1. The Applicants instituted this suit vide an originating summons dated 27/3/2024 and brought pursuant to Order 52, Rule 4 of the Civil Procedure Rules, 2010.
2. The Applicants sought judgment against the Respondent for the following orders:-
“i. Kes. 34, 000, 000/-.
ii. Interest on (1) from when the Respondent received payment until payment in full.
iii. That the court be pleased to make such other orders as it shall deem fit and just in the circumstances.
iv. Costs of the suit.”
3. The grounds of the application were that the Applicants had appointed the Respondent to act as their advocate in the sale of Apartment No. 2 on LR No. 1870/III/585 (the suit property) to one Vaishaleeben Sudhirkumar Patel for the stated sum. The Respondent drafted the sale agreement, which provided that he would receive and remit the purchase price to the Applicants. Although the full amount was paid to the Respondent, he failed to remit it to the Applicants and instead admitted to converting the funds for personal use.
4. The Applicants now seek judgment for the KES 34 million, interest from the date of receipt until payment in full, costs, and any further orders the court may deem just.
5. The Application was opposed by the Respondent vide a replying affidavit sworn on 5/11/2024 by himself.
6. He averred he acted for the Applicants in various transactions. These included the sale and purchase of properties worth Kshs. 34 million and Kshs. 100 million, respectively, preparation of lease and sublease agreements, and drafting of a special power of attorney.
7. He acknowledged receipt of Kshs. 34 million as the purchase price from the sale of the suit property, and confirmed this was received in his professional capacity. He denies owing any money to the Applicants, stating this firmly and unequivocally from his own knowledge.
8. In response to the replying affidavit sworn by the Respondent, the Applicants filed a further affidavit sworn on 28/11/2024 by the 1st Applicant, who had the authority to swear the affidavit on behalf of the 2nd Applicant.
9. The 1st Applicant confirmed that the Respondent had acted as their advocate in a property transaction and had received KES 34 million from the proceeds on their behalf, a fact not denied by the Respondent.
10. According to the Applicant, the Respondent’s claims in paragraphs 5 to 9 of the Replying Affidavit were misleading. He outlined email correspondence from 13/3/2024 in which the Respondent admitted owing the KES 34 million, stated he had used the funds, and offered to repay either through legal fees or by selling his assets. The Respondent disclosed that he was disposing of his residential property and an office unit. Shah, concerned that the Respondent was selling his home, proposed that the title be deposited with their lawyers instead. This was not feasible as the property was already charged to HFC Bank.
11. On 19/3/2024, the Respondent confirmed he was selling the property to a third party, later sending a draft sale agreement and requesting time to repay the funds after the sale. After his account was frozen, he proposed selling the property to the Applicants. The parties disagreed on valuation methods, but eventually the Respondent obtained a valuation, pricing the property at KES 62 million.
12. The Applicants proposed that the outstanding amount form part of the purchase price, inclusive of interest and legal costs, which they detailed in letters dated 4th and 10th September 2024. Before the matter was resolved, they received KES 30 million on 13/9/2024, and requested the Respondent to remit the balance, which he declined.
13. Shah contended that the issue of legal fees was raised as an afterthought and maintained that this suit became necessary due to the Respondent’s refusal to remit their funds, despite various efforts, including filing police complaints, initiating disciplinary proceedings, and freezing his accounts. He also clarified that many of the transactions the Respondent claimed fees for had been handled on friendly terms, without written agreements, and often involved minimal or waived payments.
14. Finally, Shah argued that the Respondent had no legal basis to withhold the KES 4 million, as there was no enforceable agreement on legal fees, and only an advocate can tax costs via a Bill of Costs. He prayed for judgment in their favour for the remainder of the sum, plus costs and interest, asserting that the Respondent’s response was misleading and abusive of the court process.
15. In another replying affidavit sworn on 7/2/2025, the Respondent addressed the contents of the further affidavit sworn by Miraj Jayendra Shah on 28/11/2024.
16. He affirmed the averments contained in paragraphs 3 to 13 of his earlier Replying Affidavit dated 5th November 2024, emphasizing that he had already paid a total of Kshs. 30,000,000 to Miraj Jayendra Shah and Alpa Miraj Shah, as evidenced by an RTGS transfer dated 13th September 2024. He further reiterated that his law firm had rendered legal services, particularly in respect of L.R. No. 1870/III/585 and other matters, for which he had not been paid.
