https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10365

Nduati & another v Multicon Enterprises Ltd & 7 others (Civil Case 319 of 2015) [2026] KEHC 10365 (KLR) (Commercial and Tax) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 10365 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case 319 of 2015 BK Njoroge, J July 8, 2026 Between John Njuguna Nduati 1st Decree holder Monica W Karan 2nd Decree holder and Multicon Enterprises Ltd 1st Judgment debtor Walter Ngaruiya Mukuria 2nd Judgment debtor Lilian Wairimu Waiganjo 3rd Judgment debtor David Njoroge Kiarie 4th Judgment debtor Victor Njuguna Kihara 5th Judgment debtor and Ministry of Lands Housing and Urban Dvt interpleader and Synergy Industrial Credit Ltd 1st Interested Party Andrew Ombwayo p/a Andrew Ombwayo & Company Advocates. 2nd Interested Party Ruling 1.This Court is called upon to untangle a web of competing interests over decretal funds held in its custody. The dispute before the Court is a classic zero-sum game disguised as procedural enforcement. The Plaintiffs want a previously adopted consent order set aside, claiming their former advocate went rogue. The Advocate wants his unquantified fees secured by a formal charging order. A third-party creditor wants the remaining balance released to satisfy an independent decree. In resolving these consolidated applications, this Court refuses to be drawn into collateral mudslinging. The focus remains strictly on the law, the limits of ostensible authority, and the preservation of the substratum. Background Facts 2.This Court is tasked with resolving three competing applications. They all stem from a protracted post-judgment dispute. 3.Judgment was entered in favour of the Plaintiffs. An Interpleader deposited Kshs 10,800,318.15 in Court. 4.On 3rd December 2021, this Court adopted a Consent Order. This was before the Late Majanja J. Under the consent, Kshs 8,000,000 was released to the 1st Interested Party, Synergy Industrial Credit Ltd, to partially satisfy a separate lower-Court decree. This is in Nairobi CMCC 5892 of 2018. A further Kshs 2,000,000 was released to the Plaintiffs' then-advocate, Mr. Andrew Ombwayo, now the 2nd Interested Party. A balance of Kshs 800,318.15 remains in Court. 5.The Plaintiffs now disown the consent. They allege fraud and lack of instructions. Criminal complaints and disciplinary proceedings have been initiated. 6.Meanwhile, the Lower-Court decree in CMCC 5892 of 2018 underpinning Synergy's claim is the subject of an active appeal in HCCA/E044/2020. It is said to be pending before Gikonyo J. 7.Mr. Ombwayo was formally joined to this suit on 12th March, 2026. This joinder was strictly to afford him the opportunity to answer allegations touching on his professional reputation. He is neither a Plaintiff nor a Defendant. Reliefs Sought 8.The three consolidated applications seek various reliefs. 9.The Plaintiffs' Notice of Motion dated 29th September, 2025 seeks to set aside the Consent Order of 3rd December, 2021 and compel the refund of the disbursed monies. 10.The 1st Interested Party's Notice of Motion dated 29th September, 2023 seeks the release of the remaining Kshs 800,318.15 held in Court. 11.The 2nd Interested Party's Notice of Motion dated 14th October, 2025 seeks a charging order over the decree and the funds in Court to secure legal fees. Issues for Determination 12.The Court earlier gave directions that it would hear all the applications jointly. That it would give priority to the Plaintiffs’ application since it laid the foundation to the dispute. At the core of the dispute is the question whether the consent order should be allowed to stand. The Court has considered all the applications, the responses, the written submissions as well as the oral highlights by Counsel for the parties. The Court frames three core issues for determination.a.Whether the Consent Order adopted on 3rd December, 2021 should be set aside on grounds of fraud and lack of instructions.b.Whether the 2nd Interested Party is entitled to a charging order over the funds held in Court.c.Whether the 1st Interested Party is entitled to the release of the remaining Kshs 800,318.15. Analysis 13.The Court adopts the sequence above and will now proceed to analyse the issues framed seriatim. Whether the Consent Order adopted on 3rd December, 2021 should be set aside on grounds of fraud and lack of instructions. 14.The Plaintiffs seek to unravel the Consent Order. They allege they did not instruct their Advocate to execute it. They allege fraud and collusion. 15.This Court is not persuaded. A consent order cannot be set aside merely because clients retrospectively claim a lack of instructions. 16.An Advocate possesses ostensible authority to act for and bind a client. This includes the authority to compromise a suit. The Court of Appeal settled this in Kenya Commercial Bank Limited v. Specialized Engineering Co. Ltd [1982] KLR 485. The Court held that a consent order entered into by Counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the Court. A duly instructed Advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his Advocate unless such limitation was brought to the notice of the other side. See also Choi v Exotic Gates Limited; Owuor (Objector) [2025] KEELC 4536 (KLR). 17.The jurisprudence is equally strict on what it takes to impeach a consent. In Flora N. Wasike v. Destimo Wamboko [1988] 1 KAR 625, the Court of Appeal emphatically stated that a consent judgment or order has a completely superseding effect. A compromise, properly entered into by an Advocate under his implied authority, is binding on the client. It can only be set aside on grounds which would justify setting a contract aside, such as fraud, mistake or misrepresentation. 