Adiedo v Agutu & another (Miscellaneous Case 205 of 2019)
[2023] KEHC 27155 (KLR) (20 December 2023) (Ruling)
Neutral citation: [2023] KEHC 27155 (KLR)
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
MISCELLANEOUS CASE 205 OF 2019
RE ABURILI, J
DECEMBER 20, 2023
BETWEEN
SHEM ODUOR ADIEDO ........................................................................ APPLICANT
AND
BENARD OLWENY AGUTU ....................................................... 1ST RESPONDENT
OUMA NJOGA & CO ADVOCATES .......................................... 2ND RESPONDENT
RULING
1. The applicant herein is Shem Oduor Adiedo. Vide his Notice of Motion dated May 5, 2023, he seeks
for orders directing that the monies which were previously held in a joint account no. xxx with Family
Bank, Eldoret Branch in the names of Nyaundi Tuiyot & Co. Advocates and the 2nd respondent that
were released to this court vide an order dated January 8, 2023{{term{refersTo |title See} be released
to the applicant and other beneciaries as follows;
Shem Oduor Adiedo………………. Kshs. 258,000
Wycli Teddy Oduor……………… Kshs. 170,000
Ruth Atieno (Deceased)…..………. Kshs. 125,000
Lorine Achieng…………………....Kshs. 130,000
2. It was the applicant’s case that following a Road Trac Accident on the February 9, 2008, he and
his children led separate cases for compensation at the Principal Magistrate’s Court at Maseno and
judgement was rendered in their favour.
3. The applicant further averred and deposed in his supporting adavit that the defendant in those cases
preferred appeals to the High Court in Kisumu against all their awards being Civil Appeals 88, 89,90
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and 91 of 2011 which were all dismissed save for Civil Appeal 90 of 2011 where the lower court award
was reduced to Kshs. 100,000 from Kshs. 200,000.
4. The applicant further averred that prior to hearing of the appeals, the court had made an order that
one half of the entire decretal sum be released to the 2nd respondent who was the applicant’s advocate
while the other half be held in a joint interest earning account hereinabove mentioned.
5. It was the applicant’s case that at the conclusion of the appeal, the court made an order that one
half of the decretal sum held in the joint account of the advocates be released to this court and that
subsequently, Kshs. 683,000 was released to the court and that the same should be released to him with
the share of the deceased Ruth Atieno released to him as her father.
6. The 1st respondent was served through his counsel but they never led any response to the application.
7. The 2nd respondent relied on the replying adavit sworn on the 21st September 2020 in which he
admitted that the applicant had instructed him to lodge civil suits on his behalf and on behalf of his
3 minor children in claims for damages for injuries sustained as a result of a road trac accident they
were involved in, and sustained injuries and which the 2nd respondent successfully secured awards in
their favour as follows, which said awards were subject to 15% contributory negligence on the part of
each claimant:
Maseno PMCC No. 33 of 2010 General damages Kshs. 200,000
Special damages Kshs. 1,500
Costs Kshs. 47,523
Maseno PMCC No. 32 of 2010 General damages Kshs. 200,000
Special damages Kshs. 1,500
Costs Kshs. 47,523
Maseno PMCC No. 31 of 2010 General damages Kshs. 250,000
Special damages Kshs. 1,500
Costs Kshs. 47,898
Maseno PMCC No. 29 of 2010 General damages Kshs. 250,000
Special damages Kshs. 1,500
Costs Kshs. 47,648
8. It was the 2nd respondent’s case that he agreed to represent the applicant and his 3 children on the
understanding that the legal fees would be recovered from the proceeds of the award of damages
expected to be made on successful completion of the suits.
9. The 2nd respondent deposed that the defendant in those cases preferred appeals to the High Court in
Kisumu against all their awards being Civil Appeals 88, 89,90 and 91 of 2011 and as a condition of
stay of execution of the various decrees, it was agreed that the 1st respondent would deposit with the
2nd respondent’s rm 50% of the decretal sum and the costs of each of the suit with the balance being
deposited in a joint interest earning account.