17. The Respondent also noted that the claim, as stated in paragraph 10 of his earlier affidavit, of having retained Kshs. 4,000,000 as legal fees, had not been disputed. In fact, he pointed out that the said retention was tacitly acknowledged in paragraphs 10(b) through 10(e), and paragraph 11 of Shah's Further Affidavit. He argued that if the Applicants indeed believed he owed them Kshs. 34,000,000, they ought to state so explicitly. Otherwise, he asserted that the Originating Summons was grounded on a dispute that had already been resolved.
18. He maintained that the reliefs sought in prayers 1 to 4 of the Originating Summons dated 27/3/2024 had been clearly addressed, and since he had paid Kshs. 30,000,000 and retained Kshs. 4,000,000 as due legal fees, there was no longer a valid controversy before the court. However, he expressed no objection to the court considering prayers 2 and 3 of the summons and appointing a mediator to resolve any remaining issues therein.
Analysis and determination
19. The Applicants filed their written submissions dated 10th January 2025, while the Respondent filed submissions dated 13th March 2025.
20. I have carefully considered the parties’ respective submissions, together with the pleadings and the evidence on record.
21. The central issue for determination is whether the Respondent was entitled to retain the purchase price in whole or in part.
22. The factual background is that the Applicants engaged the Respondent to act as their advocate in a property sale transaction. Clause 13 of the sale agreement dated 13th September 2023 expressly provided that the purchase price was to be deposited with the Respondent in his capacity as the Applicants’ advocate. A copy of the agreement is annexed as ‘MJS1’ to the Supporting Affidavit sworn on 27th February 2024.
23. The transaction was completed and the full purchase price of Kshs.34,000,000 was remitted to the Respondent. The Respondent, through an email dated 13th March 2024, acknowledged receipt of the full amount. This email is annexed as ‘MJS2’ to the Applicant’s affidavit.
24. In the said email, the Respondent admitted as follows:-
“I owe you the sum of Kshs. 34,000,000/- being proceeds from the sale of the above mentioned property.
The proceeds came into my possession as the Vendor’s advocate for onward transmission to yourselves upon successful completion of the sale.
I utilized the same without your consent and express authority, which constitutes a serious offense in law.
In our discussions, I have sought your indulgence to make good this amount. I wish to pay the same from proceeds of legal fees and/or disposal of personal assets.
As such I hereby give you my undertaking to pay the sums owing to you within 30 days from the date hereof, failure to which you shall be at liberty to take action that you may deem fit.”
25. It is evident from the above communication that the Respondent unequivocally admitted to receiving the entire purchase price and acknowledged appropriating the funds without the Applicants’ authority. He also undertook to repay the amount.
26. It is not in dispute that on 13th September 2024, the Respondent remitted Kshs.30,000,000 to the Applicants via RTGS. However, he withheld a balance of Kshs.4,000,000, claiming it was due to him as legal fees.
27. In John Karungai Nyamu & Another v Muu & Associates Advocates [2008] eKLR, the Court held that:
“The Advocate has no right under any law to hold monies which have come to him for onward transmission to his client as lien... What the Advocate is doing by holding onto the Plaintiffs’ monies, is irregular and the court cannot condone the same.”
28. Similarly, in Simon Njumwa Maghanga v Joyce Jeptarus Kagongo t/a Chesaro & Co. Advocates [2014] KEHC 6096 (KLR), it was held:
“I agree with the learned Judge's holding that the Advocate's fee only becomes due after the bill of costs has been taxed by the court... It is improper for an advocate to withhold a client’s money on account of fees that is yet to be ascertained through the taxation process.”
29. I note that in the Respondent’s own email dated 13th March 2024, he made no mention of legal fees. Further, he has not produced any agreement between the parties authorizing him to deduct legal fees from the purchase price. If the Respondent intended to claim legal fees, the proper course of action would be for him to file a bill of costs for taxation.
30. It appears to this Court that the Respondent, after unlawfully appropriating client funds, repaid a portion and is now attempting to retain the balance under the guise of legal fees. I agree with the Applicants that this claim is an afterthought and lacks merit.
31. I am satisfied that the Applicants have proved their case as set out in the Originating Summons. I accordingly order the Respondent to pay the Applicants the sum of Kshs.4,000,000, together with interest at court rates from the date he received the purchase price until payment in full.
