Court orders lawyer to return Sh15.3m to widow and her children

A senior advocate has suffered a major setback after the High Court ordered him to repay more than Sh15 million to the widow and children of a deceased client, whose estate he was accused of holding for nearly a decade.

Justice Benjamin Musyoki directed Onesmus Githinji Gachuhi, trading as Onesmus Githinji & Company Advocates, to pay the family of the late businessman John Ian Maingey Sh15,282,893, with interest at court rates from September 24, 2016 until full settlement within 90 days.

The case was filed in 2024 by the widow Florence Kamanthe Maingey, and her children Paul Maingey and Loise Kambua Maingey, who claimed the advocate received money on behalf of the deceased but failed to remit it.

Court documents showed that Gachuhi received Sh16,607,910 from the proceeds of sale of land known as LR No. 1338/89 in Athi River through Muthoga & Gaturu Advocates. After alleged deductions, Sh15,282,893 remained due to the estate.

The widow told the court that the lawyer became evasive after receiving the funds and the deceased later died while struggling with medical complications linked to lack of finances. She further alleged that repeated calls and demand letters went unanswered.

In his defence, Gachuhi insisted he had already paid the deceased in full in 2016 and produced claims of a discharge voucher. He also argued that the family lacked legal standing and cited a previous withdrawn suit on the same matter.

He further alleged that crucial records were lost during a police raid, claiming officers from Kamukunji Police Station seized his file, making it difficult for him to defend himself.

Credible evidence

However, Justice Musyoki rejected his explanations, saying the advocate failed to provide credible evidence of payment or explain why he had not retrieved or reconstructed his records.

The judge noted that Gachuhi, a seasoned advocate and former judicial officer, was expected to maintain proper documentation, especially in matters involving large sums of money.

“I refuse to believe that the lawyer could not secure a copy of the alleged discharge voucher,” the judge said, adding that the claim of cash or informal payment was implausible given the amount involved.

He further held that the burden of proving payment rested with the advocate, not the applicants, and pointed out that banking transactions of such sums would necessarily leave a clear paper trail.

The court also confirmed that the applicants had legal standing, citing a confirmed grant issued in Succession Cause No. E037 of 2022, which empowered them to act for the estate.

Justice Musyoki concluded that the advocate had attempted to rely on technicalities to delay justice. He ordered repayment of the Sh15.3 million with interest from 2016, payment of costs, and compliance within 90 days, failing which execution would follow.

A senior advocate has suffered a major blow after the High court, ordering him to repay over Sh 15 million to the widow and children of a deceased client whose estate he allegedly sat on for nearly a decade.

Justice Benjamin Musyoki ordered Onesmus Githinji Gachuhi, trading as Onesmus Githinji & Company Advocates, to pay the family of the late businessman John Ian Maingey Sh 15,282,893 with interest at court rates from September 24, 2016 until payment in full within three months.

The applicants Florence Kamanthe Maingey, son Paul Maingey and daughter Loise Kambua Maingey filed case in 2024 claiming the advocate had received the funds on behalf of their late husband and father but refused to remit the balance.

According to the applicants, the respondent received Sh 16,607,910 on account of the deceased on or about September 24, 2016, and upon deduction of some money to other firms, a sum of Sh 15,282,893 was left due to the deceased from the respondent.

The court heard that the money represented the deceased's entitlement as his share of proceeds of sale of land known as LR Number 1338/89 situated in Athi River, received from the firm of Muthoga & Gaturu Advocates.

In a tragic dimension to the case, the widow averred that after the lawyer received the money, he became evasive until the deceased died of medical complications due to unavailability of funds.

The widow further stated that advocate Gachuhi has refused to pick their calls or respond to demand letters with no lawful excuse.

Gachuhi mounted a multi-pronged defence, insisting he had already paid the deceased.

He claimed the full amount due to the deceased was remitted to him and he signed a discharge voucher to that effect in 2016.

He also argued the applicants lacked legal standing, that no advocate-client relationship existed with the family, and that a prior similar suit before the same court had been withdrawn.

Gachuhi also blamed the missing evidence on a police raid, claiming the applicants conspired with police officers from Kamukunji Police Station who arrested him and thereafter, upon establishing that he remitted the money to the deceased, retained his file, hence he is unable to defend himself.

Justice Musyoki dismissed Gachuhi's claims of discharge voucher and police interference and found that advocate failed to account for land sale proceeds received in 2016.

 "The respondent(Gachuhi) has not given details of the officers who took the file from him and why he has not made efforts to retrieve the same even if it meant he does so through a court order," the judge observed

The court noted pointedly that the respondent is an experienced advocate of many years and a former judicial officer who definitely knows the importance of keeping records, especially where there is likelihood of controversy over issues like the ones in this matter.

"I refuse to believe that Lawyer Gachuhi could not even secure a copy of the alleged discharge voucher and exhibit the same for the court's scrutiny," Justice Musyoki held  

The judge also dismissed the advocate's position on the financial mechanics of the alleged remittance.

"It is obvious that the amount in dispute is substantial and is not the kind of money that would be exchanged in an envelope or a wallet," Justice Musyoki stated.

 "The money must have originated from some accounts in a banking institution to the deceased's account."

Invoking standard banking practice, the judge noted that in 2016, one could not transfer or pay to another's account a sum of more than one million without evidence of the source of the funds and purpose of the payment, which would entail a paper trail.

When the respondent argued that the applicants should have produced the deceased's bank statement to prove non-payment, the judge turned the logic back on him, holding that the burden of proving remittance squarely lay with the advocate.

The court also rejected the advocate's claim that the family lacked the legal standing to sue.

Justice Musyoki took judicial notice of a certificate of confirmation of grant issued to the applicants, confirmed on May 2, 2023, in Succession Cause Number E037 of 2022, holding that this fully clothed them with authority to pursue the estate's claims.

"It appears to me that Lawyer Gachuhi has been in a journey of exploiting all manner of technicalities to hold the money for the longest. That journey must like others come to an end and it must come with interest," Justice Musyoki ruled.

Beyond the Sh 15.3 million with interest running from September 2016, the lawyer was also ordered to pay the applicants' costs of the suit, with the decretal sum to be paid within ninety (90) days from the date of judgment, failure to which execution shall issue in the normal manner.