18.The Plaintiffs plead fraud. Fraud requires serious, strict proof. The standard of proof sits above a mere balance of probabilities but below the criminal standard of beyond reasonable doubt. The burden is heavy. Bare allegations do not suffice. In Vijay Morjaria v. Nansingh Madhusingh Darbar & Another [2000] eKLR, Tunoi JA provided the definitive threshold, stating that it is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. 19.The Court is not persuaded that fraud by Counsel or by Synergy has been proved to the required standard in the entry of this consent. The Plaintiffs' bare denials of instruction fall short of the exacting threshold. This is a case where the Clients allege fraud and the Advocate denies. The Advocate claims he had instructions and the Clients deny. The Court is also conscious that lowering the bar on such proof would leave all consents recorded in Court (always on a daily basis) liable to being challenged or set aside grounds of lack of instructions. The Court is not required to know what Counsel and Client discuss and agree before coming to Court. Having said so, this Court is not totally unaware that Counsel may act in such a contrary or detrimental manner to a client as to leave no doubt that he or she had no such instructions or was acting in excess or contrary to such instructions. In such cases, the aggrieved party can rely on the wisdom of the Court and the justice of the case to come through. 20.However, the Court restates that it is not enough for a client to say I never instructed my Advocate to record a consent. This leads the Court to note the need for Clients to maintain written communications with Counsel. With emails and WhatsApp threads, it would be more persuasive to demonstrate to the Court when Counsel proceeds to act on a tangent, for his own benefit or contrary to client’s instructions. Each case will be determined on its own set of facts, instructions, circumstances and merits. 21.Pragmatically, setting aside this consent is a zero-sum game. Synergy holds a valid lower-Court decree. That decree has not been stayed by any competent Court. Were this Court to set aside the consent and demand a refund, Synergy would simply turn around and execute their valid decree against the very same funds. Equity does not act in vain. 22.The Plaintiffs complain that Counsel unlawfully retained Kshs 2,000,000/=. A formal complaint has been lodged with the Advocates Complaints Commission. That body is equipped to resolve issues of professional misconducts. A complaint by a client of Counsel acting without instructions, would be within the ACC’s jurisdiction. If the Plaintiffs dispute the quantum of fees, the law provides a clear avenue. They must move to challenge the fees by having the advocate's Bill of Costs taxed. This Court shields itself from these collateral skirmishes. The application fails. Whether the 2nd Interested Party is entitled to a charging order over the funds held in Court. 23.Mr. Ombwayo seeks a charging order over the funds held in Court, under Section 52 of the Advocates Act. His fees are actively disputed. Disciplinary and taxation processes are pending. 24.Section 52 of the Advocates Act operates on taxed costs. An Advocate's fees are not legally due for the purposes of a charging order until quantified by the Taxing Master. In John Karungai Nyamu & Another v. Muu & Associates Advocates [2008] eKLR, Lesiit J. (as she then was) clarified this position. She held that an Advocate's fees are not due until his Bill of Costs has been served on the client and where it is not settled, until it is taxed by the Court. 25.Without a Certificate of Taxation, the application is premature. This Court declines to grant a charging order on the funds held by the Court at this juncture. The application fails. Whether the 1st Interested Party is entitled to the release of the remaining Kshs 800,318.15. 26.Synergy seeks the release of the balance of Kshs 800,318.15 held in Court. The record confirms there is an active appeal, HCCA/E044/2020 currently pending before Gikonyo J. That appeal directly challenges the ex-parte decree issued by the lower Court, that grounds Synergy's claim. 27.Releasing the funds now would render that appeal nugatory. This Court in exercise of its discretion declines to release the funds at this point in time. Let the parties pursue the pending appeal. The successful party in that appeal will be lawfully entitled to the funds. If the Synergy succeeds, it will be entitled to approach the Court for the funds. If the Plaintiffs are the ones successful on the other hand, the funds will be theirs for the taking. To this Court that is a pragmatic way of maintaining the rival claims to the funds, as well as maintaining the status quo pending the determination of the pending Appeal. Determination 28.The three consolidated applications are disposed of as follows:1.The Plaintiffs' Notice of Motion dated 29th September, 2025 is HEREBY dismissed.2.The 2nd Interested Party's Notice of Motion dated 14th October, 2025 is HEREBY dismissed.3.The 1st Interested Party's Notice of Motion dated 29th September, 2023 is HEREBY dismissed.4.The balance of Kshs 800,318.15 held in Court shall remain preserved in Court pending the hearing and final determination of the active appeal in HCCA/E044/2020 pending before Gikonyo J.5.Given the nature of these consolidated applications, each party shall bear their own costs. 29.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 08TH DAY OF JULY, 2026NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Nakhone for the Decree Holder/Plaintiffs.N/A for the Judgement Debtors/Respondents.N/A for the Interpleader.Mr. Meeme for the 1st Interested Party.Mr. Ombwayo for the 2nd Interested Party.Mr. John Paul - Court Assistant