REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
FCC No. E026 OF 2025
GEORGE MIYARE t/a MIYARE & COMPANY ADVOCATES…………………………. ………………………...APPELLANT
-VERSUS-
SAMUEL MUGO MBUGUA (as administrator of the Estate of Jane Wambui Mbugua- Deceased ) .............................……………...…....... RESPONDENT
JUDGMENT
INTRODUCTION
1. By plaint 5 th December 2024, the plaintiff seeks judgment against the defendant for-
a. Kshs 5 000,000 .00
b. Interest on (a) above at 14% per annum from 16 th February 2023 to date
c. costs
2. The sum claimed is the balance of professional fees owing from legal fees agreement date d 16th February 2023 in respect of Nairobi HCFP&A/ E618/2021 In the Matter of the Estate of Jane Wambui Mbugua( Deceased).
3. Under that agreement, fees were agreed at KShs 58,398,200. The defendant made payments towards the same; the final payment was on 15 th July 2024 for the sum of Kshs 21,300,000. At this point, when the Plaintiff demanded the balance of Kshs 5m, the defendant informed him that the same had already been paid.
4. The defendant filed a defence and counterclaim and contends that the professional fees owing to the plaintiff are fully settled, that before the execution of the agreement, he paid a total of Kshs 11,950,000 as professional fees. In paragraph 8 of the Defence, he stated that the final fee note was agreed at Kshs 70,348,200. The same was reduced by Kshs 11,950,500 and a Kshs 5m discount to arrive at the agreed fees of Kshs 53,398,200 in the agreement. He avers that the figure of Kshs 58,398,200 in the agreement is an error.
5. That the estate paid him the disputed Kshs 5 million, but he arbitrarily allocated it to another matter he was acting on instead of crediting the estate account. In his counterclaim, he asserts that the account was overpaid by Kshs 829,800 and demands a refund of the same. The defendant also seeks an ITax acknowledgement of payment of VAT from the Kenya Revenue Authority, or in the alternative, a refund of the VAT payable on account of the fees paid.
6. The plaintiff has filed a reply to the defence and a defence to the counterclaim dated 29 th April 2026. In which he denies the averments of the defendant and reasserts his claim.
7. The suit was canvassed via written submissions. The applicant's submissions are dated 9 th February 2026. The issues framed for determination are-
a. Whether the fee agreement is valid
b. Whether the allegations of negligence defeat the enforcement of the contract and
c. Whether the Plaintiff is entitled to the relief sought
8. On the 1 st issue, it is submitted that the relevant law is Section 45(1) of the Advocates Act and reference made to the decision in Omulele & Tollo Advocates v Mount Holdings Ltd, [2016] KECA 523 (KLR ). It is further stated that the defendant’s challenge on the validity of the agreement cannot be sustained in light of the decision in Adopt A Light Limited v Ochieng’, Onyango, Kibet & Ohaga Advocates [2016] KECA 387 (KLR) and National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] KECA 362 (KLR)
9. On the 2 nd issue, it is submitted that the allegations of professional negligence are not proved and cannot therefore be relied upon by the defendant to wiggle out of his contractual obligations.
10. It is submitted that the plaintiff is entitled to the sum of KShs 5 million and reference is made to the decision in Omulele & Tollo Advocates v Mount Holdings Ltd, [2016] KECA 523 (KLR)
11. It is submitted that contrary to the assertion by the defendant, the amount of KShs 5 million was paid before the agreement and was towards fees in relation to another matter, ELC Case No. E417 of 2021 – J M MUGO INVESTMENTS COMPANY LIMITED v KENYA PLANTERS COOPERATIVE UNION ( KPCU)
12. The defendant’s submissions are dated 9 th March 2026. The issues for determination are framed as-
a. Whether the parties had a valid and enforceable agreement
b. Whether the defendant owes the Plaintiff legal fees amounting to Kshs 5,000,000.
c. Whether the defendant’s counterclaim should be allowed.
13. The defendant concedes that there was a valid fee agreement. He denies, however, that the sum of Kshs 5m is outstanding as alleged and submits that the Plaintiff has not discharged his evidentiary burden as stipulated by Section 107 (1) of the Evidence Act.
14. It is submitted that it is the Plaintiff who failed to credit the sum of Kshs 5 million to the correct account, and reference is made to the decision in First American Bank of Kenya Ltd v Shah & Others [2002] eKLR .
