1. This is a first appeal arising out of a Trial Court's judgment in an Advocate-Client dispute. The dispute interrogates the legal boundaries of the advocate's lien. It examines the sanctity of retainer agreements. It further tests the ethical guardrails restricting an advocate from acquiring a client's property in a contentious brief. The matter challenges the Trial Court's validation of a highly irregular variation of a retainer agreement.
Background Facts
2. The factual matrix is largely uncontested regarding the initial engagement. The Appellants retained the Respondent on 27th September, 2019. The brief was to institute an adverse possession claim over land parcel number Kilifi/Mtwapa/1975. The agreed legal fee was Kshs. 170,000/=. The terms of this brief were reduced in writing vide a letter by the Respondent to the 1st Appellant dated 27th September, 2019. The underlying suit was successful and Judgment was delivered allowing the claim for adverse possession on 6th May, 2020. A title deed was issued in the name of the 1st Appellant on 8th June, 2020. The Respondent advocate took possession of this title deed.
3. The Appellants made partial payments toward the legal fees totalling Kshs. 120,000/=. A balance of Kshs. 50,000/= remained outstanding.
4. The litigation is defined by remarkable twists and turns. The first twist occurred when the Respondent wrote to the 1st Appellant on 17th June, 2020. The Respondent demanded the transfer of the suit property to herself for Kshs. 1,000,000/=. Alternatively, the Respondent demanded enhanced legal fees of Kshs. 3,000,000/=. The Appellants rejected these demands. They offered the Kshs. 50,000/= balance and demanded the release of the title deed. The Respondent refused. The Appellants subsequently filed Originating Summons No. 110 of 2022 at the Kilifi Law Courts.
5. A second, more bizarre twist subsequently emerged. On 17th November, 2022, a Notice to Act in Person and a Notice of Withdrawal of Suit were filed. These documents were ostensibly authored by the 1st Appellant. An accompanying affidavit sworn on the same date claimed she had received the title deed and had no further claim against the Respondent. She is also said to have disowned the 2nd Appellant and executed a Memorandum of Understanding and or Agreement date 17th October, 2022. Shortly thereafter, the 1st Appellant recanted. She swore a Further Affidavit sworn on 27th February, 2023 asserting she was fraudulently misled by the Respondent into signing the withdrawal documents.
6. The Trial Magistrate delivered the impugned ruling on 18th April, 2023. The Trial Court dismissed the Originating Summons. The Trial Court validated the purported subsequent agreement. It held that the Respondent was entitled to retain the title deed as a lien pending payment of the disputed legal fees. Aggrieved, the Appellants preferred this appeal.
7. The Appellants set out the following grounds in their Memorandum of Appeal dated 4th May, 2023:
(b) The learned trial magistrate erred both in fact and in law in failing to find that the Respondent had entered into a client/advocate contract for kshs 170,000/- prior to the filing of case NO SPM-ELC NO. 395 OF 2019 Jumwa Charo Mbitha -v/s- Shamsudeen Mohamed Kassim.
(c) The learned trial magistrate erred both in fact and in law in recognizing the alleged client/advocate contract allegedly entered between the 1st Appellant and the Respondent on 17th October, 2022 after the institution of Senior Principal Magistrate Originating Summons NO. 110 of 2022 Jumwa Charo Mbitha and Faiz Swaleh Abdalla -v/s- Jane Onyango T/A Onyango Onuga Advocates despite overwhelming evidence that the said agreement was fraudulently entered into by the Respondent.
(d) The learned trial magistrate erred both in fact and in law in failing to allow the Originating Summons dated 23rd September, 2022 as prayed.
(e) The learned trial magistrate misapprehended, misunderstood, misinterpreted and misapplied the provisions of Order 52 Rule 4(1) (e) and (2) of the Civil Procedure Rules, 2010 and those of the Advocates Act relevant to the case before him.
(f) The learned trial magistrate misapplied the law in not allowing the Originating Summons before him thereby occasioning the appellants a miscarriage of justice.
