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ELCAllowedNotice of Motion dated 4th May 2020 in an Originating Summons (number not stated)· [2020] KEELC 139 (KLR)

Patrick Kimathi Muchena t/a Arimi Kimathi & Company Advocates v Ochieng Opiyo t/a Ochieng Opiyo & Company Advocates [2020] KEELC 139 (KLR)

High Court of Kenya
12 November 2020
EOE.O. OBAGA
657 words in judgment
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The bottom line

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Kenya's High Court confirmed that an advocate who gives a professional undertaking must personally pay up — blaming the client won't help.

What this practically means

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Executive summary

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This ruling by E.O. Obaga J of the High Court at Nairobi, delivered on 12th November 2020, determined a Notice of Motion dated 4th May 2020 in which the Applicant advocate sought entry of judgment on admission against the Respondent advocate to enforce a professional undertaking. The underlying Originating Summons was settled, with the Respondent agreeing to pay agreed costs of Kshs.250,000/=. A consent drafted by the Respondent proposed payment within 14 days, but after the Applicant amended clause two, the Respondent declined to execute and file it. The Respondent opposed the motion, blaming his client, Ms Wanandege Savings and Credit Cooperative Society, for the delay in disbursing funds, and relying on a dismissed application to enjoin the client as a second respondent. Only the Applicant filed submissions. Framing the sole issue as whether judgment on admission should be entered, the court held that the Respondent admitted the amount and that it was his duty to ensure he was in funds before giving the undertaking, applying the principle in Havi & Co. Advocates v J M Njage & Co. Advocates HCCC No.59 of 2000. The court allowed the application as prayed and ordered entry of judgment on admission. No separate costs order appears in the ruling.

Key legal issues

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Whether judgment on admission should be entered against the Respondent advocate

Holding

Yes; the Respondent admitted the agreed costs of Kshs.250,000/= and cannot shift liability to his client.

Reasoning

The court found the agreed costs were negotiated and settled in a consent drafted by the Respondent, who undertook to pay within 14 days of filing the consent. His failure to execute and file the consent did not displace the admission. The breach of the professional undertaking was his responsibility; an advocate must be in funds before giving an undertaking and cannot blame his client's failure to disburse.

p. 2

Legal principles established

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  • An advocate must ensure that he is in funds before giving a professional undertaking.

Court orders

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  1. 1.Entry of judgment on admission against the Respondent for the agreed costs of Kshs.250,000/=
  2. 2.Application allowed as prayed
Jurisdiction invoked
Original civil jurisdiction to enforce a professional undertaking; entry of judgment on admission under civil procedure law (provision not cited in the judgment)

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, "Patrick Kimathi Muchena t/a Arimi Kimathi & Company Advocates v Ochieng Opiyo t/a Ochieng Opiyo & Company Advocates [2020] KEELC 139 (KLR)", Case Analysis (2020). Notice of Motion dated 4th May 2020 in an Originating Summons (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/139/eng@2020-11-12

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