10. It was the 2nd respondent’s case that as he was on record for the applicant in the appeals, he explained
to him and the applicant understood that he would retain the 50% deposited in his rm as security for
the work done in the lower court as well as for the pending appeals.
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11. It was deposed that the 1st respondent was successful in two appeals, Kisumu HCCA 90 & 92 of
2011 where general damages were reduced from Kshs. 200,000 to 100,000 and Kshs. 250,000 to
100,000 respectively. However, the applicant denies that he was in any way connected to SPMCC
30/ 2010 whose appeal is 92/2011.This is evident from the instructions notes led by the advocate
herein showing that the applicant only instructed the advocate to represent him, his daughter Laureen
Achieng, Daughter Ruth Atieno and further instructions signed by Wyclie Teddy Oduor. There is
therefore no justication for the advocate claiming from the applicant for a fth person who is in no
way connected to the applicant and his children.
12. The 2nd respondent deposed that a dispute arose between his rm and that of Nyaundi Tuiyoot
Advocates regarding sharing of the funds in the joint interest earning account as the said rm wished to
deduct their costs of the successful appeals which were taxed at Kshs. 73,731 a piece on the 23.7.2018.
13. The 2nd respondent reiterated that he held the 50% of the decretal sum paid to him in lien as security
for his fees both in the lower court matters as well as the appeal matters whereas the 50% surrendered in
court from the joint interest earning account is yet to be apportioned due to the dispute between the
parties advocates and that it was thus not true that he had declined to release any funds to the applicant
or his children as insinuated.
14. The applicant led written submissions wherein he asserts that his rights and those of his children were
violated by the advocate who received half of the decretal sum on their behalf in 2010 amounting to
Kshs 775,000 and retained the whole of it without informing them until when he visited the court and
learnt from the Civil Appeals No. 88 of 2011in 2016.The rest of the submissions were reiterations of
the facts leading to the application.
15. It should be noted that twice, the matter was referred to mediation without success. The court implored
parties to negotiate in vain.
Analysis and Determination
16. I have considered the application, the grounds in support and the depositions as submissions. The
issue for determination is whether the application has any merit. It is not in dispute that the Advocate
represented the applicant and his children, in a case where damages were awarded to them and appeals
preferred to the High Court from the lower Court. It is also not in dispute that half of the decretal sum
in all the four cases together with costs assessed were paid to the 2nd respondent advocate as a condition
for stay pending appeal while the balance was deposited in a joint interest earning account held by the
2nd respondent advocate herein and the judgment debtor’s counsel, which sums of money was later
ordered to be deposited in this court.
17. It is also not in dispute that the advocate having represented the client would no doubt be entitled to
his legal fees for the professional services rendered whether by agreement or through taxation process.
18. Section 52 of the Advocates Act is clear that the provision is applicable only after costs for the advocate
against the client are taxed in respect to the matter at issue. In John Karungai Nyamu & another v Muu
& Associates Advocates [2008] eKLR, and Simon Njumwa Maghanga v Joyce Jeptarus Kagongo T/A
Chesaro & Co Advocates [2014] eKLR, it was held, inter alia, that an advocate has no right under any
law to hold monies that has come to him for onward transmission to his client as lien, and therefore,
the continued holding of the client’s money by the advocate is illegal.
19. The Court pronounced itself as follows:
“ The matter is very simple. Section 48(1) of the Advocates Act stipulates:
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“Subject to this Act, no suit shall be brought for the recovery of any costs due to an Advocate
or his rm until the expiry of one month after a bill for such costs, which may be in
summarized form, signed by the Advocate or a partner in his rm, has been delivered or sent
by registered post to the client, unless there is reasonable cause, to be veried by adavit
led with the plaint for believing that the party chargeable there with is about to quit Kenya
or abscond from the local limits of the Court’s jurisdiction, in which event action may be
commenced before expiry of the period of one month.”
It is clear from the foregoing that an Advocate’s fees 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. The client
has exercised its rights under Order LII rule 4(1)(d) of Civil Procedure Rules which stipulates
thus:
“O. LII. r.4 (1) Where the relationship of advocate and client exists or has existed the court
may, on the application of the client or his legal personal representative, make an order for-
(a)......
(b).....
(c).....
(d) The payment into or lodging in court of any such money or securities.”
The Advocate has no right under any law to hold monies that which have come to him for
onward transmission to his client as lien, at least no such law has been cited to the court.
What the Advocate is doing by holding onto the Plaintis’ monies, is irregular and the court
cannot condone the same.”
20. Thus, an Advocate’s fee becomes due and payable upon taxation and or by consent of the parties. To
this end, Section 48 (1) of the Advocates Act stipulates that:
“ Subject to this Act, no suit shall be brought for recovery of any costs due to an advocate or
his rm until the expiry of one month after a bill for such costs, which may be in summarized
form, signed by the Advocate or a partner in his rm has been delivered or sent by registered
post to the client…”
21. Under order 52 rule 4 Civil Procedure Rules:
“ 4(1) where the relationship of advocate and client exists or has existed, the court may, on the
application of the client or his legal personal representative, make orders for
a…
b…
c…
d… The payment into or lodging in court of any such of money or securities.”
22. I am further in agreement with the holding by Lesiit J in John Karungari Nyamu & another (supra),
relying on the above provision that:
“ The Advocate has no right under any law to hold monies that which have come to him for
onward transmission to his client as lien…” and further rendered that the Advocates fee only
becomes due after the Bill of Costs has been taxed by the Court. Before the Bill is taxed, there
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is no telling how much is due to the Advocate. The position is therefore that an advocate
cannot exercise lien over client’s money on basis of a Bill of Costs that is yet to be taxed. 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. The Advocate should release the client’s money
to him.” (emphasis added)
23. Throughout these proceedings, I have not seen any bill of costs or Certicate of Costs issued to the
advocate, the 2nd respondent herein for his costs against the client, the applicant herein, and although
he claims that they agreed with the applicant to get his fees from the damages payable, what he retained
is half and not 30% with costs incurred as per the instructions notes attached.
24. As earlier stated, the advocate received half of the decretal sum awarded to the applicant and his then
children way back in 2010 and despite his allegation that he retained the money upon agreeing with
the applicant, there is no evidence of any agreement for him to withhold all that money which was paid
to him on behalf of the applicant and his children as decree holders. The order for payment of half of
the decretal sum was clear that the said money be paid to the plaintis/ respondent and the balance
thereof be deposited in an interest earning account. This was by consent. The proceedings of the lower
court are all in this le and indeed they are clear that the money was to be paid to the plaintis. instead,
the 2nd respondent received and withheld all the monies without paying to his clients any part thereof.
25. This court also observes that vide a ruling dated 28th march, 2019, Cherere J in Civil appeal 88 of
2011 where this applicant was the respondent, dismissed the judgment debtor’s application to have the
amount paid in excess in Civil appeal 92 of 2011 be oset from the amount held in the joint account
which the respondent / now applicant opposed. The court observed that the applicant herein and his
minor children were not parties to civil Appeal No 92 of 2011.
26. I reiterate that the advocate herein withheld the monies due to the applicant and his then children for
unnecessarily long period. Had that money been paid into an interest earning account, it would have
earned interest. the money was even more than what was left in the interest earning account inclusive
of interest.
27. The applicant and his children cannot be hovering in court for all these years with paper judgments
yet they are the ones who were injured following the accident. Whereas the advocate has enjoyed part
of the decretal sum, the applicant and his children are still waiting more than thirteen years later. That
cannot be justice by any means. Justice delayed is justice denied. The applicant and his children too
deserve justice.
