1. This is a Ruling in respect to an Application, seeking, basically, orders that the Milimani Chief Magistrates Anti-Corruption Court be directed to preserve fines paid by the Defendant and its directors aggregating to a total sum of Kshs. 4,000,000/- in a case concluded before that Court, pending the hearing and determination of this suit, in which suit the Plaintiff claims a right to the said funds as lien for legal fees allegedly owed to him by the Defendant.
2. By the Plaint dated 26/09/2025 and later amended on 1/10/2025, the Plaintiff, who introduced himself as a practicing Advocate, prayed for a declaration that the Fee Note Agreement dated 26/05/2023 is contractually binding upon the Plaintiff and the Defendant, an order of mandatory injunction compelling the Defendant to pay to the Plaintiff a sum of Kshs 36,000,000/-, being 1/3 of the legal fees due to the Plaintiff, and an order directing that the amount of Kshs 4,000,000/- deposited by the Defendant in Milimani Chief Magistrates Court Anti-Corruption Court Case No. ACC No. 50 of 2018, R v Aero Dispenser Valves Ltd and Others , be released to the Plaintiff in partial fulfillment of the amount in said Fee Note Agreement, and the Defendant do settle the balance. He also prayed for general damages for breach of contract and costs of the suit.
3. In the Plaint, it was pleaded that by the letter dated 5/05/2023 from the Defendant, the Plaintiff received instructions to render services to the Defendant in 3 cases, namely, High Court Commercial & Admiralty Division Case No. 224 of 2017 , Milimani Magistrates Anti-Corruption Case No. ACCR/50/2018 , and Milimani High Court Anti-Corruption and Crimes Division Case No. 8 of 2020 . It was pleaded further that the Plaintiff, by the letter dated 5/05/2023, accepted the instructions, upon which the parties entered into the said Fee Note Agreement in which it was agreed that the Plaintiff would be paid Kshs 110,000,000/- by the Defendant in legal fees for the 3 matters. It was averred that pursuant thereto, the Plaintiff, together with other law firms, including Messrs Tom Ojienda 7 Associates Advocates and Messrs Okubasu & Munene Advocates , diligently discharged his duties, including drafting and filing various pleadings, and attending Court, and that some of the matters are now concluded, but despite demands, the Defendant has neglected to pay the fees. It was further claimed that by the letter dated 5/08/2025, the Plaintiff demanded from the Defendant a sum of Kshs 36,000,000/- being 1/3 of the sum stipulated in the Agreement, as part-payment, since one of the matters had been concluded. According to the Plaintiff therefore, the Defendant’s failure to pay the fees was a breach of Section 45(1) of the Advocates Act which permits payment of legal fees under a written agreement. It was then averred that there is no other suit pending before any Court save for High Court ACECA Appeal No. E002 of 2025 , consolidated with others, in which the Plaintiff sought to be joined as an Interested Party for the sole purpose of preserving the money deposited as fine by the Defendant.
4. Together with the Plaint and the other usual Pleadings accompanying it, the Plaintiff also filed the Notice of Motion the subject of this Ruling, dated 30/09/2025. The Motion seeks orders as follows:
a) [...........] spent
b) [...........] spent
c) [...........] spent
d) THAT an order be and is hereby issued directing that the sum of Kenya Shillings Four Million (Kshs. 4,000,000/-) arising from the judgment in Milimani Magistrates Anti-Corruption Case Number ACCR/50/2018 The Republic versus Charles Kiprotich Tanui and Phillip Kimelu and 16 Others deposited by the Defendant/Respondent in Court be preserved in the Court account pending the hearing and determination of the Applicant's suit for confirmation and enforcement of legal fee agreement.
e) THAT this Honourable Court be and is hereby pleased to declare that the firm of Messrs. Odero and Partners Advocates has an identifiable interest in and or are entitled to a charge and/or a lien on the entire sum of Kenya Shillings Four Million (Kshs. 4,000,000/=) arising from the judgment in Milimani Magistrates Anti-Corruption Case Number ACCR/50/2018 The Republic versus Charles Kiprotich Tanui and Phillip Kimelu and 16 Others based on the fee note agreement dated 26th day of May 2023.
f) THAT in the event the said amounts have been already deposited with the law firm of Prof Tom Ojienda & Company Associates , then the said advocates firm shall hold the money in trust pending the hearing and determination of this application and subsequent hearing and determination of the suit on confirmation and execution of fee note agreement.
5. The Application is supported by the Affidavit sworn by the Plaintiff, and basically restates the matters recounted in the Plaint save that according to him, the Defendant was convicted in Millimani Magistrates Anti-Corruption Case No. ACCR/50/2018 , and directed to deposit a sum of Kshs 2,000,000/- and its two Directors to deposit Kshs 500,000/- each, aggregating to a sum of Kshs 3,000,000/- which was so deposited in Court as fine, that the Defendant then filed an Appeal in ACEC Appeal No. E002 of 2025 , consolidated with others, in which the Plaintiff continued to be on record though the client directed that the law firm of Messrs Prof Tom Ojienda & Co. Associates be responsible for filing of documents in Court, which Appeal was upheld and the Court directed that the fines paid be refunded. He deponed further that Messrs Prof Tom Ojienda & Co. has since requested the Deputy Registrar, Milimani High Court, to release the fines to that law firm for onward transmission to the Defendant, despite the Defendant not having yet paid the Plaintiff’s said fees of Kshs 36,000,000/-. He urged that by reason of the non-payment, he has acquired a right to lien over the monies paid as fine, and that he has since obtained, in ACEC Appeal No. E002 of 2025 , orders preserving the monies pending hearing and determination of this instant Application but that the said Court’s jurisdiction is limited to only disputes relating to Ethics and Anti-Corruption, and as such, has no mandate to enforce the Fees Agreement the subject hereof, but only to preserve the funds. According to him therefore, the actions of the Defendant are aimed at circumventing his right to recover the legal fees.
