[2023] KEHC 27224 (KLR)
The court found that the respondent, an advocate, received the decretal sum of Kshs 644,420 on behalf of the applicant but failed to remit it. The applicant provided evidence of payment via cheques and established her entitlement to the funds. The respondent did not defend the claim or provide any justification for...
Source-derived case information.
- Citation
- [2023] KEHC 27224 (KLR)
- Parties
- Applicant: Hassani Omari Doshi (Suing as the Legal Representative of the Estate of Said Hassani Dosho - Deceased); Respondent: Tarus Joseph t/a Tarus & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous E140 of 2023
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application allowed in part; respondent ordered to remit decretal sum with interest; no order as to costs.
- Judges
- DKN Magare
- Legal Topics
- Advocate Client Funds, Accounting of Judgment Sum, Remittance of Decretal Sum, Interest on Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassani Omari Doshi (Suing as the Legal Representative of the Estate of Said Hassani Dosho - Deceased)
Applicant
Tarus Joseph t/a Tarus & Co. Advocates
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the respondent advocate is obliged to render an account and remit the judgment sum received on behalf of the applicant.
- 2 Whether the applicant is entitled to interest on the decretal sum from the date of payment until settlement.
- 3 Whether the applicant is entitled to costs and further interest.
Ratio Decidendi
The court found that the respondent, an advocate, received the decretal sum of Kshs 644,420 on behalf of the applicant but failed to remit it. The applicant provided evidence of payment via cheques and established her entitlement to the funds. The respondent did not defend the claim or provide any justification for withholding the money. The court held that an advocate has a fiduciary duty to account for and promptly remit client funds. The applicant was also entitled to interest on the decretal sum from 1/8/2021 at court rates, given the date of payment and the absence of any defence. However, the court declined to award costs, noting the matter was undefended. The court could not...
Court Disposition
Application allowed in part; respondent ordered to remit decretal sum with interest; no order as to costs.
Orders
- The respondent is directed to forthwith honour and remit the sum of Kshs 644,420.00 paid to them on behalf of the applicant being the decretal sum in Mariakani SPMCC No 359 of 2018.
- The above amount shall attract interest at court rates from 1/8/2021 till payment in full.
Full Case Text
Judgment text and source record
20 paragraphs
Doshi (Suing as the Legal Representative of the Estate of Said Hassani Dosho - Deceased) v Tarus Joseph t/a Tarus & Co. Advocates (Civil Miscellaneous E140 of 2023) [2023] KEHC 27224 (KLR) (20 December 2023) (Judgment)
Neutral citation: [2023] KEHC 27224 (KLR)
Republic of Kenya
In the High Court at Mombasa
Civil Miscellaneous E140 of 2023
DKN Magare, J
December 20, 2023
Between
Hassani Omari Doshi
Applicant
Suing as the Legal Representative of the Estate of Said Hassani Dosho - Deceased
and
Tarus Joseph t/a Tarus & Co. Advocates
Respondent
Judgment
1. This matter is a sad one. The Defendant is an Advocate of this Court. He has now closed his offices and left clients stranded. The Plaintiff sought the following Orders:a.That Joseph Tarus t/a Tarus & Co. Advocates do forthwith render an Account of the Judgement sum obtained in Mariakani SPMCC No 359 of 2018 Hassani Omari Dosho (suing as the Administrator and legal representative of the Estate of the Late Saidi Hassan Dosho - Deceased v Unigroup Transporters Limited.b.That Joseph Tarus t/a Tarus & Co. Advocates do forthwith honour and remit the sum of Kshs 644,420. 00/= paid to them on behalf of the Applicant being the decretal sum in Mariakani SPMCC No 39 of 2019 Hassani Omari Dosho (suing as the Administrator and legal representative of the Estate of the Late Saidi Hassan Dosho - Deceased v Unigroup Transporters Limited.c.That Joseph Tarus t/a Tarus & Co. Advocates do forthwith honour and remit the decretal interest which was awarded from 11th May 2021 in Mariakani SPMCC No 359 of 2018 Hassani Omari Dosho (suing as the Administrator and legal representative of the Estate of the Late Saidi Hassan Dosho - Deceased v Unigroup Transporters Limited.d.That Joseph Tarus t/a Tarus & Co. Advocates do pay the costs and interest of this action.
2. The Plaintiff adopted and relied on 16th May 2023 in evidence. She stated that the Defendant consented to 70:30 liability without her consent. Unfortunately, I cannot review the judgment already delivered. Further, the Defendant had ostensible authority to record the consent. Without it being set aside, the Plaintiff must live with the award of Kshs 644,420/-.
3. The Plaintiff attached 2 cheques showing payments of decretal sum. She also sought interest on the decretal sum. The Plaintiff has not however shown she paid legal fees. The Defendant did not defence the claim.a.I find that the Plaintiff is entitled to the payment of a sum of Kshs 974,820 together with interest from 1/8/2021 at court rates till payment in full. Interest is based on the fact that payment was made via a cheque dated 8/7/2021. Therefore, due allowance is given for dispatches of cheques and cheques clearing. The matter not having been defended, each party will bear own costs.
Determination 4. In the upshot, I make the following orders:a.The Respondent is directed to forthwith honour and remit the sum of Kshs 644,420. 00/= paid to them on behalf of the Applicant being the decretal sum in Mariakani SPMCC No 359 of 2018 Hassani Omari Dosho (suing as the Administrator and legal representative of the Estate of the Late Saidi Hassan Dosho - Deceased v Unigroup Transporters Limited.i.The above amount shall attract interest at court rates from 1/8/2021 till payment in full.ii.There is no order as to costs.
DELIVERED, DATED AND SIGNED AT MOMBASA, VIRTUALLY ON THIS 20TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Miss Musyoki for the PlaintiffNo appearance for the RespondentCourt Assistant - Brian