Ndungi v Mwaniki t/a Ngugi Mwaniki & Company Advocates (Environment and Land Miscellaneous Case E151 of 2025) [2026] KEELC 4127 (KLR) (19 June 2026) (Judgment)

Ndungi v Mwaniki t/a Ngugi Mwaniki & Company Advocates (Environment and Land Miscellaneous Case E151 of 2025) [2026] KEELC 4127 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELC 4127 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Case E151 of 2025 TW Murigi, J June 19, 2026 Between Moses Kabicho Ndungi Applicant and Gachomo Kenneth Mwaniki t/a Ngugi Mwaniki & Company Advocates Respondent Judgment 1.By an Originating Summons dated 27th May 2025, brought under Order 52 Rule 4(1), (2), (3), and Rule 10, the Applicant seeks the following orders:a.That the Respondent be compelled by an order of this Court to refund the sum of Kshs. 1,000,000/= to the Applicant with interest thereon from 1st July 2022 until payment in full.b.That the costs of this suit be borne by the Respondent. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of the Applicant sworn on even date. The Applicant’s Case 3.The Applicant averred that Gachomo Kenneth Mwaniki, trading as Ngugi Mwaniki & Company Advocates, was at all material times his advocate. He averred that around February 2019, he instructed the said advocate to represent him in a transaction involving the purchase of a 0.25-acre portion to be excised from Title Number Kabete/Karura/2443, at an agreed purchase price of Kshs. 6,000,000/=. 4.He averred that the vendor, Nicky Njuguna Mucha, represented the estate of the late Francis Njuguna in the transaction, with Kiarie Kariuki & Githii Advocates acting as the vendor's advocates. He stated that the agreed terms provided for a deposit of Kshs. 3,000,000/= upon execution of the agreement, with the balance of Kshs. 3,000,000/= payable within 240 days. 5.He averred that he agreed with his advocate that the legal fees for the transaction were Kshs. 30,000/=, of which Kshs. 20,000/= was paid immediately and Kshs. 10,000/= was payable upon completion of the transaction. He stated that his advocate drafted the agreement for sale, which was duly executed by both parties, and that he paid a deposit of Kshs. 3,000,000/= as agreed. 6.He stated that the transaction exceeded the agreed completion date and that his advocate did not inform him of its progress despite his repeated efforts to obtain updates. He claimed that by a letter dated 15th March 2022, the vendor's advocates notified his advocate that the subdivision process had been completed and called upon him to forward the transfer documents and remit the remaining balance of the purchase price. He further claimed that he paid a sum of Kshs. 1,000,000/= to his advocates as part of the balance of the purchase price, in two instalments of Kshs. 500,000/= on 2nd June 2022 and Kshs. 500,000/= on 2nd July 2022. 7.He stated that after receiving the said sum, his advocate became unresponsive, stopped attending his office during working hours, ignored his telephone calls and messages, and failed to remit the sum of Kshs. 1,000,000/= to the vendor's advocates. He explained that the vendor's advocates subsequently notified him of the consequences of non-completion. He stated that he was thereafter compelled to engage the vendor's advocates directly to prepare the transfer documents, pay the remaining balance of the purchase price directly to the vendor, and instruct the vendor's advocates to act for him in completing the transaction, which resulted in his obtaining a title deed for the purchased portion. 8.He claimed that his subsequent demand for a refund of Kshs. 1,000,000/=, which was not utilised for its intended purpose, was ignored, prompting him to lodge a complaint with the Advocates' Complaints Commission. He stated that the advocate hindered the Commission's mediation process by failing to attend the scheduled sessions. 9.He further averred that without his knowledge, the advocate filed an advocate-client bill of costs in Milimani Misc. Application No. E315 of 2025 before the Civil Division of the High Court, arguing that it was filed in the wrong court and should have been filed before this court. He argued that the bill of costs was filed in bad faith and was intended to frustrate his efforts to recover the sum of Kshs. 1,000,000/=. He maintained that the advocate had no basis to apply any part of the purchase price towards legal fees, as no such agreement was made between the parties. In conclusion, he urged the Court to allow the application as prayed. The Respondent’s Case 10.The Respondent filed a replying affidavit sworn on 13th August 2025 in opposition to the application. He averred that he held a series of meetings with the Applicant, his agents, and brokers regarding the transaction, in addition to receiving instructions from the Applicant. He disputed the Applicant's claims regarding the agreed legal fees, asserting that the fees were to be based on the applicable Advocates Remuneration Order for the work done, and that the sum of Kshs. 20,000/= paid by the Applicant constituted a deposit towards the fees. He argued that an agreement to charge a total of Kshs. 30,000/= for all the work would amount to undercutting, which is both illegal and unethical. 