https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12586

Waso Trustland Project v Kitheka & Ouma Advocates LLP (Civil Suit E001 of 2026) [2026] KEHC 12586 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12586 (KLR) Republic of Kenya In the High Court at Isiolo Civil Suit E001 of 2026 SC Chirchir, J July 30, 2026 Between Waso Trustland Project Plaintiff and Kitheka & Ouma Advocates Llp Defendant Judgment 1.The Plaintiff moved this court by way of an Originating Summons (OS) dated 18th March 2026, taken out under Order 52 Rule 4 of the Civil Procedure Rules and Sections 1A, 1B, 3, and 3B of the Civil Procedure Act. It seeks orders as follows:1.A declaration that the Plaintiff is entitled to the sum of Kshs. 810,000/=, being the sum awarded in Isiolo HCCA E006 OF 2024; Consolidated Bank of Kenya vs Waso Trustland Project.2.An order directing the Defendant to pay and remit Kshs. 810,000/= to the Plaintiff's together with interest at court rate from the date of receipt.3.The costs of this suit. The Plaintiff’s Case 2.The Plaintiff’s case is supported by the affidavit of Jillo Adan Abdi, described as the Chief Executive Officer of the plaintiff, sworn on 18th March 2026, and a supplementary affidavit sworn on 4th May 2026. 3.The deponent averred that the Plaintiff instructed the Defendant firm to represent it in Isiolo HCCA E006/2024; Consolidated Bank of Kenya vs Waso Trustland Project for which a judgement was delivered on 22nd January 2026 wherein the Plaintiff was awarded Kshs. 810,000/= as interest. The deponent states that on or about 10th February 2026, this decretal sum was deposited into the Defendant’s bank account for onward transmission to the Plaintiff. 4.It is the Plaintiff’s case that the Defendant concealed the receipt of these funds and failed to notify them, only admitting to holding the money after the Plaintiff received information from third parties. 5.The deponent further stated that the Defendant’s refusal to remit the funds is based on an alleged lien for legal fees, despite the fact that no agreement existed for the automatic deduction of fees from such awards. 6.The deponent asserted that the Plaintiff has fully settled all outstanding legal fees, claiming that the organization has paid the Defendant firm over Kshs. 3,000,000/= cumulatively, in respect of the cases it has handled on behalf of their organization. In respect of HCCA E006/2024, it is stated that the agreed fee was Kshs. 180,000/=, which was paid in full, via installments. The Defendant’s Case 7.The Defendant opposed the suit through replying affidavits sworn by its Senior Partner, Alfred Kitheka, on 23rd April 2026 and 7th May 2026. 8.The Defendant admits acting for the Plaintiff and receiving the Kshs. 810,000/=. However, he deposes that the Defendant firm is holding these funds as a lawful lien to satisfy outstanding legal fees across nine (9) different cases. 9.The Defendant avers that there was no prior agreement on the amount of legal fees for these cases and that the total fees outstanding is close to Kshs. 4.6 million. 10.The Defendant maintains that the payments mentioned by the Plaintiff were merely deposit instructions fees and disbursements, not full settlements of fees. 11.The originating summons proceeded by way of written submissions. Plaintiff’s Submissions 12.It is the plaintiff’s submissions that the Defendant had no right to retain its decretal award, as the funds were deposited into the Defendant’s firm account for the sole purpose of onward transmission to the Plaintiff. It was further contended that there was no agreement, court order, or certificate of taxation authorizing the Defendant to utilize these trust funds to settle disputed fees. 13.The Plaintiff has further submitted that it has settled all legal fees due to the Defendant, providing evidence of cumulative payments. exceeding Kshs. 3,000,000/= through M-Pesa and bank statements. It contended that the Advocate-Client Bills of Costs filed by the Defendant were an afterthought, instituted only after this suit was filed, to frustrate the Plaintiff’s claim. 14.In support of its contention that the defendant has no right of lien over the funds, the Plaintiff has relied on the Court of Appeal decision in Waruhiu K’owade & Ng’ang’a Advocates v Mutune Investment Limited (2016)KECA 835 (KLR) where the court held:“…….to allow advocates to retain client funds for no reason at all would be a travesty of justice and would be an abuse of the fiduciary trust given, and by extension would amount to conversion and criminal activity. It would amount to deceit and unjust enrichment and ultimately, would erode public confidence in the administration of justice... We are unable to understand the appellant’s argument that it could claim a right of lien over the sum of money for the sole reason that Isaac Samson Githuthu, who it is claimed is a director and principal shareholder of the respondent, owed the applicant outstanding legal fees…”. 