32. Costs follow the event. The Applicant shall have the costs of the suit.
33. It is so ordered.
10TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Gitau h/b for Muriithi…….…..for the Applicant
Amolo……………….…..... for the Respondent
2. The Applicants sought judgment against the Respondent for the following orders:-
“i. Kes. 34, 000, 000/-.
ii. Interest on (1) from when the Respondent received payment until payment in full.
iii. That the court be pleased to make such other orders as it shall deem fit and just in the circumstances.
iv. Costs of the suit.”
3. The grounds of the application were that the Applicants had appointed the Respondent to act as their advocate in the sale of Apartment No. 2 on LR No. 1870/III/585 (the suit property) to one Vaishaleeben Sudhirkumar Patel for the stated sum. The Respondent drafted the sale agreement, which provided that he would receive and remit the purchase price to the Applicants. Although the full amount was paid to the Respondent, he failed to remit it to the Applicants and instead admitted to converting the funds for personal use.
4. The Applicants now seek judgment for the KES 34 million, interest from the date of receipt until payment in full, costs, and any further orders the court may deem just.
5. The Application was opposed by the Respondent vide a replying affidavit sworn on 5/11/2024 by himself.
6. He averred he acted for the Applicants in various transactions. These included the sale and purchase of properties worth Kshs. 34 million and Kshs. 100 million, respectively, preparation of lease and sublease agreements, and drafting of a special power of attorney.
7. He acknowledged receipt of Kshs. 34 million as the purchase price from the sale of the suit property, and confirmed this was received in his professional capacity. He denies owing any money to the Applicants, stating this firmly and unequivocally from his own knowledge.
8. In response to the replying affidavit sworn by the Respondent, the Applicants filed a further affidavit sworn on 28/11/2024 by the 1st Applicant, who had the authority to swear the affidavit on behalf of the 2nd Applicant.
9. The 1st Applicant confirmed that the Respondent had acted as their advocate in a property transaction and had received KES 34 million from the proceeds on their behalf, a fact not denied by the Respondent.
10. According to the Applicant, the Respondent’s claims in paragraphs 5 to 9 of the Replying Affidavit were misleading. He outlined email correspondence from 13/3/2024 in which the Respondent admitted owing the KES 34 million, stated he had used the funds, and offered to repay either through legal fees or by selling his assets. The Respondent disclosed that he was disposing of his residential property and an office unit. Shah, concerned that the Respondent was selling his home, proposed that the title be deposited with their lawyers instead. This was not feasible as the property was already charged to HFC Bank.
11. On 19/3/2024, the Respondent confirmed he was selling the property to a third party, later sending a draft sale agreement and requesting time to repay the funds after the sale. After his account was frozen, he proposed selling the property to the Applicants. The parties disagreed on valuation methods, but eventually the Respondent obtained a valuation, pricing the property at KES 62 million.
12. The Applicants proposed that the outstanding amount form part of the purchase price, inclusive of interest and legal costs, which they detailed in letters dated 4th and 10th September 2024. Before the matter was resolved, they received KES 30 million on 13/9/2024, and requested the Respondent to remit the balance, which he declined.
13. Shah contended that the issue of legal fees was raised as an afterthought and maintained that this suit became necessary due to the Respondent’s refusal to remit their funds, despite various efforts, including filing police complaints, initiating disciplinary proceedings, and freezing his accounts. He also clarified that many of the transactions the Respondent claimed fees for had been handled on friendly terms, without written agreements, and often involved minimal or waived payments.
14. Finally, Shah argued that the Respondent had no legal basis to withhold the KES 4 million, as there was no enforceable agreement on legal fees, and only an advocate can tax costs via a Bill of Costs. He prayed for judgment in their favour for the remainder of the sum, plus costs and interest, asserting that the Respondent’s response was misleading and abusive of the court process.
15. In another replying affidavit sworn on 7/2/2025, the Respondent addressed the contents of the further affidavit sworn by Miraj Jayendra Shah on 28/11/2024.
16. He affirmed the averments contained in paragraphs 3 to 13 of his earlier Replying Affidavit dated 5th November 2024, emphasizing that he had already paid a total of Kshs. 30,000,000 to Miraj Jayendra Shah and Alpa Miraj Shah, as evidenced by an RTGS transfer dated 13th September 2024. He further reiterated that his law firm had rendered legal services, particularly in respect of L.R. No. 1870/III/585 and other matters, for which he had not been paid.
