Elizabeth Muganya Enos v Billy Amendi T/A Billy Amendi & Co Advocates

3. The Applicant has averred that she had previously instructed the Respondent herein to act for her in Civil Suit No. 520 of 2017 - (Elizabeth Muganya (Suing as the mother and next friend of Hellen Ratansi & Yvonne Naomi (Minors) v David Wellington Githehu) (the primary suit) arising from a road traffic accident; that the parties to the primary suit entered into a consent on liability, with quantum being assessed in favour of the Applicant, at a sum of Kshs. 1, 246,511/- by way of a judgment delivered on 20th July 2018; that subsequently, the Respondent by way of a letter dated 24th July 2018 addressed to the insurer of the Defendant in the primary suit, sought payment of the abovementioned decretal sum, which sum was remitted to the Respondent on 6th August 2018. 4. The Applicant has stated, further, that the Respondent indicated that he would retain 30% of the decretal sum as his legal fees, thereby requiring him to remit the remaining 70% to the Applicant but he did not remit the amount and that, to date, the Respondent continues to withhold the entire decretal sum and has refused and/or neglected to remit the same to the Applicant, despite demand. 5. The Applicant has stated that the Respondent has used delaying tactics including filing a Bill of Costs dated 13th September 2018 in a separate matter, claiming an unreasonable sum in costs, which Bill was ultimately taxed on 5.03.2019 at Kshs. 223,651/-; that the Respondent filed a Reference before the High Court to challenge the aforesaid taxation ruling, which Reference was dismissed with costs vide a ruling delivered on 7th December 2023; that the Respondent soon thereafter filed an application seeking leave of the court to lodge an appeal with the Court of Appeal, which application was allowed on condition that the Respondent deposits the decretal sum in court within 30 days of granting the order, failing which the order for leave would automatically lapse and that the set condition was not complied with and no appeal was ever filed. 6. The Applicant claimed that the actions by the Respondent in continuing to withhold the decretal sum owed to her are not only unjustified but unreasonable and urged this Honourable Court to grant the reliefs sought in the Summons. The Replying Afidavit 7. The Respondent has opposed the Summons through his Replying Affidavit sworn on 6th August 2025. It is his case that there is currently pending before court a matter between the parties herein on the issue of payment of legal fees owing to the Respondent; namely HCCC Misc. No. 451 of 2018 (Billy Amendi & Co. Advocates v Elizabeth Muganya) and by instituting the instant Summons, the Applicant has contravened the doctrine of exhaustion. 8. The Respondent has deposed that previously, the Applicant reneged on their earlier agreement that he retain 30% of the legal fees arising from the primary suit, thereby necessitating the taxation proceedings earlier mentioned and that he subsequently sought to challenge the taxation ruling by way of a Reference, which was ultimately dismissed, resulting in the filing of an application seeking leave to challenge the decision pertaining to the Reference, by way of an appeal at the Court of Appeal. 9. The Respondent has faulted the Applicant for reneging on their earlier agreement on legal fees mentioned hereinabove, and states that the Applicant has come to court with unclean hands and is therefore not deserving of the reliefs sought here. 10. In the alternative, the Respondent has deposed that the decretal amount of Kshs. 1,022,860/- is admitted and consequently urges this court to order that the same be paid to the Applicant by way of six (6) equal instalments of Kshs. 170,476.70. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16438/eng@2025-10-22 2

