[1] This suit was commenced by way of Originating Summons at the instance of the Romanus Okeno, Paul Okeno and Joseph Okeno T/A Okeno & Sons Building Contractors. For the purpose of this Judgment I will henceforth refer to them as the 1st, 2nd and 3rd plaintiffs, respectively. They filed their Originating Summons under Sections IA. 1B & 3A of the Civil Procedure Act, Order 39, Rules 5 & 6; Order 52 Rule (b) and Rule 2 of the Civil Procedure Rules, 2010, and all enabling provisions of the law seeking orders that:
[a] That the application herein be certified urgent (spent).
[b] That pending hearing and determination of the application, the Court be pleased to freeze the account number 129…490 held and maintained in KCB BANK KENYA LIMITED under the account name C. OBIERO ASSOCIATES ADVOCATES or any other bank account within the jurisdiction of Central Bank of Kenya under the name of C. OBIERO & ASSOCIATES ADVOCATES or its proprietor CLIFFORD OTIENO OBIERO to the extent of the sum of Kshs. 9,500,000.00 to satisfy the decree that may be passed against the defendant herein. (spent)
[c] That pending hearing and determination of the application, summons do issue to CLIFFORD OTIENO OBIERO advocate (the Proprietor of the defendant) to appear before the Court on such a date to be fixed to show cause why he should not furnish security in the sum of Kshs. 9.500,000.00 to satisfy the decree that may be passed against the defendant herein. (spent)
[d] That pending hearing and determination of the application, the defendant be directed to furnish security by depositing to this Court the sum of KES 9,500,000.00 to satisfy the decree that may be passed against the defendant herein. (spent)
[e] That the defendant does deliver up a cash account of the plaintiffs funds in the account number 1292998490 held and maintained in KCB BANK KENYA LIMITED under the account name C. OBIERO & ASSOCIATES ADVOCATES within seven days or such other timelines as may be specified by the Court.
[f] That the defendant be directed to, within seven days or such other timelines as may be specified by this Court, release to the plaintiff the monies and/or proceeds of the monies in the defendant's possession or control on behalf of the plaintiff and which were paid to the defendant by the Ministry of Agriculture, Livestock, Fisheries and Blue Economy.
[g] That the Court be pleased to order for taxation and payment of fees due and owed to the defendant on account of the Defendant’s representation of the plaintiff in accordance with Order 52, Rule 4(3) of the Civil Procedure Rules.
[h] That the costs of this application be provided for in favour of the plaintiff.
[2] The application was premised on the grounds that the plaintiffs instructed the defendant to lodge an application for recognition and enforcement of an award which arose from the arbitral proceedings between the plaintiffs and the Ministry of Agriculture, Livestock, Fisheries and Blue Economy. The plaintiffs further averred that, acting on the above instructions, the defendant filed Homa Bay High Court Civil Suit No. E008 of 2022; which application was unopposed and was therefore allowed and orders granted as prayed.
[3] The plaintiffs further averred that, through the defendant, they thereafter filed Homa Bay High Court Judicial Review No. E010 of 2022 seeking for an order of Mandamus to compel payment of the decretal sum of Kshs. 43,511,450.94; which suit was also resolved in their favour. They averred that on 23rd November 2023, an amount of Kshs. 10,000,000/= was paid by the Ministry of Agriculture, Livestock, Fisheries and Blue Economy in partial settlement of the decretal sum. The said sum of Kshs. 10,000,000/= was paid to the defendant’s account number 129…490 held and maintained in KCB BANK KENYA under the account name C. OBIERO & ASSOCIATES ADVOCATES for onward transmission to their (the plaintiffs’) firm.
[4] It was further the contention of the plaintiffs that, despite having received the sum of Kshs. 10,000,000/= on their behalf, the defendant callously converted the said funds for personal use; and that after several demands, the defendant only released to them a paltry sum of Kshs. 500,000/=. They further averred that the funds received by the defendant on account are in dire risk of dissipation, contending that the defendant had engaged himself in various activities, including sponsorship of various sports events in Rangwe Constituency, which the plaintiffs verily believed were funded by the subject funds.
[5] The plaintiffs further deposed that the defendant has failed to render a full and accurate account in respect of the subject funds in the account number 1292998490; and therefore the defendant was being insensitive and unjust by retaining all the sums paid to him on their account despite being fully aware that Romanus Okeno, the 1st plaintiff, is an elderly fellow of 93 years. They further deposed that the 1st plaintiff was suffering ill health and required the funds for hospitalization. In their view, the defendant’s conduct is contrary to the rule of the law and the oath of office taken by him as an Advocate of this Court, which oath obligates him to not only uphold the rule of law and assist in access and dispensation of justice. They posited therefore that it is only fair and just that the orders sought are granted so as not to deprive the plaintiffs of the fruits of their Judgment that have so far been paid to the defendant.
[6] The grounds aforementioned were expounded on in the plaintiffs’ Supporting Affidavit, sworn by the 2nd plaintiff, Paul Otieno Okeno, to which the plaintiffs annexed several correspondences exchanged between the parties and the Ministry of Agriculture Livestock and Blue Economy and a copy of the Cheque for Kshs. 500,000/= issued to them by the defendant.
[7] In his Replying Affidavit, the defendant acknowledged that he is an advocate of the High Court of Kenya practicing in the name and style of C. Obiero & Associates Advocates. He further acknowledged that he was instructed by Okeno & Sons Building Contractors to provide it with legal services. He however contended that Paul Okeno and Joseph Okeno are fictitious parties and are therefore strangers to Okeno & Sons Buidinq Contractors which is a sole proprietorship operated by Romanus Okeno.
