1. Our Services
We at O&M Law are a full service law firm and our aim is to provide you with tailor made solutions to your legal requirements. It is important that we and our clients share an accurate understanding of the basis on which we provide our services and how we operate. In providing our services, we require your full cooperation and assistance and of all those working with or for you. We will rely on you to provide or cause others to provide us with the information and assistance which is necessary to perform our services in a timely and effective manner.
2. O&M Law’s Duty to the Client
We will provide the services described in our engagement letter (or such variations as may subsequently be agreed in writing between us) with reasonable skill and care and in a timely manner.
3. The Client’s duty to O&M Law LLP
To fulfil our responsibilities, you agree to provide us with complete, accurate and timely information and to carry out any obligations ascribed to or undertaken by you or others under your control. You agree that any commercial decisions that you make are not within the scope of our responsibilities, and in making such decisions, you must take into account the restrictions on the scope of our work and other factors, commercial and otherwise, of which you and your other advisers are, or should be, aware from sources other than our work.
4. Conflicts of Interest
Before accepting instructions we will carry out an internal conflict search to ensure that to the best of our knowledge and belief we have no conflict of interest which would affect our acting for you on the particular matter. We will contact you immediately if we discover that we have such a conflict. 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.
Unless otherwise agreed with you, our charges are based on the time we spend and will reflect the experience expertise and number of personnel involved in the matter. Our charges will include the scope of work as laid down in the engagement letter. Our hourly rates are detailed in the letter of engagement which we will send to you for each matter on which we are instructed. Our rates are subject to review from time to time to take account of any changes in our overheads and other costs. Any increase in our charges will normally take effect on 1 January each year. In relation to any ongoing matters, any change will be notified to you in writing. Where appropriate other factors set out in the Advocates Remuneration Order issued and currently in force under the Advocates Act of Kenya may be taken into account, notably complexity value and importance. Sums incurred by the Firm on your behalf (such as stamp duty, search fees, agent’s fees and all other disbursements) will be chargeable in addition, as will expenses incurred on telecommunications and copying. Our rates are exclusive of VAT presently capped at 16%. Quotations and estimates do not include value added tax unless expressly stated. You should note that it is often not possible to estimate costs accurately in advance.
6. Client Deposits
If the Firm holds money on your behalf, the money will be kept with our usual bankers unless you instruct us to the contrary. Client funds, not held on account of fees and disbursements, are not entitled to receive interest unless by prior arrangement; in which event that rate of interest (net of withholding tax) shall be advised to the client. The Firm’s Pro forma Invoices are due and payable on delivery. The Firm is entitled to charge interest on any sum unpaid one month after the date of delivery of a bill at the rate prescribed under the Advocates Remuneration Order.
We are always prepared to estimate in advance the amount of time that may be required for any particular piece of work. Unless otherwise specified, any estimate of charges given will be exclusive of any VAT and/or disbursements. Where an estimate is given, you should understand that it is given in the light of assumptions based on our current knowledge of any matter and our current assessment of the amount of work necessary to fulfil our instructions. If any of the assumptions prove to be incorrect or our instructions are altered, we may need to revise the estimate to reflect any additional fees which are likely to become payable as a result, but we will keep you informed of any significant changes to the estimate as the work progresses.
Disbursements are additional expense incurred by us. Unless otherwise agreed, a flat fee of 3% on the charges for time spent will be made for printing, photocopying, telephone calls, faxes and secretarial support. Other disbursements and out of pocket expenses are charged at cost. Disbursements may be subject to VAT and this will be added where appropriate.
9. Billing Arrangements
We will render bills at times to be agreed between us or, in the absence of agreement, on a monthly basis and on completion of each matter. In the case of transactional work covered by a fixed fee, we reserve the right to ask for payment on account to reflect the work actually carried out. All our bills are payable on presentation. All payments on account of our fees and disbursements should be sent to us by cheque or by bank transfer to the bank account indicated by us. We will not in any case accept a payment in cash. If you have any query about any of our bills, please contact the relevant partner as soon as possible.