17. The Respondent also noted that the claim, as stated in paragraph 10 of his earlier affidavit, of having retained Kshs. 4,000,000 as legal fees, had not been disputed. In fact, he pointed out that the said retention was tacitly acknowledged in paragraphs 10(b) through 10(e), and paragraph 11 of Shah's Further Affidavit. He argued that if the Applicants indeed believed he owed them Kshs. 34,000,000, they ought to state so explicitly. Otherwise, he asserted that the Originating Summons was grounded on a dispute that had already been resolved.
18. He maintained that the reliefs sought in prayers 1 to 4 of the Originating Summons dated 27/3/2024 had been clearly addressed, and since he had paid Kshs. 30,000,000 and retained Kshs. 4,000,000 as due legal fees, there was no longer a valid controversy before the court. However, he expressed no objection to the court considering prayers 2 and 3 of the summons and appointing a mediator to resolve any remaining issues therein.
Analysis and determination
19. The Applicants filed their written submissions dated 10th January 2025, while the Respondent filed submissions dated 13th March 2025.
20. I have carefully considered the parties’ respective submissions, together with the pleadings and the evidence on record.
21. The central issue for determination is whether the Respondent was entitled to retain the purchase price in whole or in part.
22. The factual background is that the Applicants engaged the Respondent to act as their advocate in a property sale transaction. Clause 13 of the sale agreement dated 13th September 2023 expressly provided that the purchase price was to be deposited with the Respondent in his capacity as the Applicants’ advocate. A copy of the agreement is annexed as ‘MJS1’ to the Supporting Affidavit sworn on 27th February 2024.
23. The transaction was completed and the full purchase price of Kshs.34,000,000 was remitted to the Respondent. The Respondent, through an email dated 13th March 2024, acknowledged receipt of the full amount. This email is annexed as ‘MJS2’ to the Applicant’s affidavit.
24. In the said email, the Respondent admitted as follows:-
“I owe you the sum of Kshs. 34,000,000/- being proceeds from the sale of the above mentioned property.
The proceeds came into my possession as the Vendor’s advocate for onward transmission to yourselves upon successful completion of the sale.
I utilized the same without your consent and express authority, which constitutes a serious offense in law.
In our discussions, I have sought your indulgence to make good this amount. I wish to pay the same from proceeds of legal fees and/or disposal of personal assets.
As such I hereby give you my undertaking to pay the sums owing to you within 30 days from the date hereof, failure to which you shall be at liberty to take action that you may deem fit.”
25. It is evident from the above communication that the Respondent unequivocally admitted to receiving the entire purchase price and acknowledged appropriating the funds without the Applicants’ authority. He also undertook to repay the amount.
26. It is not in dispute that on 13th September 2024, the Respondent remitted Kshs.30,000,000 to the Applicants via RTGS. However, he withheld a balance of Kshs.4,000,000, claiming it was due to him as legal fees.
27. In John Karungai Nyamu & Another v Muu & Associates Advocates [2008] eKLR, the Court held that:
“The Advocate has no right under any law to hold monies which have come to him for onward transmission to his client as lien... What the Advocate is doing by holding onto the Plaintiffs’ monies, is irregular and the court cannot condone the same.”
28. Similarly, in Simon Njumwa Maghanga v Joyce Jeptarus Kagongo t/a Chesaro & Co. Advocates [2014] KEHC 6096 (KLR), it was held:
“I agree with the learned Judge's holding that the Advocate's fee only becomes due after the bill of costs has been taxed by the court... It is improper for an advocate to withhold a client’s money on account of fees that is yet to be ascertained through the taxation process.”
29. I note that in the Respondent’s own email dated 13th March 2024, he made no mention of legal fees. Further, he has not produced any agreement between the parties authorizing him to deduct legal fees from the purchase price. If the Respondent intended to claim legal fees, the proper course of action would be for him to file a bill of costs for taxation.
30. It appears to this Court that the Respondent, after unlawfully appropriating client funds, repaid a portion and is now attempting to retain the balance under the guise of legal fees. I agree with the Applicants that this claim is an afterthought and lacks merit.
31. I am satisfied that the Applicants have proved their case as set out in the Originating Summons. I accordingly order the Respondent to pay the Applicants the sum of Kshs.4,000,000, together with interest at court rates from the date he received the purchase price until payment in full.
32. Costs follow the event. The Applicant shall have the costs of the suit.
33. It is so ordered.
10TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Gitau h/b for Muriithi…….…..for the Applicant
Amolo……………….…..... for the Respondent