1. By an Originating Summons dated 25th October 2023 (the “OS”) the Plaintiff seeks to compel the Defendant to immediately deliver up it, the title documents for the following properties:
a) L.R NO. 12036- Mombasa Municipality (MN);
b) L.R NO. 209/4212;
c) L.R NO. 209/6251; and
d) L.R NO. 209/5912. (hereinafter referred to as “the Subject Properties”)
2. I note that the Originating Summons was served upon the Defendant on 2nd August 2024. Further, the Defendant was served with notice of the present hearing date. A return of service is available on the court record. To date, no response has been filed.
3. The background to the dispute is set out in the affidavit sworn by Jediel Muriuki and dated 25th October, 2023. In summary the background is as follows:
4. In late 1997, the Plaintiff began an exercise to assess the status of its properties, during which it discovered that leases on some properties, including the Subject Properties had or were about to expire. Consequently, the Plaintiff engaged the Defendant (practising as S Thuo - Muhia & Company Advocates) to facilitate the extension of these leases. To this end, the Plaintiff provided the Defendant with title documents for the Subject Properties.
5. A dispute arose over the legal fees payable for the Defendant’s services where the Defendant demanded the sum of Kshs. 697,489,961.20 for their work in facilitating the lease extensions. The Defendant then filed a bill of costs on 9th July 2018 in ELC Misc. Application No. 106 of 2018. By a ruling dated 8th January 2019, the bill was taxed by the Deputy Registrar at Kshs. 1,747,690.00.
6. Aggrieved by the decision of the Deputy Registrar, the Defendant filed an application in ELC Misc. Application No. 46 of 2019 seeking leave to file a reference from taxation of the taxing officer out of time and for the reference to be deemed duly and properly filed. The application was dismissed with costs by a ruling dated 21st May 2020.
7. On diverse dates, the Plaintiff’s advocates informed the Defendant that the Plaintiff was ready to pay the taxed costs in exchange for the return of the title documents. The Defendant did not however respond and continued to retain the title documents. Evidence of the same is found at pages 68 and 69 of the exhibit marked JM-1 annexed to the affidavit of Jediel Muriuki.
8. The Plaintiff submitted that the continued retention of title documents was unlawful. It submitted that the nature and extent of the Advocates lien were set out by Onguto J in Booth Extrusions (Formerly) Booth Manufacturing Africa Limited v Dumbeyia Nelson Muturi Harun t/a Nelson Harun & Company Advocates [2014] eKLR where his Lordship stated;
“The policy underlying liens briefly put is that it would be unfair for a party to enjoy the result of an advocate’s work without paying the advocate and then let the advocate seek payment elsewhere when payment could be easily gathered through the lien. Consequently, an advocate having a retaining lien over documents in her or his possession is entitled to retain the documents against the client until the full amount of his costs is paid: see Barrat v Gough Thomas [1950]2 All ER 1048, 1053. Provided that the costs in question have been incurred, the existence of the lien arguably does not rest upon a bill having been rendered to the client: see Re Taylor [1891] 1Ch 590, 596. Once the Advocates’ taxable costs, charges and expenses are paid the client is no doubt entitled to an order for the delivery up of the retained documents…The foregoing is a brief restatement of the nature of an advocate lien as founded on various common law cases...”
9. In the Plaintiff’s view, the only justification for the Defendant to retain the plaintiff’s documents would be where the Plaintiff has failed to settle the legal fees due to its lawyer. Counsel submitted that in this case the right to exercise a lien does not arise because of the following reasons:
a) The Defendant’s costs have been taxed. I note that evidence of the ruling on taxation dated 8th January 2019 is found pages 62 to 65 of the exhibit marked JM-1. This ruling has not been reviewed, varied and/or set aside.
b) The Plaintiff has communicated to the Defendant multiple times its willingness to pay the taxed amount in exchange for the return of the title documents. I note that evidence of the same is found at pages 68, 69, 78 and 79 of the exhibit marked JM-1.
10. Having considered the facts as set out above, the applicable law is found at Section 47 of the Advocates Act. The same reads as follows:
Power of court to order advocate to deliver his bill and to deliver up deed
(1) The jurisdiction of the Court to make orders for the delivery by an advocate of a bill of costs, and for the delivery up of or otherwise in relation to, any deeds, documents or papers in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the Court.
(2) In this section and in sections 48, 49 and 50 “advocate” includes the executors, administrators and assignees of the advocate in question.
11. Guided by the law as set out above, I am satisfied that this court has the jurisdiction to grant the orders sought where it is appropriate to do so. Moreover, based on the facts set out above, I am persuaded that, costs having been taxed, and given the willingness of the Plaintiff to pay the same, and refusal on the part of the Defendant to accept the same, there is no basis for the Defendant to exercise any lien on the plaintiff’s documents of title.
12. Further, I am satisfied that the continued retention of the documents in question have and will continue to occasion substantial prejudice and inconvenience to the Plaintiff. For instance, the Plaintiff has been unable to extend its leases over the Subject Properties and has had difficulty obtaining necessary approvals from the County Government for changes of user and other regulatory matters without its title documents.
13. Additionally, the Plaintiff submitted that without its title documents it cannot proceed with any further development or secure its interests in the Subject Properties owing to its inability to update the land tenure status. I am satisfied that such an impediment would directly impact the Plaintiff’s business and financial position, causing unnecessary prejudice to it.
14. Based on the reasons set out above, I find and hold that the continued retention of the title documents stated in paragraph 1 and belonging to the Plaintiff is unlawful.
15. The Originating Summons dated 25 October 2023 is allowed as prayed for. The Defendant shall deliver up the said documents of title to the Plaintiff within the next 14 days.