Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Case 151 of 2018· [2023] KEELC 20753 (KLR)

Hussein & 2 others (Suing as the administrator of the Estate of Mohamed Hussein Absura (Deceased)) v United Care Limited & 2 others; Nyangito t/a Nyangito & Associates (Applicant); Hussein & 2 others (Client)

Environment and Land Court
17 October 2023
1,906 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered a client's land transferred to their lawyer for unpaid fees, ruling that an unappealed costs judgment cannot be challenged later.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Machakos (Ochieng J) determined an advocate's Notice of Motion dated 5 May 2023 seeking enforcement of orders issued by Angote J on 15 October 2021, and a Notice of Preliminary Objection dated 29 May 2023 filed by the Clients. The Advocate, Lawrence Oigoro Nyangito, had his bill of costs taxed at Kshs 7,094,870 on 1 October 2020; the Clients' reference was dismissed and the taxed bill adopted as judgment by Angote J, who directed that the Clients' property Nairobi/Block 60/485, held by the Advocate as a lien for fees, be transferred to the Advocate. The order was not complied with. The Clients objected that the ELC lacked jurisdiction under Article 162(2)(b) because the property was subject to Kadhi's Court Succession Cause No 56 of 2017, and sought striking out of the motion with indemnity costs. The court held that the lien created contractual obligations, that the costs judgment was from a competent court and unappealed, and that the Advocate was merely enforcing it; jurisdiction was therefore no longer open to challenge. Relying on Booth Extrusions on the nature of an advocate's lien, the court disallowed the preliminary objection and allowed the motion, directing the Deputy Registrar, ELC Machakos, to execute and attest all transfer documents for Nairobi/Block 60/485 to facilitate transfer to the Advocate by the Chief Land Registrar in compliance with Angote J's orders. No costs order was made.

Key legal issues

#
01

Whether the ELC has jurisdiction to order transfer of property subject to Kadhi's Court succession proceedings

Holding

The preliminary objection on jurisdiction failed because the rights on costs had already been determined by a competent court in an unappealed ruling; the Advocate was merely enforcing it.

Reasoning

The court noted the Advocate's lien over the property was established before Angote J, who dismissed the Client's reference and adopted the taxed bill as judgment. The Client raised no jurisdictional objection then and did not appeal. The lien created contractual obligations, and enforcement of the existing judgment could not be defeated by a fresh jurisdictional objection tied to the concluded Kadhi's Court succession cause.

p. 4
02

Whether the Advocate was entitled to an order that the Deputy Registrar execute transfer documents

Holding

Yes; the Notice of Motion dated 5th May 2023 was found merited and allowed in the terms set out in the final orders.

Reasoning

The Advocate held a lien over Nairobi/Block 60/485 as security for unpaid fees taxed at Kshs 7,094,870. The taxed bill had been adopted as judgment and the Client had not complied since the ruling of 15 October 2021. The court directed the Deputy Registrar to execute and attest the transfer documents to facilitate transfer in favour of the Advocate.

Legal principles established

#
  • Where a court of competent jurisdiction has issued an unappealed judgment on advocates' costs, jurisdiction cannot be re-litigated via a preliminary objection at the enforcement stage.
  • A party aggrieved by a ruling on costs should appeal rather than raise a preliminary objection at enforcement.

Court orders

#
  1. 1.The Deputy Registrar ELC Machakos be and is hereby directed to execute and attest all transfer documents on behalf of the Client in relation to the property known as Nairobi/Block 60/485 in order to facilitate transfer in favour of the Advocate by the Chief Land Registrar and in compliance to the orders issued on 15th October, 2021 by Justice Angote.

Authorities

#

Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 170(5)
  • Kadhi's Court ActSection 5

Cases cited (5)

  • Juliana Muthoni Kilotolo v Adan Ahmed Sheikh t/a Wetangula, Adan & Co Advocates; Osman Batur Dedeoglu (Interested Party)
    [2022] eKLR
  • Booth Extrusions (formally) Booth Manufacturing Africa Limited v Dumbeyia Muturi Harun t/a Nelson Harun & Co. Advocates
    [2013] eKLR

    Nature and extent of an advocate's lien; right to retain property until costs are paid.

  • Nahashon Onyango Otieno v George Onyango Otieno
    (2021) eKLR
  • Beatrice Wambui Kiarie & v Beatrice Wambui Kiarie & 9 others
    (2018) eKLR
  • Isaac Kinyua & 3 others v Hellen Kaigongi
    (2018) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); enforcement of orders of 15 October 2021 by Angote J

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hussein & 2 others (Suing as the administrator of the Estate of Mohamed Hussein Absura (Deceased)) v United Care Limited & 2 others; Nyangito t/a Nyangito & Associates (Applicant); Hussein & 2 others (Client)", Case Analysis (2023). Environment & Land Case 151 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20753/eng@2023-10-17

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