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ELCDismissedOriginating Summons dated 20th July 2020· [2022] KEELC 1800 (KLR)

Juliana Muthoni Kilotolo v Adan Ahmed Sheikh t/a Wetangula, Adan & Co Advocates; Osman Batur Dedeoglu (Interested Party) [2022] KEELC 1800 (KLR)

Environment and Land Court
27 January 2022
3,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an advocate can keep a client's title deed until fully taxed legal fees are paid, so the client's suit failed.

What this practically means

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Executive summary

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The Applicant, owner of LR No 2/326 in Elgeyo Marakwet Close, Nairobi, sought an order compelling Wetangula, Adan and Co Advocates to release the original title deed deposited with the firm in January 2016 when preparing a joint venture agreement with Osman Batur Dedeoglu for the construction of 45 residential units. The project never materialised and was effectively terminated in arbitral proceedings before Jackie Oyuyo Githinji. The Respondent opposed release, asserting an advocate's right of lien over a bill of costs taxed on 7th March 2018 at Ksh. 11,177,289.40 and still unpaid, while noting pending references and related suits. The Interested Party, admitted to the proceedings, claimed the title was also security for a Ksh. 5,000,000 personal loan and his capital investment. The Applicant argued the Interested Party had settled all legal fees and that a lien was unjustified, disproportionate and unrealistic given the property's Ksh. 120,000,000 value. The court framed the single question of whether the Respondent had a right of lien over the title deed. Relying on Order 52 Rule 4(3) of the Civil Procedure Rules and common law authority, the court held the lien is passive and possessory, crystallises upon taxation, and subsists until fees are paid. Finding an advocate-client retainer, taxed and unpaid fees, and the title registered in the Applicant's name, the court held the lien remained in subsistence until the fees were liquidated or set aside on the pending Reference. The Originating Summons was dismissed with costs to the Defendant only.

Key legal issues

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01

Whether an advocate's right of lien exists over a client's title deed for unpaid fees

Holding

Yes; where an advocate-client retainer existed, fees were taxed and remain unpaid, the advocate may retain the client's title documents under a lien

Reasoning

The court traced the lien to Order 52 Rule 4(3) of the Civil Procedure Rules and common law, holding it is passive and possessory, premised on fairness that a client should not enjoy an advocate's work without payment. It found an advocate-client relationship, a taxed bill of Ksh. 11,177,289.40 dated 7th March 2018, admitted non-payment, and the title registered in the Plaintiff's name, so the lien subsists until the fees are liquidated or set aside on Reference.

p. 5
02

Whether the Interested Party's payment of some costs defeated the lien

Holding

No; under the Joint Venture Agreement the Interested Party was only to bear change of user, consents and construction costs, not the advocate's legal fees, which remained unpaid

Reasoning

The court referred to paragraph 6 of the Joint Venture Agreement, which mandated the Interested Party to meet only costs of change of user, consents for drawings and construction works. Both the Respondent and Interested Party disputed that legal fees were settled by the Interested Party, and the Applicant did not controvert non-payment. The court therefore found the Respondent's fees unpaid, sustaining the lien.

p. 3

Legal principles established

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  • An advocate's retaining lien is a common law, passive and possessory right to withhold a client's documents until costs are paid, and it ceases upon payment or where the documents belong to a third party
  • An advocate's right of lien crystallizes upon taxation of a bill of costs and subsists until the fees are fully paid

Court orders

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  1. 1.The Originating Summons dated 20th July 2020 is dismissed
  2. 2.Costs awarded to the Defendant only

Authorities

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Legislation

  • Civil Procedure RulesOrder 52 Rule 4(3)
  • Advocates ActSection 48(1)
  • Constitution of KenyaArticle 40

Cases cited (17)

  • Rolls Razor Ltd v Cox
    [1967] All ER
  • Booth Extrusions Ltd v Dumbeyia Nelson Muturi T/A Nelson Harun & Co Advocates
    [2017] eKLR
  • National Bank of Kenya v Kang'ethe George Joseph & Another
    [2015] eKLR
  • Re Fuld
    (1967) All ER
  • Dusan Construction Limited v S M Munikah, t/a Munikah & Co Advocates
    [2017] eKLR
  • Joseph Kithinji Gitonga & Another v Kiogora Mutai & Company Advocates
    [2017] eKLR
  • Ocean View Plaza v Gor Chitranjan Bhanuprasad and Gor Shishir Bhanuprasad t/a C B Gor & Gor Advocates
  • Republic v Lucas M Maitha ex parte Interactive Gaming and Lotteries Limited
    (2015) eKLR
  • Hammonds v Barclay
    (1802) 2 East 227
  • Evans Otieno Nyakwana v Cleophas Bwana Ongoro
    (2015) eKLR
  • Kenya Women Microfinance Bank Limited v Ruth Ndunge Mutulu & Another
    (2019) eKLR
  • SeenBarratt vs. Gough-Thomas
    [1951] 2 All ER 1048
  • Blunden vs. Desart
    (2 Dr. & War. 48)
  • In re Sullivan vs. Pearson, ex parte Morrison
    4QB (1868) 153
  • Rasul Bux vs. Dalal
  • John D. Hope & Co. vs. Glendinning
    [1911] AC 419
  • John Karungai Nyamu & Another v Muu & Associates Advocates
    [2008] eKLR
Jurisdiction invoked
Original civil jurisdiction; Originating Summons under the Civil Procedure Rules (Order 52 Rule 4(3) on advocates' lien invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Juliana Muthoni Kilotolo v Adan Ahmed Sheikh t/a Wetangula, Adan & Co Advocates; Osman Batur Dedeoglu (Interested Party) [2022] KEELC 1800 (KLR)", Case Analysis (2022). Originating Summons dated 20th July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1800/eng@2022-01-27

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