1. The Originating Summons herein dated 5/9/2023 seeks orders by the plaintiff against the defendant that:
i. the defendant to deliver up a cash account of the monies received from Geminia Insurance (Approximately KShs 650,000/= on 4/8/2022 in settlement of a claim filed by the plaintiff against Kennedy Karimi Nyaga in Nairobi Milimani SCCC No. E569 of 2022.
ii. the defendant to pay the plaintiff the said sum plus interest at commercial rates as from the date of receipt on 4/8/2022 until payment in full.
iii. the defendant to appear before this court to show cause why he should not be disciplined under section 56 of the Advocates Act (Cap. 56) Laws of Kenya for being guilty of professional misconduct.
iv. the defendant to pay the costs of the application.
2. The OS is filed under Order 52 Rule 4 of the Civil Procedure Rules, section 3A of the Civil Procedure Act, section 47 of the Advocates Act and all enabling provisions of the law.
3. The grounds in support of the application as set out on the face thereof are expounded in the plaintiff’s supporting affidavit sworn on 5/9/2023. They are that the defendant was retained and did act for the plaintiff in Nairobi Small Claims Court Civil Case No. E569 of 2022 for a material damage claim as compensation arising out of a road traffic accident in which the plaintiff’s motor vehicle registration number KCS 617M was involved in an accident with motor vehicle registration number KCU 499K for one Keddy Karimi Nyaga. Judgment was delivered in the plaintiff’s favour awarding damages amounting to KShs 546,910/=. A decree given on 24/6/2022 was drawn in the sum of KShs 573,162/= being the judgment sum and interest and KShs 77,000/= being the costs of the suit making a total of KShs 650,162/=. The defendant was paid the money KShs 650,000/= in settlement of the claim on 4/8/2022 but never paid it over to the plaintiff by the time this OS was filed on 5/9/2023.
4. The defendant replied to the OS by way of a replying affidavit sworn on 29/2/2024 by Peter Kariuki Njiiri where he basically deposed that he had not failed to hand over the money but that he was hesitant to deposit the money with the plaintiff’s advocates as he was not sure of his practicing status. He deposed that he had not failed to account for the money or acted in a manner that would warrant a notice to show cause for professional misconduct being issued against him.
5. The court directed the defendant to deposit the sum of KShs 430,000/= which it found to be undisputed in court. Subsequently, the defendant had his Bill of Costs taxed at KShs 177,650/=.
6. The parties filed a consent dated 24/4/2025 recorded between themselves and subsequently adopted by the court for the sum of KShs 430,000/= deposited into court by the defendant to be paid over to the plaintiff through her advocates on record. Counsel for the plaintiff then informed the court that there was some KShs 13,000/= pending payment to the plaintiff and also that the issue of interest and costs was pending.
7. The plaintiff is therefore claiming the balance of the decretal sum together with interest at commercial rates as well as the other reliefs sought in the O.S.
8. The court directed counsels to appear before this court to make oral submissions on the pending issue of costs and interest. When the matter came up next, learned counsel for the plaintiff Mr. Barasa highlighted the submissions he had filed dated 26/3/2025 on the OS. He submitted that the defendant received the decretal sum on 4/8/2022 but failed to release the same to the plaintiff despite several follow-ups and the plaintiff had to file the OS. He submitted further that the defendant was only compelled to tax his Bill of Costs after the OS was filed which was one and half years after the money was paid to him. He had never had a conversation with the plaintiff over his fees or sent her a fee note after the insurance company paid the money to him.
9. Learned counsel submitted that this sit was filed to compel the defendant to release the decretal sum and therefore costs ought to be granted to her. He also submitted that had the money been paid thst early, she would have applied the same to other uses.
10. Learned counsel for the defendant submitted that after the money was paid over to the defendant, they were not able to agree on fees with the plaintiff. Before the same could be determined the plaintiff moved to court with this suit. The court then determined that the fees had to be determined first and the Bill of Costs had to be taxed. This was done on 18/3/2025. According to learned counsel, there was no way the defendant could have paid over the decretal sum before the issue of fees was determined as he was entitled to the same.
11. Learned counsel for the defendant submits further that the OS had been compromised and it will not be proper to punish the defendant with costs because he was only following the proper channel. He submits that the defendant is ready, willing and able to pay the balance of KShs 13,260/= remaining.
12. The issue for determination is whether the plaintiff has proved her claim against the defendant and therefore whether or not the reliefs sought by the plaintiff against the defendant should be granted.