6. In opposing the Application, the Defendant, through Messrs Tom Ojienda & Associates , filed the Grounds of Opposition dated 18/11/2025 in which it was urged that the Application is a non-starter and unconscionable as the claim is too remote, that it also does not disclose any reasonable cause of action against the Defendant, and that it seeks to exercise a non-existent right of lien over monies that do not crystallize as legal fees. The Plaintiff was also accused of material non-disclosure, of not demonstrating exceptional circumstances to warrant grant of the orders sought, and for failing to exhaust other available remedies, in violation of Article 47 of the Constitution . It was further averred that the Plaintiff is guilty of “ forum shopping ” having made a similar Application before the High Court in ACEC Appeal No. E002 of 2025 , and that the Application seeks to infringe the proprietary rights of third parties who are not clients of the Plaintiff.
7. The Defendant also filed the Replying Affidavit sworn on the same date, 18/11/2025, by Francis Omondi Obure , who introduced himself as a director thereof. While admitting that the Defendant engaged the Plaintiff’s legal services, he insisted that such instructions were not for 3 cases as alleged, but for only two, namely, ACC No. 50 of 2018 and ACEC No. 8 of 2020 . He however described the services rendered by the Plaintiff as far from satisfactory as the Plaintiff was negligent and guilty of breach of his duty of care during conduct of the cases. He gave particulars of such alleged negligence, including non-attendance in Court on several occasions, failure to conduct pre-trial meetings, and failure to give sound advice, among others, causing the Defendant to engage the current law firm. He then deponed that the Plaintiff has misled the Court in alleging that it received 3 letters from the Defendant as instructions to appear yet a prima facie eye-test of the letters and acceptance reveals that the same were clearly made by the same machine, with the same type settings including the font and paragraph spacing. He urged further that the purported agreement that is the basis of the claim is a misnomer as no such creature exists in law, it is either a “Fee Note” or a “Fees Agreement”, not a “Fee Note Agreement”, and that it is also entered into with a different legal entity described as “ Aero Valves Dispenser Limited ”, which is not the Defendant, thus rendering the agreement unenforceable. He also pointed out that the agreement has been executed by representatives of a separate entity described as “ Oilfields Engineering & Supplies Limited ”, and is not supported with any company resolutions nor does it bear the company seal. He denied signing the agreement, and also observed that his co-director, Ms. Beryl Aluoch , in her Witness Statement filed herein, has also averred that she was not presented with the entire agreement, and as such, the agreement was executed under misrepresentation and fraud.
8. He also accused the Plaintiff of failing to disclose that it received a sum of USD 25,000 from a sister company of the Defendant, Phoenix Avifil , which monies the Plaintiff is still holding for legal services yet to be performed, and which can be utilized to set-off any outstanding claim for legal fees, if any is due. He further urged that if indeed the Plaintiff is owed legal fees, then it ought to tax its Bill of Costs at the Criminal Court. It was also urged that the claim for lien over the fines paid is unconscionable as the payment was not made by the Defendant but through personal contributions of its directors. A further issue was raised that if there was failure to pay fees, then the Plaintiff had the option of ceasing to act but he never did so, and that as such, the Plaintiff is in conflict between his personal interest and that of the Defendant.
9. Regarding the allegation of “ forum shopping ”, he insisted that the similar Application filed by the Plaintiff in High Court ACEC Appeal No. E002 of 2025 was struck out. It was further asserted that the Application amounts to unjust enrichment by the Plaintiff as he seeks to undeservedly recover fees yet the directors of the Defendant were convicted and had to pay the fines, which money would not otherwise be available save for the Appeal which the Plaintiff neither prepared for, nor appeared in. In conclusion, it was contended that although the Plaintiff had no instructions to take over the conduct of HCCOMM No. 224 of 2017 , he is yet to make any appearance or representation therein.
10. The Plaintiff then filed the exceedingly, but unnecessarily, lengthy, verbose and repetitive Further Affidavit sworn on 8/12/2025 running up to a whooping 93 paragraphs! Due to its length, the Affidavit sounds more like final Submissions than an Affidavit, and reading through it, one notices that with a just little bit of brevity, and cutting off of the so many instances of unnecessary duplication of arguments, the contents could have easily been condensed to not more than 15 paragraphs at most since it also, contrary to the rules of civil procedure, contains extensive technical arguments of law. A Supplementary Affidavit, just as its name suggests, must only address new matters raised by the other side. It should not be used to re-argue the whole case or introduce unrelated points. As I always advise Advocates, too long narratives, apart from being wholly unnecessary, do nothing but to needlessly convolute Court proceedings, and increase a Judge’s workload as he has to spend much more time reading through it all, albeit with no much benefit at the end of the day. Brevity, not length, is the cornerstone of proper drafting. In any event, I find no indication in the record that the Plaintiff even sought and/or obtained leave to file the Supplementary Submissions.
