A CASEBOOK ON PROFESSIONAL ETHICS &

RESPONSIBILITY

EDITOR

TOM. O. OJIENDA

i
 TABLE OF CONTENT
AARON GITONGA RINGERA & 3 OTHERS v. PAUL K. MUITE & 10 0THERS ...................................... 1

THE ADMIN. OF MAXWELL OMBOGO (DECEASED)V STANCHART BANK KENYA ...................... 22

STEPHEN MWAI GACHIENGO, ALBERT MUTHEE KAHURA v. REPUBLIC ...................................... 32

APOLLO INSURANCE COMPANY LTD v. S. K. KAMAU & MUTHANWA & CO ADVOCATES ........ 44

LAKESTAR INS. CO. LTD, C. A. NDUBI v. MARK N. T/A GITHIRU & CO. ADV. & M. OGUTU........ 61

UNITED INSURANCE CO. LTD v. DORCAS AMUNGA ......................................................................... 71

KENYA BUS SERVICES LTD v. SUSAN MUTETI .................................................................................. 85

KENYA REINSURANCE CORP. v. V. E. MUGUKU T/A M/S. V. E. MUGUKU MURIU & CO. ............. 91

KARSAM LALJI PATEL v. PETER KIMANI K. practising as KIMANI & CO. ADVOCATES.................100

WALKER KONTOS ADVOCATES V. S, MWIRIGI M’INOTI & COMPANY ADVOCATES .................108

KENNETH KIPLAGAT V. THE LAW SOCIETY OF KENYA .................................................................113

KING WOOLEN MILLS LTD VS. M/S. KAPLAN & STRATON ADVOCATES ....................................121

ii
 INDEX OF CASES REFERED

AARON GITONGA RINGERA & 3 OTHERS v. PAUL K. MUITE & 10 0THERS .... 1
Refrigerator & Kitchen Utensils Ltd vs. Gulabchand and others – Civ. App. Nai No.39 of
1989) ............................................................................................................................... 7
Mutitika vs. Baharini Farm (1982 – 1988) 1 KAR 863) 7
Huson v. Huson (1962) 3 ALL E.R. 1056). So knowledge of a court process, order etc is the
core of the whole issue. 9
Chuck vs Cremer (1846) Cooper Temp. Cott.205, 338) 17
APOLLO INSURANCE COMPANY LTD v. S. K. KAMAU & MUTHANWA & CO ADVOCATES .. 44
Erinford Properties Ltd v. Cheshire Council (1974) 2 All ER 448 50
Kenya Bus Service Ltd. v. Susan Muteti, Civ Appeal 15 of 1992 ........................................ 50
Polivui v. Gray, (1879), 12 Ch D438 50
Kenya Bus Services Ltd. v. Susan Muteti, Civil Appeal 15 of 1992”. 53
Kibutiri v. Kenya Shell Ltd., HCCC 3398 of 1980.............................................................. 50
Wilson v. Church No. 1879, 12 ChD 454; 50
KARSAM LALJI PATEL v. PETER KIMANI K. practising as KIMANI & CO. ADVOCATES.................100

KENNETH KIPLAGAT V. THE LAW SOCIETY OF KENYA ............................................................113

Keller vs. State Bar of California, 496 U.S. 1 ...........................................................................................117

KENYA BUS SERVICES LTD v. SUSAN MUTETI ............................................................................... 85

KENYA REINSURANCE CORP. v. V. E. MUGUKU T/A M/S. V. E. MUGUKU MURIU & CO. 91

KING WOOLEN MILLS LTD VS. M/S. KAPLAN & STRATON ADVOCATES 121

LAKESTAR INS. CO. LTD, C. A. NDUBI v. MARK N. T/A GITHIRU & CO. ADV. & M. OGUTU . 61
Giella –v- Cassman Brown & Company Limited conditions. ................................................................... 62
– MARY AWINO OGUTU VS. CHARLES ATWIYA NDUBI, .............................................................. 65
Apollo Insurance Company Limited V/s S. K. Kamau and Muthanwa & Company Advocates
69

STEPHEN MWAI GACHIENGO, ALBERT MUTHEE KAHURA v. REPUBLIC ............................... 32

Director of Public Prosecution v. Humpreys (1975) 2 ALL ER 496 37
Metropolitan Properties co. Ltd. v. Lannon and Others (1968) 3 ALL ER 304 .................. 37
Mohanlal Karamshi Shah v. Ambalal Chotabhai Patel & Others 21 EACA 236 38
Richard Kimani and S. M. Maina v. Nathan Kahara – Criminal (Revision) Case NO.11/83
...................................................................................................................................... 38
The Discipline of Law by Lord Denning ................................................................................................... 37
Jopley Constantine Oyieng v. Republic Cr. Appeal No.45/88 38 of Lesotho v. Prime Minister
of Lesotho and Another (1986) L.R.C (Const). ............................................................... 42

AARON GITONGA RINGERA & 3 OTHERS v. PAUL K. MUITE & 10 0THERS................................ 1

iii
THE ADMINISTRATORS OF THE ESTATE OF MAXWELL MAURICE OMBOGO (DECEASED)
................................................................................................................................................................... 22
V ................................................................................................................................................................. 22
STANDARD CHARTERED BANK KENYA ........................................................................................... 22
STEPHEN MWAI GACHIENGO, ALBERT MUTHEE KAHURA v. REPUBLIC ............................... 32
APOLLO INSURANCE COMPANY LIMITED v. SCHOLASTICA K. KAMAU & MUTHANWA &
COMPANY ADVOCATES ....................................................................................................................... 44
LAKESTAR INSURANCE COMPANY LTD, CHARLES ATWIYA NDUBI v. MARK N. GITHIRU
T/A GITHIRU & COMPANY ADVOCATES & MARY A. OGUTU ..................................................... 61
UNITED INSURANCE CO. LTD v. DORCAS AMUNGA ...................................................................... 71
KENYA BUS SERVICES LTD v. SUSAN MUTETI ............................................................................... 85
KENYA REINSURANCE CORPORATION v. V. E. MUGUKU MURIU T/A M/S. V. E. MUGUKU
MURIU & COMPANY ............................................................................................................................. 91
KARSAM LALJI PATEL v. PETER KIMANI KAIRU practising as KIMANI & CO. ADVOCATES
..................................................................................................................................................................100
WALKER KONTOS ADVOCATES V. S, MWIRIGI M’INOTI & COMPANY ADVOCATES ..........108
KENNETH KIPLAGAT V. THE LAW SOCIETY OF KENYA ............................................................113
KING WOOLEN MILLS LTD (formerly known as MANCHESTER OUTFITTERS SUITING
DIVISION LTD & GALOT INDUSTRIES LTD VS. M/S. KAPLAN & STRATON ADVOCATES ....121

iv
 AARON GITONGA RINGERA & 3 OTHERS v. PAUL K. MUITE & 10 0THERS

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NO. 1330 OF 1991

Contempt of Court – Standard of proof in contempt proceedings

Ultra vires – whether the defendants acted outside the objectives of the Law Society of
Kenya Act
Duty of an advocate to court, clients and the legal profession
FACTS:
The applicants contended that the 8 respondents be committed and detained in
prison for a period not exceeding 6 months because they jointly or severally had as
council members of the L.S.K issued political statements in breach of the court
orders issued against them. The orders said to be breached had initially been given
by Dugdale J in an ex parte injunction application and later confirmed by Mango J
in the inter partes hearing. The affidavit in support of this committal for contempt
application was sworn by the 1st Applicant.

The application for committal was brought under a certificate of urgency. The
borne of contention was that the respondents espoused such political ideas so
diametrically opposed to those of the government whereupon the government would
even consider to repeal the L.S.K Act and that as members of the L.S.K. it was not in
the objects of L.S.K Act to spurn such a state of affairs and that the applicants had
not mandated the respondents in the Council to create such a state of affairs which
they, Applicants, saw as prejudicial to their interests.

HELD:
1
 1. With the seriousness with which contempt proceedings ought to be treated,
particularity and proof of what is allegedly the ‘offence’ ought not to be lost
sight of. This is so because proof in contempt proceedings must be higher than
on a balance of probabilities almost but not exactly beyond reasonable doubt.
2. So long as a party was aware that court orders prohibiting or requiring him to
do something have been issued that party would be under an obligation to obey
such orders irrespective of that party’s belief of the propriety or otherwise of
those orders.
3. Whereas the respondents as individual Kenyans were entitled to exercise their
constitutional rights including the right and freedom of expressing political
views, they were estopped from doing so in their capacities as council members
of the LSK since the LSK Act restricted their mandate in clear terms.
4. (obiter dictum) An advocate has the duty to the court that supercedes the one
that he owes to the client and where a client instructs an advocate to do that
which will compromise the advocate’s duty to the court then the advocate should
be better of declining to execute such instructions. Further an advocate has a
duty to be courteous in his interaction other officers of the court-judges,
magistrates, and fellow counsel.

CASES REFERRED TO:

Refrigerator Kitchen Utensils Ltd. vs. Gulabchand & Others – Civ. App. Nbi No. 39 of
1989
Mutitika vs. Baharini Farm (1982 – 1988) IKAR 863
Huson vs. Huson (1962) 3 AII E.R. 1056
Hadkinson vs. Hadkinson (1952) CA 285

2
 RULING OF THE COURT
(Mwera, J.)

On 21.5.91 the 4 plaintiffs/applicants (simply referred to as Applicants) filed a Chamber

summons under Order 39 Rule 2(3) and Order 53 Rule 1(1) of the Civil Procedure Rules.

By this application, they sought this court’s leave to prosecute contempt proceedings against
the following defendant/Respondents (hereinafter referred to as Respondents) – Messrs –
Muite, Mutunga, Shamalla, Nyachae Kagwe, Mrs. Njoka, Kariuki and Juma.

The applicants contended that the 8 Respondents be committed and detained in prison for a
period not exeeding 6 months because they jointly and or severally had, a Council members
of the L.S.K issued political statements in breach of the Court Orders issued against them,
prohibiting such statements. The orders said to be breached had initially been given by
Dugdale J on 14/3/91 in an ex parte injunction application and later confirmed by Mango J
in the inter partes hearing and ruling of 30/4/91. The affidavit in support of this committal
for contempt application was sworn by the 1 st Applicant – Ringera, on 17/5/91 – stating
whatever was supposed to be relied on. There were exhibits appended too.

The Chamber Summons was served, no doubt and the Respondents did reply. Mutunga 2 nd
Respondent swore an affidavit in reply dated 30.5.91 and filed in court on 5/6/91 for himself
and all the other Respondents.

The application for committal was brought under a certificate of urgency.

On 7.6.91 it opened before me for hearing. Both sides were initially represented. Messrs
Shah and Ombogo for the Applicants while Messrs Kapila and Raiji appeared for the
Respondents. After applications, submissions affidavits and rulings in between the actual
hearing started on 26.7.91 with applicants still represented and the 8 respondents
representing thenselves.

3
It need no repeating here but let it be noted the applicants as well as the respondents are
lawyers. They all belong to L.SK. The respondents are members of the governing council
of the L.S.K. while the applicants are ordinary L.S.K. members. All practicing lawyers in
Kenya must belong to L.S.K as per that Society’s Act (Cap 18).

The bone of contention between these 2 parties is rooted in the plaint filed by the applicants
on 14.3.91. It is yet to be heard. But in para 6 of that plaint it is averred that (in paraphrase)
what the respondents had said prior to their being elected into the Council, what had been
heard immediately after election and what they are very probably likely to say in future will
or would bring the L.S.K in direct conflict and confrontation with the government. That
respondents espoused such political ideas and their statements in this regard were so
diametrically opposed to those of the government whereupon the government would even
consider to repeal the L.S.K. Act. That such statements coming from L.S.K Council, would
be perceived by the government and the public that all L.S.K, members, including the
applicants subscribed to them. Applicants argued that this was never their intention as
members of L.S.K; it was not in the objects of L.S.K Act to spawn such a state of affairs and
that applicants had not mandated the respondents, individually and or jointly, in the Council
to create such a state of affairs which they, Applicants, saw as prejudicial to their interests.
The respondents opposed the injunction application which applicant sought as per the
foregoing. Mango, J heard them. He issued an injunction in the items as set out below.
Thus on the material before him Mango, J was satisfied that an injunction was deserved by
the Applicants. He gave the following orders, confirming those given by Dugdale, J. earlier,
to remain in force until the suit is finally determined. Since the orders were virtually the
same there is no need to speak of either Dugdale J’s orders or Mango J’s orders. By
confirming them on 30/4/91 it should thus be understood that with effect from 14/3/391
there were in force court orders prohibiting the Respondents by restraining.

4
(1) …… the 1st to 11th Defendants jointly and severally from acting in any manner ultra
vires the objects of the 11th Defendant and or [using] its Council as a forum for
political purpose to wit:-
(a) from making any statements which are political in nature and contrary to the
Constitution of Kenya and the L.S.K Act campaigning and calling for registration of
a political movement and/or party.
(b) from conducting the business of the 11th Defendant in any manner political.
(c) from making any statements which may cause public disaffection and prejudicially
affect the peace and good order of the Republic.
(d) the 1st defendant from presiding over and or participating in any council and or
meeting of the 11th defendant and from conducting the business and affairs of or
issuing statements and or participating in any manner whatsoever in any activity of
the L.S.K as its Chairman.
(2) The injunction to remain in force until the determination of the suit.

Order 1 (d) restraining 1 st defendant, Muite, from chairing meetings of L.S.K was however
lifted by the Court of Appeal on 2/7/91 (see Civ. App. Nai. 89/91). But whatever of
relevance that 1st respondent may have done [or] said before this lifting will be adverted to
in due course, otherwise other orders i.e 1(a), (b) and (c) should be still in force since they
have not been discharged or otherwise dealt with and the main suit is still pending. The
foregoing generally sets the scenario for the next act on the stage.

Where contempt proceedings are placed before court for hearing quite a number of legal
issues and principles come to the fore e.g. existence of the orders that ought to be obeyed or
executed; service; proof of breach; penalties etc. The aspect of fact in committal for
contempt proceedings includes fairly basic issues: e.g. were court orders in existence; did
the defendant(s) know of them; were they indeed breached.

Just before going further it may be useful, though not imperative, to say something about
this feature – contempt of court and why the court gets interested in it when an allegation

5
has been filed that it has been committed. The history of it need not be dug up. Suffice it to
say that a court issues, orders, judgments and decrees in civil matters when adjudicating
over parties’ disputes. This is in the court’s civil jurisdiction. Those orders, judgments,
decrees etc ought to be obeyed by those they are directed to. For justice demands that
whoever has a right should enjoy it. And the courts are there to pronounce and ensure just
that. If one towards whom a directive is given disobeys it then that one is in contempt.

The aggrieved party then comes to court and if he/she proves the disobedience or contempt
the court then uses its authority to coerce or punish the offending party. The court in
exercising its jurisdiction here is doing so because:

“It is essential for the maintenance of the rule of law and good order
that the authority and dignity of our courts are upheld at all times”.

(see Refrigerator & Kitchen Utensils Ltd vs. Gulabchand and others – Civ. App. Nai No.39
of 1989)

It should be added that one who disobeys a court order especially deliberately:

“…is liable to be committed for contempt (because) by doing so he

has conducted himself so as to obstruct the course of justice and so
…set the order of the court to nought”.

(see Mutitika vs. Baharini Farm (1982 – 1988) 1 KAR 863)

So all in all the above exposition says what it is all about committal proceedings for
contempt of court namely that a court order has been issued; the person to whom it is
directed disobeys it and so the court in order to assert its authority, maintain its dignity and
contribute to the rule of law and good order in society, it deals with the disobeying party –
all for the greater goal of keeping the course of the administration of justice clear always. It
would be a chaotic society where court orders were disobeyed and that was left at that.

6
There are other aspects of contempt e.g disobeying a court process; attacking court officers
e.g while serving/involved in matters of court; insulting judicial officers etc. But those
aspects are not our concern here. However, for whatever aspect of contempt of court, courts
through history and in every jurisdiction exercise, the power to coerce or punish
contemnors. So much for the general remarks above and now back to our matter in hand.

It is not in dispute injunction orders were issued against the respondents. It is also true that
those orders have not been discharged and that the suit is still pending. The orders
prohibited the respondents from issuing confrontational political statements and or
conducting the L.S.K. business in a political manner (paraphrase). This part does not
require to exercise our minds much -–orders were issued by the court and they still subsist.

But the next bit extends the court’s approach quite a bit and it could have been more had it
not been part of respondents having knowledge or being aware of them.

Bringing up contempt proceedings against a party though necessary for the administration
of justice, is a very serious matter. Reading the reasons behind the committal for contempt
action in reverse, will show that the alleged contemnor is not subscribing to rule of law and
good order etc. Such an inference by itself in serious. But even the consequences for one
found liable for contempt of court are more serious – the most drastic one being one to be
jailed (others include – stern warning, find, attaching property, injunction etc). A prison
term means the alleged contemnor’s liberty is curtailed. Indeed contempt proceedings take
on the feature of criminal proceedings in most respects. So there are important things to be
considered in this connection. This has been alluded to in case law and treatises. For
instance one authority on the law of contempt says the following:

“…the power of committal clearly touches upon the liberty of the

subject and to that extent the jurisdiction may be regarded as ‘quasi –
criminal’…”

The same source adds:

7
“ …the greatest restraint and discretion should be used by the court in dealing with
contempt of court… ” (see: Arlidge & Eady: The Law of Contempt, 1987, para. 8 – 07).

Accordingly this court did not approach these proceedings with any lesser seriousness. This
was particularly so because, lawyers, who are the respondents, are also officers of this court.
So the issue or service of the injunction orders came up-first as preliminary point of
objection i.e a point of law and later as a matter of fact.

The legal point was disposed of earlier. The court was of the view that in law although a
general rule is that in contempt proceedings orders to be obeyed or executed should be
personally served , service on an authorised agent would still be good service (see ruling of
24/6/91). In essence service of any process, let alone injunction orders, serves the purpose
of bringing to the notice or knowledge of the party being served that such a process or order
is in existence and that party is concerned with it. It may respond to it in any way required.
It is a process, the party being served is aware of the action involved. If it is an injunction,
the party being served should bring his/her mind to bear on its contents. He/she now knows
what the court requires to be obeyed or executed. In sum, service ensures that a party is
aware or knows of the existence of the court process/order and what is required of it. One
who is not served has no knowledge or is not aware so one cannot be in contempt of what
one did not know.

