Maina Maniga has come to this court against Bernard Akang’o Trading as Akang’o Advocates. The applicant seeks orders that the respondent be compelled to account for all the monies he received from the Applicant in respect to Nakuru ELC case no. 530 of and 307 of 2018 all bearing party names as Joel Maniga Versus Dr Andrew Ochoki. The Taxations in Nakuru ELC Misc Application E023 OF 2023 and E024 OF 2023 should not proceed unless the respondent Accounts for the money received. That cost of the application be borne by the respondent. Such further and/or other orders be made as the court may deem fit and expedient.
The application is based on the grounds that the applicant instructed the respondent to act for him in Nakuru ELC case no. 530 of 2013 and 307 of 2018 all bearing party \'names as Joel Maniga Versus Dr Andrew Ochoki. In the course of handling the cases, the respondent received from the Applicant a total of Kshs 2,805,000/= to hold for the Applicant. Upon the conclusion of the matters above mentioned, the respondent proceeded and filed his bill of costs in Nakuru ELC Misc Application E023 OF 2023 and E024 OF 2023.
Upon the Applicant requesting the respondent to account for the money received and how the same was spent, the respondent has refused to disclose how he utilized the money.
The applicant laments that despite receiving huge amounts of money, the respondent has proceeded to file bills of costs which required the respondent to be paid yet he holds the Applicant\'s money which he has failed to account for and release the remainder to the Applicant as an officer of the court.
It would be in the best interest of justice to have the respondent account for the money he received before proceeding with the taxation which is designed to defeat the fact that the respondent received the money from the Applicant. The taxation proceeding is designed to unjustly enrich the Applicant. It is in the interest of justice that the application be heard on a priority basis to protect the interest of the Applicant. The supporting affidavit is a reiteration of the grounds of the application.
The respondent has filed grounds of opposition stating that the application is incompetent, bad in law and the same offends Section 34 of the Civil Procedure Act. Cap 21 of the Laws of Kenya. This Honorable court does not have jurisdiction to entertain the application. The respondent contends that any questions/ issues of account and /or set off can only arise once the bill(s) is/are taxed and not before taxation. The jurisdiction of this honorable court on the bills can only crystallize on reference and not before taxation.
In any case, all the monies received on behalf of the applicant herein were fully disbursed to his representative and the liaison between himself and the respondent herein, one Mr. Jared Gekombe Advocate particulars of which are well within the Applicants\' knowledge. The applicant is thus being economical with the truth and is guilty of non-disclosure to this honorable court. The application is thus a red herring meant to frustrate the respondent from realizing fees from the applicant.
I have considered the application rival submissions and do find that Order 52 of the Civil Procedure Rules 2010. Order 52 rule 1 provides: -
1. Interpretation [Order 52, rule 1]
In this Order— “the Act” means the Advocates Act (Cap. 16); “the Disciplinary Committee” means the Disciplinary Committee established under section 57 of the Advocates Act (Cap. 16); “the Society” means the Society established and incorporated by section 3 of the Law Society of Kenya Act (Cap.18).
Order 52 rule 4 provides: -
4. Power to order advocate to deliver accounts and documents [Order 52, rule 4]
(1) Where the relationship of advocate and client exists or has existed the court may, on the application of the client or his legal personal representative, make an order for— (a) the delivery by the advocate of a cash account; (b) the payment or delivery up by the advocate of money or securities; (c) the delivery to the applicant of a list of the money or securities which the advocate has in his possession or control on behalf of the applicant; (d) the payment into or lodging in court of any such money or securities; (e) the delivery up of papers and documents to which the client is entitled.
(2) Applications under this rule shall be by originating summons, supported by affidavit, and shall be served on the advocate.
(3) If the advocate alleges that he has a claim for costs the court may make such order for the taxation and payment, or securing the payment, thereof and the protection of the advocate’s lien, if any, as the court deems fit.
I do agree with the respondent that his court jurisdiction has not been properly invoked under Order 52 rule 4 of the Civil Procedure Rules 2010. However, this court is not inclined to sacrifice justice on the altar of procedure as the court has a duty to ensure that there is substantive justice.
The upshot of the above is that the application is allowed in terms that the respondent be compelled to account for all the monies he received from the applicant in respect to Nakuru ELC case no. 530 of and 307 of 2018 all bearing party names as Joel Maniga Versus Dr Andrew Ochoki.