8. The reliefs sought in the Memorandum of Appeal are follows:
1. An order setting aside the orders of the trial court in case number Senior Principal Magistrate Originating Summons NO. 110 of 2022 Jumwa Charo Mbitha and Faiz Swaleh Abdalla -v/s- Jane Onyango T/A Onyango Onuga Advocates and allow the Originating Summons as prayed.
2. Costs of the suit before the trial court.
3. Costs of this appeal.
4. Any other relief that this Honourable court may deem just to grant.
9. The appeal was canvassed by way of written submissions. The Appellants contend that a valid retainer agreement of Kshs. 170,000/= existed. They argue the subsequent demands by the Respondent to purchase the property or charge legal fees of Kshs. 3,000,000/= were an afterthought and a breach of contract. They submit the Trial Magistrate erred by relying on the fraudulently obtained withdrawal documents.
10. The Court acknowledges the authorities cited by the Appellants. The Appellants rely primarily on the Advocates Act. They emphasize Section 45(1)(b) to support the validity of the initial fee agreement. They argue the Trial Court ought to have invoked Order 52 Rule 4(1)(e) of the Civil Procedure Rules to order the release of the title deed.
11. The Respondent opposes the appeal. She concedes the initial retainer of Kshs. 170,000/=. However, she argues this agreement was mutually varied by a Memorandum of Understanding executed on 17th October 2022. She asserts the 1st Appellant voluntarily withdrew the suit and acknowledged receipt of the title. She contends the Appellants failed to prove fraud, coercion, or misrepresentation to invalidate the new agreement.
12. The Court acknowledges the authorities cited by the Respondent. She relies on the High Court decision in County Government of Migori v Hope Self Help Group [2020] KEHC 98 (KLR), which quoted Gimalu Estates Ltd & 4 Others -vs- International Finance Corporation & another [2006] eKLR] to argue that parties can mutually alter contractual terms. She cites the Court of Appeal in Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR) to argue Courts cannot rewrite contracts. She further relies on Booth Extrusions v Nelson Harun & Company Advocates [2014] KEHC 8597 (KLR) to justify the continued exercise of the advocate's lien.
Issues for Determination
13. The Court has evaluated the Memorandum of Appeal, the Record of Appeal and the rival submissions by Counsel for the parties. The Court frames three issues for determination as follows:
(a) Whether the initial retainer agreement was lawfully varied.
(b) Whether the Respondent was entitled to exercise an advocate's lien over the title deed.
(c) Whether the Trial Court erred in dismissing the Originating Summons.
Analysis
14. This being a first appeal, the duty of this Appellate Court is clear. The Court must reconsider the evidence adduced before the Trial Court. It must evaluate this evidence and draw independent conclusions. This principle was settled in the case of Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123. Due allowance must be made that the Appellate Court neither saw nor heard the witnesses.
(a) Whether the initial retainer agreement was lawfully varied.
15. On the first issue, the initial agreement for Kshs. 170,000/= is admitted by both parties. It is documented in the Respondent’s own letter dated 27th September, 2019. It is a matter of record that Kshs. 120,000/= was paid. The Respondent alleges this agreement was varied. She claims the variation permitted her to purchase the suit property for Kshs. 1,000,000/= or alternatively charge Kshs. 3,000,000/=. The 1st Appellant heavily contests this, pleading fraud and coercion.
16. The correct law regarding advocate-client contracts must be stated. The relationship is fiduciary. It is strictly regulated by the Advocates Act. Section 45 allows parties to agree on remuneration as follows:
“45. Agreements with respect to remuneration
(1) Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may—(a)before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;
(b)before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;
(c)before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.”