11. Be that as it may, the Plaintiff, after repeating the matters he already deponed in his Supporting Affidavit, including repeating the background, history and chronology of events in the matter, denied alleging that he received 3 separate instructions letters as contended by the Defendant, denied the allegations of negligently handling the cases, which matters, he averred do not even form the subject of this case, and asserted that Milimani High Court ACECA Case No. 8 of 2020 does not pertain to the claim for fees the subject of this suit. He also accused the Defendant of being evasive by denying and acknowledging the agreement at the same time. He also insisted that by the CR12 Forms produced, the two directors who signed the agreement, are the same directors of the other entities alleged by the Defendant to be separate, and urged the Court to lift the corporate veil for reason of fraud. Regarding the claim that he ought to have taxed his Bill of Costs at the Anti-Corruption Court, he termed it a misrepresentation of the law pointing out that matters to do with enforcement of legal fees agreements are governed by Section 45 of the Advocates Act , and whose jurisdiction lies with the High Court, particularly, the Commercial and Tax Division, to be determined as a contractual dispute and requires no taxation of Bill of Costs. He refuted the claim that the portions of the fines paid by the directors was so paid by the directors in their personal capacity urging that the fine was an obligation of the Defendant and the directors had also been sued in their individual capacity. Regarding the claim that he is not entitled to fees because the Defendant was convicted, or that he is seeking unjust enrichment, he cited Section 46 of the Advocates Act , and pointed out that an Advocate’s fees is based on services rendered, not on the success or outcome of the case. Regarding the claim that he is “ forum shopping ”, he reiterated that the Application he filed in High Court ACECA Appeal No. E002 of 2025 was purely a preservatory measure as that Court lacked the jurisdiction to hear and determine matters relating to disputes arising from Fee Agreements, and which Application and grant of preservatory orders he promptly disclosed to this Court, and also disclosed the existence of this instant suit to the Anti-Corruption Court, which then marked the Application as withdrawn.
12. The parties then filed written Submissions. The Plaintiffs’ Submissions is dated 11/12/2025 while the Defendants’ is dated 28/02/2026. The Plaintiff also filed the Supplementary Submissions dated 1/05/2026.
Plaintiff’s Submissions
13. The Plaintiff filed another lengthy 30-page narrative as submissions, again, replete with unnecessary repetition of facts and arguments already recounted. He however insisted pointed out that what he is seeking are orders to preserve the funds, and submitted that “ preservatory ” orders are in essence similar to “ injunctive ” orders, and as such, Applications in respect thereto are similarly treated under the principles set out in the case of Giella v Cassman Brown (1973) EA 358 . He submitted further that the Application meets the required threshold as he has established the existence of a prima facie case, that he stands to suffer “ irreparable harm ”, and that the “ balance of convenience ” favours grant of the orders. Regarding the facts or circumstances upon which, in his view, the Application meets the above principles, he recounted the matters he had already recited in his Affidavits, which as aforesaid, I find no reason to repeat. He also cited several authorities to support the various limbs of his Submissions.
Defendant’s Submissions
14. Defendant’s Counsel, too, basically reiterated matters already recounted, which, as such, I find no reason to repeat. He however reiterated that the suit is a non-starter since the entity sued is “ Aero Valves Dispenser Limited ”, a unknown entity, since its correct corporate name is “ Aero Dispenser Valves Limited ”. He also reiterated that the Agreement relied upon by the Plaintiff was entered with the said unknown “ Aero Valves Dispenser Limited ”, and observed that the Plaintiff has not amended the Plaint. On existence of a “ prima facie ” case, he denied that the Plaintiff has established any, and in so doing, again recounted matters and arguments already advanced in the Defendant’s Replying Affidavit. On whether the Plaintiff will suffer “ irreparable harm ”, Counsel submitted that as the Plaintiff is seeking preservation of a meagre sum of Kshs 4,000,000/-, which he claims lien over as part of Kshs 36,000,000, logic dictates that a company capable of entering into an agreement to pay a colossal sum of Kshs 36,000,000/- is indeed capable of alleviating any harm that loss of Kshs 4,000,000/- would result in. He further contended that the Plaintiff is not without recourse as he can still tax his Bill of Costs in the event that the Fee Agreement is declared invalid. On the “ balance of convenience ”, he asserted that while the Plaintiff has a recourse as aforesaid, it is the Defendant that shall suffer more prejudice as the Kshs 4,000,000/- was sourced through debts, which continues to accumulate interest. Counsel, too, cited various authorities to buttress his arguments.
Plaintiff’s Supplementary Submissions
15. I once more find no reason to recount the contents of the Supplementary Submissions as it is basically a restatement of matters already deponed in the Plaintiffs Affidavits, and also basically, a denial of the various allegations or arguments advanced in the Defendant’s Submissions.
Determination
16. The one broad issue for determination in this matter can be summarized as follows:
“Whether an order should be issued directing the Milimani Chief Magistrates Anti-Corruption Court to preserve the fines paid by the Defendant and its directors, aggregating to a total sum of Kshs. 4,000,000/-, and all paid in Magistrates Court Anti-corruption Court Case No. ACCR/50/2018 - Republic v Charles Kiprotich Tanui and Others , pending hearing and determination of this suit in which the Plaintiff claims a right over the said fine payments as lien for legal fees allegedly payable to him by the Defendant.”
17. The parties agree that the “ preservatory ” orders sought herein are in the nature of “ injunctive ” orders, and as such, the same or similar principles apply.
18. In view thereof, the principles that apply are those adopted in the case of Giella –vs-Cassman Brown and Company Limited, Civil Appeal No. 51 of 1972 , in which it was held that the Applicant must establish or demonstrate; ( i ) the existence of a prima facie case with a probability of success , ( ii ) that he will suffer irreparable injury which cannot be compensated by damages , and ( iii ) that the balance of convenience tilts in his favour.
19. The Court of Appeal, in the case of Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, explained the sequential application of the above principles as follows:
“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. (See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86 ). If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”
20. It is also agreed that in interim applications of the nature now in issue, the Court should avoid making final determinations on matters of fact on the basis of the conflicting Affidavit evidence. In respect thereto, the Court of Appeal, in Mbuthia vs Jimba Credit Finance Corporation & Another [1988] KLR 1, guided as follows:
“……. the correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side’s propositions.”
