[2003] KEHC 212 (KLR)
The court found that the respondent advocate had received monies in trust for the applicant and failed to fully account for and pay the amount due. The applicant's calculations, as set out in the supplementary affidavit, were not controverted by the respondent, who failed to provide evidence for the alleged...
Source-derived case information.
- Citation
- [2003] KEHC 212 (KLR)
- Parties
- Applicant: Celina Wanza Njogu; Respondent: James Kamanja Gathuku t/a James Gathuku & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 140 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- judgment for the applicant
- Legal Topics
- Advocate Client Accounts, Trust Monies, Delivery of Cash Account
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Celina Wanza Njogu
Applicant
James Kamanja Gathuku t/a James Gathuku & Co. Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the respondent advocate is liable to deliver a cash account and pay the applicant monies received in trust for her benefit.
- 2 Whether the respondent has failed to account for and pay the full amount due to the applicant.
- 3 Whether the respondent's claim for party/party costs of Kshs.450,000 is substantiated.
Ratio Decidendi
The court found that the respondent advocate had received monies in trust for the applicant and failed to fully account for and pay the amount due. The applicant's calculations, as set out in the supplementary affidavit, were not controverted by the respondent, who failed to provide evidence for the alleged party/party costs deduction. In the absence of such evidence, the court accepted the applicant's figures and ordered the respondent to pay the outstanding sum of Kshs.217,950 plus costs to the applicant through her advocate. The court emphasized the advocate's fiduciary duty to account for client funds and the necessity of substantiating any deductions or claims with evidence.
Court Disposition
judgment for the applicant
Orders
- The respondent shall pay the applicant Kshs.217,950 plus costs through her advocate.
- The respondent shall deliver a cash account as required.
Full Case Text
Judgment text and source record
19 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. APPLI. NO. 140 OF 2001 (O.S.)
IN THE MATTER OF: APPLICATION FOR THE DELIVERY BY THE
ADVOCATE OF A CASH ACCOUNT
BETWEEN
CELINA WANZA NJOGU ………………………………….. APPLICANT
AND
JAMES KAMANJA GATHUKU T/A
JAMES GATHUKU & CO. ADVOCATES …………….. RESPONDENTS
R U L I N G
This is a rare matter brought to court as an originating Summons in which the applicant is suing her former Advocate Mr. James Gathuku (Respondent) for the release of monies he received in trust for her benefit and order totaling to Kshs.923,095/= and which amount the Respondent has failed to pay in full. The hearing commenced on 16. 7.2001 before Justice Waki and was heard in bits and pieces for reasons the Judge gave as delaying tactics being employed by the Respondent. However by time the final hearing had commenced before me a further sum of Kshs.200,000/= had been agreed as being due by consent and was to be paid on or before 5 p.m. on 20. 7.01. With leave of the Court, the applicant filed a further supporting Affidavit after making several attempts to have the Respondent appear before the court for cross examination with a view to determine how much money he had received on behalf of the Applicant. The supplementary Affidavit was filed on 19. 7.02 and no reply to it has been filed.
Mr. Tindika for the Applicant outlined the amounts received and amounts legally due to the Respondent through taxed costs. The same calculation has been set out in the supplementary Affidavit at paragraph 4 and the same is not controverted.
From the Submissions by Mr. Kiarie Kariuki for the Respondent, the only issue in dispute is an alleged agreed party/party costs of 450,000/= No evidence to support the claim has been adduced. I must say, even Mr. Kiarie appeared to have difficulties in countering the said claim. In the absence of any other concrete evidence to controvert the calculations by the Applicant in Paragraph 4 of the Supplementary Affidavit. I find that the amount of Kshs.217,950/= is due to the Applicant from the Respondent. The said amounts plus costs are to be paid to the Applicant through her Advocate.
That is the courts ruling.
Dated and Delivered at Mombasa this 21st day of February, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE