https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9415

Consolidated Bank Ltd v Muteithia Kibira Advocates LLP (Civil Appeal E323 of 2025) [2026] KEHC 9415 (KLR) (Civ) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9415 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E323 of 2025 BW Murunga, J July 2, 2026 HCCS CA NO. E323 OF 2025 (FORMERLY HCCOMMA NO. 068 OF 2025) Between Consolidated Bank Limited Appellant and Muteithia Kibira Advocates Llp Respondent (Being an appeal from the Judgment and decree of the Small Claims Court at Milimani in Civil Suit No. E5510 of 2024 – Hon. Manuela W. Kinyanjui, delivered on 4th February 2025) Judgment 1.Human beings are notoriously bad at predicting what makes them happy but the happy-o-meter for lawyers is known to reach the full five bars when legal fees are received. 2.Law Firms operate on a Work, Bill and Collect mantra and most of them appreciate that Collection as the third prong in a three-part process is indeed the most important of the sequential series. Yet, collections are only collections when the legal fees are actually received. 3.This case is about a Law Firm that worked, billed but claimed that it it did not receive the collection of the full complement of Legal Fees. Their Client, on the other hand, claims that it paid a certain portion of the Legal Fees and being asked to pay it again would amount to unjust enrichment on the part of the Law Firm. 4.The Small Claims Court in SCCOMM No. E5510 of 2024 that featured Muteithia Kibita Advocates versus Consolidated Bank of Kenya Limited passed judgment on the matter courtesy of the Learned Magistrate Hon. Manuela W. Kinyanjui when it was ruled that the Law Firm (now the Respondent in this matter) had proved that they had not received the deposit on account of Legal Fees. 5.The deposit, which is the sum in contention, amounted to Kenya Shillings Seventy Two Thousand Four Hundred and Sixty (Kshs. 72,460). 6.The Law Firm had billed a Final Fee Note of Kenya Shillings Four Hundred and Ninety Seven Thousand, One Hindred and Two (Kshs 497,102) and the Learned Magistrate in the Judgment delivered on 4th February 2025 awarded this full amount without deducting the sum of the disputed Deposit on Account. 7.The Appellant Bank has approached the High Court raising the following Grounds of Appeal:a.The Learned Magistrate erred in law and in fact by failing to consider that the Respondent has already settled a deposit of Kes. 72,460.00 of the full fees claimed via a Deposit Request Note dated 5th July 2017.b.The Learned Magistrate erred in law and in fact in finding that the Respondent owes the Claimant the Full Fees of Kes. 497,102 despite the Respondent settling a Deposit of Kes. 72,460.00.c.The Learned Magistrate erred in law and in fact by failing to offset the already settled deposit from the full fees claimed in the Statement of Claim.d.The Learned Magistrate erred in law and in fact by failing to consider that by allowing the entire claim for full fees of Kes. 497,102, the Claimant will unjustly enrich themselves through a double payment of the deposit of Kes. 72,460 already settled. 8.It is not uncommon for the Appellants to advance tautological grounds of Appeal under the impression of strengthening the Appeal. Where such grounds are merely repetitive, overlapping or cyclic they serve no useful purpose. Instead, they obscure the real issues in controversy, diffuse the Court's attention and unnecessarily complicate what may, in truth, be a straightforward appeal. 9.The present appeal is somewhat illustrative of that shortcoming. Although the Memorandum of Appeal sets out four grounds, a careful reading reveals that they all revolve around a single question. This Court will be justified if it determines the appeal by reference to that singular issue, rather than by considering each repetitive ground separately. 10.Although the Memorandum of Appeal contains numerous grounds, they all converged on a single complaint - whether the learned Trial Magistrate erred in holding that the Appellant had failed to discharge the burden of proving payment of the Deposit Request Note that would have made good the doctrine of unjust enrichment. That singular dispositive issue, is what is identified for determination. 11.It is probable that casting the net wide in Grounds of Appeal is a way to ensure that the narrow path to the High Court as set by the Small Claims Act is stretched to its widest elasticity by having Grounds that can qualify as points of law. 12.Section 38 of the Small Claims Court Act provides as follows: 1.A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. This means one ought not to appeal on mere factual or evidential disagreements but must show that there was a legal error in the Small Claims Court’s decision. 13.There is a very thin line between matters of the law and matters of fact. In Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, [2014] eKLR the court held that the phrase ‘matter of law’ may be one that would not have been reached by a Court based on the facts before it. The Court postulated that:“Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla v Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13.01.2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle v Oxney (1947) 1 All ER 126.” 