28. For avoidance of doubt, the letter written by the judgment debtor’s advocates dated 17/1/2018 gives a
clear explanation of the sums as awarded in the lower court for each plainti and the monies retained
by the 2nd respondent advocate herein as a condition for stay pending the appeals.
29. Appeals No. 92/2011 and 90/2011 were successful with the High Court reducing the decretal sums
from 200,000 to 100,000 in both appeals. However, HCCA 92/2011 was not part of the applicants’
series cases. The appellant’s counsel had proposed that the amounts paid to the advocate herein be
treated as being payment in full to settle the matters save for costs which they were ready to taxed. This
was not accepted by the advocate herein hence the stalemate.
30. It is worth noting that recovery of costs from a client by an advocate is subject to the law of limitations.
To date, whether in respect of the claim in the lower court or on appeal in the High Court, the advocate
has never led any bill of costs between him and the clients for settlement, even as he retained the
monies paid to him on behalf of his clients. This court would have directed him to le such bills for
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taxation but from my calculation of the period which has lapsed, such claims are stale and would be
unrecoverable.
31. In Abincha & Co. Advocates v Trident Insurance Co. Ltd [2013]eKLR the Court stated as follows:
“ An advocate’s claim for costs would be based on the contract for professional services
between him and his client. It would be a claim founded on contract. An action to recover
such costs would be subject to the limitation period set out in Section 4(1) (a) of the
Limitation of Actions Act. In this connection see also Halsbury’s Laws of England, 4th
Edition, Volume 28 at paragraph 879 (page 452) which states –
“879. Solicitor’s Costs. In relation to continuous work by a solicitor, such as the bringing
and prosecuting or defending an action;
1. if a solicitor sues for his costs in an action, the statute of limitation
only begins to run from the date of termination of the action or of
the lawful ending of the retainer of the solicitor;
2. if there is an appeal from the judgment in the action, time does not
begin to run against the solicitor, if he continues to act as such, until
the appeal is decided;
3. if judgment has been given and there is no appeal, time runs from
the judgment, and subsequent items of costs incidental to the
business of the action will not take the earlier items out of the
statute.
In respect of miscellaneous work done by a solicitor, time under statutory limitation begins
to run from the completion of the whole of each piece of work.
A solicitor cannot sue a client for costs until the expiration of one month after delivery of
a signed bill, but nevertheless time runs against a solicitor from the completion of the work
and not from the delivery of the bill. If some only of items included in the bill are statute-
barred, the solicitor may recover in respect of the balance.” [own emphasis]
32. Thus, an advocate’s retainer is subject to the limitation period of 6 years as set out in Section 4 of the
Limitation of Actions Act which provides as follows:
“ 4(1) The following actions may not be brought after the end of six years from the
date on which the cause of action accrued…
a) actions founded on contract…
b) actions to enforce a recognizance
c) actions to enforce an award
d) ….
e) ….
(3) An action for an account may not be brought in respect of any matter which
arose more than six years before the commencement of the action.
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(4) An action may not be brought upon a judgment after the end of twelve years
from the date on which the judgment was delivered, or (where the judgment
or a subsequent order directs any payment of money or the delivery of any
property to be made at a certain date or at recurring periods) the date of
the default in making the payment or delivery in question, and no arrears of
interest in respect of a judgment debt be recovered after the expiration of six
(6) years from the date on which the interest became due. “[own emphasis]
33. To date, there has been no taxation of the costs due to the advocate upon the conclusion of the appeals
wherein judgment was entered, in respect of HCCA 88/2011 on 26/9/2016; 90/2011 on 26/9/2016;
89/2011; and 91/2011, all on the same day.
34. Even section 52 of The Advocates Act on charging order provides that:
Charging orders
“Any court in which an advocate has been employed to prosecute or defend any suit or
matter may at any time declare the advocate entitled to a charge on the property recovered or
preserved through his instrumentality for his taxed costs in reference to that suit or matter,
and may make orders for the taxation of the costs and for raising money to pay or for paying
the costs out of the property so charged as it thinks t, and all conveyances and acts done to
defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona
de purchaser for value without notice, be void as against the advocate:
Provided that no order shall be made if the right to recover the costs is barred by limitation”.
