1.Judgment in this suit was delivered on 10th February 2017 by Justice Abuodha J. N. The Claimant’s advocates thereafter took out execution proceedings and realised a sum of Kshs.538,550.00. The Claimant’s Counsel partly paid the Claimant and recovered fees from the decretal amount leaving an amount of Kshs.250,000.00 to the credit of the Claimant.
2.It would appear that there was a disagreement over the disbursement of the said sum to the Claimant. Counsel for the Claimant, Ms. Kinyua Musyoki and Company Advocates allege that the Claimant failed to attend their offices to collect the money while the Claimant alleges that the said advocates have failed and/or refused to release the said monies to him.
3.The Claimant subsequently filed a complaint at DCIO Matinyani accusing the Advocates of stealing by agent. The DCIO Matinyani wrote to the said advocates inviting them to report to the SCCIO Matinyani on 26th April 2021 at 1000 hours to shed more light on the matter.
4.On 14th June 2021, Kinyua Musyoki and Company Advocates filed the instant application in which it seeks the following orders:
5.The grounds in support of the application are that:
6.Upon being served with the application, the Claimant instructed Mwinzi and Associates Advocates who first filed a notice of change of advocates on 12th November 2021 which was later withdrawn by notice of withdrawal dated 21st February 2022. Mwinzi and Associates Advocates on the said date, that is 21st February 2022, filed an application by way of notice of motion seeking the following orders:
7.From the two applications, it is clear that there is a common understanding that there are funds for the Claimant in the hands of Kinyua Musyoki and Company Advocates which the said advocates wish to pay to the Claimant who also desires to be paid the said amount.
8.It is unfortunate that the matter had to be resolved by the filing of applications by both parties when in actual fact there appears to be no dispute over the same.
9.I accordingly order that the firm of Kinyua Musyoki and Company Advocates do within seven (7) days from today, issue a banker’s cheque of Kshs.250,000/- to the firm of Mwinzi and Associates for onward transmission to the Claimant. The said sum is to be paid the Claimant in full by Mwinzi and Associates within 14 days of receipt thereof.
10.The fees payable to Mwinzi and Associates by the Claimant is to be borne by Kinyua Musyoki and Company Advocates on the basis of the Advocate/Client bill. This is because had the said advocates released the decretal sum to the Claimant as and when it was received, there would have been no need for the two applications before the Court. The money payable to the Claimant would also have earned quite a bit of interest had it been invested at the time of receipt by Kinyua Musyoki and Company Advocates, which benefit the Claimant has lost due to the failure of the said advocates to either release the money to him or invest the same.
11.The application by the firm of Kinyua Musyoki has no basisand borders on abuse of Court process. The same is dismissed with costs.
12.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 4TH DAY OF JULY 2022MAUREEN ONYANGOJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.MAUREEN ONYANGOJUDGE