[1929] EACA 66

## ORIGINAL CIVIL.

### Before SHERIDAN, J.

# IN THE MATTER of the Resident Magistrate's Court (Nairobi) Civil Case No. 217 of 1929 (John and Edward $v$ . C. S. Lezar)

## and

IN THE MATTER of a Reference made by the Registrar, Supreme Court, Nairobi, therein in connexion with the payment out of the sum of Sh. 257/55, for a Ruling by His Majesty's Supreme Court thereon.

#### C. C. $209/1929$ .

Advocate's lien on proceeds of a judgment.

$Held:$ -That an advocate has a common law lien on the proceeds of the judgment.

RULING.—The Registrar has referred to me for decision a question whether a sum of Sh. 257.55 at present lying in Court should be paid out to Mr. Birdsey, an advocate who acted for the successful defendant and later the successful respondent in Civil Case No. 217 of 1929, Resident Magistrate's Court, Nairobi, or to certain judgment creditors who claim to be entitled to a rateable distribution to the exclusion of Mr. Birdsey. This sum of money was paid into Court by the unsuccessful plaintiffappellant to the credit of the defendant-respondent. The interested parties were represented by counsel before me. $Mr.$ Birdsey's claim is based on an argument that he has a lien for his costs on the whole amount, as it was through his instrumentality that his client succeeded in defeating the plaintiff's claim in both Courts. The question as to whether his contention should prevail depends on a point of application of law. ${\rm In}$ England it is provided by section 28 of the Solicitors Act, 1860 (23 and 24 Vict. C. 127), that it shall be lawful for a Court or Judge before whom a suit, matter or proceeding has been heard or shall be depending, to declare an attorney or solicitor to be entitled to a charge upon the property recovered or preserved. Mr. Birdsey has contended that the provisions of Art. 4 (2) of the Kenya Order-in-Council, 1921, are sufficiently wide to support his contention. The first point I will consider is whether the English Act referred to is an Act of general application within the meaning of the Article. As I view the matter it must be a case of either the whole Act being applied or not at all. If it be the case that the Act is relied on to fill in gaps in our local legislation it cannot be regarded, to my mind, as an Act of In the case of Rasul Bux v. Cavasji general application. Manekji Dalal, Civil Appeal No. 11 of 1912 reported at page 99, East Africa Laws Reports, Vol. IV, BARTH, J. (now Sir J. W. Barth, C. J.), in his judgment at page 102 stated:-

"Assuming that the Solicitors Act, 1843, is an Act. of general application an assumption of which I am extremely doubtful, and that the circumstances of the Protectorate permit of its application: -I have no hesitation in saying that I am of the opinion that the circumstances of the Protectorate, coupled with the fact that advocates of the Courts of the Protectorate stand on a somewhat different footing than solicitors of the Supreme Court of England, do not permit of its application, -then I am of the opinion that the Rules of 2nd March, 1911. which replace other Rules published in 1901, must be held to deal with the whole question of legal practitioners and replace the Solicitors Act, 1843." This action referred to a claim in respect of professional services and costs and in respectfully agreeing that the Solicitors Act, 1843, does not apply to Kenya I am also of the opinion that the Solictiors Act, 1860, equally does not apply.

But even though it be held that the Solicitors Act, 1860, does not apply to this country, that does not end the matter for an attorney or solicitor's lien is a creature of the common In the case of In re Sullivan v. Pearson, ex parte law. Morrison, 4. Q. B. (1868), page 153, at page 154, BLACKBURN, J.. expresses himself: "There is no doubt at all that where an attorney has by his labour or his money obtained a judgment for his client, he has a lien upon the proceeds of such judgment." Although advocates in this country may occupy a different point from solicitors in England in many respects, in regard to the matter under consideration, which is quite different from the point decided in Rasul Bux v. Dalal (Supra), they seem to me to occupy the same position, and in my opinion the words of (4) 2 of the Kenya Colony Order-in-Council, 1921, are sufficiently wide to allow of the application of the "common law lien" doctrine in the case of advocates in Kenya. At page 820, paragraph 1342 of Halsbury, Volume 26, it is stated: "A solicitor has at common law and apart from any Order of the Court or statute a lien over property recovered or preserved or the proceeds of any judgments obtained for the client by his exertions." In my opinion Mr. Birdsey has a common law lien over the sum of money in question, it having been admitted that it was recovered for his client by his labour.