https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4756

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLOS NO. E050 OF 2025** **IN THE MATTER OF: THE ADVOCATES ACT** **IN THE MATTER OF: SECTION 47,50 (1) AND 51 OF THE ADVOCATES ACT** **IN THE MATTER OF: SO OWINO & ASSOCIATES ADVOCATES** **BETWEEN** **PAUL MABWA ASILA…..................................................................APPLICANT** **VERSUS** **S.O OWINO & ASSOCIATES ADVOCATES………...................…….RESPONDENT** **RULING** 1. Before this court for determination is the notice of motion dated 4th May, 2026 filed by the respondent, and it is expressed to be brought under **Order 37 Rule 19** of the **Civil Procedure Rules**, **Sections 1A,1B** and **3A** of the **Civil Procedure Act** and **Section 9 (sic)** of the **Environment and Land Court Act** seeking the following orders:- 2. ***That this honourable court be pleased to order that this matter do proceed as if it had begun by way of plaint, and that the respondent do file a defence and counterclaim within such time as this honourable court may direct.*** 3. ***That this honourable court be pleased to give such directions as it deems fit as to the filing and service of pleadings, discovery and the mode of trial of this matter following conversion.*** 4. ***That pending the hearing and determination of this application and thereafter the hearing and determination of this suit, the hearing of the originating summons filed herein be stayed.*** 5. ***That the costs of this application be provided for.*** 6. The application is premised on grounds *inter alia* that the originating summons filed on 19th August, 2025 seeks orders compelling the respondent to file bill of costs in four matters i.e. ELC no. 247 of 2019, ELC no. E9 of 2024, CMCC No. E1400 of 2023 and JR No. 2 of 2023. The application is further supported by the affidavit Stephen Omondi Owino, the respondent herein sworn on even date. The respondent deposed that the applicant retained its firm to represent him in the matters listed above and upon receipt of part payment of Kshs.50,000,000/- from Nairobi City County in ELC no. 247 of 2019, and together with the applicant, they entered into a comprehensive written settlement of all fees and disbursements owed by the applicant across all four matters. 7. The respondent further deposed that a discharge and release was executed on 25th November, 2024 and notwithstanding the same, the applicant proceeded to file the originating summons in this matter seeking the firm to file a bill of costs. He further deposed that the applicant’s supporting affidavit contains numerous and irreconcilable dispute of facts which cannot be resolved on affidavit evidence alone. Further, that he has a substantial counterclaim against the applicant which he is unable to bring within the framework of the present originating summons proceedings. 8. The application was opposed by the replying affidavit of the applicant sworn on 29th May, 2026. He deposed that he never signed the purported discharge and release document dated 25th November, 2024 and that the same is perjury and fraud as they were fixed electronically while he has never been involved in the preparation, and execution of the said document. Further, that he never appeared before advocate Absolom Osodo as alleged. With regard to the application seeking the respondent to tax the bill, the applicant deposed that an objection was raised challenging that the application should have been filed in the name of the advocate, and as a result, he withdrew the same and filed a fresh application. 1. The applicant reiterated that he has never agreed on the alleged discharge and release and he received Kshs.6,000,000/- which was payable to a creditor who was advancing threats. Further, that he is not agreeable to the alleged expenditure of his money, and that the only solution is for the respondent to tax his bill of costs to be assessed by the deputy registrar. 2. The application was canvassed through written submissions. The applicant filed written submissions dated 29th May, 2026. The respondent filed his written submissions dated 13th July, 2026. I have considered the application, the reply thereof and the written submissions filed by the parties. The issue for determination is *whether the originating summons ought to be converted to a plaint to enable the respondent file a counter claim.* 3. The applicant filed the originating summons dated 19th August, 2025 seeking that the respondent be ordered to file respective bill of costs relating to ELC No. 247 of 2019, ELC No. 9 of 2024 and CMCC No. 1400 of 2013. He contests the utilization of the sums paid being Kshs.50,000,000/- by Nairobi City County as he was only paid Kshs.6,000,000/-. This application has not elicited any response from the respondent. Instead, the respondent has filed the instant application. 4. It is not in dispute that the applicant retained the services of the respondent to represent him in various matters before the court. While there is a dispute as to the validity of a settlement agreement and sums owing, it is not lost to this court that there exists a contest as to the utilization of sums paid to the respondent. The discharge and release dated 25th November, 2024 seems to settle all amounts due to the client. On the other hand, there is the letter dated 21st November, 2024 that predates the settlement where a sum of Kshs.13,980,000/- is owed to the respondent. This explains why the respondent seeks conversion of the originating summons to enable comprehensive adjudication of these issues. 5. **Order 37 Rule 19** of the [**Civil Procedure Rules**](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%2021) empowers the court to convert an originating summons into a plaint as follows:- ***“(1)Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits.*** ***(2)Where the court makes an order under subrule (1), Order 11 shall apply.”*** 1. In the case of **Kenya Hotels Ltd v Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited) [2019] KECA 250 (KLR)**, the Court of Appeal stated as follows:- ***“My view of the matter is that the procedure of originating summons is not limited only to matters in respect of which facts are not in dispute. If it turns out that the issues raised in the originating summons are complex and may require the calling of*viva voce*evidence, that does not invalidate the application. That explains why under Order XXXVI Rule 10, a matter may be commenced by an originating summons, but should it;*** ***“(1) appear to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of those affidavits.*** ***….*** ***(3) This rule applies notwithstanding that the cause could not have been begun by filing a plaint.”*** ***Upon so converting originating summons, viva voce evidence may be presented as the court may direct******See Jaswantkumarba Benesingh Jethwa V.******Postal Corporation of Kenya [2015] eKLR.*** ***Because of this mechanism, an originating summons cannot therefore be defeated merely because the dispute is highly contentious, complex or involving serious questions of law.”*** 1. In applying the reasoning stated in the above authority to the circumstance of this case, it is possible for the court to direct *viva voce* evidence where facts are largely disputed without necessarily converting the pleadings. It is also quite clear that where the respondent seeks to raise a claim against the applicant, there is need to convert the pleadings to give room for filing a counterclaim and for **Order 11** to be effected. With that said, it may seem easy to agree with the respondent that a conversion would be appropriate to enable the filing of a counterclaim. 2. However, a fundamental question arises as to the jurisdiction of this court. Bearing in mind the jurisdiction of this court, provided under **Section 13** of the **Environment and Land Court Act** and if say, a conversion should be the appropriate remedy, the nature of the dispute between the parties automatically ousts the jurisdiction of this court on that basis alone. The dispute between the parties becomes commercial in nature to the extent of the subject matter which is the discharge and release and the circumstances surrounding it which has no nexus on anything to deal with land or any interest thereof. 3. With the above in mind, I am not persuaded to find in favour of the respondent simply because of what was initially placed before this court- the originating summons dated 19th August, 2025 as doing so would alter the jurisdiction of this court. For this reason, I decline to grant the prayers sought in this application, and the only reasonable action would be for the respondent to file a response or otherwise to the said application. 4. The upshot of the above is that I find no merit in the notice of motion dated 4th May, 2026 the same is hereby dismissed with costs to the applicant. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY** **THIS 24TH DAY OF JULY 2026.** **HON. MBOGO C.G.** **JUDGE** **24/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Dr. Said Chitembwe for the Applicant* *Ms. Ogada holding brief for Mr. Owino for the Respondent*