying the instructions with you.

5.2 Our filtering software may prevent us receiving emails from you or in relation to your matter and we are not responsible to you for losses resulting from this.

5.3 We may give advice and information to, and act on instructions from, any of the individuals to whom our engagement letter is addressed without the need to copy such advice to, or to confirm such instructions with, the other(s). You can let us know in writing that we are authorised to deal with someone else on your behalf in this way. For organisations, we may ask for a formal resolution confirming who can instruct us.

5.4 Unless there are documents that we need to send to you in hard copy or reasons to meet with you in person, we will communicate with you by email and telephone. While we have taken reasonable security measures, you acknowledge that there are inherent risks with email communication and that we are not responsible for loss or damage caused by email use. Please let us know as soon as possible if you prefer an alternative method of communication.

6. Timelines

We will work within the timelines agreed upon with the Client based on the following assumptions:
(a) you shall provide us provide us with clear, timely and consistent instructions;
(b) you shall respond fully, frankly and promptly to our requests for information;
(c) you shall cooperate with us and those we instruct on your behalf, if applicable;
(d) the information provided to us is full, accurate and to the best of your knowledge and belief;
(e) you shall comply with your obligations to us as set out in this letter of engagement and its enclosures and respect our decision not to do something that would constitute a breach of our legal, professional or regulatory duties;
(f) you shall provide us with any required sums on account of costs and pay our invoices on receipt;
(g) the scope of our instructions set out in paragraph 2 of this letter shall not change; and
(h) the matter shall proceed smoothly with no unanticipated complications, disputes or conflicts of interest.

7. Opening Hours

7.1 We are normally open between 8.00 am and 5.00 pm Monday to Friday, except for gazetted public holidays and religious days. Our staff may sometimes respond to communications and work outside of our normal office hours but only at our discretion and as such, we ask you to respect that there will be times when we are not available. There is likely to be a delay in the execution of work during the holiday period especially during public holidays and religious periods. Clients are urged to plan accordingly.

8. Conflict of Interest

8.1 Before accepting instructions, we will carry out an internal conflict check to ensure that to the best of our knowledge and belief, we have no conflict of interest that would affect our acting for you in a particular matter. We will contact you immediately we discover that we have such conflict.

8.2 We are bound by professional rules regarding conflicts of interest and the situation may develop where, because a conflict of interest arises, we have to cease acting for you. Even where no conflict exists, there may be occasions when we act for, or are aware of information regarding, other clients who may be in a similar business to you or whom you may consider as your competitors. We will be under no duty to disclose such information to you where such disclosure would be a breach of confidence owed to another client or third party.

8.3 You hereby accept that our duty of confidentiality to other clients of the firm overrides any competing duty, including a duty to disclose all relevant information, owed to you. Where appropriate, our firm shall put in place information barriers to safeguard clients’ interests.

9. Identity and Source of Funds

9.1 As a law firm, we must comply with different legal and regulatory requirements aimed at preventing crime. You agree to co-operate with us in order to verify your identity, your business structure, organisation history and sources of income and other matters relevant to discharging our legal and professional duties in this respect. This may providing us with identification and other documentation for verification, but could also involve disclosure of more personal information such as bank statements and evidence of income.

9.2 The information required from you is as set out in our letter of engagement. We may from time to time require you to update the information shared in accordance with paragraph 8.1 above and reserve the right to decline instructions or terminate our engagement if you fail to provide the required information within a reasonable period of time.

9.3 If we have to report information about you or your matter to the Financial Reporting Centre in accordance with the Proceeds of Crime and Anti-Money Laundering Act, Cap 59A Laws of Kenya, we may be prevented by law from informing you of this fact. If this happens we may terminate our engagement with you on your matter and withhold your money without notice or explanation to you, until the issue is resolved.

10. Charges

10.1 Our fees for our services are calculated either on the basis of time spent or on a fixed, capped basis and may be staggered, as set out in our letter of engagement.

10.2 If our fees are calculated on a time spent basis:

(a) Our hourly rates shall be as set out in our letter of engagement and are subject to review from time to time to take into account any changes in our overheads and other costs. We may therefore increase our hourly rates at the start of a new year or in the event the nature of your instructions change including if the matter we are working on is deemed to be more urgent. We shall give you advance notice of any increases.
(b) Any estimate of the total charges (fees, disbursements and expenses) for dealing with your matter or reaching a certain stage in it, as well as estimates provided on our letter of engagement, are not binding. We may update estimates as a matter progresses, and you hereby agree to pay all our charges even if they exceed any estimates provided.