“A person cannot be held guilty of contempt in infringing an order of

the court which he knows nothing”.

(see Huson v. Huson (1962) 3 ALL E.R. 1056). So knowledge of a court process, order etc
is the core of the whole issue.

It has been said earlier that the aspect of service in law was disposed of from the exhibits
especially AGR 1 that all the respondents (except Juma who was discharged from the
proceedings at this stage) had been served through their agents who not only appended

8
firms’ stamps on the AGR – 1 but also signed. When submissions were heard from the
Respondents they went more into the issue of what is alleged to have been served on them –
choosing to stress less on whether or not those said to have received the service of the orders
were their authorised agents as envisaged by the law. Whether the injunction orders in issue
were the ones, which were allegedly served, was a matter of fact as well as the said agents.
For respondents stoutly opposed the application and was all the time for no – confirmation
of the interim orders. The record has all this. The hearing concluded with confirming the
orders. It has been said earlier that the interim orders are the same one[s] which were
confirmed. It was thrown in, and for good measure, that even in other communications by
respondents (exhibited), they referred to these orders. That the 1 st respondent did not chair
one LSK meeting (i.e. was chaired by the V. C. Mutunga) because he 1 st respondent as well
as the other respondents were aware of the prohibitory effect of the interim orders which
were later confirmed.

The interim orders were issued by Dugdale, J on 14/3/91. They were discussed by the
Respondents at the council meeting of 13/5/91. They also at the same meeting (and under
the same Min 30/91:

“ …observed that the ruling of the Hon. Mr. Justice Mango did not
restrain the Chairman from presiding …”.

If all had stopped here this court would have found that indeed respondents had knowledge
or were aware of the restraining orders in issue, though service as Applicants attempted to
show had in essence not been effected. But the court has already remarked on the essence
of service – it brings to the attention of the party being served the existence of a process or
order and what the same requires. The party being served gets to know and thus has
knowledge of what to obey, execute or otherwise deal with. From the foregoing
respondents had knowledge before and even after filing these contempt proceedings that
orders of this injunction were in place and ought to be obeyed. Contempt proceedings were
filed on 17/5/91. With such knowledge was it then necessary to serve the respondents? Not
at all. They already had knowledge of the orders that service could have brought to their

9
attention. It could be dangerous to hold that a person who had notice/knowledge of a court
order restraining him/her one way or the other could disregard it unless and until that order
is served. The importance of personal service has been well stressed above, nonetheless.
There seems to exist however a significant feature in this matter of service i.e. regarding
mandatory and prohibitory orders because in Huson v. Huson (supra) the following appears:

“If however, the order is to restrain the doing of an act, the person
restrained may be committed for breach of it, if he in fact has notice
of it either by his being in court when it is made, or by being served
with it or notified of it by telegram or in any other way”.

The whole exercise in this connection was however brought to a halt when the counsel for
applicants urging necessary inference that the respondents were served and/or that they
waived the necessity of service by taking part in the proceedings when the 8 th respondent
Kariuki on behalf of all the respondents told the court thus:

“Kariuki: We never stated that we were never aware of these orders.

All we say is that we were never served with them”.

That ended the issue. Respondents were aware and therefore knew of the restraining orders
of the court. They were not formally served with them, though respondents had notice of
the court’s orders. That is sufficient service of the order is a convenient mode of giving
notice, but that is all. So be it-an honest admission in this matter respondents knew of the
orders, now did they breach them as alleged? That is the next point of attention.

With the seriousness with which contempt of court proceedings ought to be treated,
particularity and proof of what is allegedly the ‘offence’ ought not to be lost sight of. This
is so because proof in contempt proceedings must be higher than on the balance of
probabilities almost but not exactly beyond reasonable doubt (see Mutitikas case (supra).
So proof must come that far. (In other jurisdictions like U.K. proof is beyond reasonable
doubt).

10
As stated above contempt proceedings are of a quasi-criminal nature. An allegation if
denied ought to be proved by the party alleging. But if it is admitted then the aspect of
proof need not be gone into except that the facts should support allegation.

In these proceedings there was not much of denial of the alleged breaches of the injunction
orders. Statements allegedly constituting the contempt either by respondents individually or
collectively were exhibited – AGR 2, 3, 6. Some if not all were published in local daily
press. The respondents did not deny them. They told the court that they stood by them and
were ready to repeat them or add some more. These allegedly political statements are the
ones said to be offending the injunction orders that were known by respondents to be in
existence (to be obeyed) and are still in existence.

The court did not have the opportunity to have these statements proved by Applicants that
they were political and offending because the bit was not denied by Respondents. Indeed
they stood by these statements and even intimated they could make similar ones again.
Apparently more statements by some of the Respondents have been made even as these
proceedings were under way! But be that as it may.

In owning up to the statements said to be constituting the breaches of the orders confirmed
on 30/4/91, Respondents had their reasons:

(i) the restraining orders were wide, vague and unclear

(ii) the statements were not outside the L.S.K objects since the court prohibited
only those political statements outside the said objects,
(iii) where they were made by individuals they were in their respective personal
capacity and not on/for behalf of Applicants at all.
(iv) the judge had not properly addressed himself to the principle and application
of ultra vires at all.
(v) the orders had a ring of unconstitutionality in them in that they infringed on
the Respondents right of expression.

11
 (vi) the orders were silencing the L.S.K which was now being manned by
officials properly elected by majority votes at an election.

These were some of the points raised in defence of the statements complained of. Looking
at each of those six or so grounds the court had the following for each: (i) If the orders were
wide and vague and therefore in all honesty incapable of being obeyed, Respondents had all
the safety in going back to the judge for clarification. As shall be quoted from case law
below, the orders were to be in force and be obeyed until discharged.

Confusion on the part of respondents as to what the orders said, if such confusion indeed
existed, Respondents had the opportunity to seek the court’s clarification. The record has it
that this was not done.

(ii)Respondents had no business interpreting what the orders meant and/or excluded. Again
recourse to the court for interpretation would have taken care of what followed. This was
not done. If it is not the court to interpret to the parties what its orders mean, woe to those
parties who take on the role of a judge and begin to interpret and apply court’s orders in
his/her(sic) own way! There would be total chaos and confusion as no two parties would
necessarily have the same or uniform interpretation to a given order. Only the judge can do
this.

A Judge can even review his/her order; there can be an appeal also. This court was sitting in
neither of those capacities over the orders in issues.

A Judge can even review his/her order; there can be an appeal also. This court was sitting in
neither of those capacities over the orders in issues.

(iii)It was no matter that statements were sometimes made in personal capacities. The
orders restrained respondents individually or jointly as members of the L.S.K. Council.
This again was not the issue for this court to deal with. Ground no. (vi) if that should be

12
dealt with before (v), this court was not convinced that the orders were silencing the L.S.K
and therefore they deserved to be disobeyed. That argument cannot be tenable in any way.
With or without one’s own beliefs, suspicions, reasons or otherwise a court order should
never be disobeyed in this manner. In any case while reading Mango, J’s ruling he said that
the L.S.K should do its duty but only that that the statutory provision allows it. Nothing
more. Applicants would and should be satisfied with such operations at the L.S.K as headed
by Respondents and there would be no hustle. With that let us look at ground (v) above –
namely, that when giving the orders the court’s approach to ultra vires principle was wrong
and in any case the orders infringed on the Respondents’ right of expression.

While this court is incompetent to deal with the way Mango, J. appreciated the ultra vires
principle and its application, definitely something should be said about the alleged
infringement on Respondents freedom of expression. For all reasons the two aspects should
have been addressed to Judge Mango or before another forum – not this one. In addition, it
is a principle well-exercised in contempt matters that it is always considered that all court
orders shall be obeyed. It is the default which raised these proceedings.

The Constitution of Kenya (Act No.5/1969) says the following in respect of freedom of
expression:

“S. 79 (1) Except with his own consent, no person shall be hindered
in the enjoyment of his freedom of expression, that is to say, freedom
to hold opinions without interference, freedom to communicate ideas
and receive information without interference (whether the
communication be the public generally or to any person or class of
persons) and freedom from interference with his correspondence”.
So the supreme law of the land says. And it also sets out in s.84 the course to be taken by an
aggrieved party when his/her rights are being or threatened to be interfered with relief lies in
this very conduct. First, and here speaking for Mango, J the order to be obeyed did not at
any point seek by any way to infringe on the Respondents’ freedom of expression. This
court would not issue such an order since it was not even among the prayers sought from it.

13
In any case, other than considering that a court should not make unconstitutional orders and
Mango, J issued none, the applicants themselves in their plaint para 14, state as follows:-
“14. It is the plaintiff’s case whereas the defendants Nos. 1 to 10 are
entitled to hold and express their own individual political views and
participate in national debates and take such positions on political
matters whether confrontational, partisan or otherwise as they may
choose…”.

(underlining added), that it is patently clear that nobody including applicants ever wished or
wishes to interfere with respondents’ individual right except that as members of L.S.K
council acting individually and or jointly from that seat they should not issue combative and
confrontational political statements. Such statements, applicants averred were outside the
L.S.K. Act and prejudicial to them. On evidence and material placed on that issue alone,
orders were given as they are on record. Respondents were never restrained from enjoying
their right of expression. Respondents can enjoy that right i.e to make political statements
but not from the L.S.K where some members feel prejudiced by those statements. This
cannot be taken as a blanket restraint on Respondents at all as long as they are still L.S.K.
Council members and the suit is pending. In any case even if that very curious and novel
ideal were to be accepted for once, which it is not, would it be a principle of law that where
something akin to unconstitutionality is perceived to feature in a court order, that order
ought to be disobeyed? When did that principle find way in law or it is part of change taking
place in legal practice? If such state of affairs existed, it is this court’s view that prompt
steps should be taken in the judicial system to set right the alleged/perceived
“unconstitutionality” in a court order. It is at a great risk that one takes to disobeying a
court order because of he/she perceives it as unconstitutional.

In these proceedings this court is of the considered view that such a state of affairs did not
attend the court orders in issue and Respondents were in error to disobey them on that
ground – a ground that so far does not exist in our system at all.

From the foregoing this court concluded that respondents breached the court orders and
even evince an inclination to do so again. These respondents have a desire to do so because

14
they are of the opinion that they are pursuing a course of democracy (see Mutunga’s
replying affidavit in full). But that was not the issue before this court. This court is thus
unable to make a finding in that regard for it is a well known principle in civil pleading and
respondents are good lawyers who all know it, that a court deals with and rules only on the
matters in dispute brought before it, the parties before it and on the evidence and law
presented in arguments.

The case law in the area of contempt proceedings is wide. But the fundamental and focal
point is one.

In Hadkinson vs. Hadkinson (1952) CA 285, Romer L. J. said:

“It is the plain and unqualified obligation of every person against, or

in respect of whom an order is made by a court of competent
jurisdiction to obey it until that order is discharged. The
uncompromising nature of this obligation is shown by the facts that it
extends even to cases where the person affected by an order believes
it to be irregular or even void”. (underlining added)
The same is the law of this country (see Civ. App. Nai 89 of 1991). The court, which gave
the injunction orders, was a competent one. They ought to be obeyed until discharged in
spite of Respondents beliefs. That obligation is uncompromising in any event including
(mis)conceived unconstitutionality. Indeed in Hadkinson’s case a further remark was made
by way of a quotation by the learned Lord Justice.

“A party who knows of an order whether null or void, regular or

irregular, cannot be permitted to disobey it…. It would be most
dangerous to hold that the suitors or their solicitors could themselves
judge whether an order was null and void – whether it was regular or
irregular. That they should come to the court and not take upon
themselves to determine such a question: that the course of a party

15
 knowing of an order which was null and irregular and who might be
affected by it was plain. He should apply to court that it might be
discharged. As long as it existed it must not be disobeyed”.
(underlining added).

(see Chuck vs Cremer (1846) Cooper Temp. Cott.205, 338)

Nothing need be added to this quotation. It explains clearly the position in which
respondents got themselves. It is an awkward position considering, besides, that they are
lawyers. In short, they have been found to have disobeyed the injunction imposed on them
by this court. They are in contempt (rather defiantly) of court. As officers of this court, it
shall punish them for this.

To a self-respecting professional it is enough chastisement if those of one’s own kind find

one liable for wrongdoing.

In our instant case, the court considered the conduct of the Respondents. Their submissions
long or short, irrelevant or relevant were heard alongside those from the other side.

It was apparent at the end of the day that respondents in the name of their perceived cause
wanted, nay, dared this court to commit them to civil jail. That indeed is what this
application prayed for. Suffice it to be remarked that among the long speeches made to this
court, apparently intended by the Respondents for audience other than the court, respondents
expounded on their various political views. Such use of court is not unknown in history of
many countries including Kenya. But usually there is a nexus between the cause and the
case. The speechmakers want to be considered as or in some pertinent cases they leave
court and may go to jail as heroes or martyrs.

In his Landmarks in the Law, Lord Denning has some remarks in this regard:

“We look with scorn upon anyone who seeks to make a Martyr of
himself”. He is ready to suffer death or grievous pain in order to gain
16
 credit for himself or for doing it. Such a man is not entitled to the
credit which he seeks.

A true Martyr is one who does not seek credit for himself. He suffers
death or grievous pain because of the faith in which he believes. He
is called upon to renounce it but refuses to do so and is punished for
his refusal. Those who are of the same faith call him a Martyr.
Those who are a different faith call him a heretic or misguided.
Martyrdom does not enhance the credit of the cause for which he dies
or suffers pain. Judges should be careful not to pass a sentence so
severe as to make the offender a Martyr”

When dealing with a contempt matter the court need only focus its attention to the
prevention of interference with administration of justice. The course should not be left to
degenerate into oppressive and vindictive abuse.

As it was noted in the earlier pages of this ruling a court which has found one liable in
disobeying court orders, has several measures to curb that wrong-doing. A jail term is the
most severe. In this matter a fine and a further injunction of the respondents cited herein
will be imposed.

Each of the seven (7) respondents will pay a fine of Shs.10,000/= within the next 14 days
from the date hereof. In default to levy distress on property. The Respondents – Muite,
Mutunga, Shamalla, Nyachae, Kagwe, Njoka and Kariuki are again enjoined to obey this
court’s orders of injunction as pronounced on 30.4.91. It has been stated above and it is to
be repeated below that the court’s orders in issue in no way are intended by one including
the 4 Applicants to deprive respondents of their right of expression as they have made it to
be understood by their supporters, sympathizers and the rest. Respondents are only required
as long as they are L.S.K. Council Members and this suit subsists, that they should not
exercise their freedom of expression in such a way and as per the orders, to the prejudice of
the applicants. For indeed that is what rights are about. Everybody has his rights. But in
exercising them one should not do so at the detriment of the other. Here Applicants as
compulsory members of L.S.K. have asked and the court has found that respondents’
enjoyment of freedom of expression especially issuing political statements or conducting

17
L.S.K. business is any manner political, as L.S.K Council Members jointly and or
individually is injurious to applicants. This court has a duty to protect them and so it did
with an injunction. It should not be made to appear as if all lawyers in L.S.K. or indeed
Respondents have been gagged. Nobody could do this. Even Lawyers other than in L.S.K
Council have made political statements in the past; they are making them now. They will
probably make them in future. Applicants are not complaining and they should not
complain about that. But once Respondents appeared set and indeed made or continue to
make their political statements from L.S.K. Council which applicants see as prejudicial to
them, then they have this injunction on them. Indeed L.S.K. is not stopped from doing its
business at all. Should someone not choose to be honest enough and get this clear
distinction across? Should the 4 applicants swallow all from respondents in L.S.K. simply
because they are few and Respondents were elected by a majority? Does democracy mean
one should not speak out on the view expressed/held by ones in charge of his/her
organisation? Should that one not seek redress from court?

The court has ruled on all the foregoing and that should wind up the matter except for a
point or two, which really should be considered obiter.

Obiter dictum is a Latin expression. In essence it means the court’s remarks, observations,
made during an order, ruling or judgment but not necessarily or at all being the core of that
ruling order or judgment. Such remarks are “by the way”.

Firstly the rights of the respondents, or all Kenyans for that matter are to be enjoyed in full
at all times. This includes expression. In case of any infringement on such individuals
rights, let all be assured that on seeking redress from this court made under S. 84 of the
Constitution, redress shall be forthcoming. However as it is inherent in every right,
responsibility, obligation and limits should be acknowledged and observed. For no
enjoyment of rights is limitless, lest it prejudice others’ enjoyment of their own. Such limits
or obligations include as for the freedom of expression defamation, blasphemy etc. Further
in exercising this particular right one ought to be aware that if one enters a game where

18
words, words and yet more words are the stock-in-trade used backwards and forwards one
should submit to the rules of that game. In trading (in) words one would even find to ones
utter surprise that some of the players in that game hardly exercise restraint. But in case of a
breach the aggrieved party will have recourse to court otherwise, carry on.

Secondly, this court has an impression that a section of the legal fraternity is adopting a
tendency of more that belligerent advocacy, if such a term may be sued, employing such
language which in effect amounts to insulting and abusing judges on a personal level in the
course of representing a client. Surely it cannot be said that, a client can and does instruct a
lawyer to insult judge or indeed any judicial officer this way. Such advocacy is demeaning.
Incidents are known where an advocate engages in such a conduct coming complete with
discourtesy, slurs theatrics and antics! For such conduct, it is time it stopped and the time is
now. Insulting a judge by whatever language neither advances the cause being argued nor
improves one’s character. The public should wonder what all that is and should not be
allowed to think that it is positive and should be copied. Even between counsel themselves.
But a court’s judgment can be criticized. The judgment not the judge. Judgments from the
basis of justice. It is the people’s justice, they should look at it and analyze it. Lady Justice
is not shrouded in mystery and intends to be beyond such criticism as will better her image.

