[2007] KEHC 2087 (KLR)
The court found that the respondent, as the applicant's advocate, was under a duty to account for and pay over to the applicant all monies received on his behalf in the concluded suit, less any amounts lawfully due to the advocate. The applicant admitted owing the respondent KES 200,000 as a friendly loan, which the...
Source-derived case information.
- Citation
- [2007] KEHC 2087 (KLR)
- Parties
- Applicant: Pancras Ndungu Kirori; Respondent: Francis Mutua t/a Mutua Mboya & Nzissi Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1041 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Summons
- Outcome
- application allowed in part
- Judges
- JL Osiemo
- Legal Topics
- Advocate Client Accounts, Delivery of Cash Account, Recovery of Judgment Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pancras Ndungu Kirori
Applicant
Francis Mutua t/a Mutua Mboya & Nzissi Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Originating Summons
Legal Issues
- 1 Whether the respondent advocate is obliged to deliver a detailed cash account to the applicant regarding monies received on the applicant's behalf.
- 2 Whether the respondent is liable to pay the applicant the judgment sum less any admitted advances or loans.
- 3 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that the respondent, as the applicant's advocate, was under a duty to account for and pay over to the applicant all monies received on his behalf in the concluded suit, less any amounts lawfully due to the advocate. The applicant admitted owing the respondent KES 200,000 as a friendly loan, which the court accepted as a proper deduction. The respondent did not dispute the applicant's entitlement to KES 1,000,000 from the judgment proceeds. Accordingly, the court ordered the respondent to pay the applicant KES 800,000, being the net sum after deducting the admitted loan. The applicant was also awarded costs of the application, reinforcing the principle that advocates must...
Court Disposition
application allowed in part
Orders
- The respondent shall pay the applicant KES 800,000.
- The applicant is awarded costs of this application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Misc Appli 1041 of 2005
PANCRAS NDUNGU KIRORI……………………….…………........…..……PLAINTIFF
VERSUS
FRANCIS MUTUA T/A MUTUA MBOYA & NZISSI ADVOCATES…...DEFENDANT
RULING
This application by way of Originating Summons brought by the Applicant under Order LII Rule 4 (1) (a) and (b) and Rule 2 of the Civil procedure Rules seeks orders that Mr. Francis Mutua Advocate do deliver to the applicant herein a detailed cash account in respect of monies received on the Applicant’s behalf in respect of HCCC NO. 293 OF 1998 – FRANCIS NDUNGU KIRORI BVS. JOSEPH GITAU WAWERU & PAUL MBURU MUTHUMBI; that Mr. Francis Mutua Advocate do pay the Applicant herein within 7 days from the courts order, the full sum of monies with interest accruing since then at court rates, received on behalf of the applicant in the said suit; that the Respondent do bear the costs of this application.
The application is supported by an affidavit sworn by the Applicant on 7th July 2005. The facts as gathered from the affidavit evidence are that the Applicants motor vehicle registration NO. KAB 642B was involved in an accident. The Applicant filed a suit being HCCC NO. 293 OF 1998 and judgment was entered in his favour. He had instructed the Respondent to file and prosecute the suit. The judgment award was Shs.1,423,520/= plus costs and interest.
The total amount all inclusive was Shs.2,018,532/= and it was agreed by consent of the parties that payments would be as follows:-
1. STALLION INSURANCE Sh. 672,844/=
Less Legal fees Sh. 248,712/=
Payable Sh. 424,132/=
2. PANCRAS NDUNGU KIRORI Sh.1,345,688/=
Less Legal fees Sh. 345,688/=
Payable Sh.1,000,000/=
The Applicant concedes that he owed the Respondent a sum of Shs.200,000/= which he had advanced to him as a friendly loan.
From the submissions by both counsel and the annextures on record, I have come to the conclusion that the Applicant is entitled to a sum of Shs.1,000,000/= less Shs.200,000/= which the Respondent had advanced to him as a friendly loan and which amount is not denied.
Accordingly it is ordered that the Respondent do pay the applicant a sum of Shs.800,000/=. The Applicant is also entitled to costs of this application and it is so ordered.
Dated and delivered at Nairobi this 17th day of July 2007.
J.L.A. OSIEMO
JUDGE