11.He stated that beyond drafting the sale agreement, he engaged in extensive correspondence, attended meetings, and conducted due diligence, including perusal of the succession cause file, all with a view to securing the Applicant's interests in the transaction. He averred that the Applicant was kept duly informed of the progress of the matter throughout, and that the delay in completion was not due to any fault on his part. He stated that a fee note was raised and shared with the Applicant when the transfer documents were being prepared. 12.He argued that there was no agreement on a fixed fee and that the sum of Kshs. 1,000,000/= was received to be held pending the taxation of the bill of costs. He denied leaving the Applicant unattended at his office, stating that their communication remained constant and cordial throughout. 13.He contended that the Applicant, out of spite and in an attempt to evade his obligation to settle the outstanding legal fees, elected to engage the vendor's advocates directly and subsequently lodged a complaint before the Advocates' Complaints Commission. He stated that since the primary issue in dispute was fees, he prepared and filed a bill of costs for taxation, which should be referred to this Court for taxation and finalization. 14.In conclusion, he urged the Court to dismiss the application with costs. Alternatively, he also prayed, without prejudice to the foregoing, that the bill of costs be taxed. The Response 15.In a supplementary affidavit dated 13th October 2025, the Applicant contested the Respondent's claim that a series of meetings took place, extensive correspondence was exchanged, and due diligence was carried out, asserting that these claims were vague and lacked any documentary evidence. 16.He reiterated that the legal fees were agreed upon at Kshs. 30,000/= and stated that the Respondent did not object on the grounds of undercutting when the agreement was made, upon receipt of the deposit of Kshs. 20,000/=, or at any point during or after the transaction. He asserted that the Respondent's own acknowledgement of receiving the Kshs. 20,000/= was inconsistent with his denial of the fee agreement. 17.He reiterated his claims regarding the frustrations caused by the Respondent's failure to fulfil his role in the transaction, and attached copies of WhatsApp communications between himself and the Respondent to support his case. 18.In response to the Respondent's allegations regarding the preparation of a transfer document and the issuance of a fee note, he stated as follows: that the Respondent did not prepare any transfer document, as the transfer used to complete the transaction was drawn by the vendor's advocates; that the fee note annexed to the replying affidavit was not raised or served upon him and he had seen it for the first time upon filing of the replying affidavit; that the said fee note was contrary to the agreement on fees, was scanty in form and substance, lacking in particulars as to the nature and scope of the transaction, the value of the subject matter, and the basis upon which the instructed fees were derived; that the fee note appeared to have been backdated as an afterthought and did not acknowledge the deposit already paid; and that the amounts claimed therein were grossly exaggerated, made in disregard of the verbal agreement between the parties, and disproportionate to the services allegedly rendered. 19.He asserted that the sum of Kshs. 1,000,000/= was deposited with the Respondent solely as part of the purchase price for onward transmission to the vendor's advocates, as confirmed by the narration accompanying the bank transfers and by his complaint to the Advocates Complaints Commission. He maintained that the Respondent's claim that the amount was held pending the taking of accounts or taxation was unfounded, as there was no disagreement over fees between the parties to justify retaining the amount as a security deposit. 20.The Originating Summons was canvassed by way of written submissions The Applicant’s Submissions 21.The Applicant filed his submissions dated 17th January 2026. 22.On behalf of the Applicant, Counsel submitted that there was an oral agreement between the Applicant and the Respondent regarding the agreed legal fees for the transaction. Counsel stated that the legal fees were Kshs. 30,000.00, of which Kshs. 20,000.00 was paid upfront, and the remaining Kshs. 10,000.00 was to be paid upon completion. Counsel argued that the Respondent's denial of the fee agreement was untenable, given that he had acknowledged receipt of Kshs. 20,000.00 in his replying affidavit. 23.Counsel further submitted that when the Applicant lodged his complaint with the Advocates' Complaints Commission, the Respondent admitted the existence of an agreement on fees of Kshs. 30,000.00/= but sought to qualify it by stating that the said sum was solely for the preparation of the sale agreement and would vary depending on the number of purchasers and intervening circumstances. Counsel submitted that this admission confirmed the existence of an oral agreement on fees. 24.Counsel submitted that the sum of Kshs 1,000,000/- was paid to the Respondent for transmission to the vendor's advocates as part of the purchase price, not as a security deposit for legal fees, as evidenced by the narration on the RTGS transfer forms dated 2nd June 2022 and 1st July 2022. 