https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13018

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **HCCOM SUIT NO. E001 OF 2026 (O.S)** **GLADYS MWIKALI MBINYA………………….....................................APPLICANT** **-VERSUS-** **MARY KANINI KIPTOO P/A** **KITOO & ASSOCIATES ADVOCATES .........................................1ST RESPONDENT** **CAROLINE MULONDU BOSCO P/A** **KITOO, BOSCO & ASSOCIATES ADVOCATES ..........................2ND RESPONDENT** **RULING** **Introduction** 1. The Applicant filed an Amended Originating Summons dated 13/01/2026 under **Order 37 Rule 1 and Order 52 Rule 4(1) (a), (b), (c), and (d) of the Civil Procedure Rules (CPR), Section 47(1) of the Advocates Act**, the inherent powers of this Honorable Court and all other enabling provisions of the law seeking orders as follows:- 2. **THAT this Honorable Court be pleased to order that the 1st and 2nd Respondents herein renders a cash account of all monies due to the Applicant arising from the Judgment and Execution of the Decree entered in the Applicant’s favour in Tawa Senior Principal Magistrates Court MCCC/E056/2022; Gladys Mwikali Mbinya and John Matheka Muema -vs- Alphajiri Limited and Musila Makau.** 3. **THAT upon rendering such account, this Honorable Court be pleased to order that the 1st and 2nd Respondent do pay to the Applicant all of the said amounts received by the Advocates for onward transmission to the Applicant arising from the Judgment and Execution of the Decree entered in the Applicant’s favour in Tawa Senior Principal Magistrates Court MCCC/E056/2022; Gladys Mwikali Mbinya and John Matheka Muema -vs- Alphajiri Limited and Musila Makau within 21 days with interest at 14% per annum since the Advocates received the money.** 4. **Spent.** 5. **THAT the Honourable Court do issue such further or other orders that in its discretion may deem fair and just in the circumstances.** 6. **THAT costs be borne by the Defendant/Respondent.** 7. The Respondents reacted by filing an Amended Notice of Preliminary Objection (P.O) which is now the subject before this court for determination. **The Preliminary Objection** 1. The P.O is grounded as follows; 2. **That this court lacks jurisdiction to hear and determine this matter under section 53 of the Advocates Act, Cap 16 of the Laws of Kenya.** 3. **That, the Applicant lacks the locus standi to bring this suit in her personal capacity.** 4. Directions were given that the P.O be canvassed through written submissions. Consequently, the parties complied and filed their respective submissions. **Submissions by the Respondents** 1. It was submitted that disputes between advocates and their clients should be referred to the Advocates’ Complaints Commission (the Commission) as per **Section 53 of the Advocates Act**. Reliance was placed on the case of **Ongoche -vs- Okoth t/a GS Okoth & Co. Advocates (Civil Appeal 44 of 2019) [2023] KECA 203 (KLR)** for the submission that the Commission acts as a quasi-judicial commission and at the core of its functions is; to investigate a complaint it has received and to do so by interrogating any answer to the complaint with additional power to summon and hear witnesses on oath and require production of such documents as it may deem necessary. 2. It was submitted that, parties aggrieved by decisions of the Commission or Disciplinary Tribunal go to the High Court for appeal and as such, this court is not of first instance with regard to disputes between advocates and clients. 3. It was submitted that the P.O herein falls within the definition given in the case of **Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696** as itischallenging the jurisdiction of this court to hear and determine the suit. 4. Further reliance was placed on the case of **Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd (1989) KLR 1** for the submission that jurisdiction is everything, without which, a court has no power to make one more step. **Submissions by the Applicant** 1. It was submitted that the P.O is not merited because this court has power to order an advocate to deliver accounts and documents under **Order 52, rule 4 of the Civil Procedure Rules** and that such applications shall be by Originating Summons, supported by affidavit and shall be served on the advocate. That, the Applicant has properly lodged this suit as provided for in the Civil Procedure Rules. 