https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9652

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E1475 OF 2024** SCHON AHMED NOOFANI ...................................... APPELLANT VERSUS PAUL MAINGI MUSYIMI T/A MAINGI MUSYIMI & ASSOCIATES .................... RESPONDENTS ***(Being an Appeal against the judgement and order of Hon. V. K. Momanyi (RM) delivered on 6th December, 2024 in Nairobi Small Claim Court SCCCOMM. No. E16067 of 2024)*** **JUDGEMENT** 1. The appellant vide Statement of Claim dated 3rd October 2024 claims Ksh. 812,000/= being monies awarded to him and allegedly paid through the respondent but not disclosed to the claimant. In this regard, the appellant stated, he retained the respondent to act for him in ***High Court Judicial Review Misc. No. 615 of 2017 Schon Noovani & Another -versus- Attorney General & Another.*** Unknown to him and without his concurrence and agreement, the appellant further stated, the respondent entered into an agreement with the office of the Attorney General and purported to sign an agreement and consent in settlement of the matter and was paid the aforesaid sum. 2. In response, the respondent filed a Notice of Motion dated 5th October 2024 seeking to have the claim struck out and or dismissed. The application was based on the following key grounds: 3. **That the claim is totally defective as it was filed in contravention of Section 60 of the Advocates Act Cap 16 Laws of Kenya that provides the forum where complaints against advocates are filed.** 4. **That a complaint against an Advocate cannot on the first instance be filed in the small claims court as the doctrine of exhaustion of remedies bestows the Advocates Complaints Comission with necessary jurisdiction to entertain the matter.** 5. **That the claim cannot form a cause of action considering there is pending in court *NAIROBI HC JR MISC. APPLICATION NO. 615 OF 2017* wherein there is a pending dispute on the decretal sum and claimed sum is yet to fully settle and that therefore the proceedings herein are sub-judice.** 6. The application is also based on supporting affidavit of Paul Maingi Musyimi, Advocate in which he has deponed on the above grounds. 7. On his part, the appellant filed a replying affidavit sworn on 22nd November, 2024 stating that a client is entitled to recover monies owed by an Advocate owed if the Advocate declines or secretly keeps the money without the client’s knowledge and at the same time lodge a complaint with Advocates Complaint’s Commission for unprofessional conduct. 8. In her ruling the trial adjudicator held that Section 12 of the Small Claims Court does not confer on the court the jurisdiction to adjudicate over claims involving allegations of professional conduct or professional misconduct by an Advocate and that appropriate recourse lies in section 60(4) of the Advocates Act which provides that any person can lodge a complaint of professional misconduct with Advocates Disciplinary Tribunal. The court, therefore, struck out the claim with costs. 9. Being dissatisfied with the ruling and orders of Hon. V. K. Momanyi dated 6th December, 2024 the appellant filed his appeal. The appeal is based on 6 grounds which can be summarized into only one (1) ground; whether the Honourable trial court erred in finding that the matter does not fall within the jurisdiction of the trial court. 10. The respondent also filed a memorandum of cross-appeal dated 14h January,2025. In the cross-appeal the appellant avers that the trial court erred in law and fact by not giving reason or rationale for not awarding costs the appellants of the suit before it whereas costs follow the event. 11. Having carefully analysed the evidence on record, the pleadings and submissions by the parties, the court has identified two issues for determination in this matter. 12. **Whether the trial court had jurisdiction to award the appellant monies amounting to Ksh.812,000/= allegedly owed to the claimant by the respondent as a result of unprofessional conduct.** 13. **Whether the respondent was entitled to costs of the suit before the trial court.** 14. Under section 12 of the Small Claim Act the Small Claims Court has jurisdiction to determine any civil claim relating to: 15. **A contract for sale and supply of goods and services.** 16. **A contract relating to money held and received.** 17. **Liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property.** 18. **Compensation for personal injuries and** 19. **Set off and counterclaim under any contract.** 20. Section 60(1) of the Advocates Act provides that a complaint against an advocate of professional misconduct, which expression includes disgraceful or dishonourable conduct incompatible with the status of an advocate, **may be made to the Tribunal by any person** (emphasis mine). 21. It is very clear that the provisions of section 60(1) of Advocates Act are permissive and not mandatory. A client claiming his funds have been unprofessionally withheld by an Advocate may elect to file a civil suit or to lodge a complaint before Disciplinary Tribunal or the Advocates Complaint’s commission. This position is also supported by the provisions of 60(9) of the Act which stipulates as follows: ***“In any case where the complainant has not filed a civil suit against the Advocate in respect to the sum in dispute, the tribunal may order the Advocate to pay to the complainant such sums as it finds to be due from the Advocate”*** 1. The above provisions clearly acknowledgment that a party who has a complaint of professional misconduct against an Advocate for withholding funds may file a civil suit against the Advocate or seek redress against the Advocates Disciplinary Tribunal. 2. To back the finding above, this Court relies on the decision made in the case of ***Bluesand Holdings Limited Vs Mitei t/a Arap Mitei Advocates eKLR (2025).*** In the case the Court ordered an Advocate to deliver Ksh. 9,000,000 that had been unlawfully withheld from the applicant by the Advocate. 3. Similarly, in the case of ***Kenya Anti-corruption Commission -vs- Alphonse Munene Mutinda Civil Case No. 15 of 2016 KEHC 3544 (KLR).*** In this case Kenya Anti-corruption Commission (now Ethics and Anti-corruption Commission or EACC) filed a civil suit against the respondent, an Advocate of the High Court, regarding fraudulent Land transaction for public cemetery. In this regard, the Comission accused the Advocate of being the primary beneficiary in the scheme and that he realised Ksh.25.9 million of public funds in his capacity as an Advocate in the conveyance process. 4. The High Court in its judgement dated 20/3/2023 found the Advocate liable. 5. This matter arose out of relationship between the appellant and respondent in relation to a contract for supply of service and the dispute is on monies allegedly received and withheld by the respondent. Based on the legal provisions and the authorities cited above, it is my finding that the Small Claims Court had jurisdiction to determine substantive claim herein 6. The upshot of my finding above is that this appeal is allowed and the order striking out the appellant’s suit at the Small Claims Court is set aside and the appellant’s suit is re-instated. The suit shall be by another adjudicator apart from V. K. Momanyi (RM). Consequently, the respondents cross-appeal for costs is dismissed. I make no order as to costs of this appeal it arose basically as a result of erroneous interpretation of the law by trial Court. **Dated, signed and delivered online via Microsoft teams this 1st day of July 2026** **HON. P.K. ROTICH** **JUDGE** **In the presence of:** N/A by the parties