10. Late Payment of Bills
If any of our bills are not paid within 30 days of presentation, we reserve the right to charge you interest on the bill at a monthly rate of 3% above the KCB Bank lending rate, from the date on which payment of our bill is due until the same is settled. In addition, if any invoice remains 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 . Payment on Account
It is our policy with new clients to ask for a payment on account of costs and with all our clients to ask for a payment on account before incurring large disbursements. Any payments on account required will be requested in our letter of engagement or subsequent correspondence. Such money will be held in a client account. At the conclusion of the matter, we will return any balance to you, after we have deducted any outstanding monies in respect of our fees and disbursements and any applicable VAT thereon.
12. Limitation of Liability
If you incur any expenses, damages, losses or liabilities whatsoever (including, without limitation, legal fees) in connection with or arising from the provision of our services or as a result of any advice we have given or have failed to give you, whether as a consequence of negligence or otherwise, and our liability to you as a result is established, our total aggregate liability to you for an event or series of connected events shall in no circumstances exceed the maximum professional indemnity cover that we have from time to time in relation to the relevant matter.
13. File Storage
At the end of a matter the file dealing with your matter will be archived for a reasonable period with no expense. However, a charge may be made for storing any document in safe custody or retrieving the file from storage at your request and for supplying copies of any documents.
14. Joint and Several Liability
Where you have a number of advisers, including O&M Law, advising you on a matter, there is a risk that we will be prejudiced by any limitation of liability which you agree with another of those advisers. You agree that our position will not be adversely affected by any other agreed limitation of liability with any of your other advisers. Consequently, we will not be liable to you for any amount in excess of our proper share of a joint and several liability which we are not entitled to recover from any other of your advisers by reason of your agreement to limit their liability.
We will respect the confidential nature of any information or documents which we receive from you and your other advisers while acting for you. If a transaction is carried out on behalf of a client that involves the proceeds of crime we, subject to our duties under law to disclose any knowledge or suspicion, 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 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. We do, on certain occasions, outsource certain of our office services to third party organisations, such as bulk photocopying, but only after taking into account the level of confidentiality of the subject matter, and subject to contrary instructions from the client. In such circumstances, we will take appropriate measures to maintain client confidentiality, both in relation to the third party organisation and to its employees working on our matters. You agree that where we have acted for you on a matter which is in the public domain (or is otherwise not confidential), we may disclose that we have acted for you in the matter concerned, provided that we do not disclose any details of the transaction which are not publicly known.
16. Anti- Money Laundering
You hereby agree and confirm that all sums provided by you to the Firm pursuant to any Instructions to be effected by the Firm on your behalf and in accordance with these conditions shall not constitute the proceeds of crime as defined in the Proceeds of Crime and Anti-Money Laundering Act (No. 9 of 2009) or otherwise be illegal funds under the Prevention of Terrorism Act (30 of 2012) or any other written law.
17. Anti Corruption and Bribery
The Firm shall at all material times comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Proceeds of Crime and Anti-Money Laundering Act (No. 9 of 2009), The Bribery Act (No. 47 of 2016) and the Penal Code (Cap 63) and not engage in any activity, practice or conduct which would constitute an offence under the Proceeds of Crime and Anti-Money Laundering Act (No. 9 of 2009), The Bribery Act (No. 47 of 2016) and the Penal Code (Cap 63); and comply with the Firm’s Anti-Corruption and Bribery Policy.
