https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8930

Mungai v Ndegwa (Civil Appeal E1000 of 2024) [2026] KEHC 8930 (KLR) (Civ) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 8930 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1000 of 2024 AN Ongeri, J June 10, 2026 Between Martin Kamau Mungai Appellant and George Kamau Ndegwa Respondent Ruling 1.The Application coming for consideration in this ruling is the amended Notice of Motion dated 2/7/2025. 2.The Judgment Debtor, Martin Kamau Mungai, has filed the said Amended Notice of Motion before the Nairobi High Court in Civil Appeal No. E1000 of 2024, supported by his own affidavit, seeking urgent relief against the Decree Holder, George Kamau Nedgwa. 3.Through his new advocates, Mugo and Associates, the Applicant explains that a decree of Kshs. 3,654,000 was passed against him on 13th June 2024. 4.He states that his previous advocates, the firm of Mwendwa Mwinzi and Associates, instructed him by email to deposit the full decretal sum into their bank account so that they could forward it to the Decree Holder’s advocates. 5.Acting on those instructions, the Applicant made several deposits totalling the full amount. However, the former advocates failed to remit the funds to the Decree Holder without any just cause or explanation. 6.The Applicant only discovered this failure when Betabase Auctioneers proclaimed his movable properties on 11th June 2025 and began executing the warrant of sale dated 4th June 2025. 7.He has since made numerous unsuccessful attempts to have his former advocates release the money. 8.The Applicant therefore asks the Court to certify the application as urgent, allow his new advocates to come on record, and grant a stay of execution of the decree pending the hearing of the application. 9.He also seeks orders to restrain the Respondent and Betabase Auctioneers from carting away his goods. 10.Further, he requests the Court to summon his former advocates to explain why they have not remitted the decretal sum, and to order them to pay the balance of Kshs. 1,993,950 together with the auctioneer’s fees. 11.In the alternative, he asks for ample time to sort out issues with his former advocates or to pay the balance by instalments. 12.The Applicant swears in his supporting affidavit that unless the scheduled attachment and proclamation are stayed, he will suffer irreparable harm and financial loss, being unlawfully deprived of his property while his former advocates continue to enjoy funds that are not rightfully theirs. 13.He maintains that he has always obeyed court orders, that there has been no delay in filing the present application, and that the balance of convenience favours granting the stay. 14.He has annexed several documents including bank statements, correspondence with his former advocates, court orders, a consent judgment, an advocate-client bill of costs, and email exchanges to demonstrate that he has fully paid the decretal amount to his former advocates, who have failed to forward it to the Decree Holder. 15.He concludes by stating that it is in the interest of justice for the Court to exercise its inherent jurisdiction to prevent loss to a judgment debtor who duly complied with court orders but has been let down by his own lawyers. 16.The Respondent, the Decree holder in the matter, filed a Replying Affidavit in opposition to the amended Notice of Motion. 17.He said that the Applicant had been represented by the firm of James Jorge & Company Advocates throughout the proceedings and had not instructed Mugo & Associates Advocates to come on record on his behalf. 18.He asserted that the purported Notice of Change of Advocates filed by Mugo & Associates dated 17th June 2025 was irregular and erroneous. 19.He stated that he did not instruct Mugo & Associates to file the Notice of Motion brought in the name of George Kamau Ndegwa. 20.He confirmed that he did not appear before Alexander M. Mchangi, Commissioner of Oaths, to swear the purported Supporting Affidavit dated 18th June 2025, and the signature on that affidavit was not his. 21.He noted that a consent judgment was entered on 27th January 2025 and adopted by Hon. Lady Justice Mulwa on 5th February 2025, attaching a copy of the decree. 22.He explained that the Appellant/Judgment debtor refused to comply with the consent terms despite persistent demands by his advocates, attaching letters and email correspondence. 23.He stated that the Appellant/Judgment debtor had made only two payments: Kshs 1,000,000 on 5th February 2025 and Kshs 663,500 on 21st March 2025. 24.He said that after the Appellant failed to honour the payment terms, he instructed his advocates to proceed under the default clause of the consent judgment and commence execution. 25.He explained that Betabase Auctioneers were duly instructed and proclaimed attachment of the Appellant’s movable goods, raising an invoice of Kshs 343,300 on 11th June 2025. 26.He argued that it was fair and just for the Appellant/Judgment debtor to pay the auctioneers’ costs of Kshs 343,300 because he was clearly in default of the consent judgment. 27.He recalled that the Appellant was previously granted a conditional stay of execution by Hon. Lady Justice Janet Mulwa on 29th October 2024, on condition that he pay Kshs 1,500,000 within 30 days, but the Appellant refused to honour that condition, attaching emails and letters dated 27th November 2024 and 30th December 2024 as evidence. 28.He stated that the Appellant/Judgment debtor was well aware of his bank account details, having made payments to him in 2022, and the same details had been given to his estranged lawyers. 29.He asserted that the Appellant/Judgment debtor was not discharged from his obligation under the consent judgment by depositing funds with his estranged advocates. 30.He said that the underlying dispute between the Appellant and his estranged lawyers, Mwendwa Mwinzi Associates, did not concern him as the decree holder, and the payment due to him should not be held hostage to that dispute. 31.He claimed that he had suffered greatly financially and would continue to do so because the Appellant was delaying payment and the defaulted amounts were not attracting any interest. 32.He stated that the Appellant/Judgment debtor received the judgment sum of USD 30,434 (Kshs 3,850,434) from 14th December 2022 and had utilised those funds to further his businesses at the deponent’s expense. 33.He asserted that it was fair and just for the decretal amount deposited by the Appellant/Judgment debtor to court to be released to him forthwith while the Appellant and his estranged lawyers continued litigating. 