Joseph Wachira Mwangi v Charles King'ori Macharia T/A Cm King’ori & Company Advocates

2. 3. Whether the Defendant Advocate is required to deliver/or pay the Plaintiff the decretal sum of KES 666,201.99/= and interest thereon from February 13, 2020, to the date of Judgment. 4. Whether the Plaintiff is entitled to payment or delivery by the Defendant Advocate of general/ exemplary or aggravated damages and costs of Suit. 5. Whether the Plaintiff is entitled to any other relief. The grounds were set out in a lengthy affidavit. It set out the following grounds: a. 3.Sometimes in December 2012, I instructed the Defendant to file suit and represent me in a civil suit against Kenya Power & Lighting Company Limited. I paid the Defendant KES 5,000/= towards legal fees and KES 25,400/= towards filing fees. (Annexed here and marked “JMW 1” and “JMW 2”, are copies of the receipts of payments to the Defendant for KES 5,000/= and KES 25,400/= respectively in reference). b. 4.Pursuant to my instructions, Defendant subsequently filed Nyeri Chief Magistrate’s Court Civil Suit No. 532 of 2012 Joseph Wachira Mwangi vs Kenya Power & Lighting Company Ltd was heard in the Principal Magistrate’s Court Nyeri and i was awarded KES 618,540/= with interest in damages, and costs of Suit pursuant to a Judgment delivered on August 22, 2017. (Annexed here and marked “JMW 3” is a copy of the Judgment of the Principal Magistrate’s Court in reference). c. 5. Kenya Power & Lighting Company: the Defendant in Nyeri Magistrate’s Court Civil Case No. 532 of 2012 Joseph Wachira Mwangi vs Kenya Power & Lighting Company Ltd, subsequently filed an Appeal against the Judgment being Nyeri High Court Civil Appeal No. 33 of 2017 Kenya Power & Lighting Company Ltd (Appellant) vs. Joseph Wachira Mwangi (Respondent). d. 14.. In an email dated October 4, 2023, to my Advocates, the Appellant forwarded an email from its Insurer’s Apollo Group’s Legal Manager wherein the Legal Manager indicated that judgment had been entered in Nyeri CMCC No. 532 of 2012 on Page 2 of 7 December 19, 2019, and enumerated the Court’s award. In the same forwarded email, the Legal Manager also indicated, “We appealed the decision on the ground that the loss of income was not proved. We had deposited a sum of Kshs 618,540/= in a joint account as a condition for stay pending Appeal. The Appeal was dismissed and monies that were deposited in a joint account were directly sent to the firm of CM Kingori & Company Advocates and a further Kshs 177,827/= paid as costs. We attach herewith a copy of the Judgment and cheque Number 163997 dated 29th May 2020 in the sum of Kshs. 177,827/= issued to the aforementioned firm in settlement of the Claim.” (Annexed here and marked “JMW 8” is the Appellant’s email dated October 4, 2023, in reference). e. On the same day, my Advocates wrote to the Commission attaching the Appellant’s email dated October 4, 2023, indicating that it had been confirmed by the Appellant that Judgment had been entered in the Appeal in favour of the Plaintiff and that the Appellant had settled the decretal sum and costs of Suit by payment to the Defendant. My Advocates inquired from the Commission whether there was any additional clarification that was needed for the Commission to proceed with the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3846/eng@2026-03-17 2

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Complaint. (Annexed here and marked “JMW 9” is a copy of my Advocates’ letter to the Commission dated October 4, 2023, in reference). f. 18.2 In the letter attachment dated February 24, 2020, addressed to the Defendant’s firm, J.K Kibicho & Co. Advocates for the Appellant wrote that the principal decretal sum and interest previously held in escrow KES 666,201.99 had been transferred to the Defendant’s Account 01xxxxxxxxxx4 on February 13, 2020, and sought to negotiate the Advocates Appeal costs down to KES50,000/= from KES 100,000/= presumably previously quoted by the Defendant. In response to the letter (part of the attachment), the Defendant’s firm wrote back to the Appellant’s Advocates on March 5, 2020, confirming receipt of the decretal sum and agreeing to KES 50,000/= towards Advocates costs for the Appeal. (Annexed here and marked “JMW 14” is a copy of the letter attachment dated February 24, 2020, in reference). g. 18.3. In the same letter attachment dated February 24, 2020, the Appellant’s Advocates also informed the Defendant, in apparent reference to the costs of suit awarded in the lower court, that they had called for the balance of KES 127,826.01/= and would revert with the settlement cheque. 18.4. In a second letter dated March 5, 2020, annexed to the letter attachment dated February 24, 2020, the Defendant wrote to the Appellant’s Advocates acknowledging receipt of payment of the decretal sum into his account and confirms acceptance of the proposed costs for the Appeal of KES 50,000/=. 3. After being served, the respondent filed a replying affidavit stating that there are two causes pending for his fees and that the same matter is pending before the Complaints Commission. The alleged bills of costs were filed on 23.10.2023, a month after being served. 4. The defendant did not attend court. The plaintiff proceeded for hearing exparte. It came out that the bills of cost had not been served and the action is not active. However, the defendant has since filed submissions. 5. The plaintiff filed submissions dated 7.03.2026, where they submitted that the plaintiff is entitled to the following sums: 6. a. Ksh. 666,201.99/= principle amount. b. Party and party costs - Ksh. 127,826.01/= in CC 532 of 2012. c. Party and party costs - in HCCA 33 of 2012 – Ksh. 50,000/=. The Plaintiff is augmented in his submission by the finding in Masaka vs Stephen Musalia T/A Musalia Mwenesi Advocates (Miscellaneous Civil Suit E354 of 2021 where at Paragraph 13, the Court held: “ As regards the second issue, a client to an Advocate is entitled to the payment of party and party costs while the advocate is entitled to the advocate/client costs. The party and party costs are provided under Schedule VI part a of the Advocate’s remuneration order while the advocate/client costs are provided under schedule vi part b of the same order. The position of the law is that the party and party costs belong to the client while the advocate/client costs belong to the Advocate.” 7. The Court proceeded to lay further reliance for its finding on the issue in several decided cases, starting with Republic v Lucas M. Maitha Chairman, Betting Control and Licensing Board & 4 others Ex parte Interactive Gaming And Lotteries Limited [2017] KEHC 8306 (KLR)M. He also relied on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3846/eng@2026-03-17 3