14.Unjust enrighment as an equitable doctrine qualifies as a matter of law. It however also requires certain legal standards to be met in proving that it has occurred or the apprehension that it may occur. One such legal standard is the law governing the burden of proof. Section 107 of the Evidence Act is germane on who bears the burden as it provides that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." 15.The burden of proving a particular fact therefore rests upon the party asserting it. 16.While the Appellant characterizes the appeal as challenging the trial Court’s appreciation of the evidence, the real legal issue is whether the Court correctly applied the law on the burden of proof in determining whether the Deposit Request Note had in fact been paid. 17.The point of convergence by the Appellant Bank and its Respondent Law Firm is that work was given to the Law Firm and that it was done. Work in this case has two connotations: instructions given and tasks performed. The Law Firm took a moment in its emails to remind the Client that the work had been performed exceedingly well and that the measurable result was that the amount claimed was diminished in the final outcome. 18.The instructions had been in the form of a Retainer which was produced before the trial Court as what evinced the authority to act on behalf of the Client. The Respondent was instructed by the Appellant to defend Milimani ELRC Cause No. 908 of 2017 Dan Harold Ouma versus Consolidated Bank (K) Ltd. The Respondent rendered the services aforesaid by representing the Appellant in the suit. 19.The point of divergence by the Appellant Bank and its Respondent Law Firm is that the Appellant Bank insists that it received a Deposit Request Note which it settled whilst the Respondent Law Firm vehemently denies that it received the funds on the Deposit Request Note. 20.To secure the relationship between the Appellant and the Respondent, the two of them entered into a Service Level Agreement which was being renewed annually with the last renewal having been done vide an Agreement dated 6th February 2023. The same had been forwarded by the Appellant to the Respondent under cover of the letter dated 3rd February 2023 that appears at page 6 of the Record of Appeal. 21.The Service Level Agreement comprehensively regulated the parties' respective rights and obligations in relation to the provision of legal services. In particular, it obligated the Appellant to settle the Respondent's fees for litigation matters and established the agreed procedure for billing and payment. The Agreement also required the Respondent to submit fee notes or invoices before payment became due, permitted the Respondent to request deposits at appropriate stages of a matter, and prescribed the timelines within which the Appellant was expected to settle approved fees. Collectively, these provisions formed the contractual framework governing the remuneration of the Respondent for legal services rendered. 22.One of the expectations set out in the Service Level Agreement was the issuance of the Deposit Request Note as per Clause 22.6 and the payment of the same within 30 days. 23.The ordinary practise, as per established practise, is that once payment is received, the lawyer would then be expected to issue a receipt for the payments that they receive as an acknowledgement of the safe receipt. 24.There has been adequate demonstration tin the appeal as was at the trial Court that the billing for the Deposit Request Note was duly raised. The Record of Appeal at page 75 has the Deposit Request Note which was signed by a representative of the Law Firm. 25.The contention on whether this Deposit Request Note had been paid would have been easily settled by the proof of the payment and receipt of the same by the Law Firm. But alas, the proof was hard to come by. 26.The proof that was supplied by the Appellant was in two different documents. 27.Firstly, the Bank presented a copy of the Deposit Request Note and on it were certain scribblings together with two rubber stamps belonging to the bank. One of the stamps is the maker checker or 4-Eyes type of stamp that shows that the price was checked by someone on 12th July 2017 and then the same moved to the Department Approval which is countersigned as 17th July 2017 and finally the Finance Approval also on 17th July 2017. To be precise, this was a 6-Eyes type of stamp that had a Maker, Checker and Approver provision. 28.There is then the authorization for batching and posting by the same Finance Department of the bank which shows that the same was batched on 19th July 2017. 29.Secondly, the Bank presented an internal document that showed a schedule that had various payments made including what was highlighted in details as the name of the Plaintiff in the matter the Law Firm was defending. 30.That was all the information provided that the payment had been made though there was another thread that the evidence of payment also hang on which was what the Bank considered a concession that the Fees had been paid as per the Appellant’s Submissions. 