Consultant asks court to strike out case filed against him by businessman

A consultant is seeking to have a case against him, filed by a businessman at the High Court, struck out.

Mr Mohsin Kanji wants in the alternative, judgment be entered for him against Mr Mohamed Jaffer dismissing his (Mr Jaffer’s) case with costs.

Mr Jaffer has sued Mr Kanji seeking to be paid USD 803,374.89 (KES 104 million).

The businessman says his claim against Mr Kanji is for the money which he on diverse dates between 2019 until 2024 advanced to him at his (Mr Kanji’s) instance and request.

In his application seeking to have the case struck out, Mr Kanji says that correspondence exchanged between the parties before the case was filed demonstrates that Mr Jaffer engaged him to provide case management and consultancy services at an agreed rate of USD 500 per hour.

Mr Kanji says that he rendered the services between December 2019 and June 2024 expending 9,618.75 hours and that USD 803,374.89 was paid on account of his professional fees for the services.

He says that the plaint (case) filed on March 5, 2025, is scandalous, frivolous and vexatious as the correspondence exchanged between Mr Jaffer and himself demonstrates the existence of a consultancy agreement and the provision of case management services by him (Mr Kanji).

“At no time during the subsistence of the consultancy agreement between 2019 and 2024 did the plaintiff (Mr Jaffer) assert the payments made to the defendant (Mr Kanji) on account of consultancy services constituted a loan,” part of the application states.

The applicant says that the evidence demonstrates that Mr Jaffer is an experienced businessman who would not agree to advance a loan of US Dollars 803,374.89 without any documentation.

“No terms of the alleged loan agreement have been pleaded, demonstrating that the allegations that a loan was advanced is an afterthought designed to avoid payment of the defendant’s fees,” part of the application states.

Mr Kanji says that the case is an abuse of the court process as it is an attempt by Mr Jaffer to use the court process to rescind the agreement to provide consultancy and case management services that is evident from correspondence exchanged between parties and avoid settling outstanding sums due under that agreement.

“The plaintiff allegations that US Dollars 803,374.89 was a loan are unsustainable having regard to the correspondence exchanged by the parties and such claims do not need a full trial to be dealt with,” says Mr Kanji in his application.

In his replying affidavit, Mr Jaffer says there was no commercial engagement, retainer agreement or agreed rate obligating him to pay Mr Kanji as alleged.

The plaintiff says that he notes extensive documentation annexed to the defendant’s application, all which pertains to communication between them regarding legal proceedings in the United Kingdom concerning the World Federation of the Khoja Shia Ithna-Asheri Muslim Communities.

Mr Jaffer also states that none of the documents demonstrates, proves, or confirms the existence of any agreement obligating him to pay the defendant nor do they entitle him (defendant) to any retainer charges as alleged.

He further states that it is his case that the sum of USD 803,374.89 claimed in the plaint was advanced to the defendant strictly as a loan and not for any payment for rendition of any legal services.

“It is my case that the defendant being an active executive member of the Khoja Shia Ithna-Asheri Muslims Community, was interested in pursuing the matter with the World Federation of the Khoja Shia Ithna-Asheri Muslim Communities, and it was solely on his instigation and persuasion that i agreed to act against the said Federation for its wrongdoings in instituting legal proceedings in the United Kingdom,” states Mr Jaffer.

Mr Jaffer further states that the defendant swore in English courts in the said proceedings that he (defendant) was not his consultant or legal advisor but took representation out of the community’s interest and his (defendant) own convictions that elections were wrongfully conducted

“There exists a fundamental dispute between the parties as to the true character and intention behind USD 803,374.89 advanced to the defendant, which dispute constitutes a clear triable issue that can only be resolved through a full trial where each party shall tender its respective evidence,” says Mr Jaffer in his affidavit filed in court.

On Monday October 5, Justice Emmanuel Bitta directed Mr Kanji to file his submissions within ten days as the court was informed that Mr Jaffer had already filed his submissions.