15. The defendant seeks a refund of the overpayment on his part and further a refund of the VAT payable on the account.
ANALYSIS AND DETERMINATION
16. Having considered the pleadings on record and the submissions filed, the issues for determination are-
a. Whether the Plaintiff is entitled to the sum of Kshs 5,000,000 as claimed in the plaint?
b. Whether the defendant is entitled to the sum of Kshs 829,800 as overpayment and acknowledgement of VAT payment from KRA or a refund in the alternative.
c. What, if any, are the consequential orders arising from (a) and (b) above
d. Who should pay costs
17. The parties agree that there was a valid and enforceable fee agreement. The discrepancy arises from the defendant's payment of Kshs 5 million and the plaintiff's application of that payment to another account instead of this one. I have considered the documents placed before the Court.
18. It is not disputed that the Plaintiff was instructed to act in ELC Case No. E417 of 2021 – J M MUGO INVESTMENTS COMPANY LIMITED v KENYA PLANTERS COOPERATIVE UNION ( KPCU) and that a fee note was raised in that matter and payment made credited to that account.
19. It is significant that the invoice was raised in March of 2022 and settled before the fee agreement was executed. The issue of redirecting the payment was not raised until 2024 when the Plaintiff sought the settlement of his fees in relation to the succession matter.
20. I will not give any weight to the submissions on negligence in the absence of any formal complaint or proceedings in relation to the same.
21. I therefore find that the sum of Kshs 5m is outstanding as fees payable to the Plaintiff. For that reason, I dismiss the defendant's counterclaim for the sum of Kshs 829,800.
22. On the issue of VAT and proof of payment or refund to the defendant, this is beyond the scope of this Court. If, as he contends, this amount was not paid, this is a sum recoverable by the tax authorities.
23. I will therefore enter judgment for the Plaintiff as follows-
a. The sum of Kshs 5,000,000
b. Interest on (a) above at 14% per annum from the date of filing suit to date
c. The defence and counterclaim are dismissed
d. Costs of this suit
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…14th day of May 2026
P M NYAUNDI
JUDGE
In the Presence of
Fardosa Court Assistant
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
FCC No. E026 OF 2025
GEORGE MIYARE t/a MIYARE & COMPANY ADVOCATES…………………………. ………………………...APPELLANT
-VERSUS-
SAMUEL MUGO MBUGUA (as administrator of the Estate of Jane Wambui Mbugua- Deceased ) .............................……………...…....... RESPONDENT
JUDGMENT
INTRODUCTION
1. By plaint 5 th December 2024, the plaintiff seeks judgment against the defendant for-
a. Kshs 5 000,000 .00
b. Interest on (a) above at 14% per annum from 16 th February 2023 to date
c. costs
2. The sum claimed is the balance of professional fees owing from legal fees agreement date d 16th February 2023 in respect of Nairobi HCFP&A/ E618/2021 In the Matter of the Estate of Jane Wambui Mbugua( Deceased).
3. Under that agreement, fees were agreed at KShs 58,398,200. The defendant made payments towards the same; the final payment was on 15 th July 2024 for the sum of Kshs 21,300,000. At this point, when the Plaintiff demanded the balance of Kshs 5m, the defendant informed him that the same had already been paid.
4. The defendant filed a defence and counterclaim and contends that the professional fees owing to the plaintiff are fully settled, that before the execution of the agreement, he paid a total of Kshs 11,950,000 as professional fees. In paragraph 8 of the Defence, he stated that the final fee note was agreed at Kshs 70,348,200. The same was reduced by Kshs 11,950,500 and a Kshs 5m discount to arrive at the agreed fees of Kshs 53,398,200 in the agreement. He avers that the figure of Kshs 58,398,200 in the agreement is an error.
5. That the estate paid him the disputed Kshs 5 million, but he arbitrarily allocated it to another matter he was acting on instead of crediting the estate account. In his counterclaim, he asserts that the account was overpaid by Kshs 829,800 and demands a refund of the same. The defendant also seeks an ITax acknowledgement of payment of VAT from the Kenya Revenue Authority, or in the alternative, a refund of the VAT payable on account of the fees paid.
6. The plaintiff has filed a reply to the defence and a defence to the counterclaim dated 29 th April 2026. In which he denies the averments of the defendant and reasserts his claim.