10.3 If we have agreed a fixed or capped fee with you:

(a) If the assumptions on which the fixed or capped fee are based (as set out in our letter of engagement) prove incorrect, we may increase our fixed or capped fee or switch to charging you on a time-spent basis. If we switch to charging on a time-spent basis, we will provide you with an estimate of our fees to complete the matter prior to proceeding with the matter.
(b) If you terminate our instructions (other than on account of a breach on our part) we reserve the right to charge you the full fixed fee or on a time spent basis for the work we have done prior to termination, whichever is higher.

10.4 All hourly rates, estimates, fixed, capped or staged fees we quote to you are exclusive of the following, which you must pay in addition:

(a) Office Disbursements. Unless otherwise agreed, we charge office disbursements at the rate of 5% of the legal fees to cater for among others, costs of document production (scanning, photocopying, binding), telephone costs, payment transfers and internet expenses.
(b) Direct Disbursements. We may instruct relevant third parties to provide services to you, pay official fees, procure completion documents and register transaction documents, make payments to the relevant government bodies or carry out searches for you. You will be responsible for associated charges and direct costs (disbursements) at the actual cost incurred. Unless otherwise provided in our letter of engagement, we shall inform you before we incur expenses of more than Kenya Shillings Fifty Thousand (KES 50,000/=).
(c) VAT. We levy VAT on our fees and, where applicable, on disbursements and expenses, unless expressly stated otherwise. VAT is currently chargeable at 16%.

10.5 We may, subject to the terms of your letter of engagement, require you to pay an appropriate amount on account for our charges (fees, office disbursements and direct disbursements) before we start work and to top it up from time to time. Such funds will be held in a client account in accordance with the Advocates (Accounts) Rules (Account Rules) enacted pursuant to the Advocates Act, Cap 16, Laws of Kenya. Please note that all charges (fees, disbursements and expenses) paid to us in advance shall be deemed to be fully earned upon receipt and shall not be refundable under any circumstances including but not limited to early termination of our engagement.

11. Billing

11.1 We may invoice you regularly and on completion of your matter or at the intervals indicated in your letter of engagement. We may subject to the terms of your letter engagement, raise a Fee Note, Quote, or a Deposit Request Note (DRN) requiring you to deposit funds prior to issuance of a tax invoice. Unless otherwise stated in your letter of engagement, we shall only issue a tax invoice upon receipt of funds in accordance with the DRN.

11.2 All payments on account of our fees and disbursements shall be settled by way of cheque or by bank transfer to the bank account indicated in our letter of engagement.

11.3 Our bills are payable immediately upon presentation but in any case not later than fifteen (15) days from the date of issuance. We charge interest on unpaid bills at a rate of 1% per month from the due date until payment in full. Additionally, if any of our bills remain unpaid, we reserve the right to decline to act any further on the matter in question and on any other matters in respect of which you have instructed us.

11.4 You shall at all times be liable to settle our bills regardless of any arrangements involving payments made on your behalf.

11.5 If we are instructed by more than one person, then we may, as circumstances dictate, require any of those persons to pay our bills in full (joint and several liability).

11.6 In the event of a dispute regarding an invoice, please follow our complaints procedure (see paragraph 13).

11.7 We reserve the right to tax our bills or unpaid costs in a court of law if deemed necessary.

12. Client Account

12.1 We may hold money on your behalf in our client accounts established in accordance with the Account Rules. Whilst we take reasonable steps to monitor circumstances relating to our bankers and take such action as we deem necessary to protect our client’s finances, we do not accept responsibility for the solvency of any particular bank or any currency risks and shall note responsible for any loss resulting from the failure of any bank where your funds are held. Please notify us in writing, if at any time you wish that you funds be held in a specific account or in any particular bank. Following our receipt of such instructions, we shall to the extent that is reasonably practicable, open that other account at your sole risk and expense. For the avoidance of doubt, we are not qualified nor do we purport to offer any assurances as to the solvency of any of the banks that we may use from time to time.

13. Limitation of Liability

13.1 Notwithstanding anything to the contrary, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty or otherwise, arising under or in connection with these Terms for any indirect or consequential loss.

13.2 We will also not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty or otherwise, arising under or in connection with these Terms for any loss arising as a result of:

(a) our complying with our legal and regulatory duties, such as delays or disclosures arising in the context of compliance with anti-money laundering legislation;
(b) errors or defects in third party services instructed by us on your behalf or used by us in the provision of services to you, provided we use reasonable skill and care in selecting and appointing those third parties;
(c) circumstances beyond our reasonable control (see paragraph 3.5);
(d) loss or damage caused by email use, provided we have taken reasonable security measures (see paragraph 5.1); or
(e) failure of any bank (see paragraph 11.1).