[8] The defendant further deposed that the 1st plaintiff intentionally concealed from the court that when they instructed the firm of C. Obiero & Associates Advocates they entered into a fee agreement and expressly indicated the quantum of fees payable. He annexed a copy of the fee agreement and a photo taken when the 1st plaintiff visited for the occasion at C. Obiero Associates Advocates. According to the defendant, besides the fee agreement abovementioned, the 1st plaintiff also instructed the firm of C. Obiero & Associates Advocates to represent them in the following matters in respect of which specific fee agreements were entered into between the 1st plaintiff and the defendant’s law firm:
[a] Kakamega Civil (OS) E014 of 2022
[b] Winam Civil Suit No. 40 of 2017 and Winam Civil Suit No. 43 of 2017,
[c] Miscellaneous Civil Application E003 of 2003: Okeno & Sons Building Contractors and Paul Otieno Okeno v KIWASCO; and Renewal of lease for Land Parcel I-R No. 654/40/Kibos valued at Kshs. 150 000 000 (50 acres).
[9] The defendant averred that none of the above matters were disclosed to the Court by the plaintiffs. He added that the 1st plaintiff is yet to pay his firm for his services, thereby occasioning taxation proceedings in some of the matters. He annexed copies of the relevant document to his Replying Affidavit as Annexure CO-3. The defendant further deposed that on various occasions, the plaintiffs requested for money from him on the grounds that Romanus Okeno was critically ill and was to be admitted for emergency treatment; which amounts were never refunded. The defendant annexed a copy of the supporting documents as Annexure CO-4 to his Replying Affidavit.
[10] While conceding that he received Kshs. 10,000,000/= on behalf of the 1st plaintiff as part payment of the judgment debt of Kshs. 45, 000,000/= the defendant denied that the said sum was converted to his personal use as alleged by the plaintiffs. He averred that the said sum is held as lien pending the resolution of Advocate/Client dispute on fees; and that the same was communicated to the plaintiffs via a letter dated 26th November 2023. A copy of the letter in question was annexed to the Replying Affidavit and marked as Annexure CO-5.
[11] It was therefore the defendant’s assertion that the freezing order requested for is unjustified since funds to that account are already protected and were only held in lien and are not proprietary in nature. He likewise averred that the order to furnish security is also baseless as the 1st plaintiff still owes his firm fees for services rendered. He postulated that the plaintiffs are only out to evade the payment of fees pursuant to the fee agreements signed between the parties.
[12] The matter was handled ex parte on 14th December 2023 whereupon Prayer [b] of the plaintiff’s Originating Motion was granted pending the hearing and determination of the said Motion. The parties also sought and were granted leave to file additional affidavits. Directions were thereafter given that the matter be disposed of by way of written submissions. Accordingly, the plaintiffs filed written submissions in which they provided the background to the Motion and explained that the root of the subject dispute can be traced to a contract for works entered into in 1995 between the firm of Okeno & Sons Building Contractors and the Government of Kenya. They explained that after completion of the works, a dispute concerning the quantum of payments for the project arose pitting the 1st plaintiff against the Government; which dispute was subsequently referred to Arbitration.
[13] The plaintiffs further explained that the completion of the arbitration proceedings in 2015 marked the genesis of the plaintiffs’ long quest to realize the fruits of their labor. The plaintiffs denied that they entered into a binding fee agreement with the defendant. According to them, the parties simply agreed that upon payment of a deposit of Kshs. 100,000/= the defendant would proceed and discharge his duties on the understanding that he would ultimately be paid his fees according to the Advocates (Remuneration) Order once the full payment was made to the plaintiffs. They therefore submitted that it was on that basis that the defendant filed a Notice of Appointment of Advocates in the proceedings for the recognition and enforcement of the arbitral award in Homa Bay High Court Civil Suit No. E008 of 2022, as well as Homa Bay High Court Judicial Review No. E010 of 2022, seeking orders of Mandamus to compel payment of the decretal sum of Kshs. 43,511,450.094.
[14] On the basis of the foregoing, the plaintiffs proposed the following issues for determination and made submissions in support of each issue:
[a] Whether the defendant's Supplementary Affidavit dated 26th January, 2024 and Further Affidavit dated 28th January, 2024 should be struck out for having been filed without leave and out of time;
[b] Whether the defendant is legally entitled to exercise lien over the plaintiff's money pending taxation of his Advocate's bill of costs;
[c] Whether the defendant can legally exercise lien over monies wired to him for forward transmission to the plaintiffs;
[d] Whether there exists a legally valid and enforceable fee agreement between the plaintiff and the defendant;
[e] Whether the Plaintiff is entitled to the orders sough herein?
[15] The defendant relied on his written submissions dated 8th January 2025. He submitted that he 1st plaintiff approached him for representation after he had fallen apart with about four other advocates: the firm of Albert Muma a Company Advocates, the firm of Mosses Orenqo Company Advocates, and the firm of Odumbe Ayieta Advocates all of whom abandoned him for various reasons, including but not limited to his unfaithfulness when it comes to matters of advocate fees. It was further the contention of the defendant that, on 30th March 2022, the 1st plaintiff visited his office with a letter of instructions dated 29th March 2022 and unequivocally requested to be represented on a fee agreement basis.