17. However, this freedom of contract is severely curtailed by Section 46 of the same Act. Section 46(a) expressly invalidates any agreement by an advocate to purchase a client's interest in any contentious proceedings. It states as follows:
“46. Invalid agreements
Nothing in this Act shall give validity to—
(a)any purchase by an advocate of the interest, or any part of the interest, of his client in any suit or other contentious proceeding; or
(b)any agreement relieving any advocate from responsibility for professional negligence or any other responsibility to which he would otherwise be subject as an advocate; or
(c)any agreement by which an advocate retained or employed to prosecute or defend any suit or other contentious proceeding stipulates for payment only in the event of success in such suit or proceeding or that the advocate shall be remunerated at different rates according to the success or failure thereof; or
(d)any agreement by which an advocate agrees to accept, in respect of professional business, any fee or other consideration which shall be less than the remuneration prescribed by any order under section 44 respect of that business or more than twenty-five per centum of the general damages recovered less the party and party costs as taxed or agreed; or
(e)any disposition, contract, settlement, conveyance, delivery, dealing or transfer that is, under the Insolvency Act (Cap. 53) void or ineffective against the Official Receiver or a bankruptcy trustee or an interim trustee in proceedings under that Act.”
18. The Respondent's attempt to acquire the suit property—the very subject of the adverse possession suit she prosecuted—is professionally repugnant. It is statutorily void. A contract cannot be varied to introduce an illegality. The Trial Court failed to appreciate this statutory embargo. The mutual consent of the parties cannot cure a statutory illegality. The Respondent’s letter to the Appellants’ Advocate dated 20th June, 2020 makes reference to a contingency agreement which was conditional on successful litigation. That contingency agreement has not been attached but equally runs foul of Section 46 (c) of the Advocates Act. It is important to remind Advocates that agreements to represent clients on a contingency basis are unlawful and void. The Courts won’t enforce them, unless Section 46 (c) of the Advocates Act is amended. The case on Ng'ani & Oluoch Advocates v Mugo [2026] KEHC 429 (KLR) is on point on this issue.
19. The Court is guided by the case of Kukal Properties Development Ltd v Tafazzal H. Maloo & 3 others [1993] KECA 65 (KLR). The Court of Appeal established that variations to written contracts must be clear and mutually intended. Furthermore, in Housing Finance Co. of Kenya Limited vs. Gilbert Kibe Njuguna Nairobi HCCC No. 1601 of 1999, it was held that Courts will not enforce unilateral or unconscionable variations imposed by one party upon another. The purported variation demanding Kshs. 3,000,000/= lacks genuine mutual consent and offends public policy.
20. Another relevant issue arises regarding the withdrawal documents of 17th November, 2022. The 1st Appellant is said to be an illiterate client. The abrupt filing of a Notice to Act in Person, followed immediately by a Notice of Withdrawal and a self-incriminating affidavit in favour of the Advocate, presents classic badges of undue influence. In a fiduciary relationship, the burden rests heavily on the Advocate to prove that a transaction beneficial to the advocate was executed with the client's full, free, and informed consent. The Respondent failed to discharge this burden.
21. There is also the question of the Memorandum of Understanding said to have been executed between the Advocate and the 1st Appellant on 17th October, 2022. It suffers the same fate as it cannot override the provisions of Section 46 (c) of the Advocates Act.
(b) Whether the Respondent was entitled to exercise an advocate's lien over the title deed.
22. The Court now turns to the second issue: the Advocate's lien. The Respondent asserts a retaining lien over the title deed pending the payment of her disputed fees. She relies heavily on the Booth Extrusions case. The jurisprudence of the Court on the advocate's lien is clear. A general retaining lien exists only for unpaid fees legitimately owed. It is a passive right. It cannot be wielded as an instrument of extortion.
23. A lien is extinguished once the client tenders the outstanding balance. The Appellants acknowledged a balance of Kshs. 50,000/=. They formally tendered this amount and demanded the title deed. The Respondent refused to accept the Kshs. 50,000/=. She demanded instead an illegal property transfer or an unconscionable Kshs. 3,000,000/=. This refusal destroyed the legal foundation of her lien. She cannot rely on equity while actively breaching the Advocates Act.
(c) Whether the Trial Court erred in dismissing the Originating Summons.
24. The Court addresses the third issue. The Trial Court erred fundamentally. The Magistrate validated an illegal variation of a retainer. He permitted the continuation of an oppressive lien. The Trial Court failed to invoke Order 52 Rule 4(1)(e) of the Civil Procedure Rules and Section 47 of the Advocates Act which empowers the Court to order the delivery of a client's documents.
