[2018] KEELC 2126 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO 183 OF 2017 (OS)

JAMES OUDIA................................................................PLAINTIFF

=VERSUS=

ODERA OBAR & CO. ADVOCATE...........................DEFENDANT

JUDGMENT

1. On 17/3/2017, the plaintiff herein, James Oudia, took out an originating summons dated 10/3/2017 seeking the following orders against M/s Odera Obara & Co Advocates (the advocate):

a) That the honourable court be pleased to order the defendant to give an account of all the sums of monies paid to it by the plaintiff in respect to the arbitration matter between Hellen Odido and Ann Mutiso.

b) That the Honourable court be pleased to order that the entire sum paid by the plaintiff to the defendant in respect to the arbitration matter between Hellen Odido and Ann Mutiso be refunded to the plaintiff.

c) That the defendant be ordered to pay the costs of these proceedings in any event.

d) That the honourable court do grant such relief or order as it may deem fit and just in the circumstance.

2. The originating summons was premised on the following grounds:

a) The plaintiff on diverse dates made several payments to the defendant in respect to the arbitral matter between Hellen Odido and Ann Mutiso.

b) The defendants filed an advocate – client bill of costs dated 21st September 2015 vide Nairobi Misc Civil Application No 252 of 2015 in which it admitted having received the sum of Kshs 614,525.

c) In responding to the bill of costs, the plaintiff indicated to the court that he had paid the defendant an amount over and above the sum that it admitted as having received from him and therefore sought the court to make a determination on the total sum paid to the defendant in addition to making a determination on the sum due to the advocate.

d) The matter was heard before Hon I N Barasa (DR) and she delivered a ruling on the same on the 24th January 2017.

e) In her ruling, the honourable Deputy Registrar made a determination on the sum due to the advocate but declined to make a determination on the total sum paid to the defendant and directed that the issue should be determined in a different forum and as such the plaintiff had no option than to file the instant suit.

f) It is just and fair that the amount paid to the defendant by the plaintiff in respect to the arbitration matter be determined and the defendant be compelled to give an account of the sums received.

3. The originating summons was supported by the plaintiff’s affidavit sworn on 10/3/2017 in which the plaintiff deposed that the advocate acted for the plaintiff’s sister, Hellen Odido, in an arbitration dispute involving Hellen Odido and one Anne Mutiso. The plaintiff contended that on diverse dates, he paid to the advocate various sums of money as costs in the arbitration proceedings. He further deposed that subsequently, the advocate prepared a bill of costs in relation to the services rendered in the arbitration proceedings and the taxing officer of this court duly assessed the advocate’s bill but declined to make a determination on the amount of money paid by the client on account of the arbitration proceedings and directed that the matter should be litigated in a different forum. Consequently, the plaintiff brought the present originating summons.

4. The originating summons is opposed by the advocate through a replying affidavit sworn by Mr Odera Obar Kennedy on 22/5/2017 in which the advocate concedes that indeed the advocate acted for Hellen Odido and that through the plaintiff, Hellen Odido made some payments towards the arbitrator’s costs and the advocate’s legal fees. The deponent adds that the advocate rendered services in a total of seven (7) matters to both the plaintiff and his sister, Hellen Odido, and the advocate duly rendered a statement of account copy of which he annexed to his replying affidavit as Annexure “OOK18”. The deponent further denied the allegation that the plaintiff advanced to him a friendly loan of Kshs 1,000,000 and asserted that in any event, the friendly loan cannot be a basis of the originating summons herein as the same would only be recoverable through an ordinary suit.

5. The deponent further deposed that upon assessment of the advocate’s bill of costs against Hellen Odido, the advocate was dissatisfied with the taxing officer’s award and proceeded to file a reference which was still pending hearing and determination at the time this matter was heard. The advocate urged the court to dismiss the originating summons.

6. On 31/7/2017, the parties to the originating summons agreed that the originating summons would be disposed through affidavit evidence and written submissions.