18. Use of electronic mail
The use of email is particularly convenient as a means of communication, and for the sending of draft documents as attachments, and we shall use email to correspond with you on a general basis, unless you instruct us otherwise. Although we take the integrity of our system very seriously, and take reasonable precautions to ensure that communications are virus free, you are probably aware that the effectiveness or security of email as a method of transferring confidential and often commercially sensitive information cannot be guaranteed unless sophisticated encryption technology is used. Accordingly, we cannot guarantee the security or confidentiality of the email system. Further, the operation of the internet cannot guarantee that an e-mail sent by you to us will actually reach us or its intended recipient. Similarly, we cannot guarantee that our e-mail will reach you. You should seek confirmation of safe receipt of urgent or sensitive e-mail by contacting us by telephone. Similar considerations apply to communications by fax. Unless you instruct us otherwise, you agree that we may correspond with you or on your behalf by e-mail and you accept that such communications may not be secure or confidential and that they may not necessarily reach their intended recipient and that we cannot accept responsibility for any loss which you may suffer as a result of the use of e-mail for communication. Similar considerations apply to communications by fax.
We are confident that we will provide you with a high quality service in all respects. If however you have any queries or concerns about our work please raise them initially with the relevant fee earning associate. If you still have issues which are not resolved to your satisfaction, please raise them with the partner(s) specified in the engagement letter in writing.
20. Termination of our Appointment
You may terminate your instructions to us in writing at any time and you will remain liable for all our charges incurred up to the date of termination. If at any time the outstanding amount due to us for invoices rendered to you becomes excessive we may consider whether we can continue working. We will give reasonable notice if we decide to stop acting. In accordance with normal practice, we may retain all papers and documents while there is money owing to us for our charges and expenses. If at any time you fail without reasonable cause to give the Firm any instructions requested for a period of one (1) month, we may opt to cease working for you after having given reasonable notice to effect the same. If at any time you fail to pay any deposit requested within one (1) month or such lesser period as may in the circumstances be reasonable of such a request being made, the Firm will have the right to cease work and determine our retainer by giving you written notice at your last known address.
21. Resolving Problems
It is important to us that any concerns are promptly raised so that we can deal with them appropriately. It is the firm’s policy to investigate complaints and expressions of dissatisfaction fully and promptly. 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.
22. Law and Jurisdiction
You agree that these terms and conditions and any non-contractual obligations arising from or in connection with them, are governed by the laws of Kenya and you submit to the exclusive jurisdiction of Kenyan Courts to decide any matter in connection with or arising out of our acting for you. In any case where it is intended that legal proceedings shall be issued against us (or any partners or other individuals from O&M Law) in any jurisdiction, we may elect that the relevant dispute, difference or claim be referred to arbitration. Our election in favour of arbitration must be made within forty two (42) days of receipt of written notice of your intended claim against the firm. Any arbitration shall be subject to the rules of the Kenya Branch of the Chartered Institute of Arbitrators, the language of the arbitration shall be English and the place of the arbitration shall be Kenya. The arbitral tribunal shall apply the substantive laws of Kenya in determining any such dispute, difference or claim. In the event of any intended or actual legal proceedings between the parties, it is agreed that neither party shall make any public pronouncement 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.
23. Client Satisfaction
A satisfied client is the best recommendation for the work of the Firm and one that we would hope will return to us in the future. We welcome suggestions as to how we may improve our service. Nevertheless, misunderstandings and problems do arise and in such cases, we would ask that clients speak to the advocate in charge of their work, and if the matter cannot be resolved, the client is invited to contact our partners, who will then look into the matter and respond. Clients may contact us at any time to discuss any transaction in progress and seek clarification. If the advocate handling the matter is not available, the secretary or our switchboard will refer the call to another advocate who may help or take a message. At the time of taking instructions on a transaction, we will establish the timetable. It is our objective to meet necessary deadlines and otherwise deal with the matter as expeditiously and efficiently as possible. Factors beyond our control may affect the speed with which a transaction is progressed, for example, the level of co-operation received from outside lawyers and the efficiency of government departments, in particular, the Companies, Land and Trademark Registries.
24. Office Hours
The Firm operates within the 24/7 schedule but its offices are open Monday to Friday 8.00 a.m. to 5.00p.m. Despite this fact, our lawyers often work outside these hours and they may be contacted through our switchboard, which is open from 8.00 a.m. to 6.00 p.m. or on the lawyer’s home number, if the lawyer in question has disclosed this. Outside these hours, an answering machine is in operation and our e-mails are open at all times.