[16] According to the defendant, the parties agreed on payment at the rate of 14% of the value of the subject matter and a further 16% VAT for KRA remittance. They proceeded to craft a fee agreement dated 30th March 2022 a copy of which was exhibited at pages 6 and 7 of the Replying Affidavit dated 2nd January 2024 which the parties signed as binding and enforceable. Accordingly, the defendant submitted that it was on the basis of said agreement that he rendered legal services on behalf of the plaintiffs and proceeded to file a Judicial Review E010 of 2022 among other suits; all of which got litigated and rulings, judgments, and certificates of costs issued in favor of the plaintiffs.
[17] According to the defendant, the dispute would come when the judgment debtor, who released Kshs. 10,000,000/= as part payment of the decretal sum owed to the plaintiff by the judgment debtor. He took issue with the fact that, in their Originating Summons, the plaintiffs failed to disclose that they had not paid fees to him; or that they had written a letter of instructions dated 29th March 2022; or that he had a fee agreement that he was required to redeem but did not; or that he had several matters for which no fees had been paid. In the premises, the defendant proposed the following issues for determination and structured his submissions along those lines:
[a] Whether or not, his Supplementary affidavit and the Further affidavit dated 26th January, 2024 and 28th January, 2024, respectively, are properly on record or not;
[b] Whether there existed a valid fee agreement and whether the plaintiff redeemed his fee obligation;
[c] Which orders can court grant in the circumstances.
[18] I have given careful consideration to the Originating Motion dated 11th December 2023. I have likewise given due consideration to the response thereto filed by the defendant as well as the detailed submissions filed herein on behalf of the parties.
[19] Before considering the said issue, it is noted that an objection was raised by the plaintiffs to the defendant’s affidavit date 28th January 2024 contending that it was filed way out of time without leave; and therefore ought to be struck out. They submitted that the rules of procedure are designed to ensure the fair determination of matters before the Court; and therefore timelines for filing pleadings must be adhered to strictly. The plaintiffs submitted that in case of delay, the defaulting party is under obligation to apply for extension of time or seek leave of Court.
[20] Indeed, in Raila Odinga & others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR, the Supreme Court held:
"The parties have a duty to ensure they comply with their respective time lines, and the Court must adhere to its own. There must be a fair and level playing field so that no party or the Court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party, or the Court, as a result of omissions, or inadvertences which were foreseeable or could have been avoided".
[21] The court record shows that when the parties appeared in court on 23rd January 2024, they both applied for leave to file supplementary affidavits; which leave was duly granted to be exercised within 3 days. The plaintiffs complied within the stipulated period; and so did he defendant. However, the defendant purported to file what he referred to as a Further Affidavit, sworn on 28th January 2024 in response to the plaintiffs’ Supplementary Affidavit sworn on 25th January 2024. In so far as no leave was sought by the defendant to file that so called Further Affidavit, it is my finding that it is untenable. The same is hereby expunged from the record.
[22] It is also worth noting at this stage that, in his written submissions the defendant considered the 2nd and 3rd plaintiffs to be strangers to this suit. He argued that his dealings were confined to Okeno & Sons Building Contractors, a sole proprietorship owned exclusively by Romanus Okeno, the 1st plaintiff. That argument cannot stand in the face of the fact that the Supporting Affidavit and all of the plaintiffs’ affidavits were sworn by Paul Okeno, the 2nd plaintiff; and the acknowledgment by the defendant that he he mainly dealt with Paul Okeno, the 2nd plaintiff on behalf of the 1st plaintiff. More importantly, the plaintiffs exhibited a Certificate of Registration vide their affidavit of 17th February 2025 showing that Romanus Okeno, Peter Otieno, Paul Otieno and Joseph Katimbo are carrying on business under the name of Okeno and Sons Building Contractors.
[23] That said, it is common ground that the plaintiffs instructed the defendant to render legal services to their firm; and in particular to file an application for recognition and enforcement of an award made in favour of the applicants against the Ministry of Agriculture, Livestock, Fisheries and Blue Economy (hereinafter, “the Ministry”). It is also common ground that, acting on the instructions, the defendant filed Homa Bay High Court Civil Suit No. E008 of 2022; which application was allowed and orders granted as prayed. Thereafter, the plaintiffs, through the defendant, filed Homa Bay High Court Judicial Review No. E010 of 2022 for an order of Mandamus to compel payment of the decretal sum of Kshs. 43,511,450.94; which suit was also resolved in their favour.
[24] In the course of pursuing payment on behalf of the plaintiffs, the defendant received payment in the sum of Kshs. 10,000,000/= from the Ministry on the 23rd November 2023, in partial settlement of the decretal sum. The parties are in agreement that the said sum of Kshs. 10,000,000/= was paid to the defendant’s account number 1292998490 held and maintained in KCB BANK KENYA under the account name C. OBERO & ASSOCIATES ADVOCATES for onward transmission to their (the plaintiffs’) firm; and that so far, the defendant has paid the plaintiffs Kshs. 500,000/= only.
[25] While the plaintiffs are apprehensive that the balance of the funds are in dire risk of dissipation in the hands of the defendant, the defendant was categorical that he is only holding onto the funds as lien for unpaid fees. Hence, the only issue for determination is whether the defendant is justified in retaining the sums received on behalf of the plaintiffs as lien pending the payment of his fees.
[26] Order 52 Rule 4 of the Civil Procedure Rules provides that:
(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.