page 2 of 6

The Evidence 11. The Summons was canvassed through oral submissions. Miss Minoo Kimeu, learned counsel for the Applicant reiterated the grounds in support of the Summons and the Supporting Affidavit that judgment in the primary suit was entered in favour of the Applicant and that the decretal amount was subsequently remitted to the Respondent who was at all material times the advocate acting for the Applicant in the said suit; that upon receipt thereof, the Respondent refused to remit the requisite decretal amount to the Applicant, even after a taxation ruling was delivered on the Bill of Costs and the dismissal of the Reference filed by the Respondent. She restated the averments in the Applicant’s Supporting Affidavit that the Respondent was subsequently granted a conditional order for leave to appeal out of time against the ruling dismissing the Reference, but did not comply with the set conditions and that there is no basis for the Respondent’s continual withholding of the Applicant’s funds. 12. The Applicant relied on Kim Jong Kyu v Housing Finance Company Ltd & 2 others [2015] KECA 274 (KLR) where the Court of Appeal appreciated the fiduciary duty owed by an advocate to his or her client and Kenya Hospital Association v Luis Wahome t/a L. Wahome & Company Advocates [2007] KEHC 1437 (KLR) in which the court awarded a decretal sum plus costs and interest thereon, to the suing part. 13. It was further submitted that the Applicant is entitled to interest on the decretal amount owed, given the time that has passed since the said amount was remitted to the Respondent’s account and withheld from the Applicant. The Applicant relied on Section 26 of the CPA which makes provision for interest on a decretal sum. 14. The Respondent did not attend court to submit during the hearing. This Court fixed judgment on 22nd October 2025. On 8th August 2025, the Respondent approached the Court through a Notice of Motion dated 6th August 2025 brought under Certificate of Urgency seeking to be allowed to file a Replying Affidavit out of time and that the Draft Replying Affidavit annexed to the Notice of Motion to be deemed as duly filed. The Notice of Motion was allowed. Analysis and Determination 15. I have considered the Summons, the grounds in support of it advanced on the face of it and in the Supporting Affidavit as well as the submissions made orally in court. I have considered the grounds advanced by the Respondent in opposition to the Summons. 16. It is undisputed that the Respondent acted for the Applicant in the primary suit at all material times; that the primary suit was determined in favour of the Applicant vide a judgment delivered on 20th July 2018 as shown in Annexure “EME-1”. The decretal amount, as shown in that judgment is Kshs. 1,246,511/- It is also undisputed that upon the Respondent’s request by way of a letter dated 24th July.2018 (Annexture “EME-4”), the insurer of the Defendant in the primary suit (AIG Kenya) remitted the abovementioned decretal amount to the Respondent on 7th August 2018 as shown in Annexture “EME-3”. 17. It is also not disputed that the Respondent subsequently filed a Bill of Costs dated 28th August 2018 arising out of the primary suit, which was taxed in the sum of Kshs. 223,651/- vide the taxation ruling delivered on 5th March.2020 (Annexture “BA-2”) and that the Respondent sought to challenge the taxation ruling by way of a Reference dated 17th March 2020, amended on 20th June 2020 in High https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16438/eng@2025-10-22 3

page 3 of 6

Court Misc. Civil Application No. 451 of 2018. That Reference was dismissed in a ruling delivered on 7th December 2023 (Annexture “EME-5”). 18. Further, it is not disputed that soon thereafter, the Respondent filed an application dated 15th December 2023 in the above matter, seeking a stay of execution of the ruling delivered on 7th December 2023 and leave of the court to lodge an appeal with the Court of Appeal. That application was allowed on 3rd July 2024 (Annexture “EME-6”), on condition that the Respondent deposits the decretal amount in court within 30 days thereof, failing which the stay order would lapse and the Applicant would be at liberty to proceed with execution. 19. There is nothing on the record to indicate that the Respondent complied with the set condition or lodged an appeal at the Court of Appeal. 20. To my mind, the following constitute the issues arising for determination in this matter: a. Whether the Respondent withheld funds, being the decretal sum, amounting to Kshs 1,022,860, awarded to the Applicant in the primary suit; b. Whether the Applicant is entitled to the decretal amount of Kshs. 1,022,860/- plus interest at the rate of 12% p.a. totaling a sum of Kshs. 2,004,805/- sought in the Summons. 21. In regard to the first issue, I have considered the Applicant’s case as stated in this Judgment. In sum, it is the Applicant’s case that the Respondent withheld the decretal sum arising from the primary suit, despite demand that the same be remitted to her, which actions the Applicant has termed as unjustified and unproportionable. 22. The Respondent has presented a case that the Applicant reneged on their initial agreement that she receive only 70% of the decretal sum while the remaining 30% would constitute the legal fees owed to the Respondent. That, the issue of legal fees was being litigated between the parties in a separate suit and hence the Applicant had contravened the doctrine of exhaustion by bringing the instant Summons. 23. I have considered this issue. I have not seen any evidence on record demonstrating the existence of any agreement for legal fees between the parties, whether express or otherwise implied. The Respondent has tendered an extract of a WhatsApp message (Annexture “BA-2”), purporting that the Applicant refuted the 30% in legal fees sought by the Respondent. This extract does not in any way imply the existence of an agreement for legal fees. Therefore, the averments by the Respondent are unsubstantiated. Further to this, it is apparent, from the ruling on taxation, that the issue of legal fees arising from the primary suit was settled in the taxation proceedings. 24. Upon the court’s further consideration of this matter, it is apparent that High Court Misc. Civil Application No. 451 of 2018, which is referenced in the Respondent’s Replying Affidavit, constitutes the taxation proceedings which were conclusively determined in the manner set out hereinabove. There is nothing on record to indicate that the taxation ruling has been varied or otherwise set aside. In the circumstances, I am not persuaded that the Respondent has demonstrated by way of any credible evidence, that the instant Summons contravenes the doctrine of exhaustion or that there exists any separate pending claim between the parties pertaining to the dispute herein. 25. Further, upon the court’s examination of the totality of the material on record, there is nothing to indicate that the Respondent, upon receipt of the decretal sum, ever remitted the same to the Applicant at all material times. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16438/eng@2025-10-22 4

