https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10363

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **MISC. APPLICATION NO.E038 OF 2024** **WAMBEYI MAKOMERE T/A** **WAMBEYI MAKOMERE & CO. ADVOCATES…..…………….......APPLICANT** **VERSUS** **UTPAL KUMARI NILESHKUMAR JETHWA AND** **VASANT KUVARBA VIKRAMSINH RANA** **(Sued as the Administrators of the Estate of the late** **NILESHKUMAR BANE SINGH JETHWA) ………………...........RESPONDENT** **RULING** 1. Before this Court for determination is the Chamber Summons dated 12th March, 2024 and expressed to be brought under Order 51 Rule 1, Section 3A & 63 (e) of the Civil Procedure Act, Section 45 of the Advocates Act, and Rule 2 of Advocates Remuneration Order wherein the Applicant seeks the following orders:- 2. ***Spent*** 3. ***That the Honourable Court be pleased to adopt the contents of the undertaking of the legal service rendered dated 12th October, 2021 as legal costs between the Applicant and the Respondent.*** 4. ***That upon grant of prayer (2) above, a certificate of costs be issued on the same.*** 5. ***That upon the issuance of the certificate costs, the court be pleased to enter judgment and interest thereon from 12th October, 2021 the date of the undertaking till payment in full.*** 6. ***That cost of this application be provided for.*** 7. The Application is predicated on the facts on its face and in the Supporting Affidavit sworn by **Wambeyi Makombere,** Advocate evenly dated. He deposes that he acted as the Advocate for the late **Nileshkumar Bane Singh Jethwa** and during the course of rendering legal services for a period exceeding ten years the legal fees accrued amounting to Kshs. 5,500,000. That upon having a sitting with the deceased, he made an undertaking to clear all the outstanding fees but he passed on before he paid the sum in the undertaking. 8. The Respondents opposed the application vide a Replying Affidavit sworn on 7th June, 2025 by **Vasanti Kuvarba Vikramsinh Rana**. It is deponed that the Application is res judicata as the issue of costs had already been addressed in **ELC No. E001 of 2023** where the Applicant had been sued for holding estate title deeds as lien for the amounts owed to him. 9. It is deponed that the Applicant has not filed a Bill of Costs against the estate. Further, it is stated that there was no objection to the issuance of the Confirmed Grant of 26th April 2023 nor was any issue of liabilities against the estate raised. 10. It is stated that the Respondents’ advocates wrote to the Applicant requesting documents in his possession to enable the filing of the probate Petition and therefore, he cannot claim ignorance. It is argued that it would be absurd to suggest that in ten years of service rendered, the deceased never paid any deposit. 11. It is further deponed that there has been no evidence of legal proceedings instituted, defended, or taken up to justify any fee. That the deceased never mentioned owing fees or procuring legal services to his wife, the co-administrator or to his sister, the deponent. **Applicant’s Submissions** 1. The Applicant’s submits that **Section 45(1)** of the **Advocates Act** allows an advocate and client to enter into an agreement to fix advocate’s fees and further that the Court is empowered to give effect to the agreement without subjecting it to taxation. That there was no allegation of duress fraud or mistake or illegality in the execution of the undertaking as the deceased voluntarily agreed to the terms and acknowledged liability. 2. Reliance was placed in ***Kwengu & Company Advocates v Raja (Environment & Land Miscellaneous Case E267 of 2022) [2023] KEELC (KLR*)** to submit that a valid legal fee undertaking between him and the deceased forms a basis for enforcement. 3. Further, the Applicant cited the case of ***D. Njogu & Co. Advocates v National Bank of Kenya* *LTD [2016] eKLR***to argue that the Court is vested with jurisdiction to adopt the undertaking since once parties have agreed on legal fees, the Court cannot subject the agreement to taxation but may enforce as costs. 4. It is further submitted that the undertaking having been acknowledged by the deceased constitutes a lawful debt. While making reference to ***In re Estate of Sharif Gafar Ahmed Mohamed (deceased) Succession Cause No. 222 of 2002)* *[2025] KEHC 2356 (KLR),*** it is argued that by virtue of the obligations imposed on the personal representatives under **Sections 82 (a)** and **83(d)** of the **Law of Succession Act,** they are required to settle estate liabilities. 5. It is also argued that **Section 51(2)** of the **Advocates Act** donates power to the Court to enter judgment for the sum due together with interest upon adoption of a valid agreement. 6. On costs, it is submitted that under **Section 27 (1)** of the **Civil Procedure Act**, costs follow the event. The Applicant has been compelled to approach the Court and it is equitable that the costs of the application be awarded to him. **Respondent’s Submissions** 1. The Respondent’s submit that the Application is procedurally improper as the Applicant ought to have lodged it in the Succession cause if he was a bonafide creditor of the estate. That in the absence of such a claim the Application is an abuse of the Court process. 