[27] While the plaintiffs contended that the parties simply agreed that upon payment of a deposit of Kshs. 100,000/= the defendant would proceed and discharge his duties on the understanding that he would ultimately be paid his fees in accordance with the Advocates (Remuneration) Order once the full payment of the decretal sum was made, the defendant’s stance was that there was a fee agreement whereby the parties agreed on payment at the rate of 14% of the value of the subject matter and a further 16% VAT for KRA remittance.
[28] Section 45(1) of the Advocates Act does recognize that:
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.
[29] Ordinarily, where an advocate and client have opted to enter into a fee agreement, there would be no need for taxation of Advocate/Client costs because the law recognizes the consensual nature of the agreed sums. Moreover, Section 45(2) of the Act provides a client with the avenue to seek the setting aside of such an agreement should they find it to be exorbitant or unreasonable. The Sub-Section states:
“A client may apply by chamber summons to the Court to have the agreement set aside or varied on the grounds that it is harsh and unconscionable, exorbitant or unreasonable, and every such application shall be heard before a judge sitting with two assessors, who shall be advocates of not less than five years’ standing appointed by the Registrar after consultation with the chairman of the Society for each application…”
[30] In denying the existence of such an agreement the plaintiffs pointed out that:
[a] There is no independent and separate agreement between the defendant and plaintiff as contemplated under Section 45 of the Advocates Act.
[b] The Defendant's allegations as to the existence of a fee agreement is based on a single letter by the Plaintiff dated 29th March, 2022, which letter does not refer to any independent and separate fee agreement nor does it in any way mention a fixed fee payable to the defendant.
[c] The letter is not addressed to the defendant herein but rather to a non-existent entity, to wit, Obiero & Associates Advocates.
[d] The agreement would be null and void ab initio by the fact that it is conditional and pegs the defendant's fees on the successful outcome of the matter, and therefore amounts to a direct violation of Section 46 of the Advocates Act.
[31] It is also noteworthy that, in his affidavit the defendant averred that he had filed his Bills of Costs for taxation to justify the withholding of Kshs. 9,500,000/= from the plaintiffs. He annexed copies of documents in proof thereof, one of which was the decision rendered on 8th August 2024 by a court of coordinate jurisdiction in Kisumu High Court Misc. Civil Application No. E008 of 2024. That suit was filed during the pendency of this suit. I have perused that decision and noted that it touched on the Kshs. 10,000,000/= received by the defendant on account of the plaintiffs herein. In that matter, the Court found as a fact at paragraph 37 and 39 that:
“On the allegations that the advocate is unlawfully withholding the client’s funds received in respect of matters before Homa Bay High Court and that his costs were assessed in those cases and the client has not refused to pay hence no justification for withholding the said money with utmost respect, advocates legal fees is never assessed or taxed in the client’s cause. Only party and party costs are…Having established that there was a retained of the firm of C. Obiero Associates Advocates by the client and now hat there is a dispute as to whether legal fees for the legal representation was settled, it follows that the only way the dispute can be settled, over what Mr. Obiero is admittedly holding as lien over the clients money received in the Homabay cases, for his alleged unpaid fees is to file bills of costs for taxation so that the advocate gets his just dues and the balance is refunded to the client…”
[32] As far as can be ascertained, that decision has not been reviewed and set aside or appealed. It follows therefore that the defendant cannot now purport to rely on the impugned fee agreement dated 23rd September 2023. And, as was pointed out in John Karungai Nyamu & Another V Muu & Associates Advocates [2008] eKLR :
"…an Advocate's tees are not due until his Bill of Costs has been served on the client and where it is not settled, until it is taxed by the court. "
[33] On whether the defendant is justified in retaining the sums received on behalf of the plaintiffs as lien pending the payment of his fees, there is no dispute that the advocate’s right of lien is recognized in law. In Barratt v Gough-Thomas [1951] 2 All ER 1048 cited with approval in the case of Republic v Lucas M. Maitha Chairman, Betting Control and Licensing Board & 4 others Ex -parte: Interactive Gaming and Lotteries Limited it was held that:
"The nature of a solicitor's general retaining lien has more than once been authoritatively stated. It is a right at common law depending, it has been said, on implied agreement. It has not the character of an encumbrance or equitable charge. It is merely passive and possessory, that is to say, the solicitor has no right of actively enforcing his demand. It confers on him merely the right to withhold possession of the documents or other personal property of his client or former client — in the words of Sir E. Sugden in Blunden vs. Desart (2) (2 Dr. & War. 48): "...to lock them UP in his box, and to put the key into his pocket, Until his client satisfies the amount of the demand. " It is wholly derived from, and, therefore, co-existensive with, the right of the client to the documents or other property...the capacity by reference to which the documents are held is essential. The absence at any time of any right, to or property in the documents on the part of the client, seems, as a matter of principle, fatal to the continued existence of the lien.
[34] Order 52 Rule 4(3) of the Civil Procedure Rules aforementioned provides that:
(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.
[35] In the premises, the orders that commend themselves to the Court in this matter, and which I hereby grant are as follows:
[a] That the defendant be and is hereby ordered to deliver up a cash account of the plaintiffs funds in the account number 1292998490 held and maintained in KCB BANK KENYA LIMITED under the account name C. OBIERO & ASSOCIATES ADVOCATES within seven days from the date hereof.
[b] That the defendant be and is hereby ordered to file his Bill of Costs for taxation in respect of fees due and owing from the plaintiffs in respect of services rendered in Homa Bay High Court Civil Suit No. BOOS of 2022 and Homa Bay High Court Judicial Review No. E010 of 2022 in accordance with Order 52, Rule 4(3) of the Civil Procedure Rules. The same be done within seven days from the date hereof.
