https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7168

Maingey & 2 others v Gachuhi t/a Onesmus Githinji & Company Advocates (Commercial Suit E009 of 2024) [2026] KEHC 7168 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7168 (KLR) Republic of Kenya In the High Court at Machakos Commercial Suit E009 of 2024 BM Musyoki, J May 22, 2026 Between Florence Kamanthe Maingey 1st Applicant Paul Maingey 2nd Applicant Loise Kambua Maingey 3rd Applicant and Onesmus Githinji Gachuhi t/a Onesmus Githinji & Company Advocates Respondent Judgment 1.The applicants took out originating summons dated 30th April 2024 praying for the following; 1.That ONESMUS GITHINJI GACHUHI t/a ONESMUS GITHINJI & CO. ADVOCATES do, and is HEREBY ORDERED to pay the Applicants the sum of Kenya Shillings 15,282,893/= with interest at 14% per annum from 24th September, 2016 until full payment being the decretal sum paid for the benefit of John Ian Maingey in settlement of Milimani HCCC No. 171 of 2017 between Joseph Rashidi Masengo & 2 others –vs- Muthoga Gaturu & Co. Advocates. 2.That in any event the costs of this matter be awarded to the Applicants. 2.The originating summons is supported by affidavit of the 1st applicant sworn on 30th April 2024 and supplementary affidavit sworn on 14th November 2024. The 1st applicant depones that she is the widow to the late John Ian Maingey (hereinafter referred to as ‘the deceased’) while the 2nd and 3rd applicants are their son and daughter respectively. She added that the applicants are the personal representatives of the deceased who was a client to the respondent. The 1st applicant has gone on to give a chronology of the relationship between the respondent and the deceased which in summary is that, the respondent received a sum of Kshs 16,607,910.00 on account of the deceased on 24-09-2016 or thereabout and upon deduction of some money to other firms, a sum of Kshs 15,282,893.00 was left due to the deceased from the respondent. 3.According to the applicants, the respondent received the money from the firm of Muthoga & Gaturu Advocates which was the deceased’s entitlement as his share of proceeds of sale of land known as LR number 1338/89 situated in Athi River. It is averred after that the respondent received the money, he became evasive until the deceased died of medical complications due to unavailability of funds. The 1st applicant avers further that, the respondent has refused to pick their calls or respond to demand letters with no lawful excuse. 4.In reply to the summons, the respondent swore an affidavit dated 18th July 2024. In the said affidavit, the respondent avers that, the suit is frivolous, vexatious, scandalous and an abuse of the court process because: the respondents do not hold a grant for the estate of the deceased and therefore have no locus standi; the applicants and the respondents have never had advocate-client relationship; the applicants are in breach of Section 15 of the Civil Procedure Act in respect of the place of suing; the full amount due to the deceased was remitted to him and he signed a discharge voucher to that effect in 2016; the applicants had instituted a similar suit before this court vide HCC number E013 of 2022 (OS) which they withdrew; the applicant conspired with police officers from Kamukunji police station who arrested him and after upon establishing that he remitted the money to the deceased, retained his file hence he is unable to defend himself; and the applicants did not serve him with any demand letter. 5.The summons were argued by way of written submissions. I have read and considered the submissions of the applicants dated 28th May 2025 and those of the respondent dated 25th July 2025 together with the supporting, supplementary and replying affidavits of the parties and the annexures thereto. 6.It is not disputed that the deceased was a client to the respondent in the transaction and cases referred to by the parties. It is also not in dispute that the respondent received a sum of Kshs 16,607,910.00 on account of the deceased. It is also common ground that the deceased was entitled to receive a sum of Kshs 15,282,893.00 from the respondent. What is in dispute is whether the applicants have locus standi to bring this suit and whether the amount was remitted to the deceased. Locus 7.The applicants have deponed and submitted that they are the legal representatives of the estate of the deceased. On record is a certificate of confirmation of grant in this court’s succession cause number E037 of 2022 which states that a grant was issued to the applicants. The certificate indicates that the grant issued to the applicants was confirmed on 2nd May 2023. I have no reason to doubt the existence of that certificate and I take judicial notice that a certificate of confirmation of grant cannot issue where there is no grant of representation. 8.In addition to the argument on lack of locus, the respondent submits that since there was no advocate-client relationship the summons should not stand. This in my view is an attempt to mislead. Order 52 Rule 4 of the Civil Procedure Rules allows legal representatives to call and apply for an advocate to account. It provides that;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. 