Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMisc Application No 148 of 2019· [2020] KEELRC 999 (KLR)

Jacquiline Njoroge v Evans Ongicho p/a Ongicho and Company Advocates [2020] KEELRC 999 (KLR)

Employment and Labour Relations Court
29 May 2020
2,021 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 ruled that an advocate cannot withhold your lawsuit winnings to pay your former employer's alleged debts — the lawyer must refund the money minus standard fees.

What this practically means

#

Executive summary

#
The applicant, a former employee, obtained an originating summons under Order 52 rule 4 of the Civil Procedure Rules against her former advocate, Ongicho-Ongicho & Company Advocates, seeking declarations and orders for payment of her share of a decretal sum. The advocate had acted for her and 19 others in ELRC Cause No. 305 of 2019 against Radio Frequency Systems Ltd, in which a consent judgment of Kshs. 29,103,892.50 was entered, her share being Kshs. 2,980,000.00, deposited in the advocate's client account. The respondent opposed, contending among other things that the ELRC lacked jurisdiction, the summons disclosed no cause of action, and the employer was entitled to a set-off of Kshs. 4,000,000.00 allegedly unaccounted for by the applicant under sections 19 and 45 of the Employment Act. The court held it had jurisdiction because the dispute arose from satisfaction of a decree in an ELRC cause, and section 13 of the ELRC Act adopts Civil Procedure Act rules for enforcement. It held the advocate could not review the decree's terms or urge the employer's set-off, which was outside the consent judgment and constituted a conflict of interest. Judgment was entered for the applicant on most prayers: declaration of no special fee agreement, refund of Kshs. 2,980,000.00 less fees per the Advocates' Remuneration Order, a cash account, payment by 01.07.2020 with interest thereafter, delivery of a bill of costs, and costs of the application. Prayers relating to delivery up of files failed for want of specific identification of the documents.

Key legal issues

#
01

Jurisdiction of the ELRC over an Order 52 rule 4 originating summons against an advocate

Holding

The Court has jurisdiction because the dispute arises from satisfaction of a decree in an ELRC cause, and the court passing a decree is responsible for its satisfaction.

Reasoning

The respondent argued the ELRC is a specialised court under Article 162(2) and section 12 of the ELRC Act. The applicant relied on rule 32(2) of the ELRC (Procedure) Rules importing the Civil Procedure Rules on execution. The court held the dispute arose from satisfaction of the decree in Cause 305 of 2019, and section 13 of the ELRC Act renders its decrees enforceable under Civil Procedure Act rules, so it enjoys jurisdiction.

p. 3
02

Whether the respondent could withhold the applicant's decretal dues on account of an alleged employer's set-off

Holding

No. The alleged set-off was not part of the consent judgment or proceedings in Cause 305 of 2019 and cannot be a consideration in settling the applicant's decretal sum.

Reasoning

The respondent argued the employer could withhold dues under sections 19 and 45 of the Employment Act due to an alleged Kshs. 4,000,000.00 unaccounted for by the applicant. The court held it was not for the advocate to review the decree's terms, and urging the employer's case was a conflict of interest outside the applicant's instructions. The applicant was entitled to the decretal sum less fees per the Remuneration Order.

p. 3
03

Entitlement to account, bill of costs and refund

Holding

The applicant is entitled to an account of decretal sums held on her behalf, payment of the balance, and a bill of costs; no special fee agreement existed.

Reasoning

An advocate is under a duty to account for monies received on the client's account. Since no special agreement on higher fees was shown, fees fall to be determined under the Advocates' Remuneration Order. The court entered judgment on the declarations and orders for account, refund, payment by a fixed date with interest thereafter, and delivery of a bill of costs.

p. 3

Legal principles established

#
  • The court which passes a decree is responsible for matters of satisfaction of the decree, and decrees of the ELRC are enforceable in accordance with the rules made under the Civil Procedure Act.
  • An advocate cannot resist paying over the client's decretal share by raising a set-off for the employer that was not part of the consent decree or the proceedings in which it was awarded.
  • In the absence of a special agreement, an advocate's fees are limited to those under the Advocates' Remuneration Order.

Court orders

#
  1. 1.Declaration that no special agreement allowing the respondent higher fees than allowed by the Advocates Remuneration Order exists in respect of services rendered between May and July 2019 in ELRC Cause No. 305 of 2019
  2. 2.Order that the respondent pays or refunds to the applicant Kshs. 2,980,000.00 less his fees as per the Advocates' Remuneration Order
  3. 3.Order that the respondent furnishes a cash account in respect of Kshs. 2,980,000.00
  4. 4.Order that the respondent pays to the applicant all money in its custody or control held on her behalf by 01.07.2020, failing which interest to run at court rates from the date of judgment till full payment
  5. 5.Order that the respondent delivers forthwith a bill of costs in respect of services rendered to the applicant
  6. 6.Order that the respondent pays the applicant's costs of the application

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Court Actsection 13
  • Employment and Labour Relations Court (Procedure) Rulesrule 32(2)
  • Civil Procedure RulesOrder 52 rule 4
  • Advocates' Remuneration Order
  • Employment Act, 2007sections 19 and 45
Jurisdiction invoked
Article 162(2) of the Constitution; sections 12 and 13 of the Employment and Labour Relations Court Act, read with rule 32(2) of the Employment and Labour Relations Court (Procedure) Rules and Order 52 rule 4 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jacquiline Njoroge v Evans Ongicho p/a Ongicho and Company Advocates [2020] KEELRC 999 (KLR)", Case Analysis (2020). Misc Application No 148 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/999/eng@2020-05-29

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