On September 27, 2019, Jumwa Charo Mbitha and Faiz Swaleh Abdalla hired Jane Onyango as their lawyer seeking to obtain legal possession of a disputed parcel of land in Kilifi.
Onyango was to be paid Sh170,000 as legal fees to enable her institute an adverse possession claim over the parcel of land.
In a judgement dated May 6, 2020, Onyango secured adverse possession of the suit land for Mbitha upon which a tittle deed was issued on June 8 2020. However, Onyango retained Mbitha’s tittle deed over Sh50,000 legal fee balance owed to her.
Mbitha and Abdalla had already paid Sh120,000. On June 17, 2020, Onyango wrote to Mbitha demanding the transfer of the suit land to herself for Sh1 million or an alternative Sh3 million enhanced legal fees.
Mbitha rejected her demand and offered her the Sh50,000 balance for the release of their tittle deed. Onyango declined the offer and refused to release the title deed compelling Mbitha to file a suit before Senior Principal Magistrate Justus Kituku.
On April 18, 2023, Magistrate Kituku allowed Onyango to retain the title deed until Mbitha paid the outstanding debt.
Aggrieved, Mbitha and Abdalla filed an appeal before Justice Benjamin Njoroge. Mbitha accused Onyango of misleading her to sign a false Memorandum of Understanding alleging she had received a title deed.
Mbitha had filed a notice of withdrawing the suit against Onyango in November 2022 and disowned Abdallah with whom the suit land belonged. Mbitha told the judge that Onyango’s subsequent demands to purchase the property or charge the legal fees of Sh3 million was an afterthought and breach of contract.
“The subsequent demands by the Respondent (Onyango) to purchase the property or charge legal fees of Sh3,000,000 were an afterthought and a breach of contract,” said Mbitha in her submission filed in court.
Mbitha said Kituku ought to have invoked Order 52 Rule 4(1)(e) of the Civil Procedure Rules to order the release of the title deed.
However, in her defense, Onyango opposed the appeal and said the parties' agreement was mutually varied by an MOU.
The advocate said that Mbitha voluntarily withdrew the suit and acknowledged receipt of the title.
Onyango said that Mbitha failed to prove fraud, coercion, or misrepresentation to invalidate the new agreement. She however conceded the initial retainer fee was Sh170,000.
Onyango told Justice Njoroge that parties can mutually alter contractual terms and courts cannot rewrite contracts.
Onyango said the agreement variation permitted her to purchase the suit property for Sh1 million or alternatively charge Sh3 million.
