[2015] KEHC 1460 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 133 OF 2015

GATHERU GATHEMIA T/A GATHERU

GATHEMIA & CO. ADVOCATES............................PLAINTIFF

VERSUS

JANE GATHONI MUNENE...............................1ST DEFENDANT

JOAN MUGURE MUNENE...............................2ND DEFENDANT

(Sued in their personal capacity and as administrators of the estate of the late Winnie Wanjiru Munene and the late Samuel Gitau Munene)

RULING

The subject matter of this ruling is the motion dated 29th June 2015 taken out be Gatheru Gathemia T/A Gatheru Gathemina & Co. Advocates, the plaintiff herein, in which he sought for the following orders.

THAT this application be certified as urgent and be herd ex parte at first.

THAT pending the hearing inter partes of this application, there be an order restraining the defendants each of them whether by servants, or agents or employees or advocates or otherwise howsoever from removing, sharing out, transferring, disposing or charging or in any manner interfering with any of their assets whatsoever, including and, shares and monies deposited in their accounts and in particular the sum of kshs.172,000,000/= held at Equity Bank, Westlands branch, formerly being account number 1400260934848 in the names of Gatheru Gathemia and Co Advocates and Judy Thongori and Co. Advocates and now account number 1400260934848 in the names of Iseme, Kamau and Maema Advocates and Judy Thongori and Co. Advocates.

THAT pending the final hearing and determination of this suit, there be an order restraining the defendants each of them whether by their servants, or agents or employees or advocates or otherwise howsoever from removing, sharing out, transferring, disposing or charging or in any manner interfering with any of their assets whatsoever, including land, shares and monies deposited in their accounts and in particular the sum of kshs.172,000,000/= held at Equity Ban, Westlands branch, formerly being account number 1400260934848 in the names of Gatheru Gathemia & Co. Advocates and Judy Thongori & Co. Advocates, and now account number 1400260934848 in the names of Iseme, Kamau and Maema Advocates and Judy Thongori and Co. Advocates, save upon application to and with the order of this Honourable Court.

THAT the court do order the defendants within ten days of the issuance of the order to funish security by depositing with court such funds as will be sufficient to satisfy the decree that may be passed against the defendant in the suit.

THAT judgement on admission be and is hereby entered in favour of the plaintiff/applicant and against the defendants/ respondents jointly and severally for the sum of ksh.83,421,858/= with interest and costs.

THAT the costs of this application be provided for.

The motion is supported by the affidavit and a further affidavit both sworn by Gatheru Gathemia. When served with the motion Jane Gathoni Munene and Joan Mugure Munene the 1st and 2nd defendants respectively filed a replying affidavit and a further affidavit sworn by Jane Gathoni Munene and a preliminary objection to oppose the motion. When the motion came up for interpartes hearing, learned counsels appearing in the matter recorded a consent order to have the same disposed of by written submissions together with oral highlights of those written submissions.

I have considered both the rival written and oralsubmissions. I have further considered the material placed before this court. It is the submission of the plaintiff/Applicant that he was given instructions to appear for the defendants and that he entered with the defendants into a fee payment agreement. The plaintiff further stated that the defendants unilaterally withdrew instructions from the plaintiff. The plaintiff further argued that, he together with the firm of M/s Judy Thongori & Co. Advocates were joint signatories to the equity escrow account but he has now been replaced by the firm of Iseme kamau and Maema Advocates. This turn of events, according to the plaintiff, jeopardizes his position with regard to his legal fees since the money in the said account can now be withdrawn without his approval. For this reason, the plaintiff urged this court to issue orders directing the defendants to make the payments due to the him.

The plaintiff has also asked this court to make an order for summary judgment as against the defendants since there was an agreement that the applicant would act on behalf of the defendants. That the agreements are enforceable and the defendants have no valid defence.

The defendants have urged this court not to grant the order sought by the plaintiff. The defendants are no disputing that the plaintiff was given instructions to represent them in the succession cause of the estate of their parents, the late Winnie Wanjiru Munene and the late Samuel Gitau Munene.The defendants also admit that they signed agreements on fee notes with the plaintiff but they aver that they did so under duress. The allegation is dismissed by the plaintiff as a red herring in that it is meant to defeat his quest for payment of his fees. The defendants have urged this court to find that there is need for the plaintiff to tax his bill in view of the fact that the agreement on the fee note is disputed. The plaintiff has cited the provisions of Section 45(6) of the Advocates Act to show that costs due to an advocate on the basis of an agreement cannot be subject to any form of taxation hence the defendants’ request should be rejected. There is also an argument that the plaintiff has over charged his legal fees thus purporting to unjustly enrich himself. The plaintiff reacted to these allegations by stating that the defendants negotiated the agreements voluntarily in which they thereafter even authorised the release of a sum of kshs. 50 million as legal fees to the plaintiff. According to the plaintiff, the defendants clearly understood what they were getting into when they executed the agreements hence summary judgement should be pronounced. The plaintiff also beseeched this court in the event it does not enter summary judgement to instead issue an interlocutory injunction as against the defendants and their present advocates from dealing with the portion of money that would be used to meet payments for the fees due. It was pointed out that if the orders are not granted then there is a high possibility that the plaintiff will suffer irreparable damage owing to the fact that he may not get paid. The plaintiff pointed out that if the money in the joint escrow account is exhausted then his rights will be thrown into confusion since the money will have been rendered to the estate. The plaintiff is of the view that since he has a lien over the assets of the estate, he is entitled to seek for the attachment of the aforesaid bank account before judgement in the even that the court does not order judgement on admission.