13. Considering the pleadings, the submissions and the proceedings herein, the only issue for determination is whether or not the defendant had good cause to retain the balance of the decretal sum due to the plaintiff on account of his costs.
“Order 52 rule 4 of the Civil Procedure Rules also allows a client to take out originating summons for such orders as to the delivery by an advocate of a clients’ cash account, money or securities which an advocate may have in his possession or control on behalf of a client.”
14. In the case of Kim Jong Kyu v Housing Finance Company Ltd & 2 others [2015] KECA 274 (KLR) the Court of Appeal while considering the issue of an advocate’s duty to his client stated that:
“Advocates in addition to being professionals, are officers of the court and play a vital role in the administration of justice. In our legal system, the advocate/client relationship has long been recognized as fiduciary relationship in which the client places his or her confidence, faith, reliance and trust in the advocate, whose aid, advice, opinion or protection is sought from time to time. The client gives the advocate significant amount of control over the matter in which the brief relates. With this relationship comes certain duties and responsibilities on the advocate. These duties and responsibilities are provided for in the statute and the rules of conduct as we demonstrate below. The sets of rules that govern the advocates’ professional conduct arise out of the duty that they owe to the court, their clients, and fellow advocates. Section 80 of the Advocates Act stresses the advocate’s duty to a client;
“80. Betrayal of trust
Any person who, being an advocate, is entrusted in his professional capacity with any money, valuable security or other property to retain it in safe custody with instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply or account for the same after due completion of the purpose for which it was given, shall be guilty of an offence:”
In addition, the Advocates (Accounts) Rules and the Advocates (Deposit Interest) Rules draw the permissible limits of dealings with funds received on behalf of and for the benefit of a client. The foregoing emphasises that an advocate must at all times act in the best interest of his client; that where he is required to invest he must do so prudently and avoid obvious risks and; that failure to account for funds held by an advocate on behalf of a client is in fact a criminal offence.
15. The defendant as an advocate received funds on behalf of the plaintiff after acting for the plaintiff for the recovery of damages as compensation for material damage to the plaintiff’s vehicle following an accident. From the above decision, it is clear that the funds were held by the defendant in trust for the plaintiff.
16. It is the defendant’s case that he had a lien over the balance of the decretal sum that was not paid over after the amount deposited in court was released to the plaintiff through her advocate on record. That line of defence was not contained in his replying affidavit in response to the OS but arose through submissions by counsel when the matter was pending. The defendant has not produced any agreement with the plaintiff showing that he had agreed that he could retain the monies paid for the compensation as his fees. He had not produced any certificate of costs to show that his fees having been taxed he retained the money as a lien for the payment of his fees. In any case, was he to retain the entire decretal sum as fees, seeing that he only released part of it after the same was ordered by this court to be deposited in court? That line of defence is an afterthought and not available to him. In the English case of Barrat v Gough Thomas [1950] 2 All ER 1048, it was held that a retaining a lien entitles an advocate to withhold possession of documents or property until costs are paid, but it does not authorize unilateral deduction of taxed costs from client funds unless expressly agreed or sanctioned by the court. It follows therefore that while an advocate can claim a lien over taxed unpaid costs as was held in Booth Extrusions (Formerly) Booth Manufacturing Africa Limited v Dumbeyia Nelson Muturi Harun t/a Nelson Harun & Company Advocates [2014] KEHC 8597 (KLR), such a lien is passive and does not grant the advocate an automatic right to deduct the fees from funds received on behalf of the client. Therefore, the defendant could not continue withholding the funds while not proceeding to tax his costs. He could recover his fees under the provisions of the Advocates Remuneration Order.
17. I do not find it necessary to go into the issue of advocate’s professional conduct towards the plaintiff as that is the remit of a different jurisdiction.
18. The defendant shall release the balance of the decretal sum to the plaintiff within 14 days together with interest at court rates. He shall also pay to the plaintiff interest on the sum of KShs 430,000/= at court rates from the time the entire decretal sum was paid to him until when the same was released to the plaintiff.
19. For the foregoing reasons, I find that this OS has merit and the same is allowed with costs to the plaintiff.
Orders accordingly.
Written, dated, signed and delivered on the virtual platform, Teams, this 23rd day of July 2025
ANDAYI W. F.
JUDGE
In the presence of:
Wambua for the defendant.