2. Reliance was placed on **Kenya Commercial Bank Limited -vs- Rachier & Amollo Advocates (Commercial Case E270 of 2022) [2024] KEHC 12108 (KLR) (Commercial and Tax) (4 October 2024) (Judgment)** & in **Adongo (Suing as Legal Representative of the Estate of Thomas Adongo Onuku (Deceased) -vs- Mwamu t/a Mwamyu & Company Advocates (Miscellaneous Civil Application E032 of 2025) [2025] KEHC 9265 (KLR) (27 June 2025) (Judgment)** for the submission that the courts therein were moved by way of Originating Summons and the finding was that; Advocates have no right under any law to hold monies which have come to them for onward transmission to their clients as lien. That, holding onto clients’ money is irregular and the court cannot condone the same. 3. It was submitted that there is no dispute that the Respondents represented the Applicant in Tawa Senior Principal Magistrates Court MCCC/E056/2022 where a decretal Sum of Kshs. 7,272,999 was awarded to the Applicant and is in the custody of the Respondents. This Court was urged to come to the Applicant’s aid and help her not to lose the decretal sum awarded to her to persons she entrusted to get her justice for the death of her mother. 4. It was submitted that award of costs is discretionary but this court was urged to be guided by the principle that **‘costs follow the event’**. That, the P.O should be dismissed and costs awarded to the Applicant. 5. Having looked at the P.O and rival submissions, the only issue for determination is whether it is merited. **Analysis** 1. The *locus classicus* in determination of a P.O is the case of **Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696** which posits that a P.O must be a pure point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit. 2. The first ground in the P.O is that **Section 53 of the Advocates Act (the Act)** strips this court of the jurisdiction to hear and determine the matter. **Section 53 (4)** provides; **“(4) It shall be the duty of the Commission to receive and consider a complaint made by any person, regarding the conduct of any advocate, firm of advocates, or any member or employee thereof; and-** **(a)if it appears to the Commission that there is no substance in the complaint it shall reject the same forthwith; or** **(b)if it appears to the Commission whether before or after investigation that there is substance in the complaint but that the matter complained of constitutes or appears to constitute a disciplinary offence it shall forthwith refer the matter to the Disciplinary Committee for appropriate action by it under Part XI; or** **(c)if it appears to the Commission that there is substance in the complaint but that it does not constitute a disciplinary offence it shall forthwith notify the person or firm against whom the complaint has been made of the particulars of the complaint and call upon such person or firm to answer the complaint within such reasonable period as shall be specified by the Commission in such notification; or** **(d)upon the expiration of the period specified under paragraph (c), the Commission shall proceed to investigate the matter for which purpose it shall have power to summon witnesses, to require the production of such documents as it may deem necessary, to examine witnesses on oath and generally take all such steps as it may consider proper and necessary for the purpose of its inquiry and shall, after hearing any submissions made to it by or on behalf of the complainant and the person or firm against whom the complaint has been made, make such an order or award in accordance with this section as it shall in the circumstances of the case consider just and proper; or** **(e)if it appears to the Commission that there is substance in a complaint but that the circumstances of the case do not disclose a disciplinary offence with which the Disciplinary Committee can properly deal and that the Commission itself should not deal with the matter but that the proper remedy for the complainant is to refer the matter to the courts for appropriate redress the Commission shall forthwith so advise the complainant.”** 1. The above section gives the procedure of how the Commission should deal with a complaint made by any person, regarding the conduct of any advocate, firm of advocates, or any member or employee thereof. On the other hand, **Section 6(B)** of the **Act** provides; **“(6B) Where the matter before the Commission relates to surrender of funds or property by an advocate to a client, the Commission may order the surrender of all refunds or property which the advocate does not dispute:** **Provided that this subsection shall not apply where the complainant has filed a civil suit against the advocate in respect of the same funds or property.”** 1. Consequently, it is evident that whereas the Commission has the power to order an advocate to surrender funds or property to a client, the **Act** itself has acknowledged that the Commission is not to be the first port of call by an aggrieved client. The section specifically ousts the mandate of the Commission where a client has already moved to court. 