[c] The freeze order granted herein on 14th December 2023 to remain in force pending taxation and payment of fees due to the defendant for the services rendered by him to the plaintiffs.
[d] That each party shall bear the costs of this suit.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF MAY 2026
[a] That the application herein be certified urgent (spent).
[b] That pending hearing and determination of the application, the Court be pleased to freeze the account number 129…490 held and maintained in KCB BANK KENYA LIMITED under the account name C. OBIERO ASSOCIATES ADVOCATES or any other bank account within the jurisdiction of Central Bank of Kenya under the name of C. OBIERO & ASSOCIATES ADVOCATES or its proprietor CLIFFORD OTIENO OBIERO to the extent of the sum of Kshs. 9,500,000.00 to satisfy the decree that may be passed against the defendant herein. (spent)
[c] That pending hearing and determination of the application, summons do issue to CLIFFORD OTIENO OBIERO advocate (the Proprietor of the defendant) to appear before the Court on such a date to be fixed to show cause why he should not furnish security in the sum of Kshs. 9.500,000.00 to satisfy the decree that may be passed against the defendant herein. (spent)
[d] That pending hearing and determination of the application, the defendant be directed to furnish security by depositing to this Court the sum of KES 9,500,000.00 to satisfy the decree that may be passed against the defendant herein. (spent)
[e] That the defendant does deliver up a cash account of the plaintiffs funds in the account number 1292998490 held and maintained in KCB BANK KENYA LIMITED under the account name C. OBIERO & ASSOCIATES ADVOCATES within seven days or such other timelines as may be specified by the Court.
[f] That the defendant be directed to, within seven days or such other timelines as may be specified by this Court, release to the plaintiff the monies and/or proceeds of the monies in the defendant's possession or control on behalf of the plaintiff and which were paid to the defendant by the Ministry of Agriculture, Livestock, Fisheries and Blue Economy.
[g] That the Court be pleased to order for taxation and payment of fees due and owed to the defendant on account of the Defendant’s representation of the plaintiff in accordance with Order 52, Rule 4(3) of the Civil Procedure Rules.
[h] That the costs of this application be provided for in favour of the plaintiff.
[2] The application was premised on the grounds that the plaintiffs instructed the defendant to lodge an application for recognition and enforcement of an award which arose from the arbitral proceedings between the plaintiffs and the Ministry of Agriculture, Livestock, Fisheries and Blue Economy. The plaintiffs further averred that, acting on the above instructions, the defendant filed Homa Bay High Court Civil Suit No. E008 of 2022; which application was unopposed and was therefore allowed and orders granted as prayed.
[3] The plaintiffs further averred that, through the defendant, they thereafter filed Homa Bay High Court Judicial Review No. E010 of 2022 seeking for an order of Mandamus to compel payment of the decretal sum of Kshs. 43,511,450.94; which suit was also resolved in their favour. They averred that on 23rd November 2023, an amount of Kshs. 10,000,000/= was paid by the Ministry of Agriculture, Livestock, Fisheries and Blue Economy in partial settlement of the decretal sum. The said sum of Kshs. 10,000,000/= was paid to the defendant’s account number 129…490 held and maintained in KCB BANK KENYA under the account name C. OBIERO & ASSOCIATES ADVOCATES for onward transmission to their (the plaintiffs’) firm.
[4] It was further the contention of the plaintiffs that, despite having received the sum of Kshs. 10,000,000/= on their behalf, the defendant callously converted the said funds for personal use; and that after several demands, the defendant only released to them a paltry sum of Kshs. 500,000/=. They further averred that the funds received by the defendant on account are in dire risk of dissipation, contending that the defendant had engaged himself in various activities, including sponsorship of various sports events in Rangwe Constituency, which the plaintiffs verily believed were funded by the subject funds.
[5] The plaintiffs further deposed that the defendant has failed to render a full and accurate account in respect of the subject funds in the account number 1292998490; and therefore the defendant was being insensitive and unjust by retaining all the sums paid to him on their account despite being fully aware that Romanus Okeno, the 1st plaintiff, is an elderly fellow of 93 years. They further deposed that the 1st plaintiff was suffering ill health and required the funds for hospitalization. In their view, the defendant’s conduct is contrary to the rule of the law and the oath of office taken by him as an Advocate of this Court, which oath obligates him to not only uphold the rule of law and assist in access and dispensation of justice. They posited therefore that it is only fair and just that the orders sought are granted so as not to deprive the plaintiffs of the fruits of their Judgment that have so far been paid to the defendant.
[6] The grounds aforementioned were expounded on in the plaintiffs’ Supporting Affidavit, sworn by the 2nd plaintiff, Paul Otieno Okeno, to which the plaintiffs annexed several correspondences exchanged between the parties and the Ministry of Agriculture Livestock and Blue Economy and a copy of the Cheque for Kshs. 500,000/= issued to them by the defendant.
[7] In his Replying Affidavit, the defendant acknowledged that he is an advocate of the High Court of Kenya practicing in the name and style of C. Obiero & Associates Advocates. He further acknowledged that he was instructed by Okeno & Sons Building Contractors to provide it with legal services. He however contended that Paul Okeno and Joseph Okeno are fictitious parties and are therefore strangers to Okeno & Sons Buidinq Contractors which is a sole proprietorship operated by Romanus Okeno.