21. The first limb that I need to therefore determine is whether the Plaintiff has established a prima facie case. What constitutes a “ prima facie ” case was explained by the Court of Appeal in the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 , as follows:
“It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence ... The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two ... In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
22. Upon reviewing this matter, it becomes clear that the very long narratives apparent in the Plaintiff’s Affidavits and Submissions is simply because the Plaintiff has handled and argued the instant Application as if he is making final submissions after the full trial. The Plaintiff seems to have overlooked the fact that this is only an interlocutory Application simply seeking interim orders pending full trial of the suit. For the Defendant to successfully persuade the Court not to grant the preservatory orders, all is is is required to demonstrate at this stage, is that the Plaintiff has failed to establish the existence of a prima facie case, that he shall suffer “ irreparable loss ” if the orders are declined, and that the “ balance of convenience ” favours grant of the orders. The Plaintiff, in answering the Defendant has however consistently, but unfairly gone overboard by putting the Defendant to strict proof on substantive matters that cannot at all be canvassed at this stage. Most of the authorities cited by the Plaintiff are also misplaced since they contain conclusions that were clearly made after full trial.
23. Be that as it may, it is evident that the Defendant does not basically deny instructing the Plaintiff to represent it in Milimani Magistrates Anti-Corruption Case No. ACCR/50/2018 . There is also no serious denial that the Plaintiff did render such legal services. On the face of the case therefore, the Plaintiff’s claim to entitlement to payment of legal fees seems justified. According to the Plaintiff, the allegation that he ought to file his Bill of Costs for taxation does not arise since he entered into a written Fees Payment Agreement with the Defendant, and as such, the suit herein is for enforcement of that Agreement as a claim for breach of contract, in accordance with the provisions of Section 145 of the Advocates Act . To this extent, the Plaintiff’s claims, in my view, satisfy the basic threshold required in demonstrating that indeed he has an actionable claim in the nature of an arguable case, thus establishing a prima facie case.
24. In attempting to refute the perception that the Plaintiff has established the existence of a prima facie case, the Defendant contends, inter alia , that the representation and/or legal services rendered by the Plaintiff were below par, and were marred by professional negligence and breach of the Plaintiff’s duty of care by, among others, the Plaintiff’s failure to attend Court on various occasions and to file final submissions, failure to offer advice on the right to appeal, and also failure to file the appeal, thus forcing the Defendant to hire other Lawyers. According to the Defendant therefore, the services rendered do not merit remuneration by way of payment of legal fees. The Defendant is therefore basically blaming its conviction by the Anti-Corruption Court, its being found guilty together with its directors, and their being sentenced to pay fines, on the Plaintiff’s poor legal services. As a demonstration of the alleged negligent services rendered by the Plaintiff, the Defendant points to the fact that the conviction was overturned on appeal. I have reservations whether this stance taken by the Defendant in claiming that the legal services rendered by the Plaintiff were below standards can really serve as a firm answer to an interlocutory Application of the nature now before Court. I say so because of the well-known principle codified in Section 46(c) of the Advocates Act that payment of legal fees should never be dependent on success or the outcome of the case. I also consider that in this case, although the Defendant claims that the Plaintiff failed to attend Court on several occasions, it is not denied that the Plaintiff did render services, whether satisfactorily or not, and remained on record throughout the case. This is also not a case brought by a client under the provisions of Section 45(5) of the Advocates Act seeking the setting aside of the Fee Agreement for being harsh or unconscionable, or for failure by an Advocate to act or to complete the brief assigned to him. Granted, the Defendant may afterall prove, at the full trial, the allegations of poor or negligent legal services but that cannot be done at this stage on mere Affidavit evidence, such contested factual claims being matters reserved for proof at the full trial. For purposes of establishing whether the Plaintiff has established prima facie case therefore, I do not think the contention of poor or negligent legal services can do much in demonstrating absence of a prima facie case.
25. The Defendant has also raised the challenge that its correct name is “ Aero Dispenser Valves Limited ” but the Fee Agreement dated 26/05/2023 relied on is executed by an entity described as “ Aero Valves Dispenser Limited ”, and signed by representatives of yet another different entity described as “ Oilfields Engineering and Supplies Limited ”. According to the Plaintiff however, that discrepancy, though admitted, is a mere typographical error caused by a transposition of words, which does not go to the substance of the agreement, or the root of the dispute herein. I am prepared to give the Plaintiff the benefit of doubt on this claim of the discrepancy being a typographical error. This, I do, noting that, as argued by the Plaintiff, the issue at hand is not one about determination of the Defendant’s legal capacity or legal existence. The same individuals and/or directors of the Defendant seem to also be directors of the other entities cited, and have also consistently been participating and acting for and on behalf of the Defendant in the various prior cases from which this suit has specifically arisen. As such, there is no indication that the Defendant or its officials have in any way been misled about the identity of the entity sued. I also notice that the execution part of the Agreement, and also the letter of instructions dated 5/05/2023 are both signed or executed in the Defendant’s correct name. In any event, the Plaintiff still has a chance, before the trial or substantive proceedings takes off, to regularize the position by applying for leave to amend the alleged typographical error. Under these circumstances, I once again find that for purposes of demonstrating that the Plaintiff has failed to demonstrate the existence of a prima facie case, the Defendant’s contention that the entity sued is non-existent or unknown cannot suffice. This is because proof of a contention of the nature cited by the Defendant can only be canvassed and determined at, or after the full trial, not at this stage on mere Affidavit evidence.
