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Court allows lawyer Tom Ojienda to recover Sh397m from NLC

Prof Tom Ojienda. [George Njunge, Standard]

The High Court in Eldoret has issued a garnishee order allowing Senior Counsel Prof Tom Ojienda to recover Sh397 million in legal fees from the National Land Commission (NLC).

In the case, Prof Ojienda and Associates had defended the commission in a case filed in 2013 where two landowners sought a total of Sh7.8 Billion for two parcels of land measuring 546 acres and 604 acres.

Two families -Thomas Kipkogei Yator and William Kimngeny Leting, both deceased, had sued NLC, Kenya Airports Authority, and the county government of Uasin Gishu among others, over ownership of parcels of land where expansive Langas estate currently sits.

They had sought more than Sh7.8 billion in compensation and a further Sh2.7 billion for loss of use for over 30 years.

On November 21, 2014, NLC instructed Prof Tom Ojienda and Associates to defend them in the suit.

However, in a judgement issued on April 15, 2016, NLC and others were ordered to pay Sh3.7 billion and Sh4 billion as compensation for the loss of their land.

The court also directed that the petitioners be paid Sh500 million as mesne profit.

Justice Ogola ordered Sh397 million be remitted to Prof Ojienda’s law firm within 24 hours. [iStockphoto]

The law firm told the court despite the “spirited, zealous and sometimes strenuous representations”, the Commission failed to pay them its legal fees as calculated under the Advocate's Remuneration Order.

“Consequently, the applicant filed an Advocate-Client Bill of Costs dated October 24, 2015, being Misc. 29B of 2016 Prof Tom Ojienda and Associates Vs National Lands Commission against the Commission seeking a total of unpaid sum of Sh282,337,074.50,” the court heard.

In a ruling dated September 20, 2016, the bills of costs were taxed at Sh220 million and a certificate was issued by the Deputy Registrar.

The firm, however, told the court the commission neither filed any notice of objection, nor did they file a reference to the judge setting the grounds of its objection.

They noted as of May 27, 2019, the National Bank of Kenya was holding Sh5.5 billion in an account belonging to NLC when they were forced to seek a Garnishee order.

However, the commission filed an application on May 29, 2019, seeking to set aside the Garnishee Order Nisi (An order that required the bank as a third party to surrender the money to settle the claim) issued on May 28, 2018.

Though the order was set aside, the court dismissed prayer to suspend the execution of the taxation ruling.

NLC instructed Prof Tom Ojienda and Associates to defend them in the suit on November 21, 2014. [Fidelis Kabunyi, Standard]

Justice Eric Ogola noted that though the commission has been paying other debts, they had failed to explain why they had not settled the advocate's fees.

"Their failure to pay the applicant his fees, and thereby allowing the amount to grow in terms of interest, is a dereliction of public duty and the same has caused the public to shoulder astronomers amount of interest," he noted.

He added. "The CEO and other responsible NLC officials should be personally held accountable for the accrued interest on the amount due if they continue to operate public office with impunity."

Justice Ogola ordered Sh397 million be remitted to Prof Ojienda’s law firm within 24 hours of the issuance of Garnishee Order Absolute.

“The Judgment debtor has not even made an attempt to have the parties agree on a payment formula, despite intimating to the Court that it wanted to have the matter settled out of court,” Ogola noted in his decision.

He added, “The applicant has since the year 2017 had a mere paper in the name of a Judgment. This court will not allow its processes for misuse in the manner that the respondent is doing.”