2. **Order 52 Rule 4** of the **Civil Procedure Rules** provides; **Power to order advocate to deliver accounts and documents [Order 52, rule 4]** 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.** **(3) If the advocate alleges that he has a claim for costs the court may make such order for the taxation and payment, or securing the payment, thereof and the protection of the advocate’s lien, if any, as the court deems fit.** 1. It is evident that the suit herein seeks orders that are recognized by **Order 52** **Rule 4** **of the Civil Procedure Rules** and the same has been properly filed through the O.S which is supported by an affidavit. It is not in dispute that there existed an advocate-client relationship between the Applicant and Respondent. The mere suggestion to have the dispute moved to the Commission is an admission of existence of such relationship by the Respondents. 2. Additionally, similar disputes where the High Court was moved by way of O.S have been heard and determined. In **Kenya Commercial Bank Limited -vs- Rachier & Amollo Advocates (supra),** the court stated as follows; **“13. From the pleadings fled, it is manifest that the defendant has acted for the plaintiff in two suits being HCCC No. 407 of 2008 (Elecon Developers Limited v Kenya Commercial Bank) and HCCC No. 1588 of 2000 (Waihenya Chomba & 3 others v Emco Steel Works & Kenya Commercial Bank). It is evident that the two suits are between the plaintiff and two different parties. In addition, no evidence has been tendered by either of the parties to the effect that the suits are related and/or that they arose from the same cause of action. It is not disputed that HCCC No. 407 of 2008 was as a result of the sale of L.R. No. 12467 along Enterprise Road by the plaintiff, in its exercise of its statutory power of sale to Elecon Developers Limited (the purchaser). The said transaction was being handled by the defendant on behalf of the plaintiff, thus the purchaser deposited Kshs.5,600,000.00 with the defendant to be held as stakeholder’s money. The aforesaid sale fell through, and as a result, the purchaser lodged HCCC No. 407 of 2008 against the plaintiff.** **14. During the pendency of HCCC No. 407 of 2008, the plaintiff instructed the firm of Igeria & Ngugi Advocates to take over the conduct of the said suit on its behalf and demanded release of the said Kshs.5,600,000.00. Instead of releasing the said funds, the defendant issued the plaintiff with a fee note for services rendered in the said suit, which fee note was fully settled on 9th November, 2021. Despite the foregoing, the defendant has still refused to release the said funds, claiming that it is exercising its right of lien over the funds until its fees for services rendered for the plaintiff in HCCC No. 1588 of 2000 are paid. The defendant averred that the fee note in HCCC No. 1588 of 2000 was raised on 14th January, 2002, but has not been settled to date. It submitted that it has a right of a lien over the said sum, which serves as security for unpaid fees especially since it no longer represents the plaintiff in HCCC No. 407 of 2008. It contends that if it was to release the sum of Kshs.5,600,000.00 to the plaintiff, it will be left with no other avenue of recovering its fees.”** 1. The above case was resolved in favor of the client and the following orders issued; **“23. The upshot is that the Originating Summons dated 19th July, 2022 is merited. I make the following orders –** 1. **The defendant is hereby directed to immediately release the sum of Kshs.5,600,000.00 held as stakeholder monies to the firm of Igeria & Ngugi Advocates, together with interest that has accrued since the money was deposited in a call deposit account; and** 2. **Costs of this suit shall be borne by the defendant.”** 3. Consequently, it is my considered view that there is no legal requirement for the client to exhaust the dispute resolution mechanism provided for in the **Advocates Act** before approaching this court. 4. On the issue of the Applicant’s capacity to bring the suit in her personal capacity, it is evident that she has the requisite *locus standi* because **Section 6B** **of the Act** and **Order 52 Rule 4 of the Civil Procedure Rules** recognize that a client can seek redress against an advocate in court. **Conclusion** In my view, the P.O lacks merit and the same is hereby dismissed. To that extent, the matter shall proceed with hearing of the substantive application. Dated, signed and delivered virtually this **21st** day of **August 2026** ....................................... **J.N.ONYIEGO** **JUDGE**