2. The Respondent places reliance on ***In re Estate of Ibrahim Sakwa Mabani (Deceased)* *[2019] KEHC 5070 (KLR****)* to submit that the Application being brought after confirmation of grant and after distribution, is an exercise in futility. Reference was further made to ***In Re Estate of Mukhobi Namonya (Deceased*) [2020]** and ***in re Estate of Barrack Deya Okul (Deceased)* *[2018] eKLR*** to submit that the alleged undertaking does not meet the threshold for a valid agreement and that the Applicant has failed to provide proper documentation demonstrating how the alleged debt accrued. 3. It is argued that the undertaking does not meet the test of conditions set out in **Section 45** of the **Advocates Act** for the reason that, the deceased ordinarily signed documents by affixing his thumb print but the undertaking bears a signature allegedly belonging to the decease. Further, it has no independent witness. It is further argued that the estate has already been fully administered and distributed to the relevant beneficiaries and therefore, the estate has no assets available to settle any claim. **Analysis and determination** 1. Having considered the application, the Affidavits in support and against together with the rival submissions, the following broad issues arise for determination:- 2. **Whether the issue of the fees in the undertaking and the advocates fees is res judicata?** 3. **Whether the orders sought can issue?** 4. On the first issue, and while relying on the Doctrine of *Res Judicata,* the Respondent relies on the finding in **ELC No. E001 of 2023** to argue that the Applicant’s claim is res judicata, and therefore, under **Section 7** of the **Civil Procedure Act,** the Applicant is bared the re-litigation of matters that have been conclusively determined by a competent Court. 5. The doctrine of *res judicata* applies where the matter in issue is identical in both suits, the parties in the suit are the same or parties litigating under the same title, the matter was finally determined in the previous suit, the Court that determined the matter was competent and the parties were litigating in the same capacity- See ***E.T v Attorney General & Another*** ***[2012] KEHC 5506 (KLR)*** 6. A perusal of **ELC No. E001 of 2023 (OS)** revels **Jaswant Kumarba B. Jethwa** was suing on her behalf as the wife of the deceased **Harisingh Jethwa** as joint proprietor of the subject properties that were being held as lien by the Respondent therein (Applicant herein). The Respondent therein was holding the titles as security for unpaid legal fees which were not defined and the undertaking was not subject of determination. The parties were not litigating in the same capacity and further, the subject issue was not identical to this one. This Court therefore finds the Application not res judicata. 7. On the second issue, the undertaking was executed on 12th June, 2021 and the Applicant’s case hinges on the undertaking being treated as a lawful debt that was acknowledged by the deceased. In that regard, **Section 45** of the **Advocates Act** vests in advocates and their clients, the discretion to enter into agreements on remuneration for services rendered or to be rendered. Indeed, and as noted by the Respondent, **Subsection (6)** thereof stipulates that once such an agreement is validly made under this section, the advocate’s costs are insulated from taxation. 8. In effect, the Court is divested of jurisdiction to interfere with the agreed terms save where the agreement is shown to be unfair, unreasonable, or tainted by fraud or undue influence. None have been demonstrated here and on the face of it, the agreement appears valid. However, the validity of the undertaking standing alone is not enough. Its enforcement requires more than the mere existence of a document, particularly where the services are alleged to have been rendered from 2008 until the demise of the deceased. 9. The agreement in question was made with a client who is now deceased and the payment was not done in his lifetime. The Grant was confirmed on 26th April, 2023 and therefore, the estate is deemed settled subject to known liabilities. It is however noted that the Applicant had the undertaking in their possession but failed to assert his claim in the **Succession Cause No. E318 of 2022** and in **ELC No. E001 of 2023.** 10. Despite the fact that there were correspondences between the Applicant and the Respondent’s advocates where there was an acknowledgement of provision of legal services provided to the deceased, the Applicant sat on its rights. As he did so, the Estate is said to be fully distributed and hence , there is nothing else to be distributed. The Applicant’s claim for the alleged fees now brought after confirmation of grant and after distribution, is an exercise in futility. 11. Consequently, this Court declines the prayer to adopt the contents of the undertaking of the legal service rendered dated 12th October, 2021 as legal costs between the Applicant and the Respondent. Considering that the above prayer formed the foundation of the application before this Court, the other orders sought also fail. 12. In conclusion therefore, the Chamber Summons dated 12th March, 2024 is therefore dismissed with costs to the Respondents. **Dated and signed at Nakuru this 6th Day of July, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 6th Day of July, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**