[2023] KEHC 27240 (KLR)
The court found that the respondent, as the applicant's advocate, received the decretal sum of Kshs. 974,820 on behalf of the applicant and failed to remit the same. The applicant provided evidence of payment through cheques, and the respondent did not contest the claim. The court held that the applicant is entitled...
Source-derived case information.
- Citation
- [2023] KEHC 27240 (KLR)
- Parties
- Applicant: Saumu Karua Nyale; Respondent: Tarus Joseph
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 43 of 2023
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed in part
- Judges
- DKN Magare
- Legal Topics
- Advocate Client Accountability, Remittance of Decretal Sum, Interest on Judgment Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saumu Karua Nyale
Applicant
Tarus Joseph
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the respondent advocate is obligated to account for and remit the decretal sum received on behalf of the applicant.
- 2 Whether the applicant is entitled to interest on the decretal sum from the specified date.
- 3 Whether costs should be awarded in an undefended application.
Ratio Decidendi
The court found that the respondent, as the applicant's advocate, received the decretal sum of Kshs. 974,820 on behalf of the applicant and failed to remit the same. The applicant provided evidence of payment through cheques, and the respondent did not contest the claim. The court held that the applicant is entitled to the full decretal sum together with interest at court rates from 1/8/2021, as the payment was made via cheque on 8/7/2021 and due allowance was given for cheque clearance. The court declined to award costs, noting the matter was undefended and each party should bear their own costs. The court also clarified it could not review the underlying judgment or the consent on...
Court Disposition
application allowed in part
Orders
- The respondent is directed to forthwith honour and remit the sum of Kshs. 974,820 received on behalf of the applicant as the decretal sum in Mariakani SPMCC No. 39 of 2019.
- The amount shall attract interest at court rates from 1/8/2021 until payment in full.
Full Case Text
Judgment text and source record
19 paragraphs
Nyale v Joseph (Civil Miscellaneous Application 43 of 2023) [2023] KEHC 27240 (KLR) (20 December 2023) (Judgment)
Neutral citation: [2023] KEHC 27240 (KLR)
Republic of Kenya
In the High Court at Mombasa
Civil Miscellaneous Application 43 of 2023
DKN Magare, J
December 20, 2023
Between
Saumu Karua Nyale
Applicant
and
Tarus Joseph
Respondent
Judgment
1. This matter is a sad one. The Defendant is an Advocate of this Court. He has now closed his offices and left clients stranded. The Plaintiff sought the following Orders:a.That Joseph Tarus t/a Tarus & Co. Advocates do forthwith render an Account of the Judgement sum obtained in Mariakani SPMCC No. 39 of 2019 Saumu Karua Nyae (suing as the Administrator and legal representative of the Estate of the Late Lukuni Nixon Hinzano- Deceased vrs Unigroup Transporters Limited.b.That Joseph Tarus t/a Tarus & Co. Advocates do forthwith honour and remit the sum of Kshs. 974,820. 00/= paid to them on behalf of the Applicant being the decretal sum in Mariakani SPMCC No. 39 of 2019 Saumu Karua Nyae (suing as the Administrator and legal representative of the Estate of the Late Lukuni Nixon Hinzano- Deceased vrs Unigroup Transporters Limited.c.That Joseph Tarus t/a Tarus & Co. Advocates do forthwith honour and remit the decretal interest which was awarded from 11th May 2021 in Mariakani SPMCC No. 39 of 2019 Saumu Karua Nyae (suing as the Administrator and legal representative of the Estate of the Late Lukuni Nixon Hinzano- Deceased vrs Unigroup Transporters Limited.d.That Joseph Tarus t/a Tarus & Co. Advocates do pay the costs and interest of this action.
2. The Plaintiff adopted and relied on 16th May 2023 in evidence. She stated that the Defendant consented to 70:30 liability without her consent. Unfortunately, I cannot review the judgment already delivered. Further, the Defendant had ostensible authority to record the consent. Without it being set aside, the Plaintiff must live with the award of Ksh. 974,820/-.
3. The Plaintiff attached 2 cheques showing payments of decretal sum. She also sought interest on the decretal sum. The Plaintiff has not however shown she paid legal fees. The Defendant did not defence the claim.a.I find that the Plaintiff is entitled to the payment of a sum of Ksh. 974,820 together with interest from 1/8/2021 at court rates till payment in full. Interest is based on the fact that payment was made via a cheque dated 8/7/2021. Therefore, due allowance is given for dispatches of cheques and cheques clearing. The matter not having been defended, each party will bear own costs.
Determination 4. In the upshot, I make the following orders:i.The Respondent is directed to forthwith honour and remit the sum of Kshs. 974,820. 00/= paid to them on behalf of the Applicant being the decretal sum in Mariakani SPMCC No. 39 of 2019 Saumu Karua Nyae (suing as the Administrator and legal representative of the Estate of the Late Lukuni Nixon Hinzano- Deceased vrs Unigroup Transporters Limited.ii.The above amount shall attract interest at court rates from 1/8/2021 till payment in full.iii.There is no order as to costs.
DELIVERED, DATED and SIGNED at MOMBASA, Virtually on this 20th day of December, 2023. Judgment Delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Miss Musyoki for the PlaintiffNo appearance for the RespondentCourt Assistant - Brian