25.Counsel submitted that the Respondent's act of misappropriating client funds held for a specific purpose, without the express authority of the client, amounted to a breach of his fiduciary duty and a violation of the Code of Standards of Professional Practice and Ethical Conduct for the practice of law in Kenya, as well as Section 80 of the Advocates Act. 26.Counsel further submitted that the Respondent ceased representing the Applicant in the transaction after receiving the sum of Kshs. 1,000,000/=, became unresponsive to his calls, messages, and office visits, and failed to fulfil his obligations under the retainer. Counsel contended that the Respondent's allegation that the Applicant engaged the vendor's advocates out of spite and to evade his fee obligations was absurd in the circumstances, given that the Respondent himself claimed to be holding the Kshs. 1,000,000/= as security for fees. 27.Counsel argued that the Respondent filed a bill of costs in the Civil Division of the High Court at Milimani in HCCC Misc. Application No. E315 of 2025, claiming Kshs. 1,144,572/=. This was done while the Advocates' Complaints Commission was scheduling a third and final in-house dispute resolution session, thereby frustrating the mediation process. Counsel submitted that the bill of costs was filed in breach of the parties' agreement on fees, was grossly exaggerated, and was contrary to the provisions of Schedule 1 of the Advocates Remuneration (Amendment) Order, 2014. 28.Counsel relied on Order 52 Rule 4(1), (2), and (3) of the Civil Procedure Rules, 2010, to argue that the Court is empowered to order the Respondent to produce a cash account, to pay or deliver money held on behalf of the client, and to grant such other orders as it deems appropriate. In conclusion, Counsel urged the Court to allow the Originating Summons as prayed. The Respondents Submissions 29.The Respondent filed its submissions dated 19th March 2026. 30.The Respondent submitted that, prior to filing the originating summons, the dispute had been referred to the Advocates' Complaints Commission, which ordered that the advocate-client bill of costs be taxed to determine the fees payable and whether the Applicant owed the Respondent any sum by way of fees. Counsel submitted that, in compliance with that direction, the bill of costs was filed and was awaiting taxation in ELC Misc. E397 of 2025. Counsel further submitted that, in the circumstances, entering judgment in this matter while the taxation of the disputed sum was still pending would be premature. 31.Counsel denied the Applicant's claim that the fees were settled at Kshs. 30,000.00 and argued that even if such an agreement had been made—which they refuted—it would have constituted undercutting, which is contrary to the provisions of the Advocates Act and the practice rules under Section 45(b). 32.Counsel relied on Section 45 of the Advocates Act, which permits an agreement on remuneration between an advocate and a client subject to Section 46. Counsel submitted that, in the absence of any valid written agreement on fees, the taxation of the bill of costs was the appropriate and necessary course. Further reliance was placed on Section 48(1) of the Advocates Act, which states that no suit shall be filed for the recovery of costs due to an advocate until one month has elapsed after a bill for such costs has been delivered or sent by registered post to the client. Counsel submitted that the fee note and bill of costs had been served on the Applicant, as evidenced by the annexures to the replying affidavit. 33.Counsel submitted that the Respondent held a general lien over the funds deposited with him, which is a common law remedy allowing an advocate to retain all papers, money, or property of the client in his possession in his capacity as advocate until all costs and charges owed are paid. Counsel relied on the case of Barrat v Goug Thomas (1950) 2 All ER 1048, 1053, to argue that the existence of a lien does not depend on a bill being rendered to the client, and that once taxable costs are paid, the client is entitled to an order for the delivery of the retained documents. 34.Further reliance was placed on Ondengo v Okoth, ELC G.S Okoth Advocates (Misc. Application E262 of 2024) (2025) KEHC 9803 (KLR), where the Court ordered the filing of an advocate-client bill of costs for taxation before the Deputy Registrar in accordance with Schedule 7 of the Advocates Remuneration Order, 2014, with the amount taxed to be deducted from the sum held by the respondent and the remainder, if any, released to the applicant. Counsel submitted that the same approach should be applied to the present matter, as it would strike a balance between the parties and prevent a multiplicity of suits. 