All of us have an ideal-always to endeavours to do quality justice to the people. Not that it
is only quality justice when one is on the winning side. Either way. But even in criticising
a given judgment it shall be prudent for that counsel, legal journalist or reporter etc to guard
against sacarsm ridicule and spite. Some honour probably, those others, no. Nurture
courtesy, dignity, hardwork, honesty etc.

It may also be prudent to note that disputants to a matter are the parties to it. Counsel
representing one’s adversary is not necessarily that one’s adversary at all. Even counsel
themselves need not put on a character of actual combatants at all however strongly they are
putting their respective clients’ cases. They are not the disputants.

19
Another observation: Kenyans have generally come to understand that once a judicial
officer is seised of a case he needs all the independence and freedom to reach a fair decision.
That is good for justice. They should however, also learn not to comment on a matter once
it is sub-judice i.e. under or before a judge or court. While a matter is under judicial
consideration and before it is determined, it should not be a subject of comments or remarks
which may give a wrong impression about a likely outcome – which may not be the case
anyway. Whether a case is before the lowest court cadre or the highest in the land – leave it
alone until it is finalised. And that too is good for justice.

In conclusion:

(1) The court’s injunction orders against the respondents have been in force since
14/3/91 and still so remain to be obeyed;
(2) The 7 respondents in these proceedings have been found to have disobeyed those
orders – an act which amounted to contempt of court;
(3) As a consequence the 7 respondents have each been fined Shs.10,000/= to be
paid within 14 days in default of which distress shall levy. They are also further
injuncted not to disobey the said injunction orders as long as they are council
Members of L.S.K and or this suit remains pending.
(4) Like all Kenyans Respondents are free to enjoy all their rights under the
constitution subject to the inherent limits known in enjoyment of rights as stated
above or otherwise – not to trample on the others rights, being one. Due
protection is under S. 84 of the Constitution.
(5) The kind of advocacy that tends towards literal insults abuses or insinuations
directed to judicial officers to stop.
(6) The application succeeds with costs.

Thanks to the counsel and parties who were involved in proceedings.

Orders accordingly.

20
J. W. MWERA
JUDGE

21
 THE ADMINISTRATORS OF THE ESTATE OF MAXWELL MAURICE
OMBOGO (DECEASED)
V
STANDARD CHARTERED BANK KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI, BOSIRE, OWUOR JJ.A)

CIVIL APPEAL NO. 162 OF 1999

(Appeal from the Ruling and Order of the High Court of Kenya at Nairobi – (A. I. Hayanga
J) dated 26th February 1998 in HCCC NO. 520 OF 1997)

Administration of a deceased advocate’s estate – whether the L.S.K. or the

administrators of the deceased’s estate were legally entitled to administer the two bank
accounts in issue.

FACTS:

The deceased, who at the time of his death was an advocate of the High Court of
Kenya, was a member of the L.S.K and on account of such membership and pursuant
to the Advocates (Accounts) Rules (made under the Advocates Act) maintained two
bank accounts designated “clients” and “office” accounts. Acting pursuant to the
Law Society of Kenya (General) (Amendment) Regulations, 1995, which were
published in the Kenya Gazette as L. N. 279 OF 1995, the L.S.K advised the bank in
writing to stop all transactions in the two bank accounts until advised otherwise by
it. Soon thereafter, the bank also received letters from the advocates of the
administrators of the deceased’s estate to the effect that the said administrators and
not the LSK had the legitimate right to operate the two accounts. The suit, which
gave rise to this appeal, was thus provoked.

22
HELD:

1. The phrase “free property” of a deceased advocate is not limited to his

personal estate only but extends to property held by him in trust, because by the
definition of the phrase in the Law of Succession Act, it is property which he was
legally competent freely to dispose off in his capacity as an advocate.
2. The Council of the LSK by enacting Legal Notice No.279 of 1995 must have
acted on the mistaken belief that there was a lacuna in the Law of Succession Act,
with regard to the administration of a deceased advocates law practice.
3.The legal notice is in conflict with the Law of Succession Act, to the extend that it
seeks to establish a parallel law and procedure to that in the Law of Succession Act
for the management and administration of law firms of deceased advocates without
express legal provisions in that regard in the parent Act.

Appellant to have costs of the appeal.

CASE REFERRED TO:

Carson v. Carson and Another (1964) ALL ER 681

JUDGMENT OF THE COURT

This is an appeal from the order of the superior court (Hayanga J.) given on 26th February,
1998, in which, pursuant to interpleader proceedings under Order 33 Rule 1 of the Civil
Procedure Rules by Standard Chartered Bank Kenya Ltd (the Bank), he ordered that two
nominees of the Law Society of Kenya (the LSK) be the signatories of two bank accounts in
the name of one Maxwell Maurice Ombogo (deceased). Instead of the administrators of the
deceased’s intestate estate.

The deceased, who at the time of his death, on 5 th July, 1995, was an advocate of the High
Court of Kenya; was a member of LSK, and on account of such membership and pursuant to
the Advocates (Accounts) Rules, made under the Advocates Act, Cap 16 Laws of Kenya, he
maintained two bank accounts with the Bank respectively designated ‘clients’ and ‘office’
23
accounts. Acting pursuant to The Law Society of Kenya (General) (Amendment)
Regulations, 1995, which were published in the Kenya Gazette as Legal Notice No.279 of
1995, the LSK advised the Bank in writing to stop all transactions in the two bank accounts
until advised otherwise by it. Soon thereafter, the Bank also received letters from the
advocates of the administrators of the deceased’s estate to the effect that the aid
administrators and not LSK had the legitimate right to operate the two accounts. The suit,
which gave rise to this appeal, was thus provoked.

The aforesaid suit was commenced by originating summons in accordance with Order 33
rule 1 of the Civil Procedure Rules. No oral evidence was considered necessary, as the facts
were not in dispute. The deceased died intestate leaving behind a widow and children. We
were told from the bar that the widow and the legal representative of the deceased’s estate,
but no evidence of that fact was presented to us nor can we find any on record. We
however, have on record a copy of a limited grant of letters of administration, which was
issued to Laura Ombogo and Miriam Ombogo, on 1 st November, 1996, more than one year
after the death of the deceased. It is shown at the bottom as having been amended on 1st
November, 1996, but the nature of the amendments have not been shown. Be that as it may,
the suit was filed in court sometimes in March 1997. From the affidavits filed and the
arguments which were made before the trial judge, the main, if not the only issue, was, who
between the LSK and the administrators of the deceased’s estate is legally entitled to
administer the two bank accounts in issue?

LSK’s case is based on Legal Notice No. 279 of 1995 which was promulgated by its
council, pursuant to a special resolution of the members under section 27 of the Law Society
of Kenya Act, Cap 18 Laws of Kenya. The Legal Notice as material to this matter provides
as follows:-

(3) A member carrying on practice alone shall name in his application for the annual
practising certificate one or two other members, none of whom shall be less than

24
 seven years standing to administer his firm in the event of his death, disbarment,
imprisonment or any other disability to practice.
(4) Where a member dies testate, the administrator or administrators shall deal with his
firm as may be stated in his will; but in case of intestacy, the Council of the society
shall give such directions or instructions to the administrator (s) as may be necessary
for the proper management and disposal of the firm.
(5) No person shall be nominated administrator without his consent, but where such
consent cannot be obtained, the applicant shall state that fact in the application for a
practising certificate.
(6) Where no person is nominated in the application for lack of consent or for any other
reason, or where an administrator or administrators refuse(s) or neglect(s) to act, the
Chairman of the society shall make the nomination which shall for all intentions and
purposes be as effectual as if made by the deceased or the incapacitated member.
(7) A reasonable remuneration for services rendered shall be paid out of the income or
proceeds of the firm to the administrator or administrators.
Made on the 5th July, 1995 P. M. Mwangi
Secretary, LSK”.

LSK’s submissions before the trial court were that by reason of the fact that the deceased
was a member of the LSK at the time of his death the aforesaid Legal Notice applied to him
and on that account, the Chairman of the LSK was empowered to appoint one or two
administrators to manage his legal firm for purposes of winding it up; that notwithstanding
that the Legal Notice came into force after the deceased’s death, its wording and the fact that
it is only procedural and a subsidiary type of enactment, it operated retrospectively; and that
in any event the deceased’s law firm being a specialized operation needed a qualified and
practising advocate to manage and wind it up.

On the other hand, the administrators of the deceased’s estate contended, in the main, that
the law that applied to the deceased’s estate, including his law firm, after his death, was the
Law of Succession Act, Cap 160 Laws of Kenya, and that to the extent that L. N. 279 of

25
1995 made provision for the administration of part of the deceased’s estate by people, other
than those appointed under the Act, it was inconsistent with the Act and to the extent of the
inconsistence, was void. Besides, the Legal Notice having been promulgated after the
deceased’s death and in the absence of express words that it would operate retrospectively,
it had no application to the deceased.

Hayanga, J. held that L.N. 279 of 1995, was a retrospective legislation in relation to the
deceased’s estate; that it was not inconsistent with any of the provisions of the Law of
Succession Act, more particularly sections 79, 82 and 83 thereof; that the Chairman of LSK
was, therefore, legally and legitimately entitled to appoint two advocates, Messrs. Nzamba
Kitonga and Okwach, pursuant to that Legal Notice, to manage and wind up the law firm of
the deceased; and that the two nominees and not the administrators of the deceased’s estate,
were entitled to freely and in accordance with the terms of the Legal Notice, manage the
aforesaid two bank accounts and to render an account to the administrator or administrators
of the deceased’s estate if appointed within six months. The administrators of the deceased’s
estate were aggrieved and hence the appeal.

The memorandum of appeal has seven grounds, but at the hearing of the appeal Mr. Owino
Okeyo for the appellant abandoned the last two. In a nutshell, the remaining grounds are
concerned with the applicability of L.N. No.279 of 1995 to the estate of the deceased and
more specifically to his law firm. Before we consider the rival arguments on those grounds,
it is important to consider, in brief, the background to the promulgation of the said Legal
Notice. We were told by Mr. Okwach, for the LSK, that due to the recurrent deaths of
practising advocates, the members of the LSK, pursuant to what they perceived as one of the
objectives of the LSK enshrined in section 4 of the Law Society Act, empowered the
Council of the LSK to promulgate the aforesaid legal notice with a view to protecting the
interests and rights of the clients of deceased advocates or of those advocates who for one
reason or another, had been disbarred or suspended from legal practice. According to him
the appointment of the LSK’s administrators to manage and wind up law firms of, inter alia,
deceased advocates was in furtherance of that objective.

26
In his submission before us, Mr. Owino Okeyo submitted on the authority of Carson v.
Carson and Another (1964) ALL ER 681, that a retrospective intent of a piece of legislation
can only be discerned from the wording of the legislation or by necessary implication. In
his view, a plain reading of L. N. 279 of 1995 clearly shows that it was not intended to
operate retrospectively. Besides, he added, the wording of the Legal Notice also clearly
shows that, contrary to what the learned trial judge held, it is not nor was it intended to be a
procedural legislation. It affects existing rights of other people, more particularly the
beneficiaries of the deceased’s estate whose rights are protected by the law of Succession
Act, and to the extent that those rights are so affected, the Legal Notice is in conflict with
the said Act.

Mr. Okwach on the other hand, submitted, inter alia, that since the deceased was a member
of the LSK at the time of his death, and in view of the fact that he held a current practising
certificate which had been issued to him under section 23 of the Advocate Act, Cap 16 Laws
of Kenya, he was subject to the disciplinary and supervisory procedures for advocates. The
Council of the LSK had, and always has, the right to interfere with the management of any
law firm including that of a deceased advocate to ensure that it is run in accordance with the
Advocates Act. In his view, L. N. 279 of 1995 was legitimately promulgated under section
27(k) of the Law Society of Act and to the extent that the said Legal Notice did not purport
to amend or repeal any existing law, and notwithstanding that it was not perfectly drafted, it
was merely a procedural enactment, and by dint of the provisions of section 28 of the
interpretation and General Provisions Act, Cap 2 of The Laws of Kenya, which recognizes
the making of subsidiary legislation to have retrospective effect, the Legal Notice was
intended to be and is retrospective in its operation. Additionally, he urged, where the
language of any legislation is silent as to whether or not it is to operate retrospectively, the
court has the power to determine the issue. He cited the case of Patel v. r. (1968) EA 97 at
p.99H, in support of that proposition.

As regards the issue whether or not the Legal Notice in issue was in conflict with the Law of
Succession Act, Mr. Okwach submitted that because in his view, administrators appointed

27
under the aforesaid Act, have no powers over trust funds like those normally held by
advocates in a clients account and the same not being part of the said advocates free estate,
the Law of Succession Act, did not apply to such trust funds. Accordingly, he added, the
provisions of the Act [couldn’t] possibly be in conflict with L. N. 279 OF 1995.

There is no doubt whatsoever that before his death on 5 th July, 1995, the deceased held a
valid practising certificate as an advocate, was subject to the provisions of the Advocates
Act and to the mandatory membership of LSK as required by section 5(a) of the Law
Society Act. But can it be said that after his death, the deceased continued to be subject to
the provisions of both the Advocates Act and The Law Society Act? Mr. Okwach seemed
to imply that with the object of protecting the interests of the clients of the deceased
advocates the provisions of both the aforesaid legislation applied to their respective
practices. With due respect to him both legislation are geared to ensuring proper conduct on
the part of practising advocates, and it would be irrational to suggest that the said legislation
can be extended to cover the legal practice itself after the practitioner has died. Admittedly,
upon the death of a practising advocate his clients may and often suffer if his law firm is not
wound up soonest and property. There is the undeniable risk of their money, where
applicable, being dissipated by beneficiaries of a deceased advocate’s estate on the mistaken
belief that it is part of the personal free estate of the advocate. It is the concern to protect
such clients, which as we stated earlier, prompted the Council of LSK to promulgate Legal
Notice No. 279 of 1995. That was a laudable idea, but does its provisions accord with the
Law of Succession Act? Mr. Owino Okeyo does not think so, while Mr. Okwach thinks
otherwise.

Section 45(1) of the Law of Succession Act provides, in pertinent part, as follows:

“Except so far as expressly authorized by this Act, or by any

other written law, or by a grant of representation under this
Act, no person shall, for any purpose, take possession or
dispose of, or otherwise intermeddle with, any free property of
a deceased person”.

28
Sub-section (2) (a) of this Section prescribes penalties for any contravention. The Law of
Succession Act according to its preamble is a consolidating statute of the law relating to
intestate and testament and testamentary succession and the administration of estates of
deceased persons. Contrary to what Mr. Okwach said, it does not exclude the affairs of law
firms of deceased advocates notwithstanding the definition of the term ‘estate’ which tends
to suggest that all that the Act covers is the personal property of a deceased person and not
any other property he could be holding as trustee. However, Jowitts Dictionary of English
Law 2nd Ed. Vol. 1 at p.725 suggests that the definition of the term ‘estate’ is not confined
only to what a person owns, but it includes property held in trust. The term is described
therein in the following terms:

‘property; thus we speak of real and personal estate, of

partnership estate, trust estate, etc, especially with reference to
questions of administration, as in the case of the estate of a
deceased person, a bankrupt, or dissolved partnership’.

In view of the foregoing it is our view that the phrase ‘free property’ of a deceased advocate
is not limited to his personal estate only put extends to property held by him in trust,
because by the definition of the phrase in the Law of Succession Act, it is property which he
was legally competent freely to dispose off in his capacity as an advocate. It will do
violence to the intention of the legislature in enacting the said Act, if a restricted meaning is
given to the phrase, more so, as we earlier said, when the preamble to the Act, is closely
looked at.

If further authority is necessary, there is section 58 of the Act, which makes provision for
the number of administrators in respect of continuing trust property. Besides, section 46 of
the Act empowers ‘any’ police officer or administrative officer who becomes aware of the
death of any person to report the death either to an Assistant Chief or Chief of the area the
deceased resided, who, on receipt of such report, is obliged to take specific steps to protect
the free estate of the deceased, including, if no application for representation of the estate
has been made within one month after the date of death, the course, certain preconditions
which must first be satisfied. The significance of that section is clearly that the Act
29
authorises persons other than advocates to take all necessary steps to preserve all the free
property found in a deceased person’s residence and also to ascertain all persons appearing
to have any legitimate interest in succession to or administration of his estate. The section
does not distinguish between professionals and ordinary people, rural and urban people,
except that for those who dwell in municipalities a report of the death must first be made to
the public trustee before any action I taken as aforestated.

Pausing here for a moment, it would appear to us that the Council of LSK by enacting Legal
Notice No. 279 of 1995 must have acted on the mistaken belief that there was a lacuna in
the Law of Succession Act, with regard to the administration of a deceased advocate’s law
practice. Section 46 aforesaid, does seem to provide an answer. It may not be satisfactory
to LSK, but that is a different matter. Perhaps the only way out for it is to seek an
amendment to that section to provide for the making of a report of the death of an advocate
to it instead of the Public Trustee, and further for the empowering of the Council of the LSK
to make rules for the management and winding up for such advocate’s legal practice.

Coming back to the definition of ‘free property’ in view of what we have stated above, it is
quite clear that the phrase connotes not only the personal property of a deceased person, but
also, all the property which was in his possession or control of under his power, and the
disposal of which, would legally have required his authority, but for his death. Money held
in deceased advocate’s client account falls into that category. It then follows that the late
Ombogo’s two bank accounts were part of his property and therefore, subject to the
provisions of the Law of Succession Act. LSK not being among the people who, under
section 40 aforesaid, have the power to take all necessary steps to protect the deceased’s
estate, it had no right to direct the deceased’s bankers to freeze the two bank accounts. Even
if it had such right it would not have priority over the administrators of one deceased’s
estate under the Law of Succession Act (see Section 66). We recognize the real danger of a
lay administrator appointed under that Act, dissipating money in a ‘clients account’ in the
mistaken belief that it is the deceased’s money. However, as the law now stands, only the
Public Trustee and in case he does not act, an assistant Chief, Chief or an administrative

30
officer, are empowered to take all such steps as are necessary to protect the estate of a
deceased person, including deceased advocates, from dissipation.