25. The Respondent claims she already released the title deed to the 1st Appellant during the murky events of late 2022. The 1st Appellant vigorously denies this. If the Respondent has indeed released the title, an order compelling its release occasions her no prejudice. If she retains it, she holds it unlawfully. The Appellants are entitled to their proprietary documents.
26. The Court notes a disturbing trend. Advocates must not utilize their privileged position to hold client’s hostage. The practice of holding titles to extract fees far beyond the agreed retainer is an abuse of the advocate-client relationship. The Trial Court was duty-bound to protect the client from such overreach. See Simon Njumwa Maghanga v Joyce Jeptarus Kagongo T/A Chesaro & Co. Advocates [2014] KEHC 6096 (KLR).
27. The Originating Summons dated 23rd September, 2022 was highly merited. The Appellants proved their case on a balance of probabilities. The Trial Court's decision was anchored on a misapprehension of both the facts and the applicable law governing Advocate-Client remuneration. The Trial Court's judgment must be overturned.
28. As to costs, the same ordinarily follow the event and lie at the discretion of this Court. The Court is persuaded that the Appellants are deserving of costs in this Appeal and in the Trial Court below.
Determination
29. The appeal succeeds in its entirety. The Court makes the following final orders:
(a) The Appeal is HEREBY allowed.
(b) The Ruling and Order issued by the Trial Court in case number Senior Principal Magistrate Originating Summons NO. 110 of 2022 Jumwa Charo Mbitha and Faiz Swaleh Abdalla -v/s- Jane Onyango T/A Onyango Onuga Advocates dated 18th April, 2023 is HEREBY quashed and set aside.
(c) It is instead replaced and substituted with an order allowing the Originating Summons dated 23rd September, 2022 as prayed. The Respondent shall unconditionally release the original Title Deed for parcel number Kilifi/Mtwapa/1975 to the 1st Appellant forthwith, upon the Appellants depositing the Kshs. 50,000/= balance with the Respondent.
(d) The Appellants are awarded the costs of this Appeal as well as those of at the Trial Court below.
30. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Kiprono holding brief for Mr. Abubakar for the Appellants.
N/A for Miss Mubassu for the Respondent.
Mr. Mohamed - Court Assistant.
Background Facts
2. The factual matrix is largely uncontested regarding the initial engagement. The Appellants retained the Respondent on 27th September, 2019. The brief was to institute an adverse possession claim over land parcel number Kilifi/Mtwapa/1975. The agreed legal fee was Kshs. 170,000/=. The terms of this brief were reduced in writing vide a letter by the Respondent to the 1st Appellant dated 27th September, 2019. The underlying suit was successful and Judgment was delivered allowing the claim for adverse possession on 6th May, 2020. A title deed was issued in the name of the 1st Appellant on 8th June, 2020. The Respondent advocate took possession of this title deed.
3. The Appellants made partial payments toward the legal fees totalling Kshs. 120,000/=. A balance of Kshs. 50,000/= remained outstanding.
4. The litigation is defined by remarkable twists and turns. The first twist occurred when the Respondent wrote to the 1st Appellant on 17th June, 2020. The Respondent demanded the transfer of the suit property to herself for Kshs. 1,000,000/=. Alternatively, the Respondent demanded enhanced legal fees of Kshs. 3,000,000/=. The Appellants rejected these demands. They offered the Kshs. 50,000/= balance and demanded the release of the title deed. The Respondent refused. The Appellants subsequently filed Originating Summons No. 110 of 2022 at the Kilifi Law Courts.
5. A second, more bizarre twist subsequently emerged. On 17th November, 2022, a Notice to Act in Person and a Notice of Withdrawal of Suit were filed. These documents were ostensibly authored by the 1st Appellant. An accompanying affidavit sworn on the same date claimed she had received the title deed and had no further claim against the Respondent. She is also said to have disowned the 2nd Appellant and executed a Memorandum of Understanding and or Agreement date 17th October, 2022. Shortly thereafter, the 1st Appellant recanted. She swore a Further Affidavit sworn on 27th February, 2023 asserting she was fraudulently misled by the Respondent into signing the withdrawal documents.
