[2005] KEHC 1121 (KLR)
The court found that the applicant had sufficiently proved his right to retain the subject motor vehicle as security for his professional fees, based on the existence of a client-advocate relationship and the respondent's written authorization. However, the court expressed concern over the lack of proof that the...
Source-derived case information.
- Citation
- [2005] KEHC 1121 (KLR)
- Parties
- Applicant: Mutavi Maseki t/a Maseki & Co. Advocates; Respondent: Imran Naushad Mawi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 669 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- Interlocutory injunction granted with conditions.
- Judges
- MM Kasango
- Legal Topics
- Advocate Client Lien, Injunctive Relief, Security for Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutavi Maseki t/a Maseki & Co. Advocates
Applicant
Imran Naushad Mawi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant advocate is entitled to a lien over the respondent's motor vehicle as security for professional fees.
- 2 Whether an interlocutory injunction restraining repossession and change of ownership of the motor vehicle should be granted.
Ratio Decidendi
The court found that the applicant had sufficiently proved his right to retain the subject motor vehicle as security for his professional fees, based on the existence of a client-advocate relationship and the respondent's written authorization. However, the court expressed concern over the lack of proof that the vehicle actually belonged to the respondent. Consequently, the court granted the injunctive relief sought by the applicant, but only for a limited period, pending the taxation of the advocate-client bill of costs. The orders would automatically lapse if the applicant failed to fix the bill of costs for taxation within 30 days.
Court Disposition
Interlocutory injunction granted with conditions.
Orders
- The respondent, his servants, agents or otherwise are restrained from possessing motor vehicle registration No. KAS 402S Toyota Corolla Saloon from the applicant or his agent until the disposal of this matter.
- There shall be no change of ownership of motor vehicle registration No. KAS 402S until further orders of the court.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
MILIMANI COMMERCIAL COURTS
COMMERCIAL AND ADMIRALITY DIVISION
MISC APPLICATION 669 OF 2005
MUTAVI MASEKI T/A MASEKI & CO. ADVOCATES……...….....……APPLICANT
VERSUS
IMRAN NAUSHAD MAWI………………………………….………..RESPONDENT
R U L I N G
The applicant is an advocate of the High court of Kenya. there exists a client advocate relationship between the applicant and the respondent. As a consequence of that relationship the applicant on 11th August 2005 filed an Advocate-client Bill of costs. Simultaneously with the filing that Bill of Costs the applicant filed a chamber summons dated 11th August 2005.
That chamber summons is brought under Order 39 Rule 1 and 2 A of the Civil Procedure Rules. The application seeks the following orders: - That the Respondent either by himself or through his relatives, servants, agents or persons or entities claiming or purporting to claim under him be restrained from repossessing motor vehicle registration No. KAS 402S Toyota corolla saloon from the applicant or his agent until the disposal of the matter herein or until further orders of this Honourable court. · That change of ownership of the vehicle KAS 402S Toyota corolla saloon be inhibited until further orders of this Honourable court; The respondent though served failed to attend the hearing. The application is based on the grounds that the applicant has a lien over the subject motor vehicle; that the respondent authorized the applicant in writing to keep the subject vehicle but there are other people who have threatened to repossess the same; that the respondent has no other tangible assets to cover the decree.
The applicant submitted that the subject motor vehicle was released to him as security for his professional fees and in addition the respondent gave him the right to sell the same. Counsel relied on Halsbury’s Laws of England 4th Edition pages 200/2002. It is clear that a solicitor has a lien over client’s property which comes to his possession as security for his fees. That lien is lost once that property is released to the client or his agent.
I find that the applicant has sufficiently proved his right to retain the subject motor vehicle but my concern was the absence of proof that the subject motor vehicle indeed belongs to the respondent. For that reason I will accede to the orders sought but only for a limited period. The orders of this court are as follows: -
(a) That the respondent either by himself, his servants, agents or otherwise is restrained from possession motor vehicle registration No. KAS 402S Toyota Corolla Saloon from the applicant or his agent until the disposal of this matter.
(b) That there shall be no change of ownership of motor vehicle registration No. KAS 402S until further orders of this court.
(c) That the applicant shall hereafter proceed to fix the bill of costs filed on 11th August 2005, herein, for taxation within 30 days from this date hereof. In default of fixing that bill of costs as aforesaid the orders herein before namely (a) and (b) above shall automatically be discharged.
(d) There shall be no orders as to costs of the chamber summons dated 11th August 2005.
Dated and delivered this 12th October 2005.
MARY KASANGO
JUDGE