26. Another challenge taken up by the Defendant is that one of the directors of the Defendant, Francis Omondi Obure , has denied having signed Fee Agreement and contends that the signature thereon on is a forgery. To this challenge, I reiterate that, as correctly submitted by the Plaintiff, once a signature is alleged to be a person’s, there arises prima facie inference of execution by that person, and the burden then shifts to th
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2. By the Plaint dated 26/09/2025 and later amended on 1/10/2025, the Plaintiff, who introduced himself as a practicing Advocate, prayed for a declaration that the Fee Note Agreement dated 26/05/2023 is contractually binding upon the Plaintiff and the Defendant, an order of mandatory injunction compelling the Defendant to pay to the Plaintiff a sum of Kshs 36,000,000/-, being 1/3 of the legal fees due to the Plaintiff, and an order directing that the amount of Kshs 4,000,000/- deposited by the Defendant in Milimani Chief Magistrates Court Anti-Corruption Court Case No. ACC No. 50 of 2018, R v Aero Dispenser Valves Ltd and Others , be released to the Plaintiff in partial fulfillment of the amount in said Fee Note Agreement, and the Defendant do settle the balance. He also prayed for general damages for breach of contract and costs of the suit.
3. In the Plaint, it was pleaded that by the letter dated 5/05/2023 from the Defendant, the Plaintiff received instructions to render services to the Defendant in 3 cases, namely, High Court Commercial & Admiralty Division Case No. 224 of 2017 , Milimani Magistrates Anti-Corruption Case No. ACCR/50/2018 , and Milimani High Court Anti-Corruption and Crimes Division Case No. 8 of 2020 . It was pleaded further that the Plaintiff, by the letter dated 5/05/2023, accepted the instructions, upon which the parties entered into the said Fee Note Agreement in which it was agreed that the Plaintiff would be paid Kshs 110,000,000/- by the Defendant in legal fees for the 3 matters. It was averred that pursuant thereto, the Plaintiff, together with other law firms, including Messrs Tom Ojienda 7 Associates Advocates and Messrs Okubasu & Munene Advocates , diligently discharged his duties, including drafting and filing various pleadings, and attending Court, and that some of the matters are now concluded, but despite demands, the Defendant has neglected to pay the fees. It was further claimed that by the letter dated 5/08/2025, the Plaintiff demanded from the Defendant a sum of Kshs 36,000,000/- being 1/3 of the sum stipulated in the Agreement, as part-payment, since one of the matters had been concluded. According to the Plaintiff therefore, the Defendant’s failure to pay the fees was a breach of Section 45(1) of the Advocates Act which permits payment of legal fees under a written agreement. It was then averred that there is no other suit pending before any Court save for High Court ACECA Appeal No. E002 of 2025 , consolidated with others, in which the Plaintiff sought to be joined as an Interested Party for the sole purpose of preserving the money deposited as fine by the Defendant.
4. Together with the Plaint and the other usual Pleadings accompanying it, the Plaintiff also filed the Notice of Motion the subject of this Ruling, dated 30/09/2025. The Motion seeks orders as follows:
a) [...........] spent
b) [...........] spent
c) [...........] spent
d) THAT an order be and is hereby issued directing that the sum of Kenya Shillings Four Million (Kshs. 4,000,000/-) arising from the judgment in Milimani Magistrates Anti-Corruption Case Number ACCR/50/2018 The Republic versus Charles Kiprotich Tanui and Phillip Kimelu and 16 Others deposited by the Defendant/Respondent in Court be preserved in the Court account pending the hearing and determination of the Applicant's suit for confirmation and enforcement of legal fee agreement.
e) THAT this Honourable Court be and is hereby pleased to declare that the firm of Messrs. Odero and Partners Advocates has an identifiable interest in and or are entitled to a charge and/or a lien on the entire sum of Kenya Shillings Four Million (Kshs. 4,000,000/=) arising from the judgment in Milimani Magistrates Anti-Corruption Case Number ACCR/50/2018 The Republic versus Charles Kiprotich Tanui and Phillip Kimelu and 16 Others based on the fee note agreement dated 26th day of May 2023.
f) THAT in the event the said amounts have been already deposited with the law firm of Prof Tom Ojienda & Company Associates , then the said advocates firm shall hold the money in trust pending the hearing and determination of this application and subsequent hearing and determination of the suit on confirmation and execution of fee note agreement.
5. The Application is supported by the Affidavit sworn by the Plaintiff, and basically restates the matters recounted in the Plaint save that according to him, the Defendant was convicted in Millimani Magistrates Anti-Corruption Case No. ACCR/50/2018 , and directed to deposit a sum of Kshs 2,000,000/- and its two Directors to deposit Kshs 500,000/- each, aggregating to a sum of Kshs 3,000,000/- which was so deposited in Court as fine, that the Defendant then filed an Appeal in ACEC Appeal No. E002 of 2025 , consolidated with others, in which the Plaintiff continued to be on record though the client directed that the law firm of Messrs Prof Tom Ojienda & Co. Associates be responsible for filing of documents in Court, which Appeal was upheld and the Court directed that the fines paid be refunded. He deponed further that Messrs Prof Tom Ojienda & Co. has since requested the Deputy Registrar, Milimani High Court, to release the fines to that law firm for onward transmission to the Defendant, despite the Defendant not having yet paid the Plaintiff’s said fees of Kshs 36,000,000/-. He urged that by reason of the non-payment, he has acquired a right to lien over the monies paid as fine, and that he has since obtained, in ACEC Appeal No. E002 of 2025 , orders preserving the monies pending hearing and determination of this instant Application but that the said Court’s jurisdiction is limited to only disputes relating to Ethics and Anti-Corruption, and as such, has no mandate to enforce the Fees Agreement the subject hereof, but only to preserve the funds. According to him therefore, the actions of the Defendant are aimed at circumventing his right to recover the legal fees.
