[2022] KEHC 15432 (KLR)

Mae & 6 others v Kaluki Muriu Ndiritu & Co Advocates & another (Civil Suit 1 of 2021) [2022] KEHC 15432 (KLR) (14 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15432 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Suit 1 of 2021

SM Githinji, J

November 14, 2022

Between

Jumaa Ziro Mae

1st Plaintiff

Francis Baya Thoya

2nd Plaintiff

Moses Munga

3rd Plaintiff

David Karisa Katana

4th Plaintiff

Beja Kitsao

5th Plaintiff

Kazungu Ngari Yaa

6th Plaintiff

David Mwachiru Kiti

7th Plaintiff

and

Kaluki Muriu Ndiritu & Co Advocates

1st Defendant

Simon M Karita

2nd Defendant

Ruling

1. By chamber summons dated October 7, 2021, brought under, sections 1A, 1B & 3A of the Civil Procedure Act, the plaintiffs claimed from the defendant a sum of Kshs = 800,000/- together with costs of the application.

2. The amount claimed was alleged to be the settlement amount received from Fernando Visci t/a Mashsrubu Supplies Limited on behalf of the plaintiffs in a claim filed at the Malindi Chief Magistrates Court CMCC ERLC No 2 of 2018. The plaintiffs’ claim is that they instructed the 1st defendant firm to act for them and pursue the aforementioned claim. The 2nd defendant then an employee of the 1st defendant represented the plaintiffs and managed to obtain an out of court settlement for Kshs 800,000/- on October 27, 2020. That despite the above, the defendants have refused to remit the decretal sum to the plaintiffs.

3. In support of their case, Kazungu Ngari Yaa swore an undated supporting affidavit on behalf of the plaintiffs. He produced letters from the defendants urging the plaintiffs to open a bank account for purposes of disbursement of the decretal sum less the agreed advocates’ fees at 25%. He explained that the defendants then issued them with a Cheque No 000087 dated February 24, 2021 for Kshs 530,000/- which was returned due to insufficient funds.

4. Despite being served, the defendants failed to file any response to the suit. The 2nd respondent entered appearance but no other documents as directed by the court.

5. On March 10, 2022, the court directed the parties to file their submissions. The plaintiffs filed their submissions but the defendants did not. I have duly considered the affidavit in support of the summons and the submissions on record.

6. Order 52 rule 4(1) & (2) of the Civil Procedure Rules provides: -"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."

7. Order 52 rule 10(2) further provides: -“(2)No appearance need be entered to the summons and no affidavit in reply need be filed and all parties may be heard without entering an appearance.”

8. I must first point out that the proper way to commence such proceedings is by way of originating summons and not chamber summons as filed by the plaintiffs. However, it is now trite and by virtue of article 159 of the Constitutionof Kenya, 2010 that a suit cannot be defeated for want of form, which in my view is a technicality.

9. InKim Jong Kyu v Housing Finance Company Ltd & 2 others [2015] eKLR, the Court of Appeal held: -“In our legal system, the advocate/client relationship has long been recognized as fiduciary relationship in which the client places his or her confidence, faith, reliance and trust in the advocate, whose aid, advice, opinion or protection is sought from time to time. The client gives the advocate significant amount of control over the matter in which the brief relates. With this relationship comes certain duties and responsibilities on the advocate. These duties and responsibilities are provided for in the statute and the rules of conduct as we demonstrate below. The sets of rules that govern the advocates’ professional conduct arise out of the duty that they owe to the court, their clients, and fellow advocates. Section 80 of the Advocates Act stresses the advocate’s duty to a client;…Any person who, being an advocate, is entrusted in his professional capacity with any money, valuable security or other property to retain it in safe custody with instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply or account for the same after due completion of the purpose for which it was given, shall be guilty of an offence:In addition, the Advocates (Accounts) Rules and the Advocates (Deposit Interest) Rules draw the permissible limits of dealings with funds received on behalf of and for the benefit of a client. The foregoing emphasises that an advocate must at all times act in the best interest of his client; that where he is required to invest he must do so prudently and avoid obvious risks and; that failure to account for funds held by an advocate on behalf of a client is in fact a criminal offence.”

10. In the present case, the plaintiffs gave uncontroverted facts including the cheque number that bounced and letters dated February 5, 2021 and February 15, 2021 from the defendants asking for the plaintiffs’ account details to remit the decretal sum less the advocates fees.

11. In my view, that was clearly an admission on the defendants’ part on the sum of Kshs 530,000 owing to the plaintiffs.

12. I am persuaded by the court in Kenya Hospital Association v Luis Wahome t/a L Wahome & Company Advocates [2007] eKLR, where Azangalala J held:“With regard to the claim for Kshs 130, 000. 00 the advocate has not filed any response thereto. The factual position given by the client in its further affidavit sworn on April 4, 2006 is therefore uncontroverted. There is therefore no reason why the advocate should be permitted to continue holding onto that sum either”.

13. In the circumstances, I find that the plaintiffs have proved their case to the required standard and do order defendant remits to the plaintiffs a sum of Kshs 530,000/-, together with costs and interests at court rates from January, 2021 till payment in full.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 14TH DAY OF NOVEMBER, 2022. ...................................S.M. GITHINJIJUDGEIn the Presence of: -CORAM: Hon. Justice S. M. GithinjiMr Atiang for the Interested PartyThe Applicant Kazungu Ngari Yaa, the Plaintiffs/Applicants in personKaluki Muriu Ndiritu Advocates for the Respondents