The Taxations in Nakuru ELC Misc Application E023 OF 2023 and E024 OF 2023 to proceed, however, if the amount taxed is more than the amount deposited, the applicant to pay the difference and if the amount taxed is less than the amount deposited, the respondent to pay the difference. Costs of the application to the party who will be entitled to the difference.
Ruling dated, signed and delivered electrically this 9th Day of October 2024.
The application is based on the grounds that the applicant instructed the respondent to act for him in Nakuru ELC case no. 530 of 2013 and 307 of 2018 all bearing party \'names as Joel Maniga Versus Dr Andrew Ochoki. In the course of handling the cases, the respondent received from the Applicant a total of Kshs 2,805,000/= to hold for the Applicant. Upon the conclusion of the matters above mentioned, the respondent proceeded and filed his bill of costs in Nakuru ELC Misc Application E023 OF 2023 and E024 OF 2023.
Upon the Applicant requesting the respondent to account for the money received and how the same was spent, the respondent has refused to disclose how he utilized the money.
The applicant laments that despite receiving huge amounts of money, the respondent has proceeded to file bills of costs which required the respondent to be paid yet he holds the Applicant\'s money which he has failed to account for and release the remainder to the Applicant as an officer of the court.
It would be in the best interest of justice to have the respondent account for the money he received before proceeding with the taxation which is designed to defeat the fact that the respondent received the money from the Applicant. The taxation proceeding is designed to unjustly enrich the Applicant. It is in the interest of justice that the application be heard on a priority basis to protect the interest of the Applicant. The supporting affidavit is a reiteration of the grounds of the application.
The respondent has filed grounds of opposition stating that the application is incompetent, bad in law and the same offends Section 34 of the Civil Procedure Act. Cap 21 of the Laws of Kenya. This Honorable court does not have jurisdiction to entertain the application. The respondent contends that any questions/ issues of account and /or set off can only arise once the bill(s) is/are taxed and not before taxation. The jurisdiction of this honorable court on the bills can only crystallize on reference and not before taxation.
In any case, all the monies received on behalf of the applicant herein were fully disbursed to his representative and the liaison between himself and the respondent herein, one Mr. Jared Gekombe Advocate particulars of which are well within the Applicants\' knowledge. The applicant is thus being economical with the truth and is guilty of non-disclosure to this honorable court. The application is thus a red herring meant to frustrate the respondent from realizing fees from the applicant.
I have considered the application rival submissions and do find that Order 52 of the Civil Procedure Rules 2010. Order 52 rule 1 provides: -
1. Interpretation [Order 52, rule 1]
In this Order— “the Act” means the Advocates Act (Cap. 16); “the Disciplinary Committee” means the Disciplinary Committee established under section 57 of the Advocates Act (Cap. 16); “the Society” means the Society established and incorporated by section 3 of the Law Society of Kenya Act (Cap.18).
Order 52 rule 4 provides: -
4. Power to order advocate to deliver accounts and documents [Order 52, rule 4]
(1) Where the relationship of advocate and client exists or has existed the court may, on the application of the client or his legal personal representative, make an order for— (a) the delivery by the advocate of a cash account; (b) the payment or delivery up by the advocate of money or securities; (c) the delivery to the applicant of a list of the money or securities which the advocate has in his possession or control on behalf of the applicant; (d) the payment into or lodging in court of any such money or securities; (e) the delivery up of papers and documents to which the client is entitled.
(2) Applications under this rule shall be by originating summons, supported by affidavit, and shall be served on the advocate.
(3) If the advocate alleges that he has a claim for costs the court may make such order for the taxation and payment, or securing the payment, thereof and the protection of the advocate’s lien, if any, as the court deems fit.
I do agree with the respondent that his court jurisdiction has not been properly invoked under Order 52 rule 4 of the Civil Procedure Rules 2010. However, this court is not inclined to sacrifice justice on the altar of procedure as the court has a duty to ensure that there is substantive justice.
The upshot of the above is that the application is allowed in terms that the respondent be compelled to account for all the monies he received from the applicant in respect to Nakuru ELC case no. 530 of and 307 of 2018 all bearing party names as Joel Maniga Versus Dr Andrew Ochoki.
The Taxations in Nakuru ELC Misc Application E023 OF 2023 and E024 OF 2023 to proceed, however, if the amount taxed is more than the amount deposited, the applicant to pay the difference and if the amount taxed is less than the amount deposited, the respondent to pay the difference. Costs of the application to the party who will be entitled to the difference.
Ruling dated, signed and delivered electrically this 9th Day of October 2024.