[own emphasis]
35. The judgments on appeal having been delivered over six years ago and the advocate having failed to le
his bill of costs for any recovery from the clients, I nd that he has no lien and neither can he claim to
be entitled to any monies held by the court.
36. I further observe that the bank wherein the xed deposit account was opened continued charging
maintenance fees yet the money was on xed deposit account and despite reversing some of the
charges, other charges were never reversed hence the money in question was depreciating instead of
appreciating. In addition, the Bank also charged legal fees from the account including charges for
authentication of the court order and it is not clear on what authority they were doing that, since
this was an account opened on the authority of the court and therefore only statutory charges such as
withholding tax on the interest paid would apply.
37. In other words, the money deposited in the xed deposit account depreciated over time instead
of appreciating and none of the advocates for the parties raised any issue as they debated over the
apportionment in view of the two appeals wherein the amounts were reduced by half from shs 200,000
to shs 100,000, plus costs which were taxed at kshs 73,731.
38. It is undisputed fact that the advocate herein received ksh 775, 816 vide cheques No. 000944 as
admitted in the statement of account led on 7/10/2021, while his clients received nothing for all the
13 years that they have been waiting and attending court. In the statement of accounts led in court, the
advocate maintained that he laid claim over all the sums paid to him in partial settlement of the decrees
as well as the monies held in the joint xed deposit account meaning, the claimants had nothing left for
themselves. Is this fair and just, would a party who goes to court come out with nothing because all the
awards made in their favour has been taken up by the advocate, and if so, where is justice in such a case?
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39. In Simon Maghanga v Joyce Kangogo [2014] e KLR, Kasango J stated as follows and I agree:
“ No reason has been given why the court should review its earlier order requiring the
Advocate to release the money to the Respondent. The mere allegation that the Respondent
will not be able to pay the Advocate's fees once the same is taxed is not a legal basis upon
which the Advocate should continue holding the client's money. I say so because as already
observed, the Advocate's fees only becomes due upon taxation of the bill of costs. Before
taxation, the entire amount belongs to the client.
The Advocate's bill of costs was led on 5th December 2012. No reason has been given why
the same remains untaxed to date. The Advocate should not be allowed to benet from her
own indolence at taxing the bills. Equity only favours the vigilant, not the indolent.”
40. In the same vein, the question is, if the advocate felt that the monies held in the xed deposit account
and now deposited in court together with what was paid to him pending appeal was his, why did not
le his bill of costs into court for taxation?
41. For all the above reasons, I nd and hold that the applicant has made out a case for this court to order
that the monies being held by this court as deposited from the joint xed deposit account should be
released to him and all his children in the proportions proposed by the applicant who, in my view, has
suered enough injustice by the withholding of the said monies yet no bill of costs was led into court
for assessment to determine how much of the said sums of money was due to the advocate herein. The
advocate herein cannot now claim that part of the money belongs to the successful appellants as the
said appellants have never led any application in court to recover part of the monies which monies
would include what the advocate herein was paid and not just what they deposited in the xed deposit
account.
42. Accordingly, the application dated May 5, 2023 is allowed as prayed. For avoidance of doubt, the
payments shall be made as follows to the following persons:
Shem Oduor Adiedo…………………………………………… Kshs. 258,000
Wycli Teddy Oduor…………………………………………... Kshs. 170,000
Shem Oduor Adiedo to receive for Ruth Atieno…..……………. Kshs. 125,000
Lorine Achieng…………………………………………………..Kshs. 130,000
43. Each party shall bear their own costs of the application.
44. This le is now closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 20TH DAY OF DECEMBER, 2023
R.E. ABURILI
JUDGE
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