31.Payment of legal fees is the natural consequence of instructing Counsel. The proof of the pudding is in the eating not in the preparation of the pudding. The proof of payment of Legal Fees is the receipt of the Fees not in the preparation of payment. 32.Through the Maker Checker process, what the Appellant has demonstrated is the preparation for payment. The Appellant has also provided the Schedule of Payments which is an internal document. Both the Maker Checker and Payment Schedule are internal procedures. They do not necessarily demostrate payment but only the approval process and an Internal Schedule. 33.That is no proof. The burden of proof of payment being made was upon the Appellant once the Respondents denied having been paid any sums. In Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR), the court held that:“Burden of Proof” is a legal term used to assign evidentiary responsibilities to parties in litigation. The party that carriesthe burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim.If a party fails to meet their burden of proof, their claim will fail.The general rule in civil cases is that the party who has the legal burden also has the evidential burden. If the Plaintif does not discharge this legal burden, then the Plaintiff’s claim will fail. 34.Ditto the Apellant. 35.The concession that has also been alluded to above is also not a complete concession. Paragraph 1.5. of the Appellants Submissions dated 20th January 2025 stated:The alleged payment made by the Respondent was in respect of a Deposit Request Note, and if the Respondent has paid the current Fee Note, nothing should have been easier than for the Respondent to bring before the court evidence of payment of the Fee Note, which has not been done to dateIn this submission, the Law Firm speaks about the ‘alleged payment’ in the context of what the Appellant was alleging to have paid. Alleged as a word already connotes that there is no definitive proof. 36.Using the Best Evidence Rule, the Appellant failed to demonstrate that indeed the payment of the Deposit Request Note had been made. 37.The other question to ponder is whether they also sufficiently shifted the burden to the Respondent by alleging the unjust enrichment that would have seen them receive the payment on the Deposit Request Note twice. 38.The principle of unjust enrichment was defined in the case of Madhupaper International Ltd & Another v Kenya Commercial Bank Ltd & 2 Others (2003) eKLR where Justice Kuloba stated:the idea of unjust enrichment or unjust benefit is intended to prevent a person from retaining the money or benefit derived from another which it is against conscience that he should keep it, and he should in justice, restore it to the plaintiff.The gist is that a defendant, upon the circumstances of the case is obliged by the ties of natural justice and equity to make restitution. As Lord Goff of Chieveley and Professor Gareth Jones state in their monumental treatise, The Law of Restitution, 5th edn (1998), at pp 11-12:“Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment” 39.The above case also quoted the 1957 decsion of the then Court of Appeal for Eastern Africa comprising of judges of eminence, namely, Sir Newnham Worley, P, Sir Ronald Sinclair, V-P, and Briggs, J A, in the case of Saleh bin Ghaleb v Hussein al Qu’aiti, [1957] EA 55, at p 73, where one finds this passage, vis:“so far as the allowances are concerned, this was a clear case of unjust enrichment” leading to a suffering of wrongful loss of which equity would provide a remedy. 40.To prove unjust enrighment, one therefore has to prove that the person received the payment and that being paid again would be double payment. But proof cannot be through internal documentation – it is akin to showing that you prepared the cheque in favour of someone but what is the proof that the person received the funds. It is not done through internal approval schedules. 41.Tied to the legal principle regarding proof of payment, in Christine Mwigina Akonya v. Samuel Kairu Chege (2017) the Court reiterated that payment must be proved by proper documentary evidence holding that;“Courts have insisted that a party must present actual receipts of payments made to substantiate ... It is not enough for a party to provide proforma invoices... an invoice is not proof of payment and only a receipt meets the test." 42.Although the decision concerned proof of damages, the underlying evidential principle is of general application; where payment is asserted, the party alleging payment bears the burden of proving it by cogent evidence demonstrating that the payment was actually received. 43.I would add that in the age of Real Time Gross Settlements and Electronic Fund Transfers as the case may be, Remittance Advices are accepted as per the central Bank Guidelines that a bank shoud provide a slip that is duly signed and stamped as is currently the procedure for cash or cheque deposits. 