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ELRCDismissedNot stated in the judgment· [2025] KEELRC 1256 (KLR)

Ashubwe v Kwale International Sugar Company Limited; Nyandwat Odundo t/a Nyandwat Odundo & Company Advocates (Interested Party) (Cause 877 of 2017) [2025] KEELRC 1256 (KLR)

Employment and Labour Relations Court
5 May 2025
1,236 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Mombasa court declined to set aside a decree recovering an overpaid judgment sum, directing that complaints about a lawyer's withheld money go to the Advocates Disciplinary Tribunal instead.

What this practically means

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Executive summary

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The claimant, acting in person, applied under Order 22 rule 22 and Order 45 rule 1 of the Civil Procedure Rules, section 10 of the Advocates Act and articles 25, 47, 50 and 159(2) of the Constitution to set aside or vary orders of 20 September 2023 and 23 October 2023 and the resultant decree, to compel the interested party (his former advocates) to account for and reimburse Ksh. 388,876 allegedly withheld from the decretal sum, to declare that only Ksh. 510,892 of the respondent's claimed Ksh. 902,018 overpayment was recoverable from him, and to be allowed to pay the balance in monthly instalments of Ksh. 20,000. The background was a judgment of 31 July 2019 awarding him Ksh. 1,215,500 (total decree Ksh. 1,821,308), which the Court of Appeal on 30 September 2021 reduced to Ksh. 561,000, creating an overpayment claim. The respondent, through Benson Nzuka, opposed, arguing the court was not the proper forum for complaints against the advocate and that the Advocates Disciplinary Tribunal was the appropriate avenue. The court found the recovery orders were properly made against the claimant, and that any breach of the advocate's fiduciary duty to render accounts fell within the jurisdiction of the Advocates Disciplinary Tribunal, not this court. It declined to impose the instalment plan, noting the claimant had not evidenced his earnings and the respondent could not be forced to accept it. The application dated 28 November 2024 was declined, with parties urged to discuss payment modalities within 14 days and mention set for 5 June 2025.

Key legal issues

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01

Whether orders issued on 20 September 2023 allowing recovery of overpayment from the claimant's salary should be set aside

Holding

The application to set aside the orders was declined; the court held that upon the Court of Appeal judgment the claimant was the right-holder from whom overpayment could be recovered

Reasoning

The court found it common cause that the claimant was awarded Ksh. 1,821,308 and that the Court of Appeal on 30 September 2021 reduced the judgment sum to Ksh. 561,000. The orders recovering the overpayment were lawfully made against the claimant, and the fact that the interested party may have withheld monies does not defeat the respondent's recovery from the claimant. The claimant's remedy against the advocate lies elsewhere.

p. 3
02

Whether the court should order the interested party to account for and reimburse the withheld Ksh. 388,876

Holding

The court declined to determine the advocate-client accounting dispute, holding that the Advocates Disciplinary Tribunal is the appropriate forum

Reasoning

The court accepted that monies held by the interested party were held on an undertaking that they would be available to the claimant upon request based on proper accounting. However, where there is a breach of the fiduciary duty to render accounts and the advocate has failed to address it, the claimant must pursue that breach through the disciplinary machinery governing advocates rather than this court.

p. 3
03

Whether the claimant should be permitted to pay the decreed sum in instalments of Ksh. 20,000 per month

Holding

The instalment proposal was not adopted; the parties were instead urged to negotiate payment modalities and report back within 14 days

Reasoning

The court observed that the proposed instalments of Ksh. 20,000 would take over 45 months to discharge the Ksh. 902,018 plus costs and interest, and urged the claimant to seek a higher rate to avoid escalating costs and interest. It also noted the claimant had not tabled a statement of his monthly earnings and that the respondent could not be forced to accept the proposal.

p. 3

Legal principles established

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  • Where an advocate breaches the fiduciary duty to render accounts, the appropriate forum for the client's complaint is the Advocates Disciplinary Tribunal and not the court seised of the underlying employment dispute
  • A claimant against whom recovery of overpayment orders were issued must pay the sum claimed and pursue the advocate separately through the Advocates Disciplinary Tribunal
  • The court cannot compel a judgment creditor to accept a proposed instalment payment plan absent evidence of the debtor's monthly earnings

Court orders

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  1. 1.The application dated 28 November 2024 was declined
  2. 2.Parties urged to discuss the modalities for payment of the due amount in instalments and report to the court within 14 days
  3. 3.Mention on 5 June 2025

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rule 22
  • Civil Procedure RulesOrder 45 rule 1
  • Advocates Actsection 10
  • Constitution of Kenyaarticle 25
  • Constitution of Kenyaarticle 47
  • Constitution of Kenyaarticle 50
  • Constitution of Kenyaarticle 159(2)
  • Advocates (Accounts) Rulessection 10
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over an application under Order 22 rule 22 and Order 45 rule 1 of the Civil Procedure Rules, section 10 of the Advocates Act and articles 25, 47, 50 and 159(2) of the Constitution

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, "Ashubwe v Kwale International Sugar Company Limited; Nyandwat Odundo t/a Nyandwat Odundo & Company Advocates (Interested Party) (Cause 877 of 2017) [2025] KEELRC 1256 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1256/eng@2025-05-05

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