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ELCDismissedOriginating Summons dated 10/3/2017 (Nairobi)· [2018] KEELC 2126 (KLR)

James Oudia v Odera Obar & Co. Advocate [2018] KEELC 2126 (KLR)

High Court of Kenya
27 July 2018
BEB M Eboso
1,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Only the actual client can demand an accounting from an advocate — paying bills on someone else's behalf doesn't give you that right.

What this practically means

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Executive summary

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The plaintiff, James Oudia, took out an originating summons against M/s Odera Obara & Co Advocates seeking an order that the advocate account for all sums paid to it, a refund of the entire sum paid, and costs, in respect of an arbitration matter between Hellen Odido and Anne Mutiso. The plaintiff contended he made several payments to the advocate on diverse dates and pointed to the advocate's admission in an advocate-client bill of costs (Nairobi Misc Civil Application No 252 of 2015) of receiving Kshs 614,525, asserting he had paid more. The taxing officer (Hon I N Barasa, DR), in a ruling of 24 January 2017, determined the fees due to the advocate but declined to determine the total sum paid, directing that issue to a different forum. The advocate conceded acting for Hellen Odido but maintained the plaintiff was not the client in the arbitration, that it rendered services in seven matters with a statement of account issued, denied a friendly loan of Kshs 1,000,000, and noted a reference against the taxing officer's award was pending. The matter was disposed of by affidavit evidence and written submissions. The court framed a single issue: whether the plaintiff satisfied the criteria for compelling an advocate to render an account. It held that the client in the arbitration was and remains Hellen Odido; the plaintiff, who merely made payments as her agent, lacked locus standi. The court also held that a friendly loan cannot be recovered through an Order 52 rule 4 originating summons. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Locus standi of a non-client payer to demand an account from an advocate

Holding

The plaintiff, who merely paid the advocate on behalf of his sister the actual client, lacks locus standi to take out the originating summons

Reasoning

The bill of costs was taxed against Hellen Odido, the client in the arbitration proceedings, not the plaintiff. Making payments on another's behalf does not make the payer the client; the payer acts as an agent. Only the client may compel her advocate to render an account under Order 52 rule 4. Though advocate-client relations existed between the parties in other matters (Kisumu ELC 149 of 2014 and CMCC No 4844 of 2011), the client in the arbitration was Hellen Odido.

p. 2
02

Recovery of a friendly loan via originating summons

Holding

A friendly loan cannot be recovered or accounted for through an originating summons under Order 52 rule 4 of the Civil Procedure Rules

Reasoning

The plaintiff alleged he lent the advocate Kshs 1,000,000 as a friendly loan. The advocate denied the loan and argued it was recoverable only through an ordinary suit. The court agreed that an Order 52 rule 4 originating summons is designed exclusively for situations where an advocate-client relationship exists or existed in relation to the particular matter, so the loan claim could not be ventilated in that forum.

p. 2

Legal principles established

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  • Only the client, not an agent who merely makes payments on the client's behalf, has locus standi to take out an originating summons under Order 52 rule 4 compelling an advocate to render an account
  • An originating summons under Order 52 rule 4 is available only where an advocate-client relationship exists or has existed in relation to the particular matter

Court orders

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  1. 1.The suit is dismissed for lack of merit
  2. 2.The defendant is awarded costs of the suit
Jurisdiction invoked
Advocate-client accounting jurisdiction under Order 52 rule 4 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Oudia v Odera Obar & Co. Advocate [2018] KEELC 2126 (KLR)", Case Analysis (2018). Originating Summons dated 10/3/2017 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2126/eng@2018-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.