N/A for the plaintiff.
Ummu: Court assistant.
i. the defendant to deliver up a cash account of the monies received from Geminia Insurance (Approximately KShs 650,000/= on 4/8/2022 in settlement of a claim filed by the plaintiff against Kennedy Karimi Nyaga in Nairobi Milimani SCCC No. E569 of 2022.
ii. the defendant to pay the plaintiff the said sum plus interest at commercial rates as from the date of receipt on 4/8/2022 until payment in full.
iii. the defendant to appear before this court to show cause why he should not be disciplined under section 56 of the Advocates Act (Cap. 56) Laws of Kenya for being guilty of professional misconduct.
iv. the defendant to pay the costs of the application.
2. The OS is filed under Order 52 Rule 4 of the Civil Procedure Rules, section 3A of the Civil Procedure Act, section 47 of the Advocates Act and all enabling provisions of the law.
3. The grounds in support of the application as set out on the face thereof are expounded in the plaintiff’s supporting affidavit sworn on 5/9/2023. They are that the defendant was retained and did act for the plaintiff in Nairobi Small Claims Court Civil Case No. E569 of 2022 for a material damage claim as compensation arising out of a road traffic accident in which the plaintiff’s motor vehicle registration number KCS 617M was involved in an accident with motor vehicle registration number KCU 499K for one Keddy Karimi Nyaga. Judgment was delivered in the plaintiff’s favour awarding damages amounting to KShs 546,910/=. A decree given on 24/6/2022 was drawn in the sum of KShs 573,162/= being the judgment sum and interest and KShs 77,000/= being the costs of the suit making a total of KShs 650,162/=. The defendant was paid the money KShs 650,000/= in settlement of the claim on 4/8/2022 but never paid it over to the plaintiff by the time this OS was filed on 5/9/2023.
4. The defendant replied to the OS by way of a replying affidavit sworn on 29/2/2024 by Peter Kariuki Njiiri where he basically deposed that he had not failed to hand over the money but that he was hesitant to deposit the money with the plaintiff’s advocates as he was not sure of his practicing status. He deposed that he had not failed to account for the money or acted in a manner that would warrant a notice to show cause for professional misconduct being issued against him.
5. The court directed the defendant to deposit the sum of KShs 430,000/= which it found to be undisputed in court. Subsequently, the defendant had his Bill of Costs taxed at KShs 177,650/=.
6. The parties filed a consent dated 24/4/2025 recorded between themselves and subsequently adopted by the court for the sum of KShs 430,000/= deposited into court by the defendant to be paid over to the plaintiff through her advocates on record. Counsel for the plaintiff then informed the court that there was some KShs 13,000/= pending payment to the plaintiff and also that the issue of interest and costs was pending.
7. The plaintiff is therefore claiming the balance of the decretal sum together with interest at commercial rates as well as the other reliefs sought in the O.S.
8. The court directed counsels to appear before this court to make oral submissions on the pending issue of costs and interest. When the matter came up next, learned counsel for the plaintiff Mr. Barasa highlighted the submissions he had filed dated 26/3/2025 on the OS. He submitted that the defendant received the decretal sum on 4/8/2022 but failed to release the same to the plaintiff despite several follow-ups and the plaintiff had to file the OS. He submitted further that the defendant was only compelled to tax his Bill of Costs after the OS was filed which was one and half years after the money was paid to him. He had never had a conversation with the plaintiff over his fees or sent her a fee note after the insurance company paid the money to him.
9. Learned counsel submitted that this sit was filed to compel the defendant to release the decretal sum and therefore costs ought to be granted to her. He also submitted that had the money been paid thst early, she would have applied the same to other uses.
10. Learned counsel for the defendant submitted that after the money was paid over to the defendant, they were not able to agree on fees with the plaintiff. Before the same could be determined the plaintiff moved to court with this suit. The court then determined that the fees had to be determined first and the Bill of Costs had to be taxed. This was done on 18/3/2025. According to learned counsel, there was no way the defendant could have paid over the decretal sum before the issue of fees was determined as he was entitled to the same.
11. Learned counsel for the defendant submits further that the OS had been compromised and it will not be proper to punish the defendant with costs because he was only following the proper channel. He submits that the defendant is ready, willing and able to pay the balance of KShs 13,260/= remaining.
12. The issue for determination is whether the plaintiff has proved her claim against the defendant and therefore whether or not the reliefs sought by the plaintiff against the defendant should be granted.
