[2025] KEELC 51 (KLR)

Mwicigi v Sagoo & 4 others (Environment & Land Case 177 of 2016) [2025] KEELC 51 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 51 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 177 of 2016

MD Mwangi, J

January 16, 2025

Between

Caroline Njeri Mwicigi

Plaintiff

and

Manohar Singh Sagoo aka Mr. Sagoo

1st Defendant

Sarinder Kaur Sagoo aka Mrs. Sagoo

2nd Defendant

Pramod Patel

3rd Defendant

Kandie Kimutai and Co. Advocates

4th Defendant

The Honourable Attorney General on Behalf of the Registrar of Titles

5th Defendant

Ruling

(In respect to the application dated 18th November 2024, brought under the provisions of Section 52 of the Advocates Act and Order 51 of rule 6 of the Civil Procedure Rules). Background 1. The application under consideration is the chamber summons dated 18th November 2024. The Applicant is an Advocate of this court. She seeks a charging order in her favour against Title No. Nrb/Block 195/94 (previously L.R. No. 7785/792) pending the hearing and determination of Milimani ELCLMisc. 249, 250, 251 and 252 of 2024. The Advocate asserts that she acted and or represented the Plaintiff/Respondent in this suit and subsequently in the court of Appeal successfully recovering the suit property for her from the Defendants. The Plaintiff did not however pay her legal fees and has failed, refused and or neglected to so despite demand.

2. The Advocate/Applicant avers that she is assessing and pursuing the legal fees vide Milimani ELCLMisc. Applications 249, 250, 251 and 252 of 2024. However, she has learnt that the Plaintiff is in the process of selling or disposing off the suit property having already entered into a sale agreement with a third party whose completion date was 17th December 2024.

3. The Advocate in her supporting affidavit deposes that she is entitled as the Advocate acting for the Plaintiff/Respondent in this matter to seek court’s intervention in enforcing her statutory right under Section 52 of the Advocates Act. She affirms that she does not know of any other property that the Plaintiff owns except the suit property and that unless the same is preserved by an order of this court, the Bills of costs filed before this court will amount to a mere academic exercise. She therefore stands to suffer irreparable loss, grave prejudice and material damage.

4. In spite of the Plaintiff/Respondent being served in accordance with the court’s directions of 20th November 2024, she did not file a response to the application by the Advocate. The Advocate/Applicant prayed that her application be allowed as prayed.

Issues for determination 5. The sole issue for determination is whether the Advocate’s application meets the threshold set under Section 52 of the Advocate’s Act.

Determination. 6. As stated earlier on, the application herein is unopposed. A quick perusal of the proceedings in this case confirms that indeed the Advocate/Applicant was the Advocate for the Plaintiff in the matter. Judgment was delivered in favour of the Plaintiff on 25th January 2018 by Lady Justice K. Bor. The court found that the Plaintiff had proved her case on a balance of probabilities and granted her the relief sought in her amended plaint. The court directed the Registrar of titles to cancel the entries in the register in relation to the suit property. The 1st, 2nd and 3rd Defendants were directed to return the original title documents to the Plaintiff within 14 days.

7. Section 52 of the Advocates Act, provides that any court in which an Advocate has been employed to prosecute or defend any suit or matter may at any time declare the Advocate entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or matter. The section provides that;“Any court in which an Advocate has been employed to prosecute or defend any suit or matter may at any time declare the Advocate entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or matter and may make orders for the taxation of the costs and for raising money to pay or for paying the costs out of the property so charged as it thinks fit, and all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of conveyance to a bona fide purchaser for value without notice, be void as against the Advocate. Provided that no order shall be made if the right to recover the costs is barred by limitation.”

8. A careful reading of Section 52 discloses that the section is only applicable where the Advocates costs have been ascertained through taxation. The charge on the property recovered is for the taxed costs. It would certainly be improper for the court to declare an Advocate entitled to a charge on the client’s property before the ascertainment of costs through taxation.

9. In this case, the Advocate admits that her fees are yet to be ascertained trough taxation. Though she did not attach her Bills of costs filed in ELCLMisc. 249, 250, 251 and 252 of 2024, the court has been able to confirm through the Case Tracking System (CTS) that the Bills were only filed in court on 13th November 2024, five (5) days prior to the filing of this application. They are yet to be taxed.

10. Accordingly, the court finds and holds that the application dated 18th November is premature; it does not meet the threshold set under Section 52 of the Advocates Act. It is hereby struck out but with no orders as to costs.

It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF JANUARY 2025. M.D. MWANGIJUDGEIn the virtual presence of:Ms. Njoroge for the Advocate/ApplicantMr. Mungai for the DefendantsN/A by the Plaintiff/RespondentCourt Assistant: MpoyeM.D. MWANGIJUDGE___________________________________________________________