[2022] KEHC 14717 (KLR)

Yawa v Kyalo Matata & Company Advocates (Civil Suit E071 of 2021) [2022] KEHC 14717 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14717 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit E071 of 2021

OA Sewe, J

November 4, 2022

Between

Mwamuye Kai Yawa

Applicant

and

Kyalo Matata & Company Advocates

Respondent

Judgment

1. The originating summons dated August 2, 2021 was filed by Mwamuye Kai Yawa, the applicant herein for the following prayers: -(a)That the honourable court be pleased to order the respondent, who was the applicant’s advocate in Mombasa CMCCNo 1737 of 2018: Mwamuye Kai Yawa v David Waithaka Kamwaba, to pay Kshs 305,154/- plus costs and interest to the applicant herein being the balance of the decretal sum paid to the respondent herein by David Waithaka Kamwaba;(b)That the court be pleased to order the respondent to deliver to the applicant a cash account;(c)That the court be pleased to order the respondent to deliver to the applicant a list of monies which the respondent has in his possession or control on behalf of the applicant herein;(d)That the court be pleased to order the respondent to deliver up papers and documents to which the client is entitled;(e)That the court be pleased to order the respondent to comply with the court orders prayed for in [a], [b] and [c] above within 14 days from the date they are issued; and(f)That the costs of this application be borne by the defendant.

2. The brief background to the suit is that the applicant herein filed Mombasa Chief Magistrate’s Case No 1737 of 2018: Mwamuye Kai Yawa v David Waithaka Kamwaba, in respect of a road traffic accident in which the applicant was knocked down while walking along Mombasa-Malindi Road at Bombolulu. The lower court found in favour of the applicant and consequently, judgment was entered in his favour in the following terms:(a)Liability 20%:80% against the defendant therein, David Waithaka Kamwaba;(b)General damages Kshs 600,000/-(c)Special damages Kshs 9,000/-(d)Costs(e)Interest

3. A copy of the lower court’s judgment was annexed to the applicant’s supporting affidavit and marked annexure MKY2. The applicant’s cause of action was that after judgment was delivered, his advocates, the respondent herein, received the decretal sum from David Waithaka Kamwaba, the defendant inCMCC No 1737 of 2018, but failed to remit the entire sum to him. The applicant is therefore seeking orders to, inter alia, compel the respondent herein to pay him the balance of Kshs 303,846/= plus costs and interest.

4. A perusal of the court record shows that the respondent herein was repeatedly served with the originating summons, mention and several hearing notices but failed to attend court on the returnable date for hearing of the summons. In particular, the affidavit of service sworn by Dominic Munguti Kitika on 3rd Aug 2021 and field on August 12, 2021 confirms that the originating summons and its supporting affidavit were duly served on the respondents on August 2, 2021. A copy of the originating summons bears the respondent’s stamp in acknowledgment of receipt. Likewise, the court was satisfied that a hearing notice for June 14, 2022 was duly served on the respondent before proceeding with hearing ex parte for purposes of order 12 rule 2(a) of the Civil Procedure Rules, which states that:“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied—a.That notice of hearing was duly served, it may proceed ex parte;”

5. The applicant’s suit was brought pursuant to order 52 rule 4(1) and (2) of the Civil Procedure Rules; which provides that:(1)Where the relationship of advocate and client exists or has existed the court may, on the application of the client or his legal personal representative, make an order for—(a)the delivery by the advocate of a cash account;(b)the payment or delivery up by the advocate of money or securities;(c)the delivery to the applicant of a list of the money or securities which the advocate has in his possession or control on behalf of the applicant;(d)the payment into or lodging in court of any such money or securities;(e)the delivery up of papers and documents to which the client is entitled.(2)Applications under this rule shall be by originating summons, supported by affidavit and shall be served on the advocate.

6. In proof of his case, the applicant relied entirely on his supporting affidavit filed in support of the originating summons together with the documents annexed thereto. That evidence does show that there existed an advocate/client relationship between the parties; and that the respondent acted for the applicant in Mombasa CMCCNo 1737 of 2018 in which the applicant was awarded general and special damages in the total sum of Kshs 609,000/= together with interest and costs. The applicant further demonstrated that the respondent only made part payment to him, leaving a balance of Kshs 303,846/=, which is what he now seeks to be paid by the respondent.

7. The respondent had the opportunity to attend court and account for the sums received on the applicant’s behalf, but opted not to defend this suit. I therefore have no hesitation in holding that the respondent is indeed under obligation to pay up the outstanding balance of Kshs 303,846/= to the applicant; the same having been received in trust for and on behalf of the applicant. In this regard, I find succour in the case of Kim Jong Kyu v Housing Finance Company Ltd & 2 others [2015] eKLR, in which the Court of Appeal held: -“In our legal system, the advocate/client relationship has long been recognized as fiduciary relationship in which the client places his or her confidence, faith, reliance and trust in the advocate, whose aid, advice, opinion or protection is sought from time to time. The client gives the advocate significant amount of control over the matter in which the brief relates. With this relationship comes certain duties and responsibilities on the advocate. These duties and responsibilities are provided for in the statute and the rules of conduct as we demonstrate below. The sets of rules that govern the advocates’ professional conduct arise out of the duty that they owe to the court, their clients, and fellow advocates. Section 80 of the Advocates Act stresses the advocate’s duty to a client;…Any person who, being an advocate, is entrusted in his professional capacity with any money, valuable security or other property to retain it in safe custody with instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply or account for the same after due completion of the purpose for which it was given, shall be guilty of an offence:In addition, the Advocates (Accounts) Rules and the Advocates (Deposit Interest) Rules draw the permissible limits of dealings with funds received on behalf of and for the benefit of a client. The foregoing emphasises that an advocate must at all times act in the best interest of his client; that where he is required to invest he must do so prudently and avoid obvious risks and; that failure to account for funds held by an advocate on behalf of a client is in fact a criminal offence."

8. It is in the light of the foregoing that I find merit in the originating summons dated August 2, 2021. The same is hereby allowed and orders granted as hereunder:(a)That the respondent, who was the applicant’s advocate in CMCCNo 1737 of 2018: Mwamuye Kai Yawa -vs- David Waithaka Kamwaba, be and is hereby ordered to pay the sum of Kshs 305,154/= to the applicant herein being the balance of the decretal sum paid to the applicant by David Waithaka Kamwaba, together with interest and costs within 30 days of the date hereof;(b)That the respondent be and is hereby ordered to deliver to the applicant a cash account in respect of the applicant’s client account with the firm within 30 days from the date hereof;(c)That the respondent be and is hereby ordered to deliver up papers and documents to which the applicant, as a client, is entitled within 30 days from the date hereof;(d)That the costs of this application be borne by the respondent.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 4TH DAY OF NOVEMBER, 2022. OLGA SEWEJUDGE