[8] The defendant further deposed that the 1st plaintiff intentionally concealed from the court that when they instructed the firm of C. Obiero & Associates Advocates they entered into a fee agreement and expressly indicated the quantum of fees payable. He annexed a copy of the fee agreement and a photo taken when the 1st plaintiff visited for the occasion at C. Obiero Associates Advocates. According to the defendant, besides the fee agreement abovementioned, the 1st plaintiff also instructed the firm of C. Obiero & Associates Advocates to represent them in the following matters in respect of which specific fee agreements were entered into between the 1st plaintiff and the defendant’s law firm:
[a] Kakamega Civil (OS) E014 of 2022
[b] Winam Civil Suit No. 40 of 2017 and Winam Civil Suit No. 43 of 2017,
[c] Miscellaneous Civil Application E003 of 2003: Okeno & Sons Building Contractors and Paul Otieno Okeno v KIWASCO; and Renewal of lease for Land Parcel I-R No. 654/40/Kibos valued at Kshs. 150 000 000 (50 acres).
[9] The defendant averred that none of the above matters were disclosed to the Court by the plaintiffs. He added that the 1st plaintiff is yet to pay his firm for his services, thereby occasioning taxation proceedings in some of the matters. He annexed copies of the relevant document to his Replying Affidavit as Annexure CO-3. The defendant further deposed that on various occasions, the plaintiffs requested for money from him on the grounds that Romanus Okeno was critically ill and was to be admitted for emergency treatment; which amounts were never refunded. The defendant annexed a copy of the supporting documents as Annexure CO-4 to his Replying Affidavit.
[10] While conceding that he received Kshs. 10,000,000/= on behalf of the 1st plaintiff as part payment of the judgment debt of Kshs. 45, 000,000/= the defendant denied that the said sum was converted to his personal use as alleged by the plaintiffs. He averred that the said sum is held as lien pending the resolution of Advocate/Client dispute on fees; and that the same was communicated to the plaintiffs via a letter dated 26th November 2023. A copy of the letter in question was annexed to the Replying Affidavit and marked as Annexure CO-5.
[11] It was therefore the defendant’s assertion that the freezing order requested for is unjustified since funds to that account are already protected and were only held in lien and are not proprietary in nature. He likewise averred that the order to furnish security is also baseless as the 1st plaintiff still owes his firm fees for services rendered. He postulated that the plaintiffs are only out to evade the payment of fees pursuant to the fee agreements signed between the parties.
[12] The matter was handled ex parte on 14th December 2023 whereupon Prayer [b] of the plaintiff’s Originating Motion was granted pending the hearing and determination of the said Motion. The parties also sought and were granted leave to file additional affidavits. Directions were thereafter given that the matter be disposed of by way of written submissions. Accordingly, the plaintiffs filed written submissions in which they provided the background to the Motion and explained that the root of the subject dispute can be traced to a contract for works entered into in 1995 between the firm of Okeno & Sons Building Contractors and the Government of Kenya. They explained that after completion of the works, a dispute concerning the quantum of payments for the project arose pitting the 1st plaintiff against the Government; which dispute was subsequently referred to Arbitration.
[13] The plaintiffs further explained that the completion of the arbitration proceedings in 2015 marked the genesis of the plaintiffs’ long quest to realize the fruits of their labor. The plaintiffs denied that they entered into a binding fee agreement with the defendant. According to them, the parties simply agreed that upon payment of a deposit of Kshs. 100,000/= the defendant would proceed and discharge his duties on the understanding that he would ultimately be paid his fees according to the Advocates (Remuneration) Order once the full payment was made to the plaintiffs. They therefore submitted that it was on that basis that the defendant filed a Notice of Appointment of Advocates in the proceedings for the recognition and enforcement of the arbitral award in Homa Bay High Court Civil Suit No. E008 of 2022, as well as Homa Bay High Court Judicial Review No. E010 of 2022, seeking orders of Mandamus to compel payment of the decretal sum of Kshs. 43,511,450.094.
[14] On the basis of the foregoing, the plaintiffs proposed the following issues for determination and made submissions in support of each issue:
[a] Whether the defendant's Supplementary Affidavit dated 26th January, 2024 and Further Affidavit dated 28th January, 2024 should be struck out for having been filed without leave and out of time;
[b] Whether the defendant is legally entitled to exercise lien over the plaintiff's money pending taxation of his Advocate's bill of costs;
[c] Whether the defendant can legally exercise lien over monies wired to him for forward transmission to the plaintiffs;
[d] Whether there exists a legally valid and enforceable fee agreement between the plaintiff and the defendant;
[e] Whether the Plaintiff is entitled to the orders sough herein?
[15] The defendant relied on his written submissions dated 8th January 2025. He submitted that he 1st plaintiff approached him for representation after he had fallen apart with about four other advocates: the firm of Albert Muma a Company Advocates, the firm of Mosses Orenqo Company Advocates, and the firm of Odumbe Ayieta Advocates all of whom abandoned him for various reasons, including but not limited to his unfaithfulness when it comes to matters of advocate fees. It was further the contention of the defendant that, on 30th March 2022, the 1st plaintiff visited his office with a letter of instructions dated 29th March 2022 and unequivocally requested to be represented on a fee agreement basis.
[16] According to the defendant, the parties agreed on payment at the rate of 14% of the value of the subject matter and a further 16% VAT for KRA remittance. They proceeded to craft a fee agreement dated 30th March 2022 a copy of which was exhibited at pages 6 and 7 of the Replying Affidavit dated 2nd January 2024 which the parties signed as binding and enforceable. Accordingly, the defendant submitted that it was on the basis of said agreement that he rendered legal services on behalf of the plaintiffs and proceeded to file a Judicial Review E010 of 2022 among other suits; all of which got litigated and rulings, judgments, and certificates of costs issued in favor of the plaintiffs.
