[2025] KEHC 6308 (KLR)

Halake v Kiogora Mugambi t/a Kiogora Mugambi & Co Advocates (Civil Case E003 of 2025) [2025] KEHC 6308 (KLR) (21 May 2025) (Judgment)

Neutral citation: [2025] KEHC 6308 (KLR)

Republic of Kenya

In the High Court at Marsabit

Civil Case E003 of 2025

FR Olel, J

May 21, 2025

Between

Mary Hirbo Halake

Applicant

and

Kiogora Mugambi t/a Kiogora Mugambi & Co Advocates

Defendant

Judgment

1. The plaintiff/Applicant instituted this suit vide her Originating summons application dated 3rd March 2025, and sought for orders that;a.Spent.b.Spent.c.That the respondent herein be and hereby be compelled to remit to the Applicant the money held by the respondent on behalf of the Applicant, totalling Kshs.1,087,010. 50/= together with the interest at the court rates from 26th June, 2020, till payment in full.d.That the costs of this Application be borne by the respondent herein.e.That this honourable court be pleased to grant any other orders that it deems fit and just in the circumstances.

2. The said application is supported by the grounds made on the face of the said Application and the supporting affidavit of the Applicant dated 3rd March 2025, where she deponed that in 2020, she instructed the respondent to act for her and defend her interest in Marsabit ELC Case No 2 of 2020, where she had been sued over a land she had sold and pursuant thereto paid the respondent the agreed legal fee of Kshs.210,000/=.

3. However, during the pendency of the said suit, the respondent did falsely advise her that she needed to pay a security of Kshs.2,000,000/= into his firm's account held at IDLM Bank Kenya Limited-Meru Branch, Account No 0370136449182 and the same was to be held in trust for her and ultimately be refunded with interest once she won the ELC case he was handling. Based on their fiduciary relationship, she did source this sum and eventually deposited the same into the respondent's account as advised.

4. The applicant further averred that the outcome of the ELC case was not positive, and after discussions with her family, she opted not to appeal. She thereafter wrote to the respondent on 6th August 2021, requesting a refund of her money, and over time, the respondent had only managed to refund Kshs.912,989. 50/= and ignored to settle the balance, thus necessitating this suit.

5. Since she had fully settled the respondent's legal fee, there was no basis for the respondent to continue holding onto her money, and she thus urged the court to intervene and enter judgment in her favour for the sum claimed.

6. The respondent, despite being served, opted not to enter an appearance, nor did he attend court to defend him self during the hearing of this suit. In essence, this claim is uncontested.

7. I have considered all the pleadings filed and even though the suit was undefended, I do reaffirm that as a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the Issue they want the court to find in their favour.

8. This court is also guided by the observation of the court in the case of Rajah J A in Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] 4 SLR 855 where the court stated that :“The Court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. Since the terms proved, disapproved and not proved are statutory definitions contained in the Evidence Act. The term proof whenever it appears in the Evidence Act and unless the context otherwise suggests, means, the burden to satisfy the Court of the existence or non-existence of some fact.”

9. The plaintiff testified and produced exhibits to support her contention that she did deposit a sum of Ksh.2,000,000/= into the respondent's account based on his advice, that depositing security would strengthen their case that she had repudiated the sale agreement and offered to refund the consideration to the plaintiff in the ELC suit, where she had been sued. Unfortunately, she eventually lost the said case, and thus there was no reason why the respondent advocate should not refund the sums, which were deposited into his account ostensibly to refund the purchase price of the land earlier in dispute.

10. The plaintiff also produced evidence of various WhatsApp/SMS communications and bank slip to prove that she deposited this sum on the advice of her counsel and that she indeed had transferred this sum to the respondent's client account on 26. 06. 2020. This evidence was unopposed and is deemed proved.

11. The sum of Ksh.2,000,000/= deposited into the respondent's account was his client’s money as defined by rule 2 of the Advocates (Accounts) rules, and it has not been shown that he has any lien over the same. To the contrary, he has already refunded the applicant a sum of Kshs.912,989. 50/= and should forthwith clear the balance owed.

Determination 12. Having considered the pleadings filed and evidence presented, I do enter judgement for the plaintiff/Applicant in terms of prayer (3) of the originating summons dated 3rd March 2025, plus interest thereon at court rates from 6th August 2021 until payment in full.

13. The costs of this suit is awarded to the Applicant.

14. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MARSABIT THIS 21ST DAY OF MAY, 2025. FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAM THIS 21ST DAY OF MAY, 2025In the presence of: -Present in Court – ApplicantN/A - RespondentMr. Jarso - Court Assistant