6. The Trial Magistrate delivered the impugned ruling on 18th April, 2023. The Trial Court dismissed the Originating Summons. The Trial Court validated the purported subsequent agreement. It held that the Respondent was entitled to retain the title deed as a lien pending payment of the disputed legal fees. Aggrieved, the Appellants preferred this appeal.
7. The Appellants set out the following grounds in their Memorandum of Appeal dated 4th May, 2023:
(b) The learned trial magistrate erred both in fact and in law in failing to find that the Respondent had entered into a client/advocate contract for kshs 170,000/- prior to the filing of case NO SPM-ELC NO. 395 OF 2019 Jumwa Charo Mbitha -v/s- Shamsudeen Mohamed Kassim.
(c) The learned trial magistrate erred both in fact and in law in recognizing the alleged client/advocate contract allegedly entered between the 1st Appellant and the Respondent on 17th October, 2022 after the institution of Senior Principal Magistrate Originating Summons NO. 110 of 2022 Jumwa Charo Mbitha and Faiz Swaleh Abdalla -v/s- Jane Onyango T/A Onyango Onuga Advocates despite overwhelming evidence that the said agreement was fraudulently entered into by the Respondent.
(d) The learned trial magistrate erred both in fact and in law in failing to allow the Originating Summons dated 23rd September, 2022 as prayed.
(e) The learned trial magistrate misapprehended, misunderstood, misinterpreted and misapplied the provisions of Order 52 Rule 4(1) (e) and (2) of the Civil Procedure Rules, 2010 and those of the Advocates Act relevant to the case before him.
(f) The learned trial magistrate misapplied the law in not allowing the Originating Summons before him thereby occasioning the appellants a miscarriage of justice.
8. The reliefs sought in the Memorandum of Appeal are follows:
1. An order setting aside the orders of the trial court in case number Senior Principal Magistrate Originating Summons NO. 110 of 2022 Jumwa Charo Mbitha and Faiz Swaleh Abdalla -v/s- Jane Onyango T/A Onyango Onuga Advocates and allow the Originating Summons as prayed.
2. Costs of the suit before the trial court.
3. Costs of this appeal.
4. Any other relief that this Honourable court may deem just to grant.
9. The appeal was canvassed by way of written submissions. The Appellants contend that a valid retainer agreement of Kshs. 170,000/= existed. They argue the subsequent demands by the Respondent to purchase the property or charge legal fees of Kshs. 3,000,000/= were an afterthought and a breach of contract. They submit the Trial Magistrate erred by relying on the fraudulently obtained withdrawal documents.
10. The Court acknowledges the authorities cited by the Appellants. The Appellants rely primarily on the Advocates Act. They emphasize Section 45(1)(b) to support the validity of the initial fee agreement. They argue the Trial Court ought to have invoked Order 52 Rule 4(1)(e) of the Civil Procedure Rules to order the release of the title deed.
11. The Respondent opposes the appeal. She concedes the initial retainer of Kshs. 170,000/=. However, she argues this agreement was mutually varied by a Memorandum of Understanding executed on 17th October 2022. She asserts the 1st Appellant voluntarily withdrew the suit and acknowledged receipt of the title. She contends the Appellants failed to prove fraud, coercion, or misrepresentation to invalidate the new agreement.
12. The Court acknowledges the authorities cited by the Respondent. She relies on the High Court decision in County Government of Migori v Hope Self Help Group [2020] KEHC 98 (KLR), which quoted Gimalu Estates Ltd & 4 Others -vs- International Finance Corporation & another [2006] eKLR] to argue that parties can mutually alter contractual terms. She cites the Court of Appeal in Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR) to argue Courts cannot rewrite contracts. She further relies on Booth Extrusions v Nelson Harun & Company Advocates [2014] KEHC 8597 (KLR) to justify the continued exercise of the advocate's lien.
Issues for Determination
13. The Court has evaluated the Memorandum of Appeal, the Record of Appeal and the rival submissions by Counsel for the parties. The Court frames three issues for determination as follows:
(a) Whether the initial retainer agreement was lawfully varied.