[17] According to the defendant, the dispute would come when the judgment debtor, who released Kshs. 10,000,000/= as part payment of the decretal sum owed to the plaintiff by the judgment debtor. He took issue with the fact that, in their Originating Summons, the plaintiffs failed to disclose that they had not paid fees to him; or that they had written a letter of instructions dated 29th March 2022; or that he had a fee agreement that he was required to redeem but did not; or that he had several matters for which no fees had been paid. In the premises, the defendant proposed the following issues for determination and structured his submissions along those lines:
[a] Whether or not, his Supplementary affidavit and the Further affidavit dated 26th January, 2024 and 28th January, 2024, respectively, are properly on record or not;
[b] Whether there existed a valid fee agreement and whether the plaintiff redeemed his fee obligation;
[c] Which orders can court grant in the circumstances.
[18] I have given careful consideration to the Originating Motion dated 11th December 2023. I have likewise given due consideration to the response thereto filed by the defendant as well as the detailed submissions filed herein on behalf of the parties.
[19] Before considering the said issue, it is noted that an objection was raised by the plaintiffs to the defendant’s affidavit date 28th January 2024 contending that it was filed way out of time without leave; and therefore ought to be struck out. They submitted that the rules of procedure are designed to ensure the fair determination of matters before the Court; and therefore timelines for filing pleadings must be adhered to strictly. The plaintiffs submitted that in case of delay, the defaulting party is under obligation to apply for extension of time or seek leave of Court.
[20] Indeed, in Raila Odinga & others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR, the Supreme Court held:
"The parties have a duty to ensure they comply with their respective time lines, and the Court must adhere to its own. There must be a fair and level playing field so that no party or the Court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party, or the Court, as a result of omissions, or inadvertences which were foreseeable or could have been avoided".
[21] The court record shows that when the parties appeared in court on 23rd January 2024, they both applied for leave to file supplementary affidavits; which leave was duly granted to be exercised within 3 days. The plaintiffs complied within the stipulated period; and so did he defendant. However, the defendant purported to file what he referred to as a Further Affidavit, sworn on 28th January 2024 in response to the plaintiffs’ Supplementary Affidavit sworn on 25th January 2024. In so far as no leave was sought by the defendant to file that so called Further Affidavit, it is my finding that it is untenable. The same is hereby expunged from the record.
[22] It is also worth noting at this stage that, in his written submissions the defendant considered the 2nd and 3rd plaintiffs to be strangers to this suit. He argued that his dealings were confined to Okeno & Sons Building Contractors, a sole proprietorship owned exclusively by Romanus Okeno, the 1st plaintiff. That argument cannot stand in the face of the fact that the Supporting Affidavit and all of the plaintiffs’ affidavits were sworn by Paul Okeno, the 2nd plaintiff; and the acknowledgment by the defendant that he he mainly dealt with Paul Okeno, the 2nd plaintiff on behalf of the 1st plaintiff. More importantly, the plaintiffs exhibited a Certificate of Registration vide their affidavit of 17th February 2025 showing that Romanus Okeno, Peter Otieno, Paul Otieno and Joseph Katimbo are carrying on business under the name of Okeno and Sons Building Contractors.
[23] That said, it is common ground that the plaintiffs instructed the defendant to render legal services to their firm; and in particular to file an application for recognition and enforcement of an award made in favour of the applicants against the Ministry of Agriculture, Livestock, Fisheries and Blue Economy (hereinafter, “the Ministry”). It is also common ground that, acting on the instructions, the defendant filed Homa Bay High Court Civil Suit No. E008 of 2022; which application was allowed and orders granted as prayed. Thereafter, the plaintiffs, through the defendant, filed Homa Bay High Court Judicial Review No. E010 of 2022 for an order of Mandamus to compel payment of the decretal sum of Kshs. 43,511,450.94; which suit was also resolved in their favour.
[24] In the course of pursuing payment on behalf of the plaintiffs, the defendant received payment in the sum of Kshs. 10,000,000/= from the Ministry on the 23rd November 2023, in partial settlement of the decretal sum. The parties are in agreement that the said sum of Kshs. 10,000,000/= was paid to the defendant’s account number 1292998490 held and maintained in KCB BANK KENYA under the account name C. OBERO & ASSOCIATES ADVOCATES for onward transmission to their (the plaintiffs’) firm; and that so far, the defendant has paid the plaintiffs Kshs. 500,000/= only.
[25] While the plaintiffs are apprehensive that the balance of the funds are in dire risk of dissipation in the hands of the defendant, the defendant was categorical that he is only holding onto the funds as lien for unpaid fees. Hence, the only issue for determination is whether the defendant is justified in retaining the sums received on behalf of the plaintiffs as lien pending the payment of his fees.
[26] Order 52 Rule 4 of the Civil Procedure Rules provides that:
(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.
[27] While the plaintiffs contended that the parties simply agreed that upon payment of a deposit of Kshs. 100,000/= the defendant would proceed and discharge his duties on the understanding that he would ultimately be paid his fees in accordance with the Advocates (Remuneration) Order once the full payment of the decretal sum was made, the defendant’s stance was that there was a fee agreement whereby the parties agreed on payment at the rate of 14% of the value of the subject matter and a further 16% VAT for KRA remittance.
