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ELCAllowedOriginating Summons dated 26th September, 2016 (filed 6th October, 2016)· [2018] KEELC 3820 (KLR)

Tom Oboke Ndhine & 20 others v Osoro Kennedy Omwoyo t/a Osoro Omwoyo & Company Advocates & 3 others [2018] KEELC 3820 (KLR)

High Court of Kenya
13 April 2018
OAO.A. Angote
2,500 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The High Court ruled a lawyer cannot hold property buyers' title documents hostage for unpaid fees when he acted for the seller, not the buyers.

What this practically means

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Executive summary

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The Plaintiffs, purchasers of quarter-acre portions of L.R. No. 12715/235 from the 2nd Defendant, filed an Originating Summons seeking to restrain the 1st Defendant, the Vendor's advocate, from making demands for purported survey and legal fees, an order compelling the Vendor to execute transfers, and orders compelling the 1st Defendant to release completion documents he held under an irrevocable professional undertaking. The Plaintiffs had paid the full purchase price, which the 1st Defendant received as the Vendor's advocate. The 1st Defendant resisted, claiming a right of lien over the completion documents until payment of Kshs. 175,000 per plot in purported legal, survey and sub-division costs, asserting an implied retainer by the Plaintiffs to undertake sub-division. The court found that under Clause 6 the 1st Defendant acted only for the Vendor; under Clause 15 the purchasers were to appoint the surveyor and pay his fees, which were agreed at Kshs. 460,000 and were in fact paid in full by the Plaintiffs, with the 1st Defendant's deposit reimbursed. The court held that an advocate's lien arises only within an advocate-client relationship, that no retainer by the Plaintiffs existed, and that any fee claim by the 1st Defendant lay against the Vendor. Having given an irrevocable undertaking, he could not withhold the documents. The Supporting Affidavit was held not defective. The Originating Summons was allowed as prayed, with the 1st Defendant to release the completion documents forthwith.

Key legal issues

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01

Advocate's lien over completion documents

Holding

The 1st Defendant cannot hold the completion documents as lien since there was no advocate-client relationship with the Plaintiffs; he acted for the Vendor.

Reasoning

Clause 6 of the Sale Agreements showed the 1st Defendant acted for the 2nd Defendant (Vendor) while Odero-Olonde Advocates acted for the Plaintiffs. A retainer requires express or implied instructions. The surveyor's fees had been fully paid by the Plaintiffs and the 1st Defendant was reimbursed his deposit, so no sub-division fees were owed to him. Any claim for fees would lie against the Vendor, not the Plaintiffs.

p. 4
02

Entitlement to sub-division fees

Holding

The 1st Defendant, not being the surveyor, is not entitled to sub-division fees under the Sale Agreements; the Plaintiffs' obligation was to pay the surveyor's actual fees, which they did.

Reasoning

The agreements placed the cost of sub-division on the purchasers but required payment of the surveyor's fees, agreed at Kshs. 460,000. The surveyor confirmed payment in full by the Plaintiffs and the 1st Defendant's deposit was refunded. Demands of Kshs. 175,000 per plot and a raised surveyor's fee of Kshs. 1,280,000 were unsupported.

p. 4
03

Validity of the Supporting Affidavit

Holding

The Supporting Affidavit sworn by the deponents was not defective under Order 19 Rule 5 of the Civil Procedure Rules.

Reasoning

The court found that filing separate affidavits by the two Plaintiffs would make no difference since the depositions would be the same; the affidavit as sworn was valid.

p. 4

Legal principles established

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  • A general lien or right to retain papers, money or chattels by an advocate arises only within an advocate-client relationship, and a retainer arises only from express or implied instructions.

Court orders

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  1. 1.The Originating Summons dated 26th September, 2016 is allowed as prayed
  2. 2.The 1st Defendant is to release the completion documents to the Plaintiffs' advocate forthwith for finalisation of the sale transaction

Authorities

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Legislation

  • Civil Procedure RulesOrder 19 Rule 5
Jurisdiction invoked
Original civil jurisdiction of the High Court over the Originating Summons (not expressly invoked in the extract)

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, "Tom Oboke Ndhine & 20 others v Osoro Kennedy Omwoyo t/a Osoro Omwoyo & Company Advocates & 3 others [2018] KEELC 3820 (KLR)", Case Analysis (2018). Originating Summons dated 26th September, 2016 (filed 6th October, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3820/eng@2018-04-13

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