(b) Whether the Respondent was entitled to exercise an advocate's lien over the title deed.
(c) Whether the Trial Court erred in dismissing the Originating Summons.
Analysis
14. This being a first appeal, the duty of this Appellate Court is clear. The Court must reconsider the evidence adduced before the Trial Court. It must evaluate this evidence and draw independent conclusions. This principle was settled in the case of Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123. Due allowance must be made that the Appellate Court neither saw nor heard the witnesses.
(a) Whether the initial retainer agreement was lawfully varied.
15. On the first issue, the initial agreement for Kshs. 170,000/= is admitted by both parties. It is documented in the Respondent’s own letter dated 27th September, 2019. It is a matter of record that Kshs. 120,000/= was paid. The Respondent alleges this agreement was varied. She claims the variation permitted her to purchase the suit property for Kshs. 1,000,000/= or alternatively charge Kshs. 3,000,000/=. The 1st Appellant heavily contests this, pleading fraud and coercion.
16. The correct law regarding advocate-client contracts must be stated. The relationship is fiduciary. It is strictly regulated by the Advocates Act. Section 45 allows parties to agree on remuneration as follows:
“45. Agreements with respect to remuneration
(1) Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may—(a)before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;
(b)before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;
(c)before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.”
17. However, this freedom of contract is severely curtailed by Section 46 of the same Act. Section 46(a) expressly invalidates any agreement by an advocate to purchase a client's interest in any contentious proceedings. It states as follows:
“46. Invalid agreements
Nothing in this Act shall give validity to—
(a)any purchase by an advocate of the interest, or any part of the interest, of his client in any suit or other contentious proceeding; or
(b)any agreement relieving any advocate from responsibility for professional negligence or any other responsibility to which he would otherwise be subject as an advocate; or
(c)any agreement by which an advocate retained or employed to prosecute or defend any suit or other contentious proceeding stipulates for payment only in the event of success in such suit or proceeding or that the advocate shall be remunerated at different rates according to the success or failure thereof; or
(d)any agreement by which an advocate agrees to accept, in respect of professional business, any fee or other consideration which shall be less than the remuneration prescribed by any order under section 44 respect of that business or more than twenty-five per centum of the general damages recovered less the party and party costs as taxed or agreed; or
(e)any disposition, contract, settlement, conveyance, delivery, dealing or transfer that is, under the Insolvency Act (Cap. 53) void or ineffective against the Official Receiver or a bankruptcy trustee or an interim trustee in proceedings under that Act.”
18. The Respondent's attempt to acquire the suit property—the very subject of the adverse possession suit she prosecuted—is professionally repugnant. It is statutorily void. A contract cannot be varied to introduce an illegality. The Trial Court failed to appreciate this statutory embargo. The mutual consent of the parties cannot cure a statutory illegality. The Respondent’s letter to the Appellants’ Advocate dated 20th June, 2020 makes reference to a contingency agreement which was conditional on successful litigation. That contingency agreement has not been attached but equally runs foul of Section 46 (c) of the Advocates Act. It is important to remind Advocates that agreements to represent clients on a contingency basis are unlawful and void. The Courts won’t enforce them, unless Section 46 (c) of the Advocates Act is amended. The case on Ng'ani & Oluoch Advocates v Mugo [2026] KEHC 429 (KLR) is on point on this issue.
19. The Court is guided by the case of Kukal Properties Development Ltd v Tafazzal H. Maloo & 3 others [1993] KECA 65 (KLR). The Court of Appeal established that variations to written contracts must be clear and mutually intended. Furthermore, in Housing Finance Co. of Kenya Limited vs. Gilbert Kibe Njuguna Nairobi HCCC No. 1601 of 1999, it was held that Courts will not enforce unilateral or unconscionable variations imposed by one party upon another. The purported variation demanding Kshs. 3,000,000/= lacks genuine mutual consent and offends public policy.