[28] Section 45(1) of the Advocates Act does recognize that:
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.
[29] Ordinarily, where an advocate and client have opted to enter into a fee agreement, there would be no need for taxation of Advocate/Client costs because the law recognizes the consensual nature of the agreed sums. Moreover, Section 45(2) of the Act provides a client with the avenue to seek the setting aside of such an agreement should they find it to be exorbitant or unreasonable. The Sub-Section states:
“A client may apply by chamber summons to the Court to have the agreement set aside or varied on the grounds that it is harsh and unconscionable, exorbitant or unreasonable, and every such application shall be heard before a judge sitting with two assessors, who shall be advocates of not less than five years’ standing appointed by the Registrar after consultation with the chairman of the Society for each application…”
[30] In denying the existence of such an agreement the plaintiffs pointed out that:
[a] There is no independent and separate agreement between the defendant and plaintiff as contemplated under Section 45 of the Advocates Act.
[b] The Defendant's allegations as to the existence of a fee agreement is based on a single letter by the Plaintiff dated 29th March, 2022, which letter does not refer to any independent and separate fee agreement nor does it in any way mention a fixed fee payable to the defendant.
[c] The letter is not addressed to the defendant herein but rather to a non-existent entity, to wit, Obiero & Associates Advocates.
[d] The agreement would be null and void ab initio by the fact that it is conditional and pegs the defendant's fees on the successful outcome of the matter, and therefore amounts to a direct violation of Section 46 of the Advocates Act.
[31] It is also noteworthy that, in his affidavit the defendant averred that he had filed his Bills of Costs for taxation to justify the withholding of Kshs. 9,500,000/= from the plaintiffs. He annexed copies of documents in proof thereof, one of which was the decision rendered on 8th August 2024 by a court of coordinate jurisdiction in Kisumu High Court Misc. Civil Application No. E008 of 2024. That suit was filed during the pendency of this suit. I have perused that decision and noted that it touched on the Kshs. 10,000,000/= received by the defendant on account of the plaintiffs herein. In that matter, the Court found as a fact at paragraph 37 and 39 that:
“On the allegations that the advocate is unlawfully withholding the client’s funds received in respect of matters before Homa Bay High Court and that his costs were assessed in those cases and the client has not refused to pay hence no justification for withholding the said money with utmost respect, advocates legal fees is never assessed or taxed in the client’s cause. Only party and party costs are…Having established that there was a retained of the firm of C. Obiero Associates Advocates by the client and now hat there is a dispute as to whether legal fees for the legal representation was settled, it follows that the only way the dispute can be settled, over what Mr. Obiero is admittedly holding as lien over the clients money received in the Homabay cases, for his alleged unpaid fees is to file bills of costs for taxation so that the advocate gets his just dues and the balance is refunded to the client…”
[32] As far as can be ascertained, that decision has not been reviewed and set aside or appealed. It follows therefore that the defendant cannot now purport to rely on the impugned fee agreement dated 23rd September 2023. And, as was pointed out in John Karungai Nyamu & Another V Muu & Associates Advocates [2008] eKLR :
"…an Advocate's tees are not due until his Bill of Costs has been served on the client and where it is not settled, until it is taxed by the court. "
[33] On whether the defendant is justified in retaining the sums received on behalf of the plaintiffs as lien pending the payment of his fees, there is no dispute that the advocate’s right of lien is recognized in law. In Barratt v Gough-Thomas [1951] 2 All ER 1048 cited with approval in the case of Republic v Lucas M. Maitha Chairman, Betting Control and Licensing Board & 4 others Ex -parte: Interactive Gaming and Lotteries Limited it was held that:
"The nature of a solicitor's general retaining lien has more than once been authoritatively stated. It is a right at common law depending, it has been said, on implied agreement. It has not the character of an encumbrance or equitable charge. It is merely passive and possessory, that is to say, the solicitor has no right of actively enforcing his demand. It confers on him merely the right to withhold possession of the documents or other personal property of his client or former client — in the words of Sir E. Sugden in Blunden vs. Desart (2) (2 Dr. & War. 48): "...to lock them UP in his box, and to put the key into his pocket, Until his client satisfies the amount of the demand. " It is wholly derived from, and, therefore, co-existensive with, the right of the client to the documents or other property...the capacity by reference to which the documents are held is essential. The absence at any time of any right, to or property in the documents on the part of the client, seems, as a matter of principle, fatal to the continued existence of the lien.
[34] Order 52 Rule 4(3) of the Civil Procedure Rules aforementioned provides that:
(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.
[35] In the premises, the orders that commend themselves to the Court in this matter, and which I hereby grant are as follows:
[a] That the defendant be and is hereby ordered to deliver up a cash account of the plaintiffs funds in the account number 1292998490 held and maintained in KCB BANK KENYA LIMITED under the account name C. OBIERO & ASSOCIATES ADVOCATES within seven days from the date hereof.
[b] That the defendant be and is hereby ordered to file his Bill of Costs for taxation in respect of fees due and owing from the plaintiffs in respect of services rendered in Homa Bay High Court Civil Suit No. BOOS of 2022 and Homa Bay High Court Judicial Review No. E010 of 2022 in accordance with Order 52, Rule 4(3) of the Civil Procedure Rules. The same be done within seven days from the date hereof.
[c] The freeze order granted herein on 14th December 2023 to remain in force pending taxation and payment of fees due to the defendant for the services rendered by him to the plaintiffs.
[d] That each party shall bear the costs of this suit.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF MAY 2026