44.One would imagine that a Law Firm would also be imbued with a sense of responsibility to acknowledge that they received the funds if indeed they received them. For Legal Fees, the opportunity to bill is not the opportunilty to bilk. 45.Indeed, the Service Level Agreement that has been quoted several times above even places certain responsibilities on the Law Firm in relation to keeping of all such records and accounts. The Contract also gave the Appellant the powers to access documents in the course of the Agreement. Such documents would include the receipts and the actual files. 46.It is clear from the averments that I have seen that the relations between the Appellant and its former Advocates had broken down. This was equally evidenced in their email communication of the 7th May, 2024 where the Respondent stated that some of the Appellant team had clearly indicated that they did not wish to maintain cordial relations with the Law Firm and never intended to pay them. 47.With no cordiality, it would have been difficult for the parties to sit down and attempt to resolve the matter as their own Service Level Agreement intimated. In any event, there has been no effort shown by the Appellant for the reconciliation of the accounts. 48.The trial Magistrate placed a lot of premium on the emails between the Appellant and Respondents and in particular the email of 3rd April 2024 where it was clear that the Appellant was giving notice of intention to sue having not made progress with the collection of the Legal Fees. The email stated in part:“...we have been following up on the fees since the year 2022... Some of the fees have been pending for more than four years. Kindly note that if we do not receive payment within the next seven (7) days, we shall file suits in court to effect recovery of the same without further recourse to yourselves." 49.The significance of this correspondence lies not merely in the notice of the intended suit, but in what it reveals about the conduct of the parties. The email expressly refers to numerous earlier telephone conversations and persistent follow-up correspondence spanning over two years. It demonstrates a consistent and uninterrupted course of demands by the Respondent for payment of the outstanding legal fees, none of which elicited payment. 50.More importantly, had the Appellant genuinely settled the Deposit Request Note, one would reasonably have expected it to respond to the Respondent's repeated demands by producing proof of payment or, at the very least, asserting that the amount claimed had already been paid. The record discloses no such response. Instead, the Appellant remained silent in the face of repeated assertions that the fees remained outstanding. That silence is inconsistent with the conduct of a debtor who has already discharged its payment obligation and lends further support to the Respondent's contention that no payment was ever received. 51.I agree with the learned Magistrate’s finding. However, I am unable to reconcile the observation that where a deposit is required, it serves to kickstart the provision of legal services pending completion of the work. It isn’t clear whether she intended to refer to what is commonly understood as champerty. In this regard, Paul Mwangi in an article titled How a Lawyer Should Charge published in the East African Standard 13th July 1995 observed as follows:… advocates are required to always ask their clients to pay a “small” deposit before they even lift their finger. Others will ask the client to pay a “small” premium to “open a file”. The reason for this is, though it not always is, to enable the advocate finance the proceedings from the client’s pocket. Otherwise the advocate would be guilty of champerty. 52.In this matter, the deposit was requested for, there is denial that the deposit was paid and there is no proof provided that the fees was received. If the proof had been provided at the trial Court that the fees was received, then that would have made out a case for unjust enrichment. 53.The Appellant cannot however be entirely faulted for lack of trying. In the Record of Appeal and in particular at page 162, the proceedings of 8th October 2024 bear out that they expressed their efforts of tracing of proof of payment of the deposit. The important aspect was that the Counsel noted that it had been a challenge to get the evidence proving the payment of the desposit since it was an old transaction. That challenge was not surmounted in the end. 54.In the result, and having re-evaluated the evidence and considered the applicable law, I am not persuaded that the Appellant has demonstrated any error of fact or law warranting this Court's interference with the decision of the trial court. Accordingly, the following orders commend themselves and are hereby made:(a)The appeal is dismissed in its entirety.(b)The judgment of the Small Claim Court at Nairobi (Milimani Commercial Courts) in MCCC No. E5510 of 2024 E554 of 2021, delivered on 4th February 2025, is upheld.(c)Noting the circumstances of this matter and the discretion on costs, each party shall bear its costs of this appeal.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JULY 2026.BENARD WAFULA MURUNGAJUDGEDelivered on a virtual platform in the presence of:xxxxxxxxx instructed by MMW Advocates LLP for Appellantsxxxxxxxxxxx instructed by Muteithia Kibira Advocates for RespondentsKevin Babu - Court Assistant