9.Just like in any other contractual relationships, instructions of a client to their advocates do not necessarily die with demise of either of them. Once one gets a grant in respect of the estate of a deceased person, they step into the shoes of the deceased with full authority to take over the relationships between the deceased and third parties. Justice F. Gikonyo held in Re Estate of Julius Ndubi Javan (Deceased) [2018] KEHC 8523 (KLR), that,‘But before I close, the facts of this case bring me to the point where I feel I should state, albeit in passing, that, where the deceased had entered into some binding transactions, or where liability had attached against him or a right had accrued upon him, the death of the deceased does not discharge him from the obligations or liability, or obliterate his right under those transactions. The personal representative comes in to fulfil those obligation or liabilities, or to realize any right or benefit thereof for the estate of the deceased. That is why the law requires the personal representative to bring in all the estate property, to pay out all liabilities and discharge all obligations of the deceased.’ 10.In view of the above, I hold that the respondent’s argument that the applicants do not have locus standi to bring and prosecute the summons is unmerited. Remittance 11.The respondent argues and submits that he remitted the sum due to the deceased in 2016 and the deceased executed a discharge voucher to that effect. The respondent is the one who was dealing with the deceased and who alleges to have paid him. He is the one who held this information and he is required by the law to keep and give accounts. In that regard, the onus of proving that the money was remitted to the deceased lied with him. Further he is the one who stands to lose if no evidence of remittance is produced in court and in that case Sections 107, 108 and 109 of the Evidence Act place the burden of proof of that fact on his shoulders. 12.In Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] KECA 423 (KLR), the Court of Appeal held that;‘We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.’ 13.The respondent has alleged that his file which had evidence of remittance was taken by the police on instigation of the applicants and therefore he cannot produce the evidence. In my opinion, there is no merit in this statement. The respondent has not given details of the officers who took the file from him and why he has not made efforts to retrieve the same even if it meant he does so through a court order. The respondent is an experienced advocate of many years and a former judicial officer who definitely knows the importance of keeping records especially where there is likelihood of controversy over issues like the ones in this matter. I refuse to believe that the respondent could not even secure a copy of the alleged discharge voucher and exhibit the same for the court’s scrutiny. 14.It is obvious that the amount in dispute is substantial and is not the kind of money that would be exchanged in an envelope or a wallet. The money must have originated from some accounts in a banking institution to the deceased’s account. It is a matter of public notoriety that in 2016, one could not transfer or pay to another’s account a sum of more than one million without evidence of the source of the funds and purpose of the payment which would entail paper trail. Even if the money was given to the deceased in cash, at least it must have been withdrawn from an account. The respondent should at least show movement of the money from his account on the dates he claims to have remitted it to the deceased. 15.In an interesting part of his submissions, the respondent claims that the applicants have not exhibited the deceased’s bank statement to prove that he was not paid. I say this is interesting because, the burden of proving the remittance as I have held earlier lied with the respondent. If indeed the proof should have come with exhibiting of the deceased’s account, then the respondent must have paid the money through bank transfers in which case there would be paper trail. 16.The conclusion from the above analysis is that the respondent has been holding Kshs 15,282,893.00 which is due to the estate of the deceased and the same is recoverable by the applicants. It appears to me that the respondent has been in a journey of exploiting all manner of technicalities to hold the money for the longest. That journey must like others come to an end and it must come with interest. 17.Consequently, I give the following orders;1.Onesmus Githinji Gachuhi T/A Onesmus Githinji & Co. Advocates is Hereby Ordered to pay the applicants the sum of Kenya Shillings fifteen million two hundred and eighty-two thousand eight hundred and ninety-three (Kshs 15,282,893.00) with interest at court rates from 24th September, 2016 until payment in full.2.The respondents shall pay the applicants’ costs of this suit.3.The decretal sum shall be paid within ninety (90) days from the date of this judgment failure to which execution shall issue in the normal manner. DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MAY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of Miss Linet Chamia for the applicant and Mr. Kaifa for the respondent.