page 4 of 6

26. The Court of Appeal in the case of Kim Jong Kyu v Housing Finance Company Ltd & 2 others [2015] KECA 274 (KLR) stated as follows in respect to fiduciary duty on the part of an advocate: “ Advocates in addition to being professionals, are officers of the court and play a vital role in the administration of justice. In our legal system, the advocate/client relationship has long been recognized as fiduciary relationship in which the client places his or her confidence, faith, reliance and trust in the advocate, whose aid, advice, opinion or protection is sought from time to time. The client gives the advocate significant amount of control over the matter in which the brief relates. With this relationship comes certain duties and responsibilities on the advocate. These duties and responsibilities are provided for in the statute and the rules of conduct as we demonstrate below. The sets of rules that govern the advocates’ professional conduct arise out of the duty that they owe to the court, their clients, and fellow advocates. Section 80 of the Advocates Act stresses the advocate’s duty to a client; “ 80. Betrayal of trust Any person who, being an advocate, is entrusted in his professional capacity with any money, valuable security or other property to retain it in safe custody with instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply or account for the same after due completion of the purpose for which it was given, shall be guilty of an offence:” In addition, the Advocates (Accounts) Rules and the Advocates (Deposit Interest) Rules draw the permissible limits of dealings with funds received on behalf of and for the benefit of a client. The foregoing emphasises that an advocate must at all times act in the best interest of his client; that where he is required to invest he must do so prudently and avoid obvious risks and; that failure to account for funds held by an advocate on behalf of a client is infact a criminal offence.” 27. In view of all the foregoing circumstances and in the absence of any contrary evidence, I am satisfied that the Applicant has established that the Respondent withheld the decretal sum unfairly, unilaterally and without justification. 28. On the second issue, I have noted that the Applicant has sought a sum of Kshs. 1,022,860/- being the difference between the decretal amount of Kshs. 1,246,511/- awarded by the court in the primary suit and a sum of Kshs. 223,651/- being the costs taxed in the taxation proceedings. In the absence of any contrary evidence, I am of the view that the Applicant is lawfully entitled to the aforesaid sum. Further, the Applicant has prayed for interest, on the decretal sum, at a rate of 12% p.a. from the date of the Respondent’s receipt of the said decretal sum until payment in full. 29. Section 26 of the CPA provides for awards on interest, in the manner hereunder: (1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16438/eng@2025-10-22 5

page 5 of 6

(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum. 30. Upon a perusal of a copy of the judgment delivered in the primary suit (Annexture EME-1), I have observed that interest on the awarded sums was to be tabulated at court rates. Whereas the Applicant has sought interest at the rate of 12% p.a., no credible material has been tendered to support or justify the accrual of interest at the sought rate. In the circumstances, it is my considered view that interest at court rates would be appropriate. 31. In conclusion, I find in favour of the Applicant and allow the Originating Summons dated 3rd April 2025 in the following terms: 32. a. The Respondent be and is hereby ordered to pay the Applicant a sum of Kshs 1,022,860 constituting the decretal amount emanating from Civil Suit No. 520 of 2017 - (Elizabeth Muganya (Suing as the mother and next friend of Hellen Ratansi & Yvonne Naomi (Minors) v David Wellington Githehu within 45 days from the date of this Judgment. b. That the above amount awarded in order (a) above shall attract interest at court rates from the date of receipt of the decretal sum until payment in full. c. That the costs of the Originating Summons shall be paid by the Respondent to the Applicant Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 22ND OCTOBER 2025. S. N. MUTUKU JUDGE In the presence of: 1. Ms Kimeu for the Applicant 2. Ms Khamala for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16438/eng@2025-10-22 6

page 6 of 6