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ELCDismissedOriginating Summons dated 27th May 2025 (suit number not stated in judgment)· [2026] KEELC 4127 (KLR)

Ndungi v Mwaniki t/a Ngugi Mwaniki & Company Advocates (Environment and Land Miscellaneous Case E151 of 2025) [2026] KEELC 4127 (KLR)

Environment and Land Court
19 June 2026
TMT. Murigi
3,525 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 refused to immediately refund KShs 1 million held by an advocate, saying the money must stay as security until the advocate's fees are formally assessed.

What this practically means

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Executive summary

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By an originating summons dated 27th May 2025 under Order 52 Rule 4 of the Civil Procedure Rules, the Applicant sought an order compelling the Respondent advocate, Gachomo Kenneth Mwaniki trading as Ngugi Mwaniki & Company Advocates, to refund Kshs. 1,000,000/= with interest. The Applicant had engaged the Respondent in a purchase of 0.25 acres from Title Number Kabete/Karura/2443 for Kshs. 6,000,000/=, agreeing fees of Kshs. 30,000/=. He paid the Respondent two instalments of Kshs. 500,000/= in June and July 2022 as part of the purchase price, evidenced by RTGS narrations referring to the subject property. The Respondent failed to remit the sum to the vendor's advocates and later claimed to hold it as security for fees, filing an advocate-client bill of costs claiming Kshs. 1,144,572/=. The Respondent defended on the basis of an advocate's general lien, relying on Barrat v Goug Thomas and Ondengo v Okoth, and urged that the dispute on fees be referred to taxation. The Court followed John Karungai Nyamu v Muu & Associates Advocates as cited in Simon Njumwa Maghanga v Joyce Jeptarus Kagongo, holding that an advocate cannot exercise a lien over monies received for onward transmission. However, since the bill of costs was pending taxation in ELC Misc. E397 of 2025, the Court held it premature to order a refund and directed retention of the Kshs. 1,000,000/= as security pending taxation. The summons was declined and each party was ordered to bear its own costs.

Key legal issues

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01

Purpose for which the Kshs. 1,000,000/= was remitted to the Respondent advocate

Holding

The RTGS narrations showed the funds were paid as part of the purchase price for onward transmission to the vendor's advocates; the Respondent had no written authority to apply or retain them as security for fees

Reasoning

The Court found the RTGS transfer forms expressly referenced the subject property as the purpose of payment. The Respondent produced no material demonstrating the Applicant authorised use of the funds for legal fees or retention as security. However, because a bill of costs claiming Kshs. 1,144,572/= was pending taxation in ELC Misc. E397 of 2025, the Court found it premature to order a refund, and directed that the funds be retained as security pending taxation.

p. 7
02

Scope of an advocate's right of lien over client funds

Holding

The general lien does not extend to funds received for a specific purpose that has failed to be executed

Reasoning

Relying on John Karungai Nyamu v Muu & Associates Advocates as quoted in Simon Njumwa Maghanga v Joyce Jeptarus Kagongo, the Court held that an advocate has no right to hold monies that came to him for onward transmission as a lien. The lien applies only to funds and property coming into the advocate's hands in his general professional capacity, not to funds remitted for onward transmission to a third party.

p. 6
03

Whether the Court could determine fees in these proceedings

Holding

No; taxation before a taxing officer is the proper process under Section 13 of the Advocates Act

Reasoning

Section 13 of the Advocates Act requires advocate-client costs to be taxed by a taxing officer. Since the advocate-client bill of costs was already filed and pending in ELC Misc. E397 of 2025, any determination of fees in this suit would be premature. The Respondent remains entitled to have his fees assessed through taxation.

p. 7

Legal principles established

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  • An advocate's general lien does not extend to monies received for a specific purpose of onward transmission to a third party

Court orders

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  1. 1.The originating summons dated 27th May 2025 is declined pending the taxation and determination of ELC Misc. E397 of 2025
  2. 2.The Respondent is to retain custody of the sum of Kshs. 1,000,000/= as security pending the taxation and finalisation of the bill of costs in ELC Misc. E397 of 2025
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 52 Rules 4(1), (2), (3) and 10
  • Advocates ActSection 80
  • Advocates ActSection 45 (including Section 45(b))
  • Advocates ActSection 46
  • Advocates ActSection 48(1)
  • Advocates ActSection 13
  • Advocates Remuneration Order, 2014Schedule 1
  • Advocates Remuneration (Amendment) Order, 2014Schedule 7
  • Code of Standards of Professional Practice and Ethical Conduct for the practice of law in Kenya

Cases cited (4)

  • Barrat v Goug Thomas
    (1950) 2 All ER 1048, 1053
  • Ondengo v Okoth, ELC G.S Okoth Advocates (Misc. Application E262 of 2024)
    (2025) KEHC 9803 (KLR)
  • Simon Njumwa Maghanga v Joyce Jeptarus Kagongo T/A Chesaro & Co. Advocates
    [2014] KEHC 6096 (KLR)
  • John Karungai Nyamu & Another v Muu & Associates Advocates
    [2008] eKLR
Jurisdiction invoked
Order 52 Rule 4 of the Civil Procedure Rules, 2010

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, "Ndungi v Mwaniki t/a Ngugi Mwaniki & Company Advocates (Environment and Land Miscellaneous Case E151 of 2025) [2026] KEELC 4127 (KLR)", Case Analysis (2026). Originating Summons dated 27th May 2025 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4127/eng@2026-06-19

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