7. I have considered the originating summons together with the supporting affidavit. I have also considered the advocate’s response to the originating summons and the written submissions presented by both parties to the originating summons. Similarly, I have considered the relevant law and the applicable jurisprudential principles. The single question which falls for determination in this originating summons is whether the plaintiff has satisfied the criteria upon which the advocate would be called upon to render to a client an account in terms of the orders set out in the originating summons.

8. The present originating summons was taken out by James Oudia. It is not expressed to be taken out by James Oudia on behalf of any other person. The account sought relate to monies paid to the advocate and services rendered by the advocate in relation to arbitration proceedings involving the plaintiff’s sister, Hellen Odido. The advocate acted for the said Hellen Odido in the subject arbitration proceedings. The client in the said arbitration proceedings was Hellen Odido.

9. Indeed, at paragraphs 3, 4 and 5 of the supporting affidavit, the plaintiff states thus:

a) That I have also been assisting my sister, Hellen Odido in signing documents relating to an arbitration matter in which she had sued the lady by the name Anne Mutiso.

b) That in addition to signing the arbitration documents, I also paid several sums of money to the Defendant in respect to the arbitration matter that he was handling on behalf of my sister.

c) That vide Nairobi Misc Civil application No 252 of 2015, the Defendant filed an Advocate – Client Bill of Costs against Hellen Odido in respect to its fees arising in the arbitral matter.

10. From the above deposition and from the evidence presented by the plaintiff, it is apparent that the bill of costs culminating in the taking out of the present originating summons was taxed against Hellen Odido who was the client in the arbitration proceedings giving rise to the bill of costs. It was not taxed against the plaintiff herein, James Oudia. Both the bill of costs and the taxing officer’s ruling are annexed to the plaintiff’s supporting affidavit and confirm this fact.

11. The question that arises is whether the plaintiff has locus standi to take out an originating summons seeking an order compelling the advocate to render an account to him in relation to monies paid to the advocate and services rendered by the advocate in respect of the arbitration proceedings in which the plaintiff was not the client, and consequent to a bill of costs in which the plaintiff was similarly not the client. In my view, the answer to that question is in the negative. The client in respect of the arbitration proceedings was and remains Hellen Odido. She is the person with locus standi to take out an originating summons against her advocate. The fact that the plaintiff herein made payments to the advocate on behalf of his sister, Hellen Odido, did make the plaintiff the client in the arbitration proceedings. The plaintiff was merely an agent of Hellen Odido, making payments on her behalf. He did not become a client in so far as the arbitration proceedings are concerned. He therefore lacks locus standi to take out an originating summon against the defendant. The client was and remains Hellen Odido.

12. It is noted from the rival affidavits that a client/advocate relationship exists between the parties herein in relation to other matters such as Kisumu ELC 149 of 2014; James Oudia v David Odera OgolaandCMCC No 4844of2011; James Oudia v Andrew Nyandong. However, in so far as the arbitration proceedings are concerned, it is clear from the evidence that the client was Hellen Odido. It is also clear that payments made by the plaintiff herein were made on behalf of Hellen Odido.

13. An important aspect of the present originating summons which requires a comment from the court is the plaintiff’s recourse to the originating summons as a forum through which to ventilate grievances regarding money allegedly lent to the advocate as a friendly loan. Without saying much, a friendly loan cannot be recovered or accounted for through the instrument of an originating summons under Order 52 rule 4 of the Civil Procedure Rules. An originating summons under Order 52 rule 4 is an instrument designed for a situation where the relationship of advocate and client exists or has existed in relation to a particular matter.

14. In light of the foregoing, the court’s finding on the present originating summons is that it lacks merit because Mr James Oudia who took out the originating summons seeking an order compel the advocate to render an account of monies paid to the advocate in relation to arbitration proceedings between Hellen Odido and Anne Mutiso was not a client of the advocate in the arbitration proceedings. Secondly, the taxing officer’s award culminating in the originating summons clearly indicates that the client was Hellen Odido. The net result is that the suit herein is dismissed for lack of merit. The defendant is awarded costs of the suit.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 27TH DAY OF JULY 2018.

B M EBOSO

JUDGE

In the presence of:-

Mr Wame holding brief for Mr Odera Advocate for the plaintiff

Ms Halima Abdi - Court Clerk