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case of Adera v Lore and Co Advocates [2022] KEELRC 14689 (KLR), where Radido J, as he then was stated as follows: Monies taxed in a party to party bill of costs belong to the successful client, and the advocate is generally under an obligation to pay over the same to the successful client (the Court notes that the party to party bill of costs was taxed at Kshs 168,690/-). 14. However, when an advocate files an advocate/client bill of costs, he or she is seeking payment of legal fees for professional services rendered. 15. The appellant herein did not deny that the Respondent provided him with legal services. His bone of contention appears to be that he had settled all the fees due to the Respondent for legal services rendered. 8. The defendant submitted that the court has no jurisdiction to hear the matter as the same is before the complaints commission. The claim is for him to deliver up the sums. He submitted that they are not denying the claims but has issues with his bills of costs which are yet to be taxed. He stated that he called the plaintiff to collect his dues but he did not collect less his fees. He also submitted that there was no exhaustion of remedies. He stated that he had a lien. Reliance was placed on the case of A V B (1984) ALL ER 265. Regarding interest he stated that they should not pay. 9. It is noted that the part and party bill of costs were assessed at a sum of Ksh. a. Party and party costs - Ksh. 127,826.01/= in CC 532 of 2012 b. Party and party costs –I n HCCA 33 of 2012 – Ksh.50,000/= Total - Ksh. 177,826.01/= 10. The plaintiff admitted to have paid only a sum of Ksh. 25,400/= as fees and Ksh 5,000/=, totaling Ksh. 30,400/=. Though the plaintiff is entitled to party and party costs, he should have paid the fees a priori. He has not paid. Therefore party and party bill of costs cannot be released until the assessment of costs are done. The advocate-client bill of costs are provided with increase of half thereon. Consequently, given the question of the pending advocate/client bill of costs, the defendant must retain a lien of a sum equivalent to one and half times the party and party bill of costs. Once the same are taxed, the parties have to carry out accounts. 11. The plaintiff proved that a sum of Ksh. 635,736.37/= was proved to have been paid. Unfortunately, there is no single communication to the advocate by the plaintiff before action. Therefore, the amount will attract interest from the date of filing. 12. The defendant raised the issue of jurisdiction in submission, filed less than a week to judgment. This is not raised in the pleadings. A Party cannot find a claim in submissions. They are neither evidence nor pleadings. Mwera J, posited as follows when postulating on what is the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim. In the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993, it was stated that: “ Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3846/eng@2026-03-17 4

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submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 13. Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, that: “ As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 14. The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR: “ Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 15. In that connection, the court will not deal with the said issue. As I depart, it must be remembered that the Complaints Commission is a disciplinary mechanism but does not remove the civil enforcement. 16. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows: 17. (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3846/eng@2026-03-17 5

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meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 18. 19. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows: 18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation 22. Although there is eminent good sense in the basic rule of costs - that costs follow the eventit is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. Given the relationship between the parties and the disputes herein, each party will bear their own costs. Determination 20. The court therefore will make the following orders: a. Subject to (v) below, the defendant advocate shall deliver up a sum of Ksh. 635,736.37/= to the plaintiff. b. The amount of Ksh. 177,826.01/= is not immediately due since the defendant’s advocateclient costs have not been paid. c. The plaintiff cannot enrich himself from the practice of law. He is not entitled to general and/ or exemplary damages. d. The defendant shall have the bill of costs taxed and accounts be done between the parties. e. The total sum of Ksh. 177,826.01/= and Ksh. 635,736.37/= all totaling to Ksh. 813,572.38/ = have been received: i. A sum of Ksh. 266,739/= shall be held as a lien by the defendant pending taxation. ii. A sum of Ksh.546,833.40/= shall be released to the plaintiff within 30 days or failing which the same be deposited in court within 45 days. iii. The two bills of costs shall be taxed and upon taxation, the amount paid and the amount taxed shall be deducted from the lien money, and any excess paid to the plaintiff. Any deficit made good by the Plaintiff. iv. The amounts shall attract interest at court rates from the date of filing of this Originating Summons, 29.08.2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3846/eng@2026-03-17 6

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v. In default of payment of the sum of Ksh. 546,833.40/= within 45 days, the interest shall be from 16.03.2020, being 30 days after the receipt of money. vi. The defendant to account for interest received on the funds to the plaintiff. vii. Each party to bear their own costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 17TH DAY OF MARCH, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Ms. Nyongesa for the plaintiff No appearance for the defendant Court Assistant – Michael/Martin M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3846/eng@2026-03-17 7

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