20. Another relevant issue arises regarding the withdrawal documents of 17th November, 2022. The 1st Appellant is said to be an illiterate client. The abrupt filing of a Notice to Act in Person, followed immediately by a Notice of Withdrawal and a self-incriminating affidavit in favour of the Advocate, presents classic badges of undue influence. In a fiduciary relationship, the burden rests heavily on the Advocate to prove that a transaction beneficial to the advocate was executed with the client's full, free, and informed consent. The Respondent failed to discharge this burden.
21. There is also the question of the Memorandum of Understanding said to have been executed between the Advocate and the 1st Appellant on 17th October, 2022. It suffers the same fate as it cannot override the provisions of Section 46 (c) of the Advocates Act.
(b) Whether the Respondent was entitled to exercise an advocate's lien over the title deed.
22. The Court now turns to the second issue: the Advocate's lien. The Respondent asserts a retaining lien over the title deed pending the payment of her disputed fees. She relies heavily on the Booth Extrusions case. The jurisprudence of the Court on the advocate's lien is clear. A general retaining lien exists only for unpaid fees legitimately owed. It is a passive right. It cannot be wielded as an instrument of extortion.
23. A lien is extinguished once the client tenders the outstanding balance. The Appellants acknowledged a balance of Kshs. 50,000/=. They formally tendered this amount and demanded the title deed. The Respondent refused to accept the Kshs. 50,000/=. She demanded instead an illegal property transfer or an unconscionable Kshs. 3,000,000/=. This refusal destroyed the legal foundation of her lien. She cannot rely on equity while actively breaching the Advocates Act.
(c) Whether the Trial Court erred in dismissing the Originating Summons.
24. The Court addresses the third issue. The Trial Court erred fundamentally. The Magistrate validated an illegal variation of a retainer. He permitted the continuation of an oppressive lien. The Trial Court failed to invoke Order 52 Rule 4(1)(e) of the Civil Procedure Rules and Section 47 of the Advocates Act which empowers the Court to order the delivery of a client's documents.
25. The Respondent claims she already released the title deed to the 1st Appellant during the murky events of late 2022. The 1st Appellant vigorously denies this. If the Respondent has indeed released the title, an order compelling its release occasions her no prejudice. If she retains it, she holds it unlawfully. The Appellants are entitled to their proprietary documents.
26. The Court notes a disturbing trend. Advocates must not utilize their privileged position to hold client’s hostage. The practice of holding titles to extract fees far beyond the agreed retainer is an abuse of the advocate-client relationship. The Trial Court was duty-bound to protect the client from such overreach. See Simon Njumwa Maghanga v Joyce Jeptarus Kagongo T/A Chesaro & Co. Advocates [2014] KEHC 6096 (KLR).
27. The Originating Summons dated 23rd September, 2022 was highly merited. The Appellants proved their case on a balance of probabilities. The Trial Court's decision was anchored on a misapprehension of both the facts and the applicable law governing Advocate-Client remuneration. The Trial Court's judgment must be overturned.
28. As to costs, the same ordinarily follow the event and lie at the discretion of this Court. The Court is persuaded that the Appellants are deserving of costs in this Appeal and in the Trial Court below.
Determination
29. The appeal succeeds in its entirety. The Court makes the following final orders:
(a) The Appeal is HEREBY allowed.
(b) The Ruling and Order issued by the Trial Court in case number Senior Principal Magistrate Originating Summons NO. 110 of 2022 Jumwa Charo Mbitha and Faiz Swaleh Abdalla -v/s- Jane Onyango T/A Onyango Onuga Advocates dated 18th April, 2023 is HEREBY quashed and set aside.
(c) It is instead replaced and substituted with an order allowing the Originating Summons dated 23rd September, 2022 as prayed. The Respondent shall unconditionally release the original Title Deed for parcel number Kilifi/Mtwapa/1975 to the 1st Appellant forthwith, upon the Appellants depositing the Kshs. 50,000/= balance with the Respondent.
(d) The Appellants are awarded the costs of this Appeal as well as those of at the Trial Court below.
30. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Kiprono holding brief for Mr. Abubakar for the Appellants.
N/A for Miss Mubassu for the Respondent.
Mr. Mohamed - Court Assistant.