Law Firm Ordered to Refund Client’s Illegally Held Millions
The respondent opted not to enter an appearance, nor did he attend court to defend himself during the hearing of this suit. "In essence, this claim is uncontested," Justice Rayola indicated.
A Marsabit High Court has ordered Kiogora Mugambi and Company Advocates to remit Ksh 1.87 million held illegally on behalf of Mary Halake, a client of the said law farm.
While delivering the judgment, Justice Francis Rayola ordered the respondent to refund the money plus interest at court rates from August 6, 2021, until payment in full.
Justice Rayola indicated to consider all the pleadings filed and noted that the suit was undefended, he reaffirms that as a general proposition under Section 107(1) of the Evidence Act Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the Issue they want the court to find in their favor.
He noted that despite being served, the respondent opted not to enter an appearance, nor did he attend court to defend himself during the hearing of this suit. “In essence, this claim is uncontested,” he indicated.
The judge cited the case of Rajah J A in Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] 4 SLR 855 where he stated that “The Court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him…”
The applicant had testified and produced exhibits to support her contention that she did deposit a sum of Ksh 2 million into the respondent’s account based on his advice, that depositing security would strengthen their case that she had repudiated the sale agreement and offered to refund the consideration to the plaintiff in the suit, where she had been sued. Unfortunately, she eventually lost the said case, and thus there was no reason why the respondent advocate should not refund the sums.
The money was deposited into the firm’s account held at IDLM Bank Kenya Limited-Meru Branch on June 26, 2020, and the same was to be held in trust for Halake and ultimately be refunded with interest once she won the ELC case he was handling.
She stated that the outcome of the ELC case was not positive, and after discussions with her family, she opted not to appeal.
Thereafter she wrote to the respondent on August 6, 2021, requesting a refund of her money, and over time, the respondent had only managed to refund Ksh 912,989 and ignored to settle the balance, thus necessitating this suit.
In her affidavit, Halake indicated that she had fully settled the respondent’s legal fee and there was no basis for the respondent to continue holding onto her money urging the court to intervene and deliver judgment in her favor.
In determination, Justice Rayola stated “Having considered the pleadings filed and evidence presented, I do enter judgment for the plaintiff thus Ksh 1,087,010 be remitted to her account together with the interest at the court rates from June 26, 2020, till payment in full.