35.Counsel submitted that the Applicant, having been aware of the pending taxation of the bill of costs, filed the present suit in an attempt to evade his obligation to pay for the legal services rendered, thereby unnecessarily increasing costs. In conclusion, he urged the court to dismiss the Originating Summons with costs to the Respondent. Analysis And Determination 36.Having considered the Originating Summons, the respective affidavits and the rival submissions, the only issue for determination is whether the Applicant is entitled to the orders sought. 37.The jurisdiction of this Court to entertain this application is conferred by Order 52 Rule 4 of the Civil Procedure Rules, which states as follows:“(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.” 38.It is not in dispute that an advocate-client relationship existed between the parties. The Applicant engaged the Respondent to represent him in a transaction involving the purchase of a portion of land to be excised from Title Number Kabete/Karura/2443, with an agreed purchase price of Kshs. 6,000,000. It is also not in dispute that the Applicant paid the Respondent Kshs. 1,000,000/- in two instalments of Kshs. 500,000/- on 2nd June 2022 and 2nd July 2022 respectively. 39.The central dispute between the parties revolves around the purpose for which the said sum was remitted. The Applicant claims that he forwarded the sum to the Respondent solely as part of the purchase price for onward transmission to the vendor's advocates. In this regard, he relied on the narration in the RTGS transfer forms, which expressly referenced the subject property as the purpose of payment. The Respondent, on the other hand, asserts that the sum was received and retained as security pending the taking of accounts or taxation of the bill of costs. Reliance was placed on his right of lien over client funds. 40.Regarding the right of lien, the Respondent submitted that he is entitled to retain all funds in his possession until his outstanding fees are paid. It is well established that an advocate enjoys a general lien over a client's papers and property that come into his possession in his professional capacity, and that the existence of such a lien does not depend on a bill being rendered to the client. However, the right of lien is not without limitations. 41.In Simon Njumwa Maghanga v Joyce Jeptarus Kagongo T/A Chesaro & Co. Advocates [2014] KEHC 6096 (KLR) the court quoted with approval the holding in John Karungai Nyamu & Another V Muu & Associates Advocates [2008] eKLR, where it was held that:“The Advocate has no right under any law to hold monies that have come to him for onward transmission to his client as a lien, at least no such law has been cited to the court. What the Advocate is doing by holding onto the Plaintiffs’ monies is irregular, and the court cannot condone the same.” 42.The import of this authority is clear: when funds are remitted to an advocate for a specific and defined purpose, namely onward transmission to a third party, an advocate cannot invoke the right of lien to retain those funds against the client. The lien applies to funds and property that come into the advocate's hands in his general professional capacity; it does not extend to funds received for a purpose that has failed to be executed. 43.In the present case, the RTGS forms relied upon by the Applicant explicitly stated the purpose of the payments as related to the subject property. The Respondent has not provided any material to this court demonstrating that the Applicant authorised him to use the funds for legal fees or to retain them as a security deposit. The Respondent's claim that the funds were deposited as security is inconsistent with the records at the time and is not supported by any written authority from the Applicant. 44.The Court is alive to the fact that an advocate-client bill of costs has been filed in ELC Misc. E397 of 2025 and is currently pending before the Court. The issue of the fees owed to the Respondent for work performed in the transaction remains unresolved. Section 13 of the Advocates Act states that the taxation of costs between an advocate and client must be undertaken by a taxing officer. Consequently, it would be premature for this Court to determine the issue of fees in the present proceedings. The Respondent is entitled to have his fees assessed through the proper process of taxation. 45.In the circumstances, it is just and equitable that the Respondent retain custody of the sum of Kshs. 1,000,000/= as security pending the taxation and finalisation of the bill of costs in ELC Misc. E397 of 2025. The bill of costs claims a sum of Kshs. 1,144,572/=. It would be premature to order a refund before the taxing officer has determined the fees due. 46.The upshot of the foregoing is that the originating summons dated 27th May 2025 is not merited in the present circumstances and is hereby declined pending the taxation and determination of ELC Misc. E397 of 2025. 47.Each party to bear its own costs. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 19TH DAY OF JUNE, 2026.…………………………………….HON. T. MURIGIJUDGEIn the presence of:Kariuki for the ApplicantGachomo for the RespondentAhmed – Court assistant