Having come to the foregoing conclusion, it will be academic to consider the issue whether
or not L. N. 279 of 1995 is a retrospective legislation and whether or not it is a procedural
enactment. We must however add that in view of what we have stated above. The legal
notice is in conflict with the Law of Succession Act, to the extent that it seeks to establish a
parallel law and procedure to that in the Law of Succession Act, for the management and
administration of law firms of deceased advocates without express legal provisions in that
regard in the parent Act. Section 27 (k) of the Law Society Act, must be read in that
context. The objects of the LSK do not include the management and winding up of law
firms of deceased advocates. The paragraph must be read ejusdem generis with the
preceding paragraphs of that section. Section 4(e) of the Act, which was cited as the basis
for promulgating L.N. No.279 of 1995, is, with respect, being overstretched to cover
situations, which are reasonably catered for under the Law of Succession Act.

In the result, and for the foregoing reasons, we allow the appellant’s appeal, set aside the
ruling and order of the superior court given on 26 th February, 1998 and substitute therefore
an order that the deceased’s two accounts at Standard Chartered Bank, Kenyatta Avenue
branch, being accounts Nos. 014-42-255 327 and 014042 025 5327-00 be managed and
operated as shall be directed in the final grant of letters of administration or as the court
seised of the application for grant of letters of administration of the estate of the late
Maxwell Maurice Ombogo, shall direct.

The appellant shall have the costs of the appeal to be paid by the LSK, which shall also pay
the costs of the interpleader both here and in the court below.

Dated and delivered this 31 st day of July, 2000

31
 STEPHEN MWAI GACHIENGO, ALBERT MUTHEE KAHURA v. REPUBLIC

IN THE HIGH COURT OF KENYA

AT NAIROBI

HCCC MISC. APPLICATION NO.302 OF 2000

S.3 of the Kenyan Constitution, S.67(1) and S.84(13) – whether the Attorney General’s
consent in the prosecution was valid under the constitution –whether the provisions
establishing KACA were in conflict with the constitution-whether the exercise of
prosecutorial powers by a judge violates the principle of separation of powers.

FACTS:
The first and second applicants were charged in the Chief Magistrate’s Court with
various counts of abuse of office contrary to Section 10(1) of the Penal Code (cap
63). When the matter came up for hearing before the Senior Resident Magistrate on
29th May, 2000 counsel for the applicants raised a preliminary objection on points of
law. They contended that the leadership of Kenya Anti Corruption Authority by a
judge of the court was an infringement of their constitutional rights as spelt out in
S.77. Further , that the provisions of (cap. 65) were inconsistent the constitution and
in particular S.11 B(3) b) and S.10.

HELD:
1.Whether or not KACA purports to act under the direction of the Attorney General
in relation to prosecution, the exercise of powers under S.11 B of (cap 65) offends
the Constitution by alienating powers conferred upon him by the constitution the
Attorney General was being escapist and a mark of abdication of responsibilities
bestowed on him by the Constitution.
2.The existence of KACA undermines the powers and authority of both the
Attorney General and the Commissioner of Police KACA was therefore in conflict
and unconsistent with the Constitution.
3.On taking up an appointment as a judge, one takes an oath in which he/she

32
 swears to discharge the duties of a judge without fear or favour in the position as
head of KACA and in view of the duties one is expected to perform, a High Court
judge would not feel bound by the judicial oath.
4.Sanction by the Attorney General to this prosecution was not valid under the
constitution.

CASES REFERRED TO:

Kenneth Kiplagat vs. Law Society of Kenya H.C. MISC. Appl. No.542 of 1996
Metropolitan Properties Co. Ltd vs. Lannon and Others (1968) 3AII ER 304
Director of Public Prosecutions vs. Humphrey (1975) 2 AII ER 496
Mohanlal Karanishi Shah vs. Ambalal Chotabhai Patel, 5 others 21 EACA 236
Richard Kimani, S. M. Maina vs. Nathern Kahara – Criminal (Revision) Case No. 11/83
Jopley Constantine Oyieng v. R. Cr. Appeal No. 45/88

RULING

This is a Constitutional Reference brought pursuant to the Provisions of S. 67(1) and S.84(3)
of the Constitution of Kenya. STEPHEN MWAI GACHIENGO (first applicant) was
charged in the Chief Magistrate’s Court Nairobi with nine (9) counts of abuse of office c/s
101(1) of the Penal Code Cap 63 Laws of Kenya. ALBERT MUTHEE KAHURIA (second
applicant) also faced four (4) charges relating to the same offence of abuse of office. Before
their appearance in court the Attorney General sanctioned the prosecution of both applicants
under section 101(3) of the Penal Code.

When the matter came up for hearing before the Senior Resident Magistrate on 29 th May,
2000, Counsel for the applicants raised preliminary objections on points of law and, in their
lengthy submissions, urged the trial magistrate to refer the issues raised to this court for
interpretation, in so far as the same touched on the Constitution of Kenya. By a ruling
delivered on 5th July, 2000 the learned trial Magistrate held that the questions raised are
substantive and not frivolous and vexatious. She accordingly referred the same to the High
33
Court for determination. The matter was placed before Oguk, J. Who on 11 th July, 2000
made an order that before the file could be placed before the Hon. the Chief Justice for the
necessary directions, the file be remitted back to the trial magistrate to set out the issues
upon which a Constitutional reference was being sought. In compliance with the order, the
learned trial magistrate on 3rd August, 2000 framed four (4) issues for determination by the
Constitutional court. These are:-
1. Whether it is unconstitutional and contrary to the principle of separation of powers for
Kenya Anti-corruption Authority (KACA) to be headed by a High Court Judge.
Whether such leadership comprises the accused’s right to a fair trial before an impartial
court under S.77(1) of the Constitution.
2. Whether such leadership comprises the accused’s right to a fair trial before an impartial
court under S. 77(1) of the Constitution.
3. Whether the Attorney General’s consent to this prosecution is valid under the
Constitution.
4. Whether the provisions establishing KACA are in conflict with the Constitution and
especially S.26 thereof.
We propose to deal with the second framed issue first.
Counsel for the applicants contend that the leadership of Kenya Anti-corruption Authority
(hereinafter called KACA) by a Judge of this court is an infringement of their Constitutional
rights as spelt out in S.77 of the Constitution. Mr. Bowry for the first applicant submitted
that there can be no fair play in a criminal trial before a magistrate as long as KACA is the
prosecuting body. He argued that KACA has an undue advantage in that regard, as the trial
magistrate will be under fear to rule against KACA as he/she will be mindful of the fact that,
the matte before him/her has had an input from a High Court Judge. Dr. Khaminwa for the
second applicant amplified this submission by stating that, no magistrate will question a
charge sheet that has had the input of a High Court Judge. In these situations, Counsel
argued, an accused person will not be accorded a fair trial.

Leading Counsel for the respondent, Mrs, Okwengu countered the submissions by
submitting that the issues raised were spurious and impugns the independence and the

34
integrity of judicial officers. According to her, the argument implies that judicial officers
get intimidated by the status of parties who appear before them. The courts, she continued,
have an obligation to be fair to all parties that appear before it their social status
notwithstanding. Counsel went ahead to illustrate how the arguments by the applicants
became absurd. She gave the example of the position of the Honourable the Attorney
General who, inspite of sitting in the Judicial Service Commission, appears in courts as a
litigant. The other example is in the case of suits being filed by or against judges of our
courts. The last illustration she gave was in respect of H. C. Misc. Appl. No.542/96 Dr.
Kiplagat v. the Law Society of Kenya (LSK).

In that case the applicant is an Advocate of the High Court. The matter was heard by
Aluoch, J and Commissioner of Assize Philip Ransley who is also a member of the Law
Society of Kenya. In all the above instances, lack of impartiality on the part of the members
of the bench sitting was never raised. Regarding the authorities cited by Mr. Bowry on the
issue, Mrs. Okwengu submitted that Counsel for the applicants misinterpreted the principles
set out in the authorities which largely dealt with disqualification of a sitting judge. The
authorities are: -
(1) Metropolitan Properties co. Ltd. v. Lannon and Others (1968) 3 ALL ER 304
(2) The Discipline of Law by Lord Denning
(3) Director of Public Prosecution v. Humpreys (1975) 2 ALL ER 496
(4) Wharton Law Lexicon 4TH EDITION

Counsel ended her submissions by stating that, Justice Ringera is performing a non-judicial
function. We have given consideration to submissions by Counsel on both sides in respect
of this issue. We agree with Mrs. Okwengu that, our courts are under a duty to dispense
justice to all the parties who appear before them irrespective of their class in society.
Judicial officers take an oath to discharge their duties without fear or favour. We
accordingly find the applicants’ arguments on the issue spurious and misplaced.

35
We will deal with issue No.3 and issue No.4 together as the questions for determination are
intertwined. Counsel for the first applicant submitted that the establishment of KACA
created a two-tier prosecutional body – KACA and the Attorney General and that KACA
Cannot prosecute Penal Code offences. Its limitations are within the Prevention of
Corruption Act – Cap 65 Laws of Kenya (hereinafter referred to as Cap.65). Counsel posed
the question whether KACA can prosecute in respect of offences committed prior to its
inception. To illustrate that KACA cannot digress outside Cap 65, Counsel referred us to an
interview Justice Ringera gave to the Nairobi Law Monthly Magazine. The relevant excerpt
is contained in Issue No.78 of January 2000. We quote: -
“Although the Act empowers KACA to investigate and prosecute other
offences involving theft, fraud, embezzlement, evasion of taxes or
misappropriation can therefore only be dealt with under the Penal Code –
Cap 63 Laws of Kenya which provides for offences relating to abuse of
office, administration of justice, public authority an property”.

On the contention that it is only the Attorney General who has the Constitutional mandate to
prosecute Counsel cited to us the holdings in these cases.

(1) Mohanlal Karamshi Shah v. Ambalal Chotabhai Patel & Others 21 EACA 236
(2) Richard Kimani and S. M. Maina v. Nathan Kahara – Criminal (Revision) Case
NO.11/83
(3) Jopley Constantine Oyieng v. Republic Cr. Appeal No.45/88

Dr. Khaminwa contended that it is contrary to the administration of justice for KACA to
investigate and prosecute. He said the Attorney General does not control KACA, which is
only answerable to its Director or the Advisory Board. The Attorney General comes in only
for purposes of giving consent, which is given as a formality. The discretion to weigh
values and interests before prosecuting has been taken away from the Attorney General in
respect of cases handled by KACA. The success of KACA will not be attributed to the
Attorney General. In the circumstances therefore, any consent given by the Attorney

36
General to KACA is superficial. Counsel stressed that, KACA is not an authority that
enjoys governmental powers. Unlike the police who derive their powers from the
Constitution which establishes the office of the Commissioner of Police, that is not the case
with KACA.

Mr. Kangatta Counsel assisting Mrs. Okwengu urges us to rule and direct that, the question
as to the validity of the Attorney General’s consent is not a constitutional matter and that it
is a question falling entirely within the jurisdiction and responsibility of the trial court.
Counsel contended that, there is harmony between the provisions of Cap. 65 and those of
the constitution and that, the two Acts are not mutually exclusive. KACA can only
prosecute with directions of the Attorney General and is a body subordinate to the Attorney
General. To Counsel, KACA prosecutors are Public Prosecutors within the meaning given
in S.2 of the Criminal Procedure Code Cap.75 Laws of Kenya and that their role is
complementary to that of the Attorney General. He reiterated that the Provisions of Cap.65
are not inconsistent with the Constitution. Counsel urged us not to use the ejusdem generis
rule in interpreting the provisions of S.11 B 3(b) of Cap. 65 but to apply the mischief rule.
The mischief that was intended to be tackled is the rampant corruption.

The establishment of KACA came about by the enactment of S.11B of Cap 65. This was
done vide Legal Notice Number 10 of 1997. The functions of the Authority are set out in
S.11B(3). These are:-

(a) To take necessary measures for the prevention of corruption in the public, parastatal and
private sectors.
(b) To investigate, and subject to the directions of the Attorney General, to prosecute for
offences under this Act and other offences involving corrupt transactions; and other
offences involving corrupt transactions; and
(c) To advise the Government and the parastatal organizations on ways and means of
preventing corruption.

37
(d) To inquire and investigate the extent of liability of any public officer in the lots of any
public funds and to institute civil proceedings against the officer and any other person
involved in the transaction which resulted in the loss for the recovery of such loss;
(e) To investigate any conduct of a public officer which is connected with or conducive to
corrupt practices and to make suitable recommendation thereof.
(f) To undertake such further or other investigations as may be directed by the Attorney
General.
(g) To enlist members of the public in fighting corruption by the use of education and
outreach programmes.
When S.11B was inserted into Cap.65 the provisions of S.26 of the Constitution remained
unamended. Under S.26 of the Constitution the Attorney General is the principal legal
adviser to the Government of Kenya. He has powers under the constitution to institute and
undertake proceedings against any person and to take over or discontinue criminal
proceedings instituted or undertaken by any person or authority. Under S.26(4) the
Attorney General may require the Commissioner of Police to investigate a matter as relates
to any offence. S.11B(4) of Cap 65 stipulates that in the performance of their functions the
members of KACA shall have all the powers of a police officer of or above the rank of
Assistant Superintendent of Police. S.11B(5) provides that the Director of KACA may
assume responsibility for any investigation or prosecution commenced by the Police. S. 10
of Cap 65 gives powers to the Director of KACA to cause a police officer to investigate any
bank account or purchase account of any person (underlining ours).

From the foregoing, it is crystal clear that S.10 and S.11B of Cap 65 are in direct conflict
with S.26 of the Constitution. Whether or not KACA purports to act under the direction of
the Attorney General in relation to prosecution, the exercise of powers under S.11B of Cap
65 offends the Constitution. By alienating powers conferred upon him by the Constitution
the Attorney General was being escapist and is a mark of abdication of responsibilities
bestowed on him by the Constitution. He should not have abdicated his duty to render the
desired legal advice. The powers of the Commissioner of Police have been curtailed by
S.10 and S.3B(5) of Cap.65. That is unconstitutional.

38
The provisions of S.3 of the Constitution are quite clear in that if any other law is
inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to
the extent of the inconsistency be void. KACA is not a department in the Office of the
Attorney General. It is a body corporate. The powers conferred on it by S.11B(1) strip it of
any semblance of independence. Acting by or against KACA cannot be in reference to the
Government Proceedings Act Cap.40 of the Laws of Kenya. The existence of KACA
undermines the powers and authority of both the Attorney General and the Commissioner of
Police as conferred on them by the Constitution. Consequently, we find and hold that, the
Provisions establishing KACA are in conflict and inconsistent with the Constitution. We
were not addressed as to why the amendment to S.11 of Cap 65 was necessary. In our view
we found no deficiency in the Act that called for the amendment.

It was contended on behalf of the applicants that it is both unconstitutional and contrary to
the principles of separation of powers for KACA to be headed by a High Court Judge. Mr.
Bowry contended that the Director of KACA – Hon. Justice Ringera – has to make an
election either to remain a judge or resign and head KACA. He stated that for a judge to
head a corporate body is perverse to the judicial oath and contrary to custom and tradition
respecting the behaviour of judges. It would be repugnant to justice and morality, added
counsel. The contentious section relating to the establishment of KACA is S.11B(1) of Cap
65 which reads as follows:-

“There is established an Authority to be known as “the Kenya Anti-corruption Authority”

(hereinafter referred to as “the authority”) which shall be a body corporate with perpetual
succession and a common seal, with power, in its corporate name, to –
(a) sue and be sued
(b) take, purchase or otherwise acquire, hold, charge or dispose of both movable and
immovable property;
(c) borrow or lend money;
(d) enter into contracts; and

39
(e) do or perform all such things or acts necessary for the proper performance of its
functions under this Act which may be lawfully done by a body corporate.

Dr. Khaminwa submitted it is both unconstitutional and irregular for a High Court Judge to
perform duties which he was not sworn to perform. Mrs. Okwengu argued that whatever
duties Justice Ringera is carrying out are done in his capacity as the Director of KACA and
not as a Judge. She stated that there exists no complete separation of powers in the organs
of government and that the Constitution is clear on that. She gave the example of the
Attorney General who sits in the Judicial Service Commission, in Parliament and in the
Cabinet. She sought to distinguish the facts of this case with those in the case of law society
of Lesotho v. Prime Minister of Lesotho and Another (1986) L.R.C (Const).

In the Lesotho case a non-judicial officer was appointed to perform judicial duties. The
officer who was a member of staff of the Director of Public Prosecutions was appointed as
acting Judge. The Court of Appeal of Lesotho held that the appointment was in
contravention of the state’s duty under Human Rights Act to guarantee the independence of
the courts. Mrs. Okwengu gave instances where Judges in this country have been appointed
to head Commissions of inquiry, The Law Reform Commission and where they have been
appointed to perform non-judicial functions. She gave the examples of Uganda, South
Africa and Australia where judges have been appointed to perform such functions. She
submitted that the country should not be denied the use of such talents.

The doctrine of separation of powers is an old one. To be attained, the role of each arm of
Government has to be clearly defined. The judiciary should not be subject to the dictates of
either the executive or the legislature. In the book Wade on Constitutional Law 6TH Edition
the writer maintains that in the field of independence of the judiciary, separation of powers
is strictly observed. In Volume 2 of the Report of the Royal Commission of Inquiry into
Civil Rights – Ontario it was recommended that the regular judicial duties of judges should
not be interfered with by their appointment to extra judicial duties. With respect, we agree.

40
On taking up an appointment as a Judge, one takes an oath in which he/she swears to
discharge the duties of a Judge without fear of favour. In the position as head of KACA and
in view of the duties one is expected to perform, we fail to comprehend how a High Court
Judge will fee bound by the judicial oath. We were asked to hold that as the appointment of
Justice Mathew Guy Muli as Attorney General and Justice Ringera as Solicitor General
were not questioned, then the appointment of Justice Ringera as Director of KACA should
not be questioned, notwithstanding the fact that he is still a Judge of this court. In our view,
the said appointments contravened the principle of separation of powers and the fact that
they were not challenged is no panacea for the irregularity of the appointments.

