https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7845

Dadhley & another v T.K. Rutto & Co. Advocates (Commercial Case E087 of 2026) [2026] KEHC 7845 (KLR) (Commercial and Tax) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7845 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E087 of 2026 MO Ado, J June 4, 2026 Between Jagjivan Singh Dadhley 1st Plaintiff Raj Kanwal Dadhley 2nd Plaintiff and T.K. Rutto & Co. Advocates Defendant Ruling 1.By a Notice of Motion dated 21st April 2026, the Defendant seeks the following principal orders: -i.That the 1st Plaintiff, Jagjivan Singh Dadhley, be summoned to attend Court for cross-examination on his affidavit evidence; andii.An order that the Originating Summons dated 12 February 2026 be converted into a plaint, and the matter proceed by way of viva voce evidence. 2.The application was grounded on the contention that the Plaintiffs had improperly commenced the suit by way of Originating Summons despite the matter involving contested and fact-intensive issues concerning the alleged withholding of Kshs. 9,520,000.00 held in trust. The Defendant averred that the disputed funds were subject to an advocate’s lien arising from multiple transactions, unpaid legal fees, loans, advances, and liabilities accrued over several years. 3.The Defendant further contended that the dispute raised complex issues including the actual purchase price of the property, outstanding legal fees from several transactions, loans and advances allegedly made to the Plaintiffs, and instructions allegedly issued to the Defendant. 4.It was averred that the 2nd Plaintiff, Raj Kanwal Dadhley, had sworn the Supporting Affidavit on behalf of the 1st Plaintiff, thereby denying the Court the benefit of direct evidence from the 1st Plaintiff who was said to have personally engaged the Defendant, issued instructions in legal matters, attended meetings relating to legal fees and settlements, and benefited from loans and/or advances including approximately Kshs. 2.2 million. 5.The Defendant maintained that the credibility, conduct, and dealings of the 1st Plaintiff were central to the dispute and could only be properly interrogated through oral evidence and cross-examination. It was therefore argued that the Originating Summons procedure was inappropriate as it sought to avoid the testing of disputed facts, and that the interests of justice required the matter to proceed through viva voce evidence. 6.In a Replying Affidavit sworn on 22/4/2026, the 2nd Plaintiff opposed the instant application. He averred that the dispute concerned the Defendant’s alleged unlawful withholding of Kshs. 9,520,000.00, being part of the purchase price arising from the sale of properties known as Longonot/Kijabe 4/284 and Longonot/Kijabe 4/285 pursuant to two sale agreements dated 4/6/2025 for a total consideration of Kshs. 35,000,000.00. He stated that the Defendant acted as the Plaintiffs’ advocate in the transaction, received the entire purchase price on behalf of the vendors, released part thereof, but unlawfully retained a balance of Kshs. 9,520,000.00 allegedly under an advocate’s lien. 7.The 2nd Plaintiff denied that the Plaintiffs owed outstanding legal fees and averred that they had consistently paid the Defendant for legal services rendered. He contended that the Defendant’s assertion that the matter was complex and fact-intensive was false, misleading, and intended to delay determination of the dispute. According to the Plaintiffs, the only issue for determination was whether the Defendant was unlawfully withholding the Plaintiffs’ funds under the guise of an advocate’s lien. 8.The deponent further stated that disputes of such nature were properly commenced by way of Originating Summons under Order 52 Rule 4(1) and (2) of the Civil Procedure Rules and were to be determined through affidavit evidence and written submissions as directed by the Court on 20/2/2026. He maintained that the Defendant’s application seeking conversion of the suit into a Plaint lacked legal basis since the facts were not substantially controverted. 9.The 2nd Plaintiff further explained that the 1st Plaintiff was his 90-year-old father who was ailing, having undergone optical surgery and suffering from acute diabetes affecting his eyesight, hearing, and mobility. He averred that the withheld funds were intended to cater for the 1st Plaintiff’s medical expenses and that the 1st Plaintiff had authorised him to act on his behalf due to his deteriorating health condition. 10.It was further deponed that the Defendant had filed a Preliminary Objection dated 8/4/2026 challenging the Court’s jurisdiction, yet subsequently filed the present application seeking substantive orders from the same Court, which the Plaintiffs termed contradictory and intended to derail the suit. The Plaintiffs also accused the Defendant of filing frivolous and vexatious applications to delay the matter and continue withholding the funds. 11.The deponent averred that continued delay would prejudice the Plaintiffs, worsen the health condition of the 1st Plaintiff and his wife, affect his son’s access to education, and hinder the family’s ability to meet basic needs. He therefore urged the Court to dismiss the Defendant’s application with costs. Analysis and Determination 12.In support of the application, the Defendant filed submissions dated 28/4/2026, while the Plaintiffs filed rival submissions dated 6/5/2026. I have considered the same, together with the pleadings filed by the parties. 13.The issue for determination is whether the instant application has merit. 14.The Plaintiffs instituted this suit by way of an Originating Summons dated 12/2/2026, in which they assert that they sold two parcels of land at a purchase price of Kshs. 35,000,000.00, and that the Defendant acted as their advocate in the transaction. It is the Plaintiffs’ case that upon completion of the sale, the Defendant transmitted only Kshs. 24,480,000.00 and withheld the balance of Kshs. 9,520,000.00. 15.The Plaintiffs assert that, despite several interventions, the Defendant has refused to release the said balance of the purchase price. They therefore pray for an order compelling the Defendant to immediately release the said balance together with accrued interest. 16.The Defendant opposed the Originating Summons through a Preliminary Objection and a Replying Affidavit dated 8/4/2026 and 16/4/2026, respectively, essentially contending that it has a right of lien over the balance of the purchase price for legal services rendered. 17.Order 52 Rule 4 of the Civil Procedure Rules provides that:“(1)Where the relationship of advocate and client exists or has existed, the Court may, on the application of the client or his legal personal representative, make an order for—a.the delivery by the advocate of a cash account;b.the payment or delivery up by the advocate of money or securities;c.the delivery to the applicant of a list of the money or securities which the advocate has in his possession or control on behalf of the applicant;d.the payment into or lodging in Court of any such money or securities;e.the delivery up of papers and documents to which the client is entitled.(2)Applications under this rule shall be by Originating Summons, supported by affidavit, and shall be served on the advocate.” 18.This position was upheld in Gathecha v Wairagu t/a Wairagu and Wairagu Advocates & another [2026] KEELC 1595 (KLR), where the Court stated:“The Originating Summons procedure under Order 52 Rule 4 is specifically designed for this type of summary determination to prevent the predatory retention of client funds … The Court finds that the Originating Summons is properly before the Court and is the appropriate forum to determine the release of the stakeholder funds.” 19.The foregoing provisions of the law and judicial authority make it clear that disputes relating to client funds held by an advocate must be instituted by way of an Originating Summons supported by affidavit and served upon the advocate. The wording of Order 52 Rule 4 is couched in mandatory terms and prescribes the proper procedure for approaching the Court in disputes involving the alleged retention of a client’s funds by an advocate. 20.The present suit concerns the legality of the Defendant’s alleged lien and was therefore appropriately filed as an Originating Summons. I find no merit in the application. 21.Accordingly, the Defendant’s application is hereby dismissed with costs. 22.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the presence of:Moses C/A……………… for the Applicant…………… for the Respondent