After a careful consideration of the rival submissions and the material placed before this court, it is important to set out in brief the background of this dispute. There is no dispute that the applicant was instructed to act for the respondents in Nairobi H.C.S.C no.1151 of 2007 and H.C.S.C no. 846 of 2003. The plaintiff’s brief was to specifically seek for the revocation of the grants of letters of administration issued to the defendants’ brother George Gitau Munene in respect of the estates of the late Samuel Gitau Munene and the late Winnie Wanjiru Munene respectively. From the documents availed to this court, the defendants executed the letter dated 22nd January 2011 in which the applicant undertook to charge the respondents fees according to the services rendered. There is an argument by the defendant that the fee to be charged was in conformity with the scale of fees regulated by the Advocates (Remuneration) Order, 2009. Pursuant to the aforesaid agreement the plaintiff proceeded to file an application for revocation of those grants. The parties eventually recorded a consent order to have the grants issued vide Nairobi H.C.S.C no. 1511 of 2007 and Nairobi H.C.S.C 846 of 2003 revoked paving the way for the defendants to be made co-administrators in both estates.

On 25th March 2015, the respondents terminated the services of the plaintiff/applicant and appointed new counsels in the plaintiff’s place. This prompted the applicant to take out the current motion claiming he is entitled to payment in the sum of 428,556,858 in his capacity as the advocate.

The first two prayers of the motion are already spent leaving the rest of the prayers intact . Mr. Kanjama, learned advocate for the plaintiff/applicant informed this court that the main prayer the plaintiff was pursuing is prayer V which is to the effect that this court should enter judgement on admission in favour of the plaintiff in the sum of ksh.83,421,858/=. The learned advocate identified the fee notes or letters the defendants signed specifying the agreed fees to be charged. This court was urged to enter judgment since there was a clear and an ambiguous admission vide the agreements which were executed voluntarily. Mr. Kanjama further urged this court to issue the temporary order of injunction to restrain the defendants from utilizing the sum of 172,000,000 lying in the escrow account with Equity Bank. He however beseeched this court to adjust downwards the figure to ksh,68,800,000/= pursuant to the consent the parties recorded before this court. The learned advocate also sought for an order for stay.

Mr. Karori, learned advocate for the defendants urged this court to reject the motion stating that the court has no jurisdiction to hear and determine the same because there is need for the advocates bill to be taxed first by a taxing officer and not this court. He pointed out that the plaintiff charged his fees under the wrong schedule of the Advocates (Remuneration) Order.

Mr. Karori further pointed out that the defendants are entitled to challenge the disputed agreements under Section 45 (2) of the Advocates Act.

I will first determine the first question as to whether or not judgement on admission should be made. I have considered the rival submissions and it is now clear to me that the agreement the plaintiff is relying on, to seek for summary judgement, are seriously contested. The defendants have argued that the same were obtained by duress and that the plaintiff used the wrong schedule to fix the fees he charged. With respect, I am convinced by the defendants’ arguments that the agreements are disputed and that the defendants are entitled to challenge such agreements under Section 45(2) of the Advocates Act. It will therefore be premature for this court to enter summary judgement on admission yet it is clear that the agreement may not have been properly secured. The dispute should be subjected to a trial where the same can be interrogated to establish their veracity.

The other issue which came up for determination is jurisdiction of this court. This court has been urged to find that it has no jurisdiction to hear and determine the dispute since it is a matter squarely for a taxing officer. At the moment, it is tricky for this court to make conclusive finding over the issue because I am aware that the main suit is yet to be heard and determined. I think when the main suit comes up for hearing the issue will be determined after establishing the veracity of the agreements on fees. A fair order is to decline the invitation to determine the preliminary point.

This court has been asked to issue orders of injunction. The first principle is whether the applicant has shown a prima facie case with a probability of success. There is no doubt that the plaintiff/applicant has established a prima facie case. However, the applicant must show that if he is denied the order he would suffer irreparable loss. It is the plaintiff’s submission that if an injunction is not granted, the monies in the joint Escrow account once exhausted throws the rights of the plaintiff to access the cash into limbo. There is no dispute that the plaintiff’s claim is already quantified in monetary terms. The estate is not fully distributed and since the plaintiff’s claim is not pegged on the cash laying in the Escrow account with Equity Bank, it cannot be said that the plaintiff will suffer irreparable damage. In other words, if at the end of the proceedings the plaintiff proves his claim he can still execute the decree against any of the assets of the estate or the concerned beneficiary. The plaintiff has therefore failed to establish the irreparable loss he would suffer.

On a balance of convenience, the defendants aver that if the order is granted it will adversely affect the administration of the estate in that, they will be unable to discharge their duties to meet the estates’ costs and expenses. With respect, I agree with the defendants that if the order is issued, it basically means that a colossal sum of money will be frozen hence affecting the operations of the estate in meeting their daily or monthly outgoings. In any case, it is now apparent that the defendants are co-administrators and beneficiaries of the two estates together with 3 other siblings. The funds in the Escrow account do not solely belong to the defendants but instead the funds are administered by the respondents together with parties who not party to these proceedings who also have a stake and interest in the aforesaid funds hence if the order is granted it will obviously inconvenience them and the estate as well.

In the end, I see no merit in the motion. The same is ordered dismissed with costs abiding the outcome of the suit.

Dated and delivered in open court this 23rd day of October, 2015.

J. K. SERGON

JUDGE

In the presence of:

………………………………………. for the Plaintiff

……………………………………….for the Defendant