[2024] KEHC 5987 (KLR)
The court found that the defendant advocate received Ksh. 938,580 on behalf of the plaintiff but failed to remit the amount or provide a proper account. There was no evidence of a written contingency fee agreement, so only a reasonable deduction of 25% as advocate’s fees and Ksh. 3,000 as disbursements for medical...
Source-derived case information.
- Citation
- [2024] KEHC 5987 (KLR)
- Parties
- Plaintiff: Nicholas Masila Mwongela; Defendant: Tarus & Company Advocates
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 85 of 2023
- Procedural Posture
- Miscellaneous Civil Application / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- DKN Magare
- Legal Topics
- Advocate Client Accounts, Delivery of Cash Account, Contingency Fee Agreements, Disbursements, Interest on Judgment Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Masila Mwongela
Plaintiff
Tarus & Company Advocates
Defendant
Procedural Posture
Miscellaneous Civil Application / Judgment
Legal Issues
- 1 Whether the defendant advocate is liable to account for and pay over to the plaintiff the sum received on his behalf.
- 2 Whether a contingency fee agreement existed and its enforceability in the absence of written evidence.
- 3 Whether the plaintiff is entitled to disbursements and interest on the withheld sum.
Ratio Decidendi
The court found that the defendant advocate received Ksh. 938,580 on behalf of the plaintiff but failed to remit the amount or provide a proper account. There was no evidence of a written contingency fee agreement, so only a reasonable deduction of 25% as advocate’s fees and Ksh. 3,000 as disbursements for medical expenses was allowed. The net sum due to the plaintiff was Ksh. 703,935. The court further awarded Ksh. 21,000 as disbursements for the plaintiff’s travel, filing, and service. Interest at 12% per annum was awarded on the principal sum from 17/3/2021 until payment in full. The court emphasized the advocate’s duty to account and the requirement for written fee agreements to...
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the plaintiff against the defendant for Ksh. 703,935 together with disbursements of Ksh. 21,000.
- The sum of Ksh. 703,935 shall attract interest at 12% per annum from 17/3/2021 until payment in full.
Full Case Text
Judgment text and source record
24 paragraphs
Mwongela v Tarus & Company Advocates (Miscellaneous Civil Application 85 of 2023) [2024] KEHC 5987 (KLR) (6 May 2024) (Judgment)
Neutral citation: [2024] KEHC 5987 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Civil Application 85 of 2023
DKN Magare, J
May 6, 2024
Between
Nicholas Masila Mwongela
Plaintiff
and
Tarus & Company Advocates
Defendant
Judgment
1. This is a claim for delivery of cash account for PMCC 37 of 2018. Nicholas Masila Mwongela v Logistics Link Co. Ltd. The plaintiff was able to show that payment xxxxxx was made on 17/2/2021 for Ksh. 938,580. He filed suit against his erstwhile advocates. He is not the first to file suit against the advocate who appears to have kept house.
2. This was made by British Americans Assurance Co. Ltd (Britain). The Respondent is an advocate of the High Court. He received a good and lawful sum of Kshs. 938,580 in Kaloleni PMCC 31/2018 the plaintiff inquires from the insurers who confirmed that they paid.
3. According to the plaintiff judgments was entered of Kshs. 800,000/= on 26/1//2021 by Hon. L.N. Wasige. I have perused the police abstract and note that the insurers were Britam.
4. I am satisfied that a sum of Kshs. 800,000/= together with costs paid to the Defendant on 17/2/2021. The Applicant has not paid. The Applicant has not paid. The plaintiff indicated that the same was based on a contingency. There is no evidence of the fees agreement.
5. Consequently, I shall direct that the pailn be paid 938,580 less 25% contingency as fees for the Advocate less Kshs. 3000/= being disbursements for the medical
6. This works out as follows amount received 935,580;-Less 3000935,580Less 25% (234,648)= Ksh. 703,935
7. Consequently, I direct that the defendant shall pay a sum of Kshs. 703,935 to the plaintiff. The amount was paid on 17/2/2021. The respondent should paid by 17/3/2021 but did not. The amount of Ksh. 703,935 shall attract interest at 12% from 17/2/2021. The same to attract interest from 17/3/2021 until payment in full.
8. The Plaintiff acted in person. He is still entitled to disbursement. I note that he travelled from Makueni for a number of times. I shall indicate a sum of Ksh 21,000 as his disbursements or traveling, filing and service.
Determination 9. The upshot of the foregoing I make the following orders: -a.Judgment is hereby entered for the plaintiff against the defendant for Ksh. 703,935 together with Disbursements of Kshs. 21,000/=.b.The said amount of Ksh. 703,935 shall attract interest from 17/3/2021. c.Stay 30 days.
DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF MAY, 2024. Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of:-Appellant in personNo appearance for the DefendantCourt Assistant- Brian