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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether orders issued on 20 September 2023 allowing recovery of overpayment from the claimant's salary should be set aside
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
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.
Whether the court should order the interested party to account for and reimburse the withheld Ksh. 388,876
The court declined to determine the advocate-client accounting dispute, holding that the Advocates Disciplinary Tribunal is the appropriate forum
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.
Whether the claimant should be permitted to pay the decreed sum in instalments of Ksh. 20,000 per month
The instalment proposal was not adopted; the parties were instead urged to negotiate payment modalities and report back within 14 days
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.
Legal principles established
#- 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
#- 1.The application dated 28 November 2024 was declined
- 2.Parties urged to discuss the modalities for payment of the due amount in instalments and report to the court within 14 days
- 3.Mention on 5 June 2025
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.