15.The Plaintiff has also relied on the case of Hall Equatorial Limited v Titus Makhanu & Associates Advocates (2025)KEHC 4747 (KLR), which emphasized:“However, while an advocate can claim a lien over taxed unpaid costs, such a lien is passive and does not grant the advocate an automatic right to deduct the fees from funds received on behalf of the client. As established in Barrat v Gough Thomas 2 All ER 1048, a retaining lien entitles an advocate to withhold possession of documents or property until costs are paid, but it does not authorize unilateral deduction of taxed costs from client funds unless expressly agreed or sanctioned by the court. Furthermore, whereas an advocate has a right to retain documents or property in their possession for unpaid fees, this right does not extend to funds received for a specific purpose unless an explicit agreement exists.” Defendant’s Submissions 16.The Defendant submits that it is lawfully entitled to a lien over the Kshs. 810,000/= judgment amount. It is their submission that the Advocate-Client relationship is undisputed and that they represented the Plaintiff in HCCA No. E006 of 2024 and other concluded court matters. 17.The Defendant further submits that since there was no prior agreement on legal fees, they have lodged Advocate-Client Bills of Costs for taxation. They contend that a lien is not restricted to the specific business in which the funds were received but extends to general business handled for the client. The Defendant has placed reliance on the decision in Statutory Manager United Insurance Company Ltd v Muriu & Co Advocates Civil Suit No. 610 of 2012 (O.S), in which the court found advocates have a lien over funds held even in respect of general business, and urged this court to order taxation of their bills of costs under Order 52 Rule 4(3) to secure their payments. Analysis and Determination 18.I have considered the Originating Summons, the affidavits, the parties’ written submissions and the authorities cited. From the pleadings and submissions filed by the parties, the only issues arising for determination is whether the Defendant can lawfully retain the Plaintiff’s funds as a lien for disputed or untaxed legal fees, and whether the Plaintiff is entitled to the reliefs sought. 19.There is common ground on the material facts: The advocate-client relationship is admitted; the Defendant represented the Plaintiff in Isiolo HCCA No. E006 of 2024; and the Defendant received Kshs. 810,000 on 10th February 2026 on the Plaintiff’s behalf. What is contested is whether the Defendant may continue holding that money as security for fees claimed in the subject case and eight other matters. 20.Order 52 rule 4(1) of the Civil Procedure Rules empowers the court, where an advocate-client relationship exists or has existed, to order an advocate to pay or deliver up money or securities held on behalf of a client, to provide an account, or to pay such money into court. Under rule 4(3), where the advocate alleges a claim for costs, the court may make such orders for taxation, payment or security, and for protection of any lien, as it considers fit. The provision therefore preserves a genuine claim for fees, but does not make every assertion of fees an automatic answer to a client’s demand for money. 21.The nature of a retaining lien was explained in Booth Extrusions (formerly Booth Manufacturing Africa Limited) v Dumbeyia Nelson Muturi Harun t/a Nelson Harun & Company Advocates [2014] eKLR. It is a general, possessory and passive right by which an advocate may retain a client’s papers, money or other chattels that came into the advocate’s possession professionally until costs and charges due to the advocate are paid 22.That general proposition is, however, subject to important limitations. A retaining lien does not confer ownership of the client’s property and does not, without the client’s authority or an order of the court, entitle an advocate to appropriate client money in payment of fees. Further, a lien cannot properly secure an indeterminate fee. Where remuneration has not been fixed by a valid agreement, the amount claimed must first be ascertained through taxation. In Kenya Commercial Bank Limited v Rachier & Amollo Advocates [2024] KEHC 12108 (KLR), the court held that it is improper for an advocate to withhold a client’s money on the basis of a bill of costs that is yet to be taxed because, before taxation, the amount due is unascertained. 23.A further limitation arises where money is received for a defined purpose. In John Karungari Nyamu & another v Muu Associates Advocates [2008] eKLR, as subsequently applied in Adiedo v Agutu & another [2023] KEHC 27155 (KLR), the court held that an advocate has no right to hold as a lien money received for onward transmission to the client. 