The only person who can be appointed as Commissioner to the Law Reform Commission
pursuant to the provisions of S.2 of the Law Reform Commission Act Cap. 3 of the Laws of
Kenya is one who holds the office of the Judge of the High Court or Court of Appeal or by
experience as an Advocate or as a teacher of Law in a University. A Commission of Inquiry
under the Commissioner of Inquiry Act – Cap 102 of the Laws of Kenya shall be deemed to
be a judicial proceeding for the purposes of Chapter XI and Chapter XVIII of the Penal
Code. Chapter XI of the Panel Code relates to offences relating to the administration of
justice while Chapter XVIII relates to defamation. Judicial proceedings can only be
presided over by a Judicial Officer.

In that respect, a Commission of Inquiry may only be headed by one knowledgeable in law.
The practice in Kenya has been that such Commissions of Inquiry are headed by Judges of
the High Court and the Court of Appeal. The appointments have been made on a limited
mandate and a specified time. Judges appointed to these bodies remain answerable to the
Head of the Judiciary. It is the converse in the case of the leadership of KACA.

Reference was made by the leading Counsel for the respondent to Uganda, South Africa and
Australia to advance the argument that Judges have been appointed to head bodies that carry
out similar functions as KACA. The terms and conditions of those appointments and the

41
legislation, pursuant to which the appointments were made, were not made available to us.
Counsel’s arguments, therefore, became mere statements from the bar.

A Judge occupies an enviable position in society. He is enveloped by an aura of dignity.

He is always on a pedestal. That position has to be jealously guarded. The temptation to
disregard tradition cannot be allowed to take root in our judicial system. With the greatest
respect therefore, we are of the view that for a judge to head KACA is a step in the reverse
and is a direct affront to his Constitutional appointment.

The end result of the foregoing is that, we uphold the submissions that the provisions in
Cap.65 establishing KACA are unconstitutional and in conflict with the spirit and provisions
of the Constitution especially section 26 thereof. It is also unconstitutional and contrary to
the principle of separation of powers for KACA to be headed by a High Court Judge; and
finally that the sanction by the Attorney General to this prosecution is not valid under the
Constitution.

We bear in mind the provisions of Section 26 of the Constitution but we are not a trial court,
neither do we purport to exercise the powers of the Attorney General under Section 26 of
the Constitution. It now behoves the Attorney General to exercise his powers and mandate
under Section 26 of the Constitution and take whatever steps he may deem necessary to
ensure that the ends of justice are met only in the case where the applicants are the accused
but in all other cases instituted by KACA in the Magistrate’s Courts.

We wish to commend each of the Counsel who appeared before us in this matter. They
gallantly put forward their respective client’s case. We are indebted to them by their able
contributions.

DATED this day of 2000.

A. MBOGHOLI-MSAGHA

42
 B. JUDGE

J. K. MITEY
JUDGE

KASANGA MULWA
JUDGE

43
 APOLLO INSURANCE COMPANY LIMITED v. SCHOLASTICA K. KAMAU &
MUTHANWA & COMPANY ADVOCATES

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.1945 OF 1999

Settlement of decretal sum by insurance companies – whether proper to issue separate

cheques to advocate and client.

Professional Ethics and Responsibility – the relationship between client and advocate –
whether advocate is agent of client for all purposes.

Temporary injunction – principles to be considered when sought

FACTS:
An insurance company had sought to pay a decretal sum by way of two cheques one
written in the name of the victim of an accident (client) and the other in the name of
her advocate. Both were rejected by the advocate on the ground that only one
cheque in the name of the advocate could be issued. The advocate threatened to
attach the company’s assets and the latter filed suit and sought a temporary
injunction pending hearing. In the main suit, a declaration was sought that it was
proper to use the so-called “two – cheque system”.

HELD:
1. There was no rule of law that the decretal sums in an accident claim can only
be paid by way of a single cheque in the name of the victims advocate.

3. The advocate is not entitled to reject payment on behalf of his client where such
payment is made directly to the client.

4. A temporary injunction will issue to protect a litigant’s assets when there is a

prima facie case with a probability of success when the litigant is likely to suffer

44
 irreparable harm and /or when the balance o convenience lies in favour of the
applicant.

CASES REFERRED TO:

1.Kibutiri v. Kenya Shall Ltd, HCCC No.3398 of 1980

2.Wilson v. Church (1879), 12 ChD 454
3.Poli v. Gray (1997) 12 ChD 438
4.Erinford Properties v. Cheshire Council (1974) 2 AII ER 448
5.Susan Muteti v. Kenya Bus Ltd HCCC No. 4972 of 1987

RULING

An Insurance Company and its insured have jointly filed a suit against an advocate and his
client jointly and severally, in which they pray for a declaration that it is a legal and just
method of settling insurance claims by accident victims to issue two separate cheques, one
in the name of the victim for a sum awarded or settled as compensation to the victim, and
another cheque in the name of the victim’s lawyer for legal fees for lawyer’s work. The
plaintiffs ask for another consequential declaration that by issuing the two cheques the
plaintiffs sufficiently compensate the defendants (but it seems from the arguments at the
hearing of the present application that what is meant is not ‘sufficiently compensate the
defendants’ but rather, that the plaintiffs thereby discharge their liability.

The plaintiffs tried to do that. After a suit was settled out of court and judgment recorded
where by the insurance company subrogated its insured and accepted liability to pay the sum
agreed and adjudged as compensation for the victim of the accident (represented by a
lawyer, the second defendant), the insurance company issued one cheque for a sum payable
to the victim of the accident as her compensation money and another cheque for a sum to
cover her lawyer’s legal fees. The insurance company forwarded the two cheques to the
lawyer for the victim, presumably so that the lawyer would pass on the cheque for his client
to the client, and keep the cheque for his legal fees for himself. The two cheques were duly
received by the lawyer for the victim.

45
They were returned as “not acceptable to our kindself”, if I may use the exact words of the
accident victim’s lawyer returning the cheques back to the insurance company’s lawyer. In
the letter returning the two cheques, the accident victim’s lawyer asked, “Why is your client
dealing with ours directly?”. And then one line at the end was firm and unconditional: “We
shall attach within seven days from the date hereof”. The date was 23 rd September 1999.

It was understood that the expressed plan to attach was to attach to recover the settlement
sum under the judgment aforesaid. This one liner statement on attachment was perceived by
the plaintiffs to be a real threat, as it was unqualified and unconditional. They wondered
why they should be attached for a sum they had paid by two cheques. They wondered why
persons paid should refuse payment and prefer to attach.

They quickly came to this court for protection against the perceived warrant of attachment.
They filed this suit and alongside the suit they craved for temporary protection under a
temporary injunction order while the disagreement is sorted out by the court. The Hon.
Justice Aganyanya say the urgency of the matter, and he granted an ex parte temporary
injunctive cover for the plaintiffs, to at least protect the plaintiffs during the preparations for
serving and hearing and determination of the application inter partes.

When the application finally reach me for this inter partes hearing, these happenings which
brought things to a head as I have tried to condense above, were agreed and are not in
dispute. Also not in dispute are sums of monies involved. They are the sums settled and
agreed as due from the plaintiffs to the defendants in full and final settlement of the
judgment. It was also agreed that the aborted attempt to pay was intended to settle the claim
as adjudged.

The bone of contention is the method of payment of this money. Should it be in one cheque
for the whole sum, payable to the lawyer, for the lawyer take his own legal fees from the
composite sum and then pass the balance to his client (the victim of the accident?). Should
there be two separate cheques, one for the victim’s money in the victim’s own name, and the

46
other for the legal fees of the victims lawyer’s name? The defendants (lawyer and his
client) contend for the first mode of payment. The plaintiffs (the insurers and their insured)
contend for the latter method.

To support their respective standpoints the applicants argued for a temporary injunction to
issue on the basis of the facts as outlined above, and have told the court that the threat to
attach is real, and that the defendants will attach if not restrained from doing so. They say
they have dutifully paid and honoured their obligations to the victim of the accident, and
they do not understand why the threat should be there. They ask for an injunction while the
full ventilation and final resolution of this dispute is awaited, in the meantime they ask to be
allowed to deposit the monies in court, but they say, they would be the happier if the two
cheques were ordered released to the victim and her advocates as originally attempted by the
plaintiffs.

On their part, the defendants oppose the application, saying that an injunction should not
issue because a court cannot issue an injunction to stop execution of a decree of a court of
competent jurisdiction and insurance company has no locus standi in a claim between the
injured and a tortfeasor insured by the insurance company; the dispute between the insured
is res judicata; under Order 3 of the Civil Procedure Rules, a lawyer acting for a successful
litigant can receive the party’s decretal sums on behalf of the party and an insurance
company after subrogation cannot tell a successful party how the successful party should
receive his money; an insurer who has accepted liability for his insured cannot pay the
injured directly and must pay through the injured person’s lawyer under Order 3; the
declarations sought in the plaint are of no benefit to the insurer and will offer no relief; if the
money is to be deposited in court, let it be deposited in Nakuru and not in Nairobi; as to how
much a lawyer, and how much a client, is entitled, that is for the deputy registrar as taxing
officer to determine, this suit must be condemned in the strongest terms, because it implies
that an advocate is dishonest or is incapable of handling money.

47
For the defendants, the case of Kenya Bus Service Ltd. v. Susan Muteti, Civ Appeal 15 of
1992, was cited as having settled this very issue, I shall return to it in die course, but first
some quick matters should be quickly disposed of and go out of the way for the real
question to be considered.

Regarding injunction to stop execution of a decree, unless it is a play on words, it is well-

known that injunctive relief and other similar stop orders are daily issued to suspend
threatened execution of decrees. By whatever name called whether they are injunction
pending appeal under the rule in Kibutiri v. Kenya Shell Ltd., HCCC 3398 of 1980; Wilson
v. Church No. 1879, 12 ChD 454; Polivui v. Gray, (1879), 12 Ch D438; and Erinford
Properties Ltd v. Cheshire Council (1974) 2 All ER 448, which all the courts in this country
have always adopted and applied, or whether you call it a stay of execution pending
something to be done, these suspensive orders with injunctive attributes, are daily stoppage
devices in our courts. They injunct execution of decrees of courts of competent jurisdiction
as temporary reliefs. This is what is sought here.

On locus standi, in the circumstances of this case, the insurance company has it. It has
accepted liability. It has subrogated. It is liable to pay. Judgment has been passed against
its insured, and it has taken on the burden to pay. It has made this fact of having accepted
liability known to the decree holder (the injured party). Having accepted liability,
appropriate action may be taken to have that judgment satisfied by the insurer. To avoid
such eventuality, the company wishes to pay without being taken to law. It does not wish to
be embroiled in litigation with the injured party over a judgment to be satisfied. There is a
sufficient interest entitling the insurer to come to the court to avert that real probability.

As to res judicata, the issues in the case at Nakuru and the present one are totally different.
At Nakuru the claim was by the injured against the insured on a cause of action arising from
an accident. The issues were about liability. Those issues were settled. The present case is
about a factory accident claim and liability of a tortfeasor. It is about how victim
compensation monies are to be paid. The question of liability for a tort does not arise. The

48
question of quantum of damages, which was in the Nakuru case, does not arise in the
present case. One of the parties who was not, and could not be a party to the Nakuru case,
i.e. the insurance company, is now a party in the present case. Likewise, the advocate for
the victim, who is now a party to the present suit, was not, and could not be a party to the
case in Nakuru. None was claiming under any of the parties to that case. The victim and
the insured tortfeasor are parties to the present suit as they were, although in different
positions and roles, in the Nakuru case; but in the instant case they are litigating on how the
payment of the compensation monies and legal fees should be paid (under single or twin
cheques) while in Nakuru they were locked up in the controversy over liability for tort. The
principle of res judicata as expounded in the numerous cases collected in my work, Judicial
Hints on Civil Procedure, volume 1, (1984) at pages 44 – 63, has nothing to do with the
present case. Pardon the reference to my own book, but then I had no local substitute.

Regarding whether an insurance company who has accepted liability can pay the injured
directly and whether he must pay through the lawyer acting for the injured, I think this is an
aspect of the main controversy here, and I make it later, together with the case of Susan
Muteti.

The declarations sought should not be dismissed as of no benefit to the plaintiffs. If made,
they will be saying that the plaintiffs are right in making twin cheques in different names of
respective payees. The plaintiffs will know how they will safely act and pay. They will
know that they can pay the lawyer his legal fees in one cheque and his client the
compensation money in separate cheque; and that those cheques will not be rejected and
returned, with a threat to attach despite the attempt to pay in that manner. The declarations
will remove the cloud of uncertainty. If, on the other hand the court refuses to grant the
declarations, it will be saying that the plaintiffs are wrong if they adopt the twin – cheques
systems and the plaintiffs will refrain from treating lawyers and their clients in this manner
and the lawyer, in turn will safely reject and return such cheques and safely threaten to
attach.

49
The other matters seem consequential on what may be decided on the main points to which I
now turn.

One way to determine the application is to deal with arguments on both sides alongside the
relevant authorities cited.

Having read all that there is to read on this file, and listened to everything that the learned
lawyers for both parties said in their most able arguments. I understood the defendants to be
telling the plaintiffs, in better terms than I am able to summarize, but to this effect: “What is
wrong with you plaintiffs? Deliver all the egg of the litigation hen to a people lawyer in one
basket and it must, without exception be in one basket, for the lawyer to decide whether or
not to pass any of them to his party client and if he gives any of them to his party client and
if he gives any of them to his client, it is for him to decide how many eggs to keep for
himself and how many to be given by him to his client. This has been the practise always.
We abhor the delivery of these eggs in two re-marked separate baskets, one for the lawyers’
dues and the other for his client’s compensation”.

Startled by this posturing of the defendants, the plaintiffs wonder aloud and with
indignation. “But each one of you is receiving full payment. You are each getting your
respective eggs, nicely wrapped up and promptly delivered through the lawyer for the
injured, in two baskets, one clearly marked, unmistakably ‘Advocate – for your services’
and another also clearly marked, ‘Victim – for your injuries’, What injury will either of you
people necessarily suffer by reason of delivering all your eggs in two pre-marked baskets?
If there will be any outstanding demands between yourselves, they have nothing to do with
us so far as what was required of goes”.

The defendants reply by saying, “But look at what the late Hon. Mr. Justice Mango said in
his ruling of 12th March, 1991, in Susan Muteti v. Kenya Bus Services Ltd. HCCC 4972 of
1987. What he said there disposes of the matter and you cannot overcome it. And the said
learned judge was upheld by the Court of Appeal in Kenya Bus Services Ltd. v. Susan

50
Muteti, Civil Appeal 15 of 1992”. I looked to see what was said at the two hierarchical
judicial levels in that case.

The firm of Messrs. Kilonzo & Co., Advocates was involved in the case. I was privileged to
have the present application argued most ably and helpfully by Mr. Kilonzo of that firm
himself. In the Muteti case one of the orders sought was what Messrs. Kilonzo & Co.
Advocates being the Advocates on record were bound to receive all payable from the suit
from the defendant on behalf of the plaintiff.

From the ruling of Mango, J, it appears that the defendant paid the settlement sum on behalf
of the plaintiff to the defendant’s own lawyers and their lawyers declined to transmit the
money to the plaintiff’s lawyers, thus necessitating the application for the order that the
monies be passed on to the plaintiff’s lawyers. The defendant’s lawyers refused to remit the
money because they acted under the influence of legal consultant’s opinion that while an
advocate who conducts successful negotiations on the part of a third party claimant is
probably the third party’s agent for receipt of payment and any payment made to the
advocate would be good discharge, an insurer cannot be prevented from making payment if
it so decides, direct to the third party, and the advocate has no cause for complaint
regardless of whether or not he has recovered his fees. On the strength of this position the
defendant’s advocate declined to release the funds to the plaintiff’s lawyers. Instead they
wrote to the lawyers seeking to know their fees so that payments could be made in a
separate cheque for that amount in favour of the plaintiff’s advocates with the claim amount
being made payable to the claimant, although the claimants cheque could be sent to the
advocate for onward transmission to his client, leaving it to the advocate to make
arrangements with his client claimant for the recovery of his advocate-client costs.

Mango J, observed that the opinion incensed some practicing lawyers; and I observe what
the plaintiffs have done in the present case is quite reminiscent of that matter, and some
advocates are probably feverish. He noted that one lawyer had said that opinion was likely

51
to put a wedge between members of the public and advocates specializing in personal injury
claims. He said that that view was not entirely without merit.

According to Mango, J, a third party normally has no claim against an insurer and there is
nothing between the two. He stressed, “There isn’t any privity of contract between them.
The complaint is normally against the driver and owner of the offending vehicle. The third
party employs an agent, in the person of an advocate to prosecute for him that claim and
almost entirely leaves the matter in the advocate’s hands subject of course giving him
instructions from time to time”.

The learned judge said that an insurer comes into the picture basically at the time of
payment, and according to him, the long standing practice “of course understandably” that
the payment is made to the advocate of the claimant whose duty it is to remit the funds to
the client Mango, J, thought that to be “perfectly in order and should be the correct legal
position”.

He then conceded that it is true that this procedure has been, “on few occasions; subjected to
serious abuse by “few hungry and unscrupulous advocates”. They have converted these
funds meant for clients, putting their clients into untold suffering. Those who have treated
their clients in such a fraudulent and unfair manner have of course been dealt with and there
are ways to deal with them”. The learned Judge was of the view that notwithstanding
“wholesome fruits among many good ones” in the legal profession basket, the long
established legal practice in this important branch of the law should not be trampled under-
foot. The learned judge said that to by-pass the legal agent for his client at the end of the
suit or of the negotiations and deal directly with the principal (the client party) did not seem
right and would not be right where the agent (advocate) refused to give consent. It may not
be wrong where the advocate consents. So saying Mango J allowed the application [and
ordered that] the funds be paid forthwith to the party’s lawyer, under threat of execution to
issue in default of payment.

52
Kenya bus Services Ltd. took the matter to the Court of Appeal, where the short issue was
seen to be; can an insurer of a tortfeasor who is dealing with the advocates for the injured
party upon settlement of a claim, pay directly to the injured party, the sum in respect of the
claim for damages and at the same time pay party and party costs to the advocates for the
injured party by a separate payment.

It was there revealed that the defendants’ advocates and the insurance company had
intended to protect the insurable public by proposing to issue cheques for damages direct to
the injured parties thus by – passing the advocates.