13.3 We may agree with you a liability cap for any given matter. This will ordinarily be agreed in our letter of engagement before beginning work on the relevant matter. Where a liability cap is agreed, it will apply to our aggregate liability to both you and to any other client for whom we are instructed in that matter. The cap will apply whether the liability arose in contract, tort (including negligence), for breach of statutory duty or otherwise and whether it arises under or in connection with these Terms. Where a liability cap is not agreed in our letter of engagement, our total aggregate liability for a single event or a series of events shall in no event exceed the maximum professional indemnity cover that we may have in place from time to time in relation to the relevant matter.

13.4 Services are provided by our staff for and on behalf of MWC Legal. Our staff do not assume any personal responsibility to our clients in relation to work carried out under these terms and any personal liability of any member of staff is therefore excluded. Any claims must be brought against MWC Legal. You agree not to bring any claim (including in negligence) against any employee or member of our staff including principals (that is members) as individuals in their personal capacity in connection with any loss or damage suffered in connection with our services. If you do bring a claim against any of our staff, they can rely on these Terms, including its limitations of liability.

14. Publicity
At the end of each transaction, in common with other law firms (and subject to our duty of confidentiality as set out above), we like to inform certain legal and trade journals and publications about the transactions which we have completed and use details of the transaction for our own publicity purposes. Typically, this involves identifying the parties involved in the transaction, describing the nature of the transaction and giving details of the Firm’s personnel involved and, if not confidential, the approximate value of the transaction. Please let us know as soon as possible if you have any reservations to the foregoing.
In the event that you, or others, intend on making any public announcement in respect of the transaction, we would like to include reference to the Firm and its role, subject to our prior approval of the text.
15. Indemnity

You hereby agree to indemnify and hold us harmless against any expenses, damages, losses and liabilities (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other professional costs and expenses) suffered or incurred by us, in connection with or arising out of the provision of our services to you and/or at your instruction.
16. Force Majeure
Please note that the Firm shall not be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control. However, if the period of delay or non-performance continues for sixty (60) days, you may terminate this letter of engagement by giving not less than thirty (30) days’ written notice to the Firm.
17. Termination

17.1 You may terminate your instructions to us at any time by thirty (30) days’ prior written notice. However, if we have already provided a professional undertaking to a third party on your behalf, it will be an automatic pre-condition of our undertaking that your instructions to us are irrevocable, or alternatively, that you obtain the written discharge by the third party of our undertaking prior to the termination of our appointment.

17.2 We may also terminate our engagement by reasonable prior notice, if we have reasonable grounds to do so, including without limitation breach of these Terms or our letter of engagement by among other things, not giving timely instructions or paying our invoices on time.

17.3 We may also terminate our engagement with you if among other things, the advocate-client relationship of trust and confidence has broken down, if we discover a conflict of interest, if to proceed would otherwise be contrary to legal or regulatory duties, if the risk profile for your case has significantly changed or if you experience an insolvency event.

17.4 Upon termination of our engagement, you must pay our charges (fees, disbursements and expenses) incurred up to the point of termination, as well as any charges we incur after termination including without limitation the costs of transferring your file to another adviser or removing ourselves from the court record.

17.5 Please note that if you do not pay our invoices on time, we may retain documents, deeds and other items relating to any matter we are working on for you until you have done so (subject to such information that may be available to you under data protection laws).

18. Intellectual Property

18.1 We retain all intellectual property rights in the advice which we provide and the documents which we prepare but permit you to make use of such work for the purposes of your particular matter only.

18.2 When your matter is completed or our engagement is otherwise terminated, unless you request the return of any documents you have supplied to us, we will retain them for as long as we deem necessary for legal and regulatory reasons.

19. Complaints Procedure

19.1 We hope that you are happy with the service we provide. If at any stage you have concerns or wish to make a complaint, inform the person handling your matter straight away about the nature of your concern. If you do not feel comfortable speaking with the individual handling your matter, then you can contact our managing partner or one of our partners directly (see our website for details). If the person handling your matter cannot promptly resolve your concerns, then it will be dealt with as a formal complaint under our complaints policy. This process involves an investigation of the concerns by a senior member of our firm. We will then write to you within eight (8) weeks setting out our final response to the complaint and how you can pursue your concerns further if you do not agree with our proposed resolution or outcome.

19.2 You agree that, before commencing any legal action against us in relation to any allegation of negligence or breach of duty, that the firm’s complaints procedure shall have been exhausted.

20. Confidentiality

20.1 We will respect the confidential nature of any information or documents which we receive from you and your other advisers while acting for you. We will not disclose any information or documents confidential to you, to any person outside the firm or to any person within the firm without your prior consent (unless in our opinion that person needs to know that information to assist in the conduct of the matter or we are required to do so by any law, Court order or regulation or professional or ethical rule or guideline applicable to us). As you will understand, we owe the same duty of confidentiality to our other clients and, therefore, we will not disclose to you any information which has been given to us in confidence by any other person in relation to any other matter, without that person’s prior consent.