6. In opposing the Application, the Defendant, through Messrs Tom Ojienda & Associates , filed the Grounds of Opposition dated 18/11/2025 in which it was urged that the Application is a non-starter and unconscionable as the claim is too remote, that it also does not disclose any reasonable cause of action against the Defendant, and that it seeks to exercise a non-existent right of lien over monies that do not crystallize as legal fees. The Plaintiff was also accused of material non-disclosure, of not demonstrating exceptional circumstances to warrant grant of the orders sought, and for failing to exhaust other available remedies, in violation of Article 47 of the Constitution . It was further averred that the Plaintiff is guilty of “ forum shopping ” having made a similar Application before the High Court in ACEC Appeal No. E002 of 2025 , and that the Application seeks to infringe the proprietary rights of third parties who are not clients of the Plaintiff.
7. The Defendant also filed the Replying Affidavit sworn on the same date, 18/11/2025, by Francis Omondi Obure , who introduced himself as a director thereof. While admitting that the Defendant engaged the Plaintiff’s legal services, he insisted that such instructions were not for 3 cases as alleged, but for only two, namely, ACC No. 50 of 2018 and ACEC No. 8 of 2020 . He however described the services rendered by the Plaintiff as far from satisfactory as the Plaintiff was negligent and guilty of breach of his duty of care during conduct of the cases. He gave particulars of such alleged negligence, including non-attendance in Court on several occasions, failure to conduct pre-trial meetings, and failure to give sound advice, among others, causing the Defendant to engage the current law firm. He then deponed that the Plaintiff has misled the Court in alleging that it received 3 letters from the Defendant as instructions to appear yet a prima facie eye-test of the letters and acceptance reveals that the same were clearly made by the same machine, with the same type settings including the font and paragraph spacing. He urged further that the purported agreement that is the basis of the claim is a misnomer as no such creature exists in law, it is either a “Fee Note” or a “Fees Agreement”, not a “Fee Note Agreement”, and that it is also entered into with a different legal entity described as “ Aero Valves Dispenser Limited ”, which is not the Defendant, thus rendering the agreement unenforceable. He also pointed out that the agreement has been executed by representatives of a separate entity described as “ Oilfields Engineering & Supplies Limited ”, and is not supported with any company resolutions nor does it bear the company seal. He denied signing the agreement, and also observed that his co-director, Ms. Beryl Aluoch , in her Witness Statement filed herein, has also averred that she was not presented with the entire agreement, and as such, the agreement was executed under misrepresentation and fraud.
8. He also accused the Plaintiff of failing to disclose that it received a sum of USD 25,000 from a sister company of the Defendant, Phoenix Avifil , which monies the Plaintiff is still holding for legal services yet to be performed, and which can be utilized to set-off any outstanding claim for legal fees, if any is due. He further urged that if indeed the Plaintiff is owed legal fees, then it ought to tax its Bill of Costs at the Criminal Court. It was also urged that the claim for lien over the fines paid is unconscionable as the payment was not made by the Defendant but through personal contributions of its directors. A further issue was raised that if there was failure to pay fees, then the Plaintiff had the option of ceasing to act but he never did so, and that as such, the Plaintiff is in conflict between his personal interest and that of the Defendant.
9. Regarding the allegation of “ forum shopping ”, he insisted that the similar Application filed by the Plaintiff in High Court ACEC Appeal No. E002 of 2025 was struck out. It was further asserted that the Application amounts to unjust enrichment by the Plaintiff as he seeks to undeservedly recover fees yet the directors of the Defendant were convicted and had to pay the fines, which money would not otherwise be available save for the Appeal which the Plaintiff neither prepared for, nor appeared in. In conclusion, it was contended that although the Plaintiff had no instructions to take over the conduct of HCCOMM No. 224 of 2017 , he is yet to make any appearance or representation therein.
10. The Plaintiff then filed the exceedingly, but unnecessarily, lengthy, verbose and repetitive Further Affidavit sworn on 8/12/2025 running up to a whooping 93 paragraphs! Due to its length, the Affidavit sounds more like final Submissions than an Affidavit, and reading through it, one notices that with a just little bit of brevity, and cutting off of the so many instances of unnecessary duplication of arguments, the contents could have easily been condensed to not more than 15 paragraphs at most since it also, contrary to the rules of civil procedure, contains extensive technical arguments of law. A Supplementary Affidavit, just as its name suggests, must only address new matters raised by the other side. It should not be used to re-argue the whole case or introduce unrelated points. As I always advise Advocates, too long narratives, apart from being wholly unnecessary, do nothing but to needlessly convolute Court proceedings, and increase a Judge’s workload as he has to spend much more time reading through it all, albeit with no much benefit at the end of the day. Brevity, not length, is the cornerstone of proper drafting. In any event, I find no indication in the record that the Plaintiff even sought and/or obtained leave to file the Supplementary Submissions.