The Court of Appeal, consisting of senior judges, Gicheru, Akiwumi and Shah, JJA,
addressed the issue of the scope of the authority of an advocate, and stated that generally an
advocate is authorized to act as his client’s agent in all matters not falling within an
exception which may reasonably be expected to arise for decision in the course of the
proceedings. The authority extends to receiving moneys “on behalf of his client”. An
Advocate has a general authority to compromise an action and to settle the matter. It
followed, therefore, in the view of the Court of Appeal, that an advocate is “obviously
entitled to demand and receive moneys due to his client until such time his instructions are
withdrawn”.

The Court of Appeal observed that Order 3, rule 6 of the Civil Procedure Rules clearly
provides that an advocate on record, until properly removed or changed, is considered the
advocate of the party until the final conclusion of the cause or matter, including any review
or appeal. The Court also noted that the Advocates Act (cap 16) provides very clear
safeguards for clients whose moneys may be misappropriated by advocates. Advocates
have to comply with the Advocates (Accounts) Rules, the Advocates (Deposit Interest)
Rules, and the Advocates (Accounts Certificates) Rules. These are the safeguards provided.
Any dishonest lawyer will be subject to the jurisdiction of the Disciplinary Committee as set
out in the Advocates Act.

53
The highest court in the land said that insurers [could] not take upon themselves the alleged
duty of protecting the “insuring public”. The law as stated takes care of problems.
Furthermore, the Court continued, a third party who makes claims against a tort-feasor is not
a member of “the insuring public”. The insurers must be aware that a discharge voucher
duly signed by the claimant giving full discharge to the insurer and the insured protects the
insurers. It is not the concern of the insurers to see if an advocate is honest or dishonest.
The advocate after deducting his fees (including the advocate client element of it) is bound
to pay the balance of the awarded or agreed damages to his client.

The Court went on to correct Mango, J., on one aspect. It explained, that the insurer when
negotiating a settlement or defending a claim steps into the shoes of the insured under the
subrogation rights granted to the insurer in the contract (policy) of insurance. It would
therefore be wrong to say […] “there is nothing between the insurer and the claimant”, as
Mango, J., had said. Otherwise he had arrived at the correct decision. The upshot was that
the appeal was dismissed with costs.

It was in the light of these decisions that Mr. Mutula Kilonzo for the defendants said that it
pained him to have to address the court on a subject of this nature, when the matter was too
basic to be a subject of dispute. And it is for this reason that I have been at great pains to
look at these authorities very closely and to understand them well. For those who know
him, Mango, J., was a great judge, and his opinions on the law command high respect. One
cannot hold a contrary view from his on the law, unless one warns himself thoroughly. The
court of Appeal is the highest court, and it has the last word on what it decides. Its authority
is by law final on points decided by it.

The opinions of Mango, J., a most careful judge, and the collective judgment of the three
judges of appeal, throw a lot of light on what is to be decided here. They are helpful to the
present matter through the light they throw on the state of the legal profession at the time
those opinions were rendered, only to help us to throw a searchlight on the state of the
profession today, some eight years down the road of history after Mango, J., spoke of “the

54
long standing practice” of paying parties compensation through their lawyers, being
“subjected to serious abuse by few hungry and unscrupulous advocates” on “few
occasions”. Eight years ago, the careful judge had known of “serious abuse”, he had known
that there were “hungry and unscrupulous advocates” doing that, although at that time he
said this abuse was on a “few occasions”.

Today the “hungry and unscrupulous advocates” are not “few”, they are not merely “hungry
and unscrupulous”, they triple satanic depravity with wicked greed and an ever-increasing
ethical decadence. Their number grows by the day. The “few occasions” of “serious abuse”
spoken of in 1991, are today almost common routine; “serious abuse” now comes with cruel
ravishment. The wrongs done are in a litany which stretches, like Banquo’s line of kings, to
the crack of doom.

If a perceived general uprightness in the legal profession in the by-gone years influenced by
some measure the decisions of those years, today’s changed general image of the profession
calls for a fresh look at the question raised in this case. The Court of Appeal set out what it
saw as safeguards provided in the written law for clients whose moneys may be
misappropriated by advocates. The Court was also of the view that a dishonest lawyer will
be subject to the jurisdiction of the disciplinary committee. The Court was careful not to
ask whether statistically these statutory provisions work in practice, and if so, to what
extent. The Court was careful to consent itself with theorems and abstract paper rules. That
kind of theoretical exposition of what is written on the statute book may not stand the
scrutiny of the happenings in daily life in the profession in Kenya. But this court must
follow binding precedent.

The Rules and the Disciplinary Committee are in place; and yet a number of lawyers are
stealing clients’ money. The Rules and Disciplinary Committee are in place while the
return and reinstatement of convicted lawyer criminals to the Roll of Advocates is
incomprehensible. The ex-convict lawyers turn judges of morals in society and pontificate.
It is in the public domain that a counterfeit lawyer who, in a bid to divert attention from his

55
underhand unethical misdeeds shouted himself into the newsmedia and was undeservedly
eulogized as a democracy-crusader; only later events to raise a cloud around him as an
extortionist doubling as a suspect for stealing client’s money; for his professional body to
declare that there was nothing wrong in him taking the money from a victim of his publicly
complained extortion, the receiving of that money not based on any proper relationship
between the lawyer and the complainant who was neither his client, nor consumer of the
lawyer’s services, nor the lawyer’s uncle passing a filial gift to a nephew. There are some
lawyers who have flirted and collaborated with passing transnational criminals and crooks
without boarders, in attempts to destroy our national institutions and libel and slander
persons in high office, and not on a day have those lawyers been called upon by the
professional disciplinary machinery to furnish supportive evidence to prove their libelous
accusations. Indeed, today the legal profession in Kenya is full of elements [that] prefer to
crucify Jesus and free Barabas. It is all in the public domain.

It is in this changed ugly social climate that litigation of this nature must be considered. It is
a decaying ethical environment enveloping the profession, and if there is any positive
remedial option to be tried within the law, it should not be hindered for mere partisan self-
interest consideration at the expense of the commonwealth.

Because of the doctrine of judicial precedent, this court must follow what the Court of
Appeal decided on the specific questions it settled. What was before the Court of Appeal in
Muteti’s case was, however, different in material aspects from what is before this court.
There, there was an attempt to protect the “insuring public” generally. Here particular
parties wish to protect themselves from a threatened attachment on grounds which they
think are not proper. They want to be cleared to pay and settle this specific claim.

The court of Appeal judgment in Susan Muteti’s case explained the scope of the authority of
an advocate. It is said that generally, but not universally as a rule of thumb, an advocate is
authorized to act as his client’s agent in all matters, including receipt of moneys on behalf of
his client. His authority clothes him with the power to receive moneys on behalf of his

56
client, and such receipt discharges the third party who is thereby enabled to discharge his
liability to the principal by paying to the agent.

His duty is to receive the payment on behalf of his principal. In the absence of instructions
that he shall receive moneys on behalf of his principal which must include an element
representing his own moneys, if an agent refuses to receive moneys due to his principal and
on behalf of the principal, he will be going against the very authority to receive the moneys
on behalf of his principal.

In the instant case, the money to be received by the advocate on behalf of his client was
given to him. Instead of receiving them on behalf of his principal as he was authorized to
do, the advocate, an agent, refused to receive it on behalf of his principal. He returned it to
the sender. Now the advocate’s client swears an affidavit and says that she instructed the
advocate to receive all moneys that may be due to her and later forward the same to her less
certain deductions. Since the advocate had these instructions, he should have carried out
those instructions by receiving all moneys due to his principal. The mechanics of
deductions was beside the point. Contrary to these clear instructions the advocate refused to
receive the moneys due to his client.

The client, however, contradicts herself in some way. Having instructed her advocate to
receive all moneys on her behalf, and the advocate having received the moneys on her
behalf she instructed him to return them to the sender. Once he received them on her behalf
and she gave further instructions that the moneys be returned to the sender, all parties had
fulfilled their obligations; the insurer and insured sent the moneys due to the injured, to her
advocate as her agent to receive it on her behalf; the advocate as agent received the moneys
due to her on her behalf, thus acting within his authority; the client as principal giving fresh
instructions to return the moneys to the sender; and the advocate as agent carrying out those
new instructions.

57
It was said in the authorities cited that an advocate as an agent of his client is entitled to
demand and receive moneys due to his client. That is with respect, very correct. But he can
only demand where there is no voluntary payment and the moneys of his client are not
forthcoming. Moreover, he can only demand what is due to his principal, the client. In this
case, what is due to his client is not in dispute. It was even paid without demand. It is the
advocate, instead of receiving it without demand, who got it and sent it back.

In Susan Muteti case there was an attempt at “by-passing” the party’s advocate on record.
And in fact, there was a refusal to pay. In the instant case there is no attempt to by-pass the
advocate for the party. There was no dealing between the insurer and the injured. Her
moneys were forwarded to her advocate, for the advocate to pass it on to her. There is
nothing on record to show any direct dealing between the insurer and the party. Here there
is no refusal to pay. Payment has infact been tendered and refused. It is still being offered
hence the application for an order on what to do with the moneys after the defendants
refusing to take the moneys.

As advocate is engaged by a client to pursue the interest of his clients. He is not employed
to promote and pursue and litigate in self-interest with a passion, including denying his
client payment from a third party unless and until his own interests are catered for by the
third party. His claims are to be made against his client for fees for services rendered. He
has no right to demand a payment by a third party in a matter that will guarantee and
underwrite his legal fees.

If an insurer makes out a cheque for the lawyer’s legal fees and the amount turns out to be
less than what the lawyer is entitled to, it is for the lawyer to look to his client for the
difference. Now it was said in the Susan Muteti case, that there is a long-standing practice
of paying through an advocate. On the present materials before me, I find that that practice
has been followed here. The two cheques are being paid or offered to be paid through the
lawyer for the injured. It will be “the duty of the advocate to remit the funds to the client"”
as stated by Mango, J. If on the other hand what the plaintiff’s have done is not regarded as

58
a payment via a lawyer (which I say it is such a payment), then it is my humble opinion that
this practice is a mere matter of habit to which lawyers are accustomed and it does not have
the authority of a rule of law; and other than being a matter of habit not supported by any
sound recognized principle, it may be substituted by a better practice which may be free
from the acknowledged abuses by the “hungry and unscrupulous advocates” whom Mango,
J., spoke of in 1991. In the alternative such a practice may be supplemented by fresh
methods to lessen the risks feared.

It must be remembered that when the Court of Appeal pointed out the presumed safeguards
on the statute to protect people from bad elements who misappropriate moneys of clients,
the Court never intended to close the categories of safeguards. New safeguards may be
invented without being shackled by old pot-holed methods over-grown with chancery.

The old established practice was a bestowment of honour on the profession of repute; it was
never conferment of inalienable, indefeasible rights for all time irrespective of a
deterioration in ethical conduct in the profession to the lamentation and weeping of many.

Litigation between parties is not about underwriting lawyer’s fees. It is about justice
according to the law, between parties. In the present context, it is about compensation of
accident victims, and not about niceties about cheques in lawyer’s names.

The distinctions on material aspects between the present case and Susan Muteti make the
latter inapplicable to the questions raised in the instant case, as I have tried to show above.

It appears on the present materials, that the plaintiffs have shown a prima facie case wit h a
probability of success.

There is no irreparable injury if no injunction is granted; but this is not an absolute

requirement in every case if the case can be decided on the other limbs of the Giella –v-
Cassman Brown & Company Limited conditions.

59
The balance of convenience requires that the plaintiffs having tendered payment and are still
ready, willing and able to pay the decretal sums, they should not be inconvenienced by a
threat to attach, when no inconvenience is caused to the defendants. For the foregoing
reasons, this is a proper case for a temporary injunction to be granted to restrain the
defendants by themselves and their instrumentalities specified in the first prayer of the
amended chamber summons, from doing any of the things specified in the said prayer.

The plaintiffs ask: What do we do with the decretal sums, which we have wanted and
tendered to pay but the payees have refused to accept payment? The court orders that the
decretal sums be deposited in the court in this suit, until the hearing and determination of the
suit, or until other orders on application, whichever event occurs first.

The temporary injunction is also to last until the hearing and determination of the suits.
Cost in the cause. Orders accordingly.

Signed and dated by me this 11th day of November, 1999, at Nairobi

R. KULOBA, J.

11TH NOVEMBER, 1999

60
 LAKESTAR INSURANCE COMPANY LTD, CHARLES ATWIYA NDUBI v.
MARK N. GITHIRU T/A GITHIRU & COMPANY ADVOCATES & MARY A.
OGUTU

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO.295”B” OF 2000

Two cheques system – whether the practise of issuing one cheque to the decree holder has
any force of law.

FACTS:
The second plaintiff Charles Atwiya Ndubi owned motor vehicle registration
No.KAH 075G. He took out an insurance cover from the first plaintiff Lakestar
Insurance Company Ltd. During the life of the policy, the said motor vehicle was
involved in an accident. The second defendant sustained injuries for which she
instructed the first defendant to file a suit and claim damages on her behalf. She
was successful.

The first defendant, the insurance company agreed to pay the decretal sum as it was
bound. It made three cheques to the second defendant, the first defendant and M/s.
Ndegwa Auctioneers. The first two cheques were sent to the first defendant as
advocates, but the cheque written in the second defendant’s name was returned as
“having been illegally written”. The first plaintiff filed suit and prayed for a
mandatory injunction.

HELD:
1.If the sums due to the principal are known and the advocates fees is known there
could be nothing wrong in making two cheques and handing them over the
Advocate, if there is extra fees not disclosed to the debtor or the court, that
should be left between the agent and the principal.

61
 2.But an established practice to pay the principal debt in one cheque has been
grossly abused, encouraged crime and caused untold suffering to victims of
many accidents. This practice has no force of law.
3.The payment was proper and the advocate was using the court orders
oppressively.
Application allowed.

CASES REFERRED TO:

Apollo Insurance Co. Ltd. v. Scholastica Kamau and Muthanwa & Company Advocates,
Nairobi H.C.C.C No. 1945 of 1999.
Mary Awino Ogutu v. Charles Atwiya CMCC No.105 of 1999

RULING

Briefly what I gather from the material before me is that the second plaintiff, Charles
Atwiya Ndubi owned motor vehicle Registration No.KAH 075G. He took out an insurance
cover from the first plaintiff Lakestar Insurance Company Limited. This is said to be motor
vehicle policy No. 08/081/40159/11.

During the life of the said policy the said motor vehicle was involved in an accident. The
second defendant sustained injuries for which she instructed the first defendant to file a suit
and claim damages on her behalf. Nakuru CMCC No.105/99 was filed and the second
defendant was successful. She was awarded general damages in the sum of Kshs.85,000/=
and a sum of Shs.31,340/= as costs and disbursements.

A decree was drawn and motor vehicle Reg. No. KAH 075G attached in satisfaction thereof.
The first defendant, the Insurance Company, agreed to pay the decretal sum as it was bound
so that the attached motor vehicle could be released. It made three cheques as follows:

62
(i)Shs.85,000/= in the name of the second defendant Mary Awino Ogutu to cover damages
awarded to her.
(ii) Shs.31,340/= in the name of the first defendants to cover their costs and disbursements.
(iii)Shs.25,961.25/= Cents to M/s Ndegwa Auctioneers as their fees for attaching the motor
vehicle aforesaid.
The first two cheques were sent to the first defendants as Advocates of the second
defendant. The cheque to cover their fees was gladly accepted but the cheque written in the
second defendant’s name was returned as “having been illegally written”. The first
defendants asked the Auctioneers to proceed with the attachment. The Auctioneer also
accepted his cheque. The first plaintiff did not wish to give up. It filed the suit before me.
The plaint is dated 1st July 2000. The prayers in the plaint are as follows:-
(a) A mandatory injunction compelling the defendants jointly and severally by themselves
and or agents to release the attached motor vehicle and or properties belonging to the 2 nd
plaintiff and to accept the two cheques of Shs.85,000/= and Kshs.31,340/= respectively
as proper satisfaction of the decree in Nakuru CMCC No.105 of 1999.
(b) Costs of this suit
(c) Further relief

Together with the plaint an application by way of chamber summons under Order XXXIX
R.(2), CPR and Section 3A of the Civil Procedure Act was filed. The substantive prayer of
the application is in the following terms;

“3.That this honourable court be pleased to grant a mandatory injunction

compelling the defendants herein by themselves and or agents to release all the
attached properties and motor vehicle of the 2nd plaintiff in respect of attachments
carried out by S. K. Ndegwa Auctioneers in Nakuru CMCC No 105/99 – MARY
AWINO OGUTU VS. CHARLES ATWIYA NDUBI, and accept the two cheques paid
in respect of the decretal sum and costs totalling to Kshs.116,340/= as proper
payment in full and final settlement of this matter.”

63
The application is supported by grounds on the body of the application and by an affidavit
sworn by Mr. Ojienda Tom Odhiambo the plaintiff’s Advocate. There are annextures to the
affidavit. I have perused the same.

The application is strenuously opposed, and a replying affidavit sworn by Mr. Mark
Ng’ang’a Githiru who practices as Githiru & Company Advocates filed. There are
annextures to the said affidavit. I have perused the same. Mr. Githiru insists that his
instructions were to accept all monies on behalf of his client the second defendant and remit
the balance due to her after deducting such fees as was due to the Advocate.

Although the duty of this court is to decide the matters placed before it, I cannot lose sight
of the fact that what is before me is an on going war between Advocates who mainly deal
with running down cases and Insurance Companies. The matter before me has therefore an
element of public interest.

I am grateful to Mr. Lumumba, Advocate for plaintiffs and Mr. Mirugi Kariuki, Advocate
for the defendants for their able submissions in the matter. Their submissions have assisted
me a great deal. I also thank the Advocates who assisted them.

For the defendants it was submitted that the plaintiffs are not properly before me. I think
this is the first hurdle the plaintiffs have to scale in the matter before me. For the defendants
it is argued that the application before me and the entire suit is incompetent by virtue of
section 34(1) of the Civil Procedure Act. For the plaintiffs it was submitted that the
scenario was changed by entry of the insurance company and the Advocate into the arena.
Indeed the battle is between the Advocate and the insurance company although the parties to
CMCC NO. 105 OF 1999 will be the beneficiaries of the out come.