20.2 We will keep confidential information we obtain through our services confidential, but we reserve the right to use and disclose it to:

(a) deliver those services, which may include storing confidential information on our computers, in our email and in the cloud;
(b) comply with the law, including by performing conflicts of interest checks for new cases against a list of current and former clients, reporting suspicious activity to the relevant regulatory bodies if we suspect money laundering and responding to freedom of information requests; and
(c) comply with requests by regulators and other competent authorities.

21. Outsourcing

We are at liberty to outsource services to external third-party providers. We routinely use external service providers to conduct searches, register documents or any other service. Unless expressly prohibited in our retainer letter, we are under no obligation to notify you in advance of any outsourcing. We take reasonable care in the selection of third-party service providers but accept no liability on their behalf.

22. Data Protection

22.1 For information about how we deal with your personal information, see our privacy policy as published on our website. By instructing us, you fully consent to the terms of our privacy policy and data protection policy available on our website.

22.2 You can withdraw consent to your information being used in a particular way, but this may limit what more we can do for you (if anything).

22.3 As a client we may in the future send you a newsletter or similar. We find that most clients find this helpful. We rely on the legitimate interest we have in maintaining contact with former clients to do this in compliance with data protection law and your consent. However, we will never share your information with third parties to market to you and will not contact you about non-legal services. We will make it quick and easy for you to opt out of future communications in every communication we send. If you already know that you do not want to receive these messages then you can opt out now by emailing us via info@mwc.legal.

22.4 We do not use your personal information to make automated decisions which affect you.

22.5 Generally speaking, we will not share your information with third parties unless this is part of the work on your legal matter. For example, lawyers frequently may need to send certain information about clients to other lawyers working on the matter, to court or to government bodies. In rare circumstances we sometimes need to make reports of suspicious activity to the relevant regulatory bodies. We also work with some trusted contractors or consultants who may have access to your information, such as service providers or copiers. All contractors have a contract with us which requires that your information be accessed appropriately and kept confidential (among other data protection requirements). Similarly, we may occasionally need to share client matter information with our professional indemnity insurers and their advisers. If you instruct us jointly with another client then it will be necessary to share certain information relevant to you with the corresponding joint client in order to fulfil your instructions to us.

22.6 While we reserve the right to destroy non-original material at any time after the conclusion of your matter, we generally retain files for a period of six years after payment of the final bill and destroy them thereafter unless otherwise requested in writing. At the end of a matter, original documents will be returned to you but, if we both agree, we may retain certain documents for a longer time period. We reserve the right to charge you for the costs of this additional storage if the volume of the files is large. We will also always keep a small amount of information after file closure to do conflicts of interest searches in the future to comply with our professional duties.

22.7 Our general contact details are set out in our covering letter and the contact details for our managing partner can be found on our website. Please contact the managing partner if you want to exercise one of your data protection rights and in particular if you:

(a) wish to complain about how your personal data is being used; or
(b) wish to request that our records about your personal information be corrected or deleted.

23. Governing Law and Dispute Resolution

23.1 These Terms shall be governed by and construed in accordance with Kenyan laws.

23.2 In the event of a dispute, controversy or claim arising out of or in connection with these Terms (including any question regarding its interpretation, existence, validity or termination), either party may by written notice request that the dispute, controversy or claim be settled through amicable settlement. If the dispute, controversy or claim cannot be settled within thirty (30) days of one party of the other party’s request, the parties shall refer the dispute to a mediator agreed upon between them and if within thirty (30) days of one party requesting mediation the parties do not agree on a mediator or fail to settle the dispute through mediation, we may elect to refer the dispute to arbitration to an arbitrator appointed by the chairman for the time being of the Chartered Institute of Arbitrators, Kenyan Branch. The arbitration proceedings shall be subject to the provisions of the Arbitration Act, 1995, the language of arbitration shall English, and the place of arbitration shall be Nairobi. The arbitration tribunal shall apply the substantive laws of Kenya in determining any such dispute, difference or claim.

23.3 In the event of any intended or actual proceedings between the parties, it is agreed that neither party shall make any public announcement or comment on the dispute or disclose any details of the dispute to any third party (apart from professional advisers assisting with the dispute itself) without the written consent of the other party.

24. General

24.1 These Terms are only applicable between you and us. Other than our staff (see paragraph 9.6), nobody else has rights under it or can enforce it. Neither of us will need to ask anybody else to sign-off on ending or changing it.

24.2 If a court or other authority decides that some of these terms are unlawful, the rest will continue to apply.