7. The suit was canvassed via written submissions. The applicant's submissions are dated 9 th February 2026. The issues framed for determination are-
a. Whether the fee agreement is valid
b. Whether the allegations of negligence defeat the enforcement of the contract and
c. Whether the Plaintiff is entitled to the relief sought
8. On the 1 st issue, it is submitted that the relevant law is Section 45(1) of the Advocates Act and reference made to the decision in Omulele & Tollo Advocates v Mount Holdings Ltd, [2016] KECA 523 (KLR ). It is further stated that the defendant’s challenge on the validity of the agreement cannot be sustained in light of the decision in Adopt A Light Limited v Ochieng’, Onyango, Kibet & Ohaga Advocates [2016] KECA 387 (KLR) and National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] KECA 362 (KLR)
9. On the 2 nd issue, it is submitted that the allegations of professional negligence are not proved and cannot therefore be relied upon by the defendant to wiggle out of his contractual obligations.
10. It is submitted that the plaintiff is entitled to the sum of KShs 5 million and reference is made to the decision in Omulele & Tollo Advocates v Mount Holdings Ltd, [2016] KECA 523 (KLR)
11. It is submitted that contrary to the assertion by the defendant, the amount of KShs 5 million was paid before the agreement and was towards fees in relation to another matter, ELC Case No. E417 of 2021 – J M MUGO INVESTMENTS COMPANY LIMITED v KENYA PLANTERS COOPERATIVE UNION ( KPCU)
12. The defendant’s submissions are dated 9 th March 2026. The issues for determination are framed as-
a. Whether the parties had a valid and enforceable agreement
b. Whether the defendant owes the Plaintiff legal fees amounting to Kshs 5,000,000.
c. Whether the defendant’s counterclaim should be allowed.
13. The defendant concedes that there was a valid fee agreement. He denies, however, that the sum of Kshs 5m is outstanding as alleged and submits that the Plaintiff has not discharged his evidentiary burden as stipulated by Section 107 (1) of the Evidence Act.
14. It is submitted that it is the Plaintiff who failed to credit the sum of Kshs 5 million to the correct account, and reference is made to the decision in First American Bank of Kenya Ltd v Shah & Others [2002] eKLR .
15. The defendant seeks a refund of the overpayment on his part and further a refund of the VAT payable on the account.
ANALYSIS AND DETERMINATION
16. Having considered the pleadings on record and the submissions filed, the issues for determination are-
a. Whether the Plaintiff is entitled to the sum of Kshs 5,000,000 as claimed in the plaint?
b. Whether the defendant is entitled to the sum of Kshs 829,800 as overpayment and acknowledgement of VAT payment from KRA or a refund in the alternative.
c. What, if any, are the consequential orders arising from (a) and (b) above
d. Who should pay costs
17. The parties agree that there was a valid and enforceable fee agreement. The discrepancy arises from the defendant's payment of Kshs 5 million and the plaintiff's application of that payment to another account instead of this one. I have considered the documents placed before the Court.
18. It is not disputed that the Plaintiff was instructed to act in ELC Case No. E417 of 2021 – J M MUGO INVESTMENTS COMPANY LIMITED v KENYA PLANTERS COOPERATIVE UNION ( KPCU) and that a fee note was raised in that matter and payment made credited to that account.
19. It is significant that the invoice was raised in March of 2022 and settled before the fee agreement was executed. The issue of redirecting the payment was not raised until 2024 when the Plaintiff sought the settlement of his fees in relation to the succession matter.
20. I will not give any weight to the submissions on negligence in the absence of any formal complaint or proceedings in relation to the same.
21. I therefore find that the sum of Kshs 5m is outstanding as fees payable to the Plaintiff. For that reason, I dismiss the defendant's counterclaim for the sum of Kshs 829,800.
22. On the issue of VAT and proof of payment or refund to the defendant, this is beyond the scope of this Court. If, as he contends, this amount was not paid, this is a sum recoverable by the tax authorities.
23. I will therefore enter judgment for the Plaintiff as follows-
a. The sum of Kshs 5,000,000
b. Interest on (a) above at 14% per annum from the date of filing suit to date
c. The defence and counterclaim are dismissed
d. Costs of this suit
SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…14th day of May 2026
P M NYAUNDI
JUDGE
In the Presence of
Fardosa Court Assistant