Section 34(1) of the Civil Procedure Act in the following terms:

“All questions arising between parties to the suit in which the decree was passed, or
their representatives, and relating to the execution, discharge of satisfaction of the

64
 decree, shall be determined by the court executing the decree and not by a separate
suit”.
The case before the Chief Magistrate Nakuru had one plaintiff and one defendant. The issue
of liability between them was settled and even execution proceedings commenced. But
Lakestar Insurance Co. Ltd. came into the scene and admitted that it was bound to satisfy
the decree by virtue of Section 10 of Cap. 405 of the Laws of Kenya. It drew cheques for
settlement of the claim. One cheque was rejected by the Advocate because it was in his
client’s name. It is this cheque the Insurance Company wishes to have the Advocate
compelled to accept. My view is that a party’s insurer is not its representative in terms of
section 34 of the Civil Procedure Act.

Let us assume for a moment that the second plaintiff has no other attachable property and
that motor vehicle Registration No.KAH 075G was rendered worthless in the accident.
Would the second defendant be entitled to compel the Insurance Company to satisfy the
judgment by bringing an application in CMCC NO.195 of 1999? The answer is “No”. The
second defendant would be bound to bring a separate suit to compel the Insurance Company
to satisfy the decree.

A party’s Advocate is not his representative as envisaged under Section 34 of the Civil
Procedure Act.

I agree with Mr. Lumumba, Advocate that the entry of the Insurance Company and the
Advocates into the arena changed the scenario and a separate suit was called for.

The matter is properly before this court.

The practice in this country in running down cases has been to pay one cheque to the
decree-holder’s Advocate. He would then deduct his dues and pay to the decree-holder
what was due to the decree-holder. As I said, this is a case with an element of public
interest and I may be right to digress a bit. The practice of paying a claimant’s Advocate

65
with one cheque to cover the full claim, costs and disbursements has had its bad side.
Unscrupulous and dishonest Advocates have had a field day in cashing on this system and
have defrauded their clients of millions of shillings. No reasonable man in Kenya does not
know the danger that has been posed by the practice of one cheque system. This does not
mean that all members of the legal profession in this country are dishonest. The majority
are saints so to speak. But is it easy to separate the saints from the followers of Lucifer? It
is not.

Lakestar Insurance Company Ltd., the first plaintiff in this case is aware of the crimes,
which have been committed against the beneficiaries of insurance covers. They want to
play their part and eliminate or minimize the rate of these prevalent frauds. I think each
Kenyan of good will has the duty to do so. I hope the saints in the profession will swallow
their pride and come up with a scheme to help the insured public.

I would on my part think that Lakestar Insurance Company Ltd. is not a busy body. It has a
right under the present set of circumstances prevailing in the profession to do something to
prevent crime.

But what of the law? The Advocate is an agent of his client. Under Order III R. 6, of the
Civil Procedure Rules an Advocate who is on record is considered to be the party’s
Advocate to the final conclusion of the cause or matter including any review or appeal.
While retained as such he is authorized;

(1) to accept service of all documents which are not in all required to be served personally
upon his client.
(2) To make formal written admissions in the course of proceedings for the purpose of those
proceedings;
(3) To bind his client by a compromise of existing proceedings on terms which do not
involve extraneous matters, unless the client has limited his authority and has
communicated that limitation to the other side, and subject to discretionary power of the

66
 court, if its intervention by making an order is required, to inquire into the circumstances
and grant or withhold its intervention as it thinks fit, and subject also to the disability of
the client,
(4) To defer the action,
(5) To receive payment of debt, damages, or costs except when the client or litigant is under
disability or the money is to be paid into court or to a particular person and
(6) Generally to act as the client’s authorised agent in all matters which may reasonably be
expected to arise for decision in the proceedings. (See Halsbury’s Laws of England, 3rd
Edition Volume 36, page 78 and 79).

The defendants mainly relied on the case of Kenya Bus Services Ltd. v. Susan Muteti, Civil
Appeal No. 15 of 1992. This decision is binding on me. But I find that the circumstances
were slightly different in that the Advocates of the Insurance Company had acted against
professional ethics and purported to pay the settlements sums directly to the plaintiff. Here
the plaintiff’s counsel is not being sidelined. He is getting the cheque for his costs and the
cheque for his client’s damages. I therefore agree with Mr. Lumumba that Muteti’s case can
be distinguished from the present case.

Kuloba J. in Apollo Insurance Company Limited V/s S. K. Kamau and Muthanwa &
Company Advocates, Nairobi HCCC No.1945 of 1999 was of the view that when two
cheques are delivered to the Advocate, one in the Advocate’s name and the other in the
client’s name, it was good payment.

I must on my part admit that these cases pose difficulties. There is no denying that the
Advocates in this case had the general authority to file the suit on behalf of the second
defendant claiming damages for injuries she had received and if successful receive payment
of her behalf. She had also a duty as the principal to see to it that the agent (Advocate) does
not lose his fees. But I am sure if the issue of the two cheques and the danger posed by
dishonest Advocates was brought to her attention she would have gone for the two-cheque
system. But this can only be left to conjecture.

67
My view is that if the sums due to the principal are known and the Advocates fees is known,
there could be nothing wrong in making two cheques and handing them over to the
Advocate. If there is extra fees not disclosed to the debtor or the court that should be left
between the agent and the principal.

Since the Advocates’ instructions were to claim and receive damages for the client and he
was to write a cheque for the client anyway, if he had been paid in one cheque, the
remittance of two cheques to the Advocate was proper payment. The Advocate as an agent
received his fees and what his client the principal was entitled to according to the Decree of
the court submitted to him for onward transmission to his client. I have looked at the
Advocates’ Act, the general law of agency, the Civil Procedure Act and other relevant laws
but I am unable to see where a debtor is bound to pay the Advocate both his fees and the
principal debt in one cheque.

Order XXI R.1 of the Civil Procedure Rules has an interesting provision. It is as follows:-

1. (1) All money payable under a decree or order shall be paid as follows, namely-
(a) into the court whose duty it is to execute the decree;
(b) direct to the decree – holder; or
(c) otherwise as the court which made the decree directs
2. Where any payment is made under sub-rule (1)(a) notice of such payment shall be sent
by the court to the decree-holder or his advocate.

It would appear that a judgment-debtor would be at liberty to pay money payable under a
decree-holder. But professional ethics and etiquette do not allow the decree-holder’s
Advocate to be sidelined as was said in Muteti’s case.

Having said so much, I have now to ask myself whether the order for mandatory injunction
could be available to the plaintiffs in the circumstances of this case.

68
Mr. Lumumba, Advocate for the plaintiff said that he was mainly relying on section 3A of
the Civil Procedure Act. He said that the conduct of the Advocate after the suit was settled
is not supported by his clients’ instructions. He accepted his fees but refused to accept his
clients’ payment. For the defendants, it was argued that the defendants had committed no
wrong to warrant issuance of a mandatory injunction.

In general, the principles regulating the grant of mandatory injunctions are the same as those
regulating prohibitory injunctions; for otherwise a defendant who had committed a breach of
his obligations would be better of that one who merely threatened to commit a breach. The
grant of a mandatory injunction is nevertheless discretionary. The court will not however,
interfere by way of a mandatory injunction except in extreme or at all events very serious
damage will ensue from the interference being withheld.

Section 3A of C.P.A is in the following terms;

“3A. Nothing in this Act shall limit or otherwise affect the inherent power of the court to
make such orders as may be necessary for the ends of justice or to prevent an abuse of the
process of the court”.

The decree in CMCC No.105 of 1999 was especially for Shs.85,000/= general damages, and
Shs.31,340/= costs. Cheques were sent to the Advocate to cover these sums. The Advocate
accepted his costs but returned the cheque for Shs.85,000/= because it was not in his name.
He instructed the auctioneer to carry on with the attachment of the second plaintiff’s
property. Since I have found that the payment was proper I have no difficulties in finding
that the Advocate was using the court orders oppressively. He is guilty of abusing the
process of the court. This, the court must prevent and put right. This cannot be done unless
the application is allowed.

69
I have considered all the relevant material placed before me. I did not find it necessary to
analyse all the authorities relied on individually.

I find the application dated 1st July 2000 has merits. The same is allowed with costs to the
plaintiffs.

Dated and delivered at Nakuru this 4th day of October, 2000

70
 UNITED INSURANCE CO. LTD v. DORCAS AMUNGA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CAUSE NO. 462 OF 2000

Two cheque system – whether insurers insistence to settle the claim in two cheques is
justifiable at law.

FACTS:
The respondent sued the applicant insurer seeking a declaration that the applicant
was bound to pay her the decretal amount in a suit in which the respondent has
successfully sued the applicant’s insured. The applicant in satisfaction of the decree
issued three cheques. One to the auctioneers, one to the respondent and another to
the respondent’s advocates being costs of the suit.

The respondent’s advocates refused the cheques drawn in their favour and in their
client’s favour. The applicant filed an application in the lower court seeking a
declaration that by issuing the two cheques, the applicant had discharged its liability
under the decree. The application was dismissed. The applicant then quickly issued
one cheque to the Advocate, stopped payment and promptly filed an appeal to the
Superior Court. They also sought a stay pending the hearing and determination of
the appeal. The issue was whether the applicant had a case with chances of success.

HELD:
1.An advocate is the agent of his client. Their relationship is governed by the
retainer which is the contract that determines their rights and liabilities subject to
terms which the law will infer in the particular circumstances. The authority of an
advocate to act for his client will therefore arise from the retainer. The conduct of

71
 the advocate under the retainer will also be governed by the Advocates Act
(Cap.16).

2.The Susan Muteti case clearly and accurately established the principles of law
applicable to the present case.

3.O.XXI Rule 1(b) applies to a situation where the decree holder is unrepresented.
It is not intended to permit direct payment to the decree holder where the latter is
represented by an advocate.

Application dismissed with costs to respondents.

CASES REFERRED TO:

Lakestar Insurance Co. Ltd. & Another vs. Mark N. Githiru t/a Githiru & Co., Advocates –
NAIROBI - HCCC 295”B” OF 2000
Apollo Insurance Co. Ltd. v. Scholastica K. Kamau & Another – HCCC NO. 1945 OF 1999.
Kenya Bus Ltd vs. Susan Muteti C. A. NO.15 OF 1992
Giella vs. Cassman Brown J Co. Ltd. (1973) E.A 358
Jones vs. Southwest Lancashire Coal Owner’s Association (1927) A.C. 827, H.L.
Re. House Property and Investment Co. Ltd (1954) Ch.576

RULING
This case relates to the so-called “two-cheque system”, a term which has gained some
notoriety and generated enormous and generated enormous public interest in our country.

The term was probably coined by the insurance industry to describe a system whereby two,
instead of one cheques are issued in settlement of an insurance claim following a litigation
one to the Advocate for his fees and the other directly to his client, the victim or the injured
party.

72
Clearly, the Advocates do not approve of the system because it undermines their authority
as Advocates and agents of the injured party. On the other hand, the insurance industry
wishes to protect the beneficiaries of the funds by ensuring that the funds are actually
received by those entitled to them.

The debate rages on, so does the uncertainty arising from the somewhat conflicting
decisions of our courts. This uncertainty can, and does, erode the value and our sense of
justice. The decisions of our courts must create a sense of predictability and certainty, so
that a litigant has a fair idea of the state of our law. That is precisely why the principle of
stare decisis is so fundamental to our system of justice. Like cases must be decided alike,
and a superior Court’s decision is binding on the inferior court.

So then, with that brief introduction, let us make an attempt to assist the litigants before this
court, who have come here with diametrically opposing view points: the insurer insists on
settling the claim by issuing two cheques as aforesaid; while the victim’s Advocate, on
instructions of his victim client, insists on one.

What is not in dispute is the payment of the decretal amount. The amount has been
ascertained and the insurer is willing to pay the same. In fact, he has deposited the same in
court.

He has essentially come here to prevent execution by way of attachment by victim, the
Respondent, who says she has not received her money, the decretal amount, in one cheque
payable to her Advocate to receive her funds. Yet the insurer insists on paying her
separately. The brief background is as follows: -

The Respondent sued the Applicant insurer seeking a declaration that the Applicant was
bound to pay her the decretal amount in a suit in which the Respondent had successfully
sued the Applicant’s insured. The Applicant, in satisfaction of the decree, issued three
cheques as follows: One to the auctioneers, one to the respondent and one to the

73
respondent’s advocates being the costs of the suit. The Respondent’s Advocates refused the
cheques drawn in their favour and in their client’s favour and threatened to proceed with
execution of the decree. The applicant filed an application in the Lower Court seeking inter
alia, a declaration that by issuing the two cheques, the Applicant had discharged its liability
under the decree. The application was dismissed. The Applicant then quickly issued one
cheque to the Advocate as demanded, but stopped payment, and promptly filed an appeal to
this court. Pending the hearing and determination of this appeal, the applicant seeks that
there be a stay of execution. Mr. Makoloo, for the applicant, referred to the cases of
Lakestar Insurance Co. Ltd. & Anor, vs. Mark N. Githiru T/a Githiru & Co., Advocates.
NAIROBI HCCC NO.295 “B” OF 2000 and Apollo Insurance Co. Ltd. vs. Scholastica K.
Kamau and Another HCCC No. 1945 of 1999 and argued that since the method of payment
employed by his client was acceptable, his client’s case had a high chance of success, and
the application for stay of execution should be allowed. He said that the case of Kenya Bus
Services Ltd. v. Susan Muteti C.A. No.15 of 1992 was distinguishable from the present case.

Mrs. Guserwa, for the Respondent, argued that the application was misconceived as it
disrupted the role of the Advocate. She argued that the Susan Muteti case (supra) was the
proper authority on the point.

The issue for determination in this application is whether the Applicant has a case which
chances of success.

Under Order XLI rule 4(2) stay of execution pending appeal is to be allowed in the
following is whether the Applicant has a case with chances of success.

Under Order XLI rule 4(2) stay of execution pending appeal is to be allowed in the
following principal cases:

74
 (a) where the Court is satisfied that substantial loss may result to the
Applicant unless the order is made. The application must always be
made without unreasonable delay; and
(b) Where the Applicant has given sufficient security. It is also recognized
that the Court in the exercise of its inherent powers may issue
interlocutory injunctions pending appeal on the usual principles.

In the case Apollo Insurance Co. Ltd. v. Scholastica K. Kamau & Ano. NAIROBI HCCC
NO.1945 OF 1999, Kuloba, J. said as follows:

“Regarding injunction to stop execution of a decree; unless it

is a play on words, it is well-known that injunctive relief and
other similar stop orders are daily issued to suspend
threatened execution of decrees. By whatever name called,
whether they are injunction pending appeal under the rule in
Kibutiri v. Kenya Shell Ltd. HCCC 3398 OF 1980; Wilson
v. Church (No.)(1879) 12 ChD.454, Polivui v. Gray(1879) 12
ChD 438. And Reinford Properties Ltd v. Cheshire County
Council (1974) AII ER 448, which all the Courts in this
country have always adopted and applied, or whether you
call it a stay of execution pending something to be done,
these suspensive orders with injunctive attributes, are daily
stoppage devises in our Courts. They inject execution of
decrees of Courts of competent jurisdiction as temporary
reliefs…”

The principles for granting interlocutory injunctions in this jurisdiction were laid down most
helpfully in the case of. Giella v. Cassman Brown & Co Ltd [1973] EA.358. In that case,
SPRY, V-P stated the following principles as governing the granting of interlocutory
injunctions:

(a) The Applicant must show a prima facie case with probability of success.

75
 (b) The applicant must show that if the Court’s discretion is not exercised in his
favour, he will suffer irreparable injury that cannot be adequately compensated
by damages;
(c) When the Court is in doubt, it should decide the application on a balance of
convenience.

The case for the Applicant is that if this application is not allowed the appeal will be
rendered nugatory. Their case is that they have a prima facie case with high chances of
success.

The Court hearing an interlocutory application should not, except in the clearest cases, deal
with the substance of the suit. In an application where the respondent alleged that the
Applicant does not have a case, it becomes tempting to consider the case. In that case, there
is nothing wrong so long as the consideration is not a test of the facts. In this case, the
Applicant has cited the two High Court cases mentioned earlier and has argued that it has a
prima facie case with chances of success. For the Respondent, it is argued that the cases
relied upon are not the proper authority on the point and that the Court of Appeal decision of
Susan Muteti (supra) was the proper law.

This is not doubt an argument of law and I therefore propose to deal with this matter in
disposing of this application. This is because if it is found that the High Court cases are the
proper law, there is no doubt that the Applicant will be allowed the orders sought otherwise
it shall fail. To reiterate what I said earlier, in essence this is a dispute between Advocates
and insurance companies. The dispute also affects insureds and beneficiaries of insurance
although they have a nominal role in the dispute. The Insurers, in a bid to protect their
members and the insurable public, desire to introduce a method of settling insurance claims
by making separate payments to the claimant and his Advocate. The advocates are not
agreeable to this. In my view, the question then raised under the circumstances is: What is
the proper way of settling insurance claims where there is an Advocate acting for the
claimant leading to compensation?

76
An Advocate is the agent of his client. Their relationship is governed by the retainer which
is the contract that determines their rights and liabilities subject only to terms which the law
will infer in the particular circumstances. The authority of an Advocate to act for his client
will, therefore, arise from the retainer. The conduct of the Advocate under the retainer will
also be governed by the Advocates Act (Cap. 16). In the case of Lakestar Insurance Co.
Ltd. (supra) Rimita J. rightly observed that an Advocate is authorised, inter alia, to receive
payment of debt, damages, or costs except when the client or litigant is under disability or
the money is paid into Court or to a particular person.

The other authorities cited on the question of payment of moneys to an Advocate are in
agreement. The court of Appeal said as follows in the Susan Muteti case (supra):

“There can be no doubt that generally an Advocate is

authorized to act as his client’s agent in all matters not
falling within an exception which may reasonably be
expected to arise for decision in the course of the
proceedings. See Re: Newen, Carruthers v. Newen [1903] I
CH.812 “All matters” just referred to by us would also inter
alia involve receipt by an Advocate of moneys on behalf of
the client… If follows, therefore, in our view that an Attorney
is obviously entitled to demand and receive moneys due to his
client until such time his instructions are withdrawn”.