13. Considering the pleadings, the submissions and the proceedings herein, the only issue for determination is whether or not the defendant had good cause to retain the balance of the decretal sum due to the plaintiff on account of his costs.
“Order 52 rule 4 of the Civil Procedure Rules also allows a client to take out originating summons for such orders as to the delivery by an advocate of a clients’ cash account, money or securities which an advocate may have in his possession or control on behalf of a client.”
14. In the case of Kim Jong Kyu v Housing Finance Company Ltd & 2 others [2015] KECA 274 (KLR) the Court of Appeal while considering the issue of an advocate’s duty to his client stated that:
“Advocates in addition to being professionals, are officers of the court and play a vital role in the administration of justice. In our legal system, the advocate/client relationship has long been recognized as fiduciary relationship in which the client places his or her confidence, faith, reliance and trust in the advocate, whose aid, advice, opinion or protection is sought from time to time. The client gives the advocate significant amount of control over the matter in which the brief relates. With this relationship comes certain duties and responsibilities on the advocate. These duties and responsibilities are provided for in the statute and the rules of conduct as we demonstrate below. The sets of rules that govern the advocates’ professional conduct arise out of the duty that they owe to the court, their clients, and fellow advocates. Section 80 of the Advocates Act stresses the advocate’s duty to a client;
“80. Betrayal of trust
Any person who, being an advocate, is entrusted in his professional capacity with any money, valuable security or other property to retain it in safe custody with instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply or account for the same after due completion of the purpose for which it was given, shall be guilty of an offence:”
In addition, the Advocates (Accounts) Rules and the Advocates (Deposit Interest) Rules draw the permissible limits of dealings with funds received on behalf of and for the benefit of a client. The foregoing emphasises that an advocate must at all times act in the best interest of his client; that where he is required to invest he must do so prudently and avoid obvious risks and; that failure to account for funds held by an advocate on behalf of a client is in fact a criminal offence.
15. The defendant as an advocate received funds on behalf of the plaintiff after acting for the plaintiff for the recovery of damages as compensation for material damage to the plaintiff’s vehicle following an accident. From the above decision, it is clear that the funds were held by the defendant in trust for the plaintiff.
16. It is the defendant’s case that he had a lien over the balance of the decretal sum that was not paid over after the amount deposited in court was released to the plaintiff through her advocate on record. That line of defence was not contained in his replying affidavit in response to the OS but arose through submissions by counsel when the matter was pending. The defendant has not produced any agreement with the plaintiff showing that he had agreed that he could retain the monies paid for the compensation as his fees. He had not produced any certificate of costs to show that his fees having been taxed he retained the money as a lien for the payment of his fees. In any case, was he to retain the entire decretal sum as fees, seeing that he only released part of it after the same was ordered by this court to be deposited in court? That line of defence is an afterthought and not available to him. In the English case of Barrat v Gough Thomas [1950] 2 All ER 1048, it was held that a retaining a lien entitles an advocate to withhold possession of documents or property until costs are paid, but it does not authorize unilateral deduction of taxed costs from client funds unless expressly agreed or sanctioned by the court. It follows therefore that while an advocate can claim a lien over taxed unpaid costs as was held in Booth Extrusions (Formerly) Booth Manufacturing Africa Limited v Dumbeyia Nelson Muturi Harun t/a Nelson Harun & Company Advocates [2014] KEHC 8597 (KLR), such a lien is passive and does not grant the advocate an automatic right to deduct the fees from funds received on behalf of the client. Therefore, the defendant could not continue withholding the funds while not proceeding to tax his costs. He could recover his fees under the provisions of the Advocates Remuneration Order.
17. I do not find it necessary to go into the issue of advocate’s professional conduct towards the plaintiff as that is the remit of a different jurisdiction.
18. The defendant shall release the balance of the decretal sum to the plaintiff within 14 days together with interest at court rates. He shall also pay to the plaintiff interest on the sum of KShs 430,000/= at court rates from the time the entire decretal sum was paid to him until when the same was released to the plaintiff.
19. For the foregoing reasons, I find that this OS has merit and the same is allowed with costs to the plaintiff.
Orders accordingly.
Written, dated, signed and delivered on the virtual platform, Teams, this 23rd day of July 2025
ANDAYI W. F.
JUDGE
In the presence of:
Wambua for the defendant.
N/A for the plaintiff.
Ummu: Court assistant.