11. Be that as it may, the Plaintiff, after repeating the matters he already deponed in his Supporting Affidavit, including repeating the background, history and chronology of events in the matter, denied alleging that he received 3 separate instructions letters as contended by the Defendant, denied the allegations of negligently handling the cases, which matters, he averred do not even form the subject of this case, and asserted that Milimani High Court ACECA Case No. 8 of 2020 does not pertain to the claim for fees the subject of this suit. He also accused the Defendant of being evasive by denying and acknowledging the agreement at the same time. He also insisted that by the CR12 Forms produced, the two directors who signed the agreement, are the same directors of the other entities alleged by the Defendant to be separate, and urged the Court to lift the corporate veil for reason of fraud. Regarding the claim that he ought to have taxed his Bill of Costs at the Anti-Corruption Court, he termed it a misrepresentation of the law pointing out that matters to do with enforcement of legal fees agreements are governed by Section 45 of the Advocates Act , and whose jurisdiction lies with the High Court, particularly, the Commercial and Tax Division, to be determined as a contractual dispute and requires no taxation of Bill of Costs. He refuted the claim that the portions of the fines paid by the directors was so paid by the directors in their personal capacity urging that the fine was an obligation of the Defendant and the directors had also been sued in their individual capacity. Regarding the claim that he is not entitled to fees because the Defendant was convicted, or that he is seeking unjust enrichment, he cited Section 46 of the Advocates Act , and pointed out that an Advocate’s fees is based on services rendered, not on the success or outcome of the case. Regarding the claim that he is “ forum shopping ”, he reiterated that the Application he filed in High Court ACECA Appeal No. E002 of 2025 was purely a preservatory measure as that Court lacked the jurisdiction to hear and determine matters relating to disputes arising from Fee Agreements, and which Application and grant of preservatory orders he promptly disclosed to this Court, and also disclosed the existence of this instant suit to the Anti-Corruption Court, which then marked the Application as withdrawn.
12. The parties then filed written Submissions. The Plaintiffs’ Submissions is dated 11/12/2025 while the Defendants’ is dated 28/02/2026. The Plaintiff also filed the Supplementary Submissions dated 1/05/2026.
Plaintiff’s Submissions
13. The Plaintiff filed another lengthy 30-page narrative as submissions, again, replete with unnecessary repetition of facts and arguments already recounted. He however insisted pointed out that what he is seeking are orders to preserve the funds, and submitted that “ preservatory ” orders are in essence similar to “ injunctive ” orders, and as such, Applications in respect thereto are similarly treated under the principles set out in the case of Giella v Cassman Brown (1973) EA 358 . He submitted further that the Application meets the required threshold as he has established the existence of a prima facie case, that he stands to suffer “ irreparable harm ”, and that the “ balance of convenience ” favours grant of the orders. Regarding the facts or circumstances upon which, in his view, the Application meets the above principles, he recounted the matters he had already recited in his Affidavits, which as aforesaid, I find no reason to repeat. He also cited several authorities to support the various limbs of his Submissions.
Defendant’s Submissions
14. Defendant’s Counsel, too, basically reiterated matters already recounted, which, as such, I find no reason to repeat. He however reiterated that the suit is a non-starter since the entity sued is “ Aero Valves Dispenser Limited ”, a unknown entity, since its correct corporate name is “ Aero Dispenser Valves Limited ”. He also reiterated that the Agreement relied upon by the Plaintiff was entered with the said unknown “ Aero Valves Dispenser Limited ”, and observed that the Plaintiff has not amended the Plaint. On existence of a “ prima facie ” case, he denied that the Plaintiff has established any, and in so doing, again recounted matters and arguments already advanced in the Defendant’s Replying Affidavit. On whether the Plaintiff will suffer “ irreparable harm ”, Counsel submitted that as the Plaintiff is seeking preservation of a meagre sum of Kshs 4,000,000/-, which he claims lien over as part of Kshs 36,000,000, logic dictates that a company capable of entering into an agreement to pay a colossal sum of Kshs 36,000,000/- is indeed capable of alleviating any harm that loss of Kshs 4,000,000/- would result in. He further contended that the Plaintiff is not without recourse as he can still tax his Bill of Costs in the event that the Fee Agreement is declared invalid. On the “ balance of convenience ”, he asserted that while the Plaintiff has a recourse as aforesaid, it is the Defendant that shall suffer more prejudice as the Kshs 4,000,000/- was sourced through debts, which continues to accumulate interest. Counsel, too, cited various authorities to buttress his arguments.
Plaintiff’s Supplementary Submissions
15. I once more find no reason to recount the contents of the Supplementary Submissions as it is basically a restatement of matters already deponed in the Plaintiffs Affidavits, and also basically, a denial of the various allegations or arguments advanced in the Defendant’s Submissions.
Determination
16. The one broad issue for determination in this matter can be summarized as follows:
“Whether an order should be issued directing the Milimani Chief Magistrates Anti-Corruption Court to preserve the fines paid by the Defendant and its directors, aggregating to a total sum of Kshs. 4,000,000/-, and all paid in Magistrates Court Anti-corruption Court Case No. ACCR/50/2018 - Republic v Charles Kiprotich Tanui and Others , pending hearing and determination of this suit in which the Plaintiff claims a right over the said fine payments as lien for legal fees allegedly payable to him by the Defendant.”
17. The parties agree that the “ preservatory ” orders sought herein are in the nature of “ injunctive ” orders, and as such, the same or similar principles apply.
18. In view thereof, the principles that apply are those adopted in the case of Giella –vs-Cassman Brown and Company Limited, Civil Appeal No. 51 of 1972 , in which it was held that the Applicant must establish or demonstrate; ( i ) the existence of a prima facie case with a probability of success , ( ii ) that he will suffer irreparable injury which cannot be compensated by damages , and ( iii ) that the balance of convenience tilts in his favour.
19. The Court of Appeal, in the case of Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, explained the sequential application of the above principles as follows:
“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. (See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86 ). If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”
20. It is also agreed that in interim applications of the nature now in issue, the Court should avoid making final determinations on matters of fact on the basis of the conflicting Affidavit evidence. In respect thereto, the Court of Appeal, in Mbuthia vs Jimba Credit Finance Corporation & Another [1988] KLR 1, guided as follows:
“……. the correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side’s propositions.”