34.He confirmed that he swore the affidavit opposing the application for stay of execution. 35.The parties filed written submissions as follows; The judgment debtor, Martin Kamau Mungal, filed the application following a consent decree adopted by the High Court in Nairobi on 13 June 2024, which required him to pay a total of Kshs. 3,654,000 in installments. 36.He claims to have fully complied with the consent by depositing Kshs. 4,312,680.25 with his former advocates, Mwinzi & Associates, who were instructed to remit the decreetal sum to the decree holder’s advocates. 37.Out of the required Kshs. 3,654,000, the former advocates allegedly remitted only Kshs. 1,663,000 initially, followed by an additional Kshs. 976,000 during the pendency of the application, leaving an outstanding balance of Kshs. 1,014,500. 38.The judgment debtor argues that his former advocates have no lawful justification for withholding the balance, particularly because they have already been paid their legal fees amounting to over Kshs. 658,000. 39.Citing case law, the submissions assert that an advocate cannot hold client monies intended for a third party as a lien for unpaid fees, and that doing so is irregular and unlawful. 40.The applicant asks the court to compel the former advocates to immediately remit the remaining balance of Kshs. 1,014,500 to the decree holder’s advocates. 41.He also seeks orders to restrain the decree holder and auctioneers from executing against his movable property, including stopping the proclamation of attachment dated 11 June 2025 and the warrant of sale dated 4 June 2025. 42.In the alternative, he requests that the court grant him time to pay the outstanding balance by instalments while he sorts out the issue with his previous advocates. 43.Finally, he prays that the costs of the application be borne by the former firm of advocates, whom he holds responsible for the dispute and the resulting execution proceedings. 44.The respondent argues that the appellant failed to comply with a consent judgment entered on appeal, which required payment of Kshs 3,654,000 in instalments. 45.The appellant made only two payments: Kshs 1,000,000 on 5th February 2025 and Kshs 663,500 on 21st March 2025, before defaulting. 46.Following the default, execution proceeded for the outstanding amount of Kshs 1,990,500, and auctioneers levied costs of Kshs 343,300. 47.The appellant obtained a stay of execution by depositing Kshs 1,993,950 in court and later paid a further Kshs 976,000 directly to the respondent. 48.After these payments, a balance of Kshs 1,018,950 remains due to the respondent, together with the auctioneer costs of Kshs 343,300. 49.The respondent contends that the appellant’s advocate (Mwenda Mwinzi Associates) acted as his agent, and under agency law, the principal (appellant) remains bound by the agent’s acts, including the default. 50.The appellant cannot escape liability by blaming his advocate or by depositing money with the agent, because the respondent is not privy to the internal arrangements between the appellant and his lawyers. 51.The appellant had a duty to follow up with his advocate to ensure compliance with the consent judgment, and his failure to do so does not excuse the default. Citing the case of Duale Maryan Gurre v. Aminal Mohamed Mahamood & another, the respondent emphasizes that a client remains responsible for his own suit and cannot simply blame counsel for inaction. 52.The consent judgment contained a clear default clause allowing execution upon any missed instalment, so the respondent was entitled to execute for the outstanding balance. 53.The respondent argues that he is entitled to receive the outstanding balance and auctioneer costs from the court deposit, and the appellant may pursue any separate claim against his advocate for negligence. 54.Finally, the respondent asks that the appellant bear the costs of the application, asserting that the appellant’s machinations have delayed payment unjustly while the respondent suffers financial loss. 55.The issues for determination in this case are as follows;i.Whether the court should grant a stay of execution pending the resolution of the dispute between the Judgment Debtor and his former advocates, andii.Whether the Decree Holder should be compelled to wait for payment while the Judgment Debtor pursues his former advocates for the funds already paid to them. 56.The relationship between a client and an advocate is that of a principal and an agent. If an agent receives money on the principal's behalf for a particular purpose which the agent does not carry out, the principal can sue the agent for restitution, but the principal remains liable to the third party. 57.The Judgment Debtor's obligation to the Decree Holder was not discharged by paying his own advocates; the Decree Holder is not privy to the internal arrangements between the Judgment Debtor and his lawyers. 58.There is a clear consent judgment providing for default, and the Decree Holder is entitled to the fruits of that judgment. A court will not hold a decree holder hostage to a dispute between a judgment debtor and his own advocate. 59.Regarding the former advocates, they hold the funds as stakeholders for a specific purpose. It is irregular for an advocate to withhold client monies intended for a third party as a lien for unpaid fees, as such funds are held in trust. 60.The proper recourse for the Judgment Debtor is to immediately file a separate claim or a complaint against his former advocates for recovery of the funds and for professional negligence, but that dispute does not concern the Decree Holder herein. 61.Consequently, the application for stay of execution is hereby dismissed. The stay granted earlier is hereby lifted. 62.The Decree Holder is at liberty to proceed with execution for the outstanding balance of Kshs. 1,018,950 together with the certified auctioneer’s costs of Kshs. 343,300. 63.The funds of Kshs. 1,993,950 deposited in court by the Applicant shall be released forthwith to the Decree Holder in partial satisfaction of the decree. 64.The Judgment Debtor is at liberty to pursue his former advocates, Mwendwa Mwinzi and Associates, for the recovery of any sums paid to them which were not remitted to the Decree Holder, and for any losses suffered as a result of their failure to remit the said funds. 65.Each party shall bear their own costs of this application. 66.Orders to issue accordingly. DELIVERED VIRTUALLY DATED AND SIGNED ON THIS 10TH DAY OF JUNE 2026HON. A ONGERIJUDGEIn the presence of:Mr Mugo for the AppellantMr Njoroge for RespondentCourt Assistant – Chrispin