24.The decision relied upon by the Defendant, Statutory Manager, United Insurance Company Limited v Muriu Mungai (supra), recognizes that a retaining lien is generally not restricted to the particular business in which the property came into the advocate’s possession. It does not, however, remove the requirements that the costs be legally due and ascertainable, that the property be capable of being subjected to a lien, and that the lien remain a passive right of retention rather than a unilateral mode of execution. Nor does it displace the court’s discretion under Order 52 rule 4(3). 25.Back to the present case, the Kshs. 810,000 was not paid to the Defendant as a deposit for future work, as security for fees, or pursuant to a fee agreement authorizing set-off. It was the decretal sum recovered in HCCA No. E006 of 2024 and was received for onward transmission to the Plaintiff. The Defendant has not produced any written authority from the Plaintiff permitting the sum to be applied to fees. This position is distinguishable from the high court decision in Boots Extrusions vs Dumbeiya ( supra), in that in the latter case ,there was an express prior agreement that the Advocate was to hold the client’s property as lien. 26.The Defendant’s alleged fees of approximately Kshs. 4.6 million are also disputed. On the evidence before the court, there was no agreement fixing those fees and the advocate-client bills filed in respect of the nine matters have not been taxed. Whether the payments exceeding Kshs. 3 million relied upon by the Plaintiff fully discharged its liability, and what further amount, if any, is payable to the Defendant, are questions for the taxing officer in the pending taxation proceedings. They need not, and cannot fairly, be determined summarily in this Originating Summons. 27.The filing of the bills of costs preserves the Defendant’s right to pursue remuneration in accordance with the Advocates Act and the Advocates Remuneration Order. It does not retrospectively convert the Plaintiff’s decretal money into security, crystallize a lien over an unascertained amount, or authorize the Defendant to retain funds entrusted for remittance. The remedies for recovery of fees include taxation, judgment upon a certificate of taxation where the retainer is not disputed under section 51(2) of the Advocates Act, and, where the statutory conditions are met, an application for a charging order under section 52 of the Act. The act of withholding the present sum is not one of those remedies. 28.I have considered whether, under Order 52 rule 4(3) of the civil procedure Rules, the Kshs. 810,000 should be paid into court or otherwise preserved pending taxation. In the circumstances, such an order would perpetuate the use of money received for a specific purpose as security for separate, unascertained claims. The Defendant has already lodged its bills and may prosecute them independently. No sufficient basis has been shown for burdening the Plaintiff’s admitted decretal entitlement with security. 29.I therefore find that the Defendant cannot lawfully retain the Plaintiff’s Kshs. 810,000 as a lien for disputed and untaxed fees. 30.On the second issue, the Defendant’s receipt and continued possession of the sum are admitted. The Plaintiff has accordingly established its entitlement to payment. Interest is discretionary under section 26 of the Civil Procedure Act. Since the money was received on 10th February 2026 solely for onward transmission and the Defendant had no lawful basis for retaining it, justice requires that the Plaintiff be compensated for being kept out of its money from that date. 31.In the result, the Originating Summons dated 18th March 2026 succeeds, and I make the following final orders:a).A declaration is hereby issued that the Plaintiff is entitled to the sum of Kshs. 810,000 received by the Defendant on its behalf in Isiolo HCCA No. E006 of 2024, Consolidated Bank of Kenya Limited v Waso Trustland Project.b).The Defendant shall pay and remit to the Plaintiff Kshs. 810,000 within fourteen (14) days from the date of this judgment, together with interest at court rates from 10th February 2026 until payment in full.c).For avoidance of doubt, the foregoing orders do not determine or prejudice the Defendant’s advocate-client bills of costs, which shall proceed to taxation in the respective matters in accordance with the law.d).Each party to meet their own costs of the suit. DATED, SIGNED AND DELIVERED AT ISIOLO VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY 2026.S. CHIRCHIRJUDGE.In the presence of:Roba Katelo – Court AssistantMr. Mwirigi. B for the plaintiffMr. Mwirigi .M for the defendant