21. The first limb that I need to therefore determine is whether the Plaintiff has established a prima facie case. What constitutes a “ prima facie ” case was explained by the Court of Appeal in the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 , as follows:
“It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence ... The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two ... In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
22. Upon reviewing this matter, it becomes clear that the very long narratives apparent in the Plaintiff’s Affidavits and Submissions is simply because the Plaintiff has handled and argued the instant Application as if he is making final submissions after the full trial. The Plaintiff seems to have overlooked the fact that this is only an interlocutory Application simply seeking interim orders pending full trial of the suit. For the Defendant to successfully persuade the Court not to grant the preservatory orders, all is is is required to demonstrate at this stage, is that the Plaintiff has failed to establish the existence of a prima facie case, that he shall suffer “ irreparable loss ” if the orders are declined, and that the “ balance of convenience ” favours grant of the orders. The Plaintiff, in answering the Defendant has however consistently, but unfairly gone overboard by putting the Defendant to strict proof on substantive matters that cannot at all be canvassed at this stage. Most of the authorities cited by the Plaintiff are also misplaced since they contain conclusions that were clearly made after full trial.
23. Be that as it may, it is evident that the Defendant does not basically deny instructing the Plaintiff to represent it in Milimani Magistrates Anti-Corruption Case No. ACCR/50/2018 . There is also no serious denial that the Plaintiff did render such legal services. On the face of the case therefore, the Plaintiff’s claim to entitlement to payment of legal fees seems justified. According to the Plaintiff, the allegation that he ought to file his Bill of Costs for taxation does not arise since he entered into a written Fees Payment Agreement with the Defendant, and as such, the suit herein is for enforcement of that Agreement as a claim for breach of contract, in accordance with the provisions of Section 145 of the Advocates Act . To this extent, the Plaintiff’s claims, in my view, satisfy the basic threshold required in demonstrating that indeed he has an actionable claim in the nature of an arguable case, thus establishing a prima facie case.
24. In attempting to refute the perception that the Plaintiff has established the existence of a prima facie case, the Defendant contends, inter alia , that the representation and/or legal services rendered by the Plaintiff were below par, and were marred by professional negligence and breach of the Plaintiff’s duty of care by, among others, the Plaintiff’s failure to attend Court on various occasions and to file final submissions, failure to offer advice on the right to appeal, and also failure to file the appeal, thus forcing the Defendant to hire other Lawyers. According to the Defendant therefore, the services rendered do not merit remuneration by way of payment of legal fees. The Defendant is therefore basically blaming its conviction by the Anti-Corruption Court, its being found guilty together with its directors, and their being sentenced to pay fines, on the Plaintiff’s poor legal services. As a demonstration of the alleged negligent services rendered by the Plaintiff, the Defendant points to the fact that the conviction was overturned on appeal. I have reservations whether this stance taken by the Defendant in claiming that the legal services rendered by the Plaintiff were below standards can really serve as a firm answer to an interlocutory Application of the nature now before Court. I say so because of the well-known principle codified in Section 46(c) of the Advocates Act that payment of legal fees should never be dependent on success or the outcome of the case. I also consider that in this case, although the Defendant claims that the Plaintiff failed to attend Court on several occasions, it is not denied that the Plaintiff did render services, whether satisfactorily or not, and remained on record throughout the case. This is also not a case brought by a client under the provisions of Section 45(5) of the Advocates Act seeking the setting aside of the Fee Agreement for being harsh or unconscionable, or for failure by an Advocate to act or to complete the brief assigned to him. Granted, the Defendant may afterall prove, at the full trial, the allegations of poor or negligent legal services but that cannot be done at this stage on mere Affidavit evidence, such contested factual claims being matters reserved for proof at the full trial. For purposes of establishing whether the Plaintiff has established prima facie case therefore, I do not think the contention of poor or negligent legal services can do much in demonstrating absence of a prima facie case.
25. The Defendant has also raised the challenge that its correct name is “ Aero Dispenser Valves Limited ” but the Fee Agreement dated 26/05/2023 relied on is executed by an entity described as “ Aero Valves Dispenser Limited ”, and signed by representatives of yet another different entity described as “ Oilfields Engineering and Supplies Limited ”. According to the Plaintiff however, that discrepancy, though admitted, is a mere typographical error caused by a transposition of words, which does not go to the substance of the agreement, or the root of the dispute herein. I am prepared to give the Plaintiff the benefit of doubt on this claim of the discrepancy being a typographical error. This, I do, noting that, as argued by the Plaintiff, the issue at hand is not one about determination of the Defendant’s legal capacity or legal existence. The same individuals and/or directors of the Defendant seem to also be directors of the other entities cited, and have also consistently been participating and acting for and on behalf of the Defendant in the various prior cases from which this suit has specifically arisen. As such, there is no indication that the Defendant or its officials have in any way been misled about the identity of the entity sued. I also notice that the execution part of the Agreement, and also the letter of instructions dated 5/05/2023 are both signed or executed in the Defendant’s correct name. In any event, the Plaintiff still has a chance, before the trial or substantive proceedings takes off, to regularize the position by applying for leave to amend the alleged typographical error. Under these circumstances, I once again find that for purposes of demonstrating that the Plaintiff has failed to demonstrate the existence of a prima facie case, the Defendant’s contention that the entity sued is non-existent or unknown cannot suffice. This is because proof of a contention of the nature cited by the Defendant can only be canvassed and determined at, or after the full trial, not at this stage on mere Affidavit evidence.
26. Another challenge taken up by the Defendant is that one of the directors of the Defendant, Francis Omondi Obure , has denied having signed Fee Agreement and contends that the signature thereon on is a forgery. To this challenge, I reiterate that, as correctly submitted by the Plaintiff, once a signature is alleged to be a person’s, there arises prima facie inference of execution by that person, and the burden then shifts to th
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