Whereas the two High Court cases agree with the decision of the Court of Appeal as stated
above, they went on to distinguish it. This stated with Kuloba, J’s decision in the Apollo
Insurance Co. Ltd case (supra) which is distinguished from the Susan Muteti case (supra) on
the grounds that in the latter case no payment was made to the Advocate and that there was
an attempt to ‘by pass’ the Advocate in settling the claim. The Lakestar Insurance Co. Ltd
case (supra) following the same trend also distinguished the Court of Appeal decision in the
Susan Muteti case (supra) arguing that in the case before the Court, the Advocate had not
been ‘sidelined’.

77
With the greatest of respect and esteem that I have for both my learned brothers, I do not
agree with them on these matters. In my view, the Susan Muteti case clearly and accurately
established the principles of law applicable to both of those cases including the present case.
To make matters more clear, I will set out the facts in the Susan Muteti case and the cases in
the High Court to show why I do not agree with my learned brothers. In the Susan Muteti
case, an insurance company settled an injury claim through their Advocates. The
Advocates for the claimant sought approval of a draft decree and payment of the decretal
sum to themselves. The Judges of the Court of Appeal considered the issue of who should
be paid the decretal sum and concluded that it was the claimant’s Advocate. Kuloba, J. in
the Apollo Insurance Co. Ltd case based his distinction of the Susan Muteti case of the
ground that in the case before him payment for the client had been made to the Advocate
who declined to accept because it had been made in two cheques – one drawn in favour of
the client, and the other drawn in favour of the Advocate. It is obvious that this point of
departure is collected from the ruling of Mango J., in Susan Muteti v. Kenya Bus Services
Ltd HCCC No.4972 of 1987, which gave rise to the appeal in the Susan Muteti case. I have
carefully looked at the Court of Appeal decision and I have no doubt in my mind that what
the Justices of Appeal were concerned with was the question as to whether an Advocate is
entitled to be paid the decretal sum of a claim for his client in which he acted. At pages 1
and 2 the Judges of Appeal considered the following facts:

“The facts in the matter in issue in the superior Court are not
in dispute. The Appellant’s insurers acting through their
Advocates, settled the claim of the respondent who was the
injured party. The Respondent was represented by the firm
of M/s. Mutula Kilonzo & Company Advocates. By an
application dated 1st May, 1990 and filed on 4th June, 1990,
M/s. Mutula Kilonzo & Company sought orders of the
Superior Court to enter judgment in terms of the compromise
between M/s. Guram & Company the Advocates for the
insurers, and themselves. That application was brought
under Order XXIV rule 6 of the Civil Procedure Rules
although there is reference in the application to order. XII
rule 6 of the said Rules and section 3A of the Civil Procedure
Act. The Advocates for the injured party sought orders

78
 seeking application, liberty to execute the decree in default,
and payment of the sum to be decreed, to themselves.”

Having considered these matters, the Court of Appeal concluded that “there is no contest on
the application itself save as regards who should be paid the decretal sum”. In other words,
there was no dispute as to whether the money should be paid but as to whom, between the
Advocate and his client, it should be paid. These matters arose since the advocates of the
insurance company withheld payment and inquired from their counterparts their costs
obviously with a view to drawing two cheques. This is what was objected to by the
Plaintiff’s Advocate and the Court of Appeal did not consider the initial withholding of
payment a relevant issue. On the basis of this, I am, with utmost respect, unable to agree
with my learned brothers Kuloba J. and Rimita, J. on the grounds upon which they
distinguished the Susan Muteti case. In my view, the idea of “by-passing” the Advocate
was not raised and was not considered by the Susan Muteti case. Even, assuming for a
moment, that the issue of “by-passing” referred to by Kuloba, J. or “sidelining” referred to
by Rimita, J. was relevant and created a “material difference” between the cases before them
and the Susan Muteti case, how can it be said that the act of forwarding the cheque drawn in
favour of the victim to the victim’s Advocate is not an act of “by-passing” or “sidelining”
the Advocate? In my humble opinion, that act amounts to as much by passing as the act of
sending the victim’s cheque directly to the victim without his advocate’s knowledge. If the
Advocate is not paid in one cheque, any other method of payment, whether it is a cheque
sent directly to the client or to the Advocate for onward transmission to the client, all
amount to “by passing” the Advocate. In the latter case, the Advocate is being treated as a
conduit or “post office”, instead of an “agent” that he really is. The Court of Appeal, in my
view, considered only one question and that is whether an advocate is entitled to payment on
behalf of his client. That was also the issue before my Learned Brothers. As Kuloba J.
rightly observed in the Apollo Insurance Co. Ltd case: “The Court of Appeal is the highest
Court and it has the last word on what it decides. Its authority is by law final on points
decided by it”. Rimita J., was also correct to say that the Susan Muteti case was binding on
him.

79
The Learned Judge went further and suggested that the law on the point may be collected
from Order XXI Rule 1 of the Civil Procedure Rules. That Rule reads as follows:

“(O.XXI)
1(1) All moneys payable under a decree or order shall be paid as
follows, namely
(a) into the Court whose duty it is to execute the decree;
(b) direct to the decree-holder; or
(c) otherwise as the Court which made the decree directs.
(2) where any payment is made under subtitle (1)(a) notice of such
payment shall be sent by the Court to the decree-holder or his
Advocate.”

Considering this provision to be interesting, Rimita, J. said as follows. “It would appear
that a judgement-debtor would be at liberty to pay money payable under a decree direct to
the decree-holder.”

I have considered the implication of Order XXI Rule 1 and I am unable to agree with my
Learned Brother Rimita, J. that the payment may be made to the decree-holder direct where
the decree-holder is represented by an Advocate. If that were so, it would make no logical
sense to empower an Advocate on record to control the entire process of litigation leading to
compensation, only to be rendered useless at the point of payment. In my view, Order XXI
Rule 1(b) applies to a situation where the decree holder is unpresented. I have come to this
conclusion based on the following reasons:

1.Order XXI Rule 1(2) requires that where money is paid into Court Order Rule 1(a)
notice of the payment shall be given to the Advocate. Clearly, the assumption is that
where a party is represented his Advocate cannot be by-passed. So then, why would
Rule 1(b), which says payment, can be made “direct to the decree-holder,” not
require notice to his Advocate? Simply because the assumption is that he is
unpresented. The Rules Committee could not have possibly intended that notice to
the Advocate is required under Rule 1(a) but not under (b).
2.Order III Rule 6 states that an Advocate on record is considered the Advocate of
the party until final determination of the matter, including any review or appeal.
80
 Hence, if a party is represented all dealings, including the payment of the decretal
amount, must be done through the advocate on record.
3.The new Rule 9A of Order III states as follows:
“Where there is a change of Advocate, or where a party
decides to act in person having previously engaged an
Advocate, after judgment and decree have been passed, such
change or intention to act in person shall not be effected
without an Order of the Court upon an application with
notice of the Advocate on record.”

One might ask, why was this new Rule 9A enacted? In my view, it was to prevent the party
from “by passing” the advocate on record at the crucial point when the decretal amount is to
be paid. The new rule was intended to correct a mischief whereby a party secured
judgment, and then promptly changed his Advocate, or decided to act in person, to avoid
payment going to his Advocate on record. The rules Committee in its wisdom saw this
loophole, and sealed it. Therefore, the same Rules Committee could not have intended that
the decree-holder be paid directly (Under Order XXI Rule 1(b) ) where he was represented
by an Advocate.

Accordingly, it is my considered opinion that Order XXI Rule 1(b) is not intended to permit
direct payment to the decree holder where the latter is represented by an Advocate.

In the case before me, not only is the Respondent represented by an Advocate, but the
Respondent has gone one step further she has actually asked, perhaps even insisted, that the
payment be made to her Advocate. In her Replying Affidavit she says that the Applicant
insurer “is aware” that she has instructed her advocate to receive the funds on her behalf.
This is not disputed by the insurer. So then, if she wants her funds paid to her Advocate,
who is the insurer to say otherwise, and to insist on two separate cheques? Clearly, the
insurer is way out of line, both in law and fact.

81
The law applicable to the above facts has been established by the Court of Appeal in the
Susan Muteti case which is binding on this Court. Both my Learned Brothers Kuloba, J. and
Rimita, J. agree that a decision of the appellate Court is binding on this Court.

However, a binding decision can, and often is, distinguished when and where there are
material differences between the deciding case and the case for consideration.

In these matters, it has to be remembered that it is the enunciation of the reason or principle
on the question before the Court that binds the inferior Courts. That is what is called the
ratio decidendi that is to say the general reasons given for the decision or the general
grounds on which it is based, the “raison d’être” detached or abstracted from the specific
peculiarities of the particular case which gives rise to the decision (see generally Halsbury’s
Laws of England 3rd Edition (volume 22) at pp. 796 807). The substantive decision is
bonding on the parties but it is the abstract ratio decidendi, ascertained on a consideration of
the judgment in relation to the subject matter of the decision, which alone has the force of
law and binding on future similar cases. In matters of precedent, it has been recognised that
when a broad principle has been decided, the decision should not be weakened or frittered
away by fine distinctions. In the case of Jones v. South-West Lancashire Coal Owner’s
Association [1972] A.C. 827, H.L at p.830 VISCOUNT CAVE, L.C. said as follow:

“My Lords, when a question of law has been clearly decided by this
House, it is undesirable that the decision should be weakened or
frittered away by fine distinctions.”

In Re House Property and Investment Co. Ltd [1954] Ch.576, ROXBURGH, J., considered
the extent to which an analogous decision of the House of Lords, although distinguishable,
should be followed and said as follows:

“It often becomes material to consider whether a decision of the

House of Lords should be applied in a case which can be
distinguished but analogous. Normally, in such a case a Judge
hesitates long before distinguishable if it is analogous….”.

82
The Judge went ahead and pointed out an important ground when a case may be
distinguished. This is available “when there have been such important changes in the whole
situation… which had no application whatever in the days when (the) broad
pronouncements were being enunciated.”

I have considered the decisions of my Brothers and I have been unable, with all due respect
to see any important changes in the situations between the time Susan Muteti case was
decided eight years ago and their decisions. When the Court of Appeal decided the Susan
Muteti case it was alive to the issue of corruption in the legal profession and was
comfortable in stating that the Advocates Act would deal with such cases. With all due
respect to my Brother Justice Kuloba I do not think that the increase in numbers of wayward
lawyers was sufficient for him to refuse to follow Susan Muteti case. There was no such
evidence before me, nor was I asked to take judicial notice of that fact. It is quite possible,
as indeed Kuloba, J. concluded, that the numbers of “hungry and unscrupulous Advocates”
have risen considerably. However there was no evidence before the Court that relative to
the increased numbers of Advocates practising law today, compared to the numbers in 1992,
there is any more corruption today than there was eight years ago. That, in itself, in my
humble opinion is not “important changes in the whole situation that would entitle me to
distinguish the Susan Muteti case, with the facts before me. The issue before me is almost
identical with the issue that was before the Court of Appeal in the Susan Muteti case. I am
bound by it. I must follow it. And I cannot fritter it away with fine distinctions.

Accordingly, I have come to the conclusion, as I indeed must, that the Applicant has no
chances of success in its appeal, and it is not likely to suffer substantial loss or any loss at
all, if its application for stay is refused. The decretal amount is not in dispute, nor is the
liability to pay. The only dispute is the mode of payment.

I, therefore, dismiss this application with costs to the Respondent, and vacate the interim
Orders entered herein.

83
If I may, let me conclude by saying that I do not wish to give the impression that I am
without any sympathy for the insurance industry and their beneficiaries. I know that the
industry is guided by spirit of compassion for the ultimate beneficiaries of its funds. Its
aims are noble, and its motivation sincere. However, I must follow what I believe is the
present state of law. That is what I have done.

DATED and delivered at Nairobi this 27th day of November, 2000.

ALNASHIR VISRAM
COMMISSIONER OF ASSIZE

84
 KENYA BUS SERVICES LTD v. SUSAN MUTETI

IN THE COURT OF APPEAL

AT NAIROBI
(CORAM: GICHERU, AKIWUMI & SHAH, JJ.A)
CIVIL APPEAL NO. 15 OF 1992
(Appeal From the Ruling of the High Court of Kenya at Nairobi (J.A. Mango, J) dated 12 th
March, 1991 in H.C.C.C NO.4972 OF 1987)

Insurance law – whether an insurer of a tortfeasor dealing with the advocates for the injured
party upon settlement of claim pay directly to the injured party.
Party and party costs – whether insurer can pay separately to advocates for the injured party.

FACTS:

The appellant’s insurers acting through their advocates settled the claim of the
respondent who was the injured party. The respondent was represented by M/s.
Mutula Kilonzo & Company Advocates. He sought orders of the superior court to
enter judgment in terms of the compromise reached between M/s. Guram & Co.
Advocates in the insurer and themselves.

One Mr. Keith, an advocate proposed that the insurers issue cheques for damages
direct to the injured parties thus by passing the advocates. The insurance company
in question intended to protect the interests of its members and the insurable public.
The learned judge in the superior court saw nothing wrong with Mr. Keith’s opinion
on the face of it though he came to the correct conclusion. The insurers appealed.

85
HELD:
(1) Generally an advocate is authorised to act as his client’s agent in all matters not
falling within an exception which may reasonably be expected to arise for
decision in the course of the proceedings.
(2) An attorney is obviously entitled to demand and receive moneys due to his client
until such time as his instructions are withdrawn.
(3) Insurers cannot take upon themselves the alleged duty of protecting the
“insuring public”. Furthermore a third party who makes claims against a tort-
feasor is not a member of “the insuring public”.
(4) It is not the concern of the insurers to see if an advocate is honest or dishonest.
The advocate after deducting his fees is bound to pay the balance of the awarded
or agreed damages to his client.

Appeal dismissed with costs

JUDGMENT OF THE COURT

This appeal raises a short issue which is: can an insurer of a tortfeasor) who is dealing with
the advocates for the injured party upon settlement of claim, pay directly to the injured
party, the sum in respect of the claim for damages and at the same time pay party and party
costs to the advocates for the injured party by a separate payment?

The facts in the matter in issue in the superior court are not in dispute. The appellant’s
insurers acting through their advocates settled the claim of the respondent who was the
injured party. The respondent was represented by the firm of M/s. Mutula Kilonzo &
Company Advocates. By an application dated 1st May 1990 and filed on 4th June, 1990,
M/S. Mutula Kilonzo & Company sought orders of the superior court to enter judgment in
terms of the compromise reached between M/s. Guram & Company the advocates for the
Insurers, and themselves. That application was brought under Order XXIV rule 6 of the

86
Civil Procedure Rules, although there is reference in the application to Order XII rule 6 of
the said Rules and section 3A of the Civil Procedure Act.

The advocates for the injured party sought court orders seeking approval of a draft decree
annexed to the application timely liberty to execute the decree in default, and payment of the
sum to be decreed, to themselves.

There was no contest on the application itself save as regards who should be paid the
decretal sum. Mr. Mungu practising with the firm of Guram & company swore an affidavit
saving that the insurance company having obtained an opinion from one Mr. Keith, an
advocate with the firm of Kaplan & Stratton, intended to protect the insurable public by
proposing to issue or issuing cheques for damages direct to the injured parties thus by-
passing the advocates. The insurance company in question is a member of Association of
Kenya Insurers one of whose objectives is to protect the interests of its members and the
insurable public.

Mr. K.H.W. Keith in his opinion dated 15th June, 1989 whilst suggesting that the advocate
who conducts successful negotiations on the part of a third party claimant is probably the
third party’s agent for receipt of payment, proceeded nevertheless to advise the said
Association that its member companies can decide to pay direct to the third party. Mr. Keith
proceeded to say only if there was a proper assignment by the client to the advocate, could
the advocate seek payment and to say so he relied on section 136 of The Transfer of
Property Act 1882, of India as applicable to Kenya. The said section does not deal with the
situation envisaged by Mr. Keith. The section simply stops a judge, a legal practitioner or
officer connected with any court of justice from buying or trafficking in, or stipulating for,
or agreeing to receive, any share of, or interest in, in any actionable claim and further
prohibits any court from enforcing at the instance of such persons any actionable claim dealt
with by him as aforesaid. Mr. Keith in our view has totally misapplied and misapprehended
the meaning of the said section. That section primarily stops any such person from having

87
an interest in an actionable claim. It does not talk of an advocate having no right to receive
moneys on behalf of his client.

Acting on Mr. Keith’s letter, the Association advised all its members to issue separate
cheques, one for the claimants and the other for party and party costs to their advocates.

The learned judge in the superior court saw nothing wrong with Mr. Keith’s opinion on the
face of it. We think, with respect, he did not consider the implication of section 136 of the
Transfer Property of Act. We have already pointed out what that section envisages.
However, the learned judge came to correct conclusion in the end.

Mr. Keith, it is clear to us, did not consider the issue of the scope of the authority of an
advocate. There can be no doubt, that generally an advocate is authorised to act as his
client’s agent in all matters not falling within an exception which may reasonably be
expected to arise for decision in the course of the proceedings. See Re: Newen, Carruthers
v. Newen (1903) 1Ch 812. “All Matters” just referred to by us would also inter alia involve
receipt by an advocate of moneys on behalf of his client. A solicitor in England or an
advocate in Kenya has general authority to compromise an action. In the Re: Newen case
supra, Farwell J. had this to say at page 818:

“The next point is this. It is said that Mr. Ryley had no authority to
settle the matter at all. Now it is clear from Presswitch v. Poley 18
C.B. (N.S.) 806 that a solicitor has a general authority to
compromise an action on behalf of his client. Sir Montague Smith’s
judgment expresses the general principle very plainly. He says (2)
(that is Ibid. 186). “The attorney is the general agent of the client
in all matters which may reasonably be expected to arise from
decision in the cause”.

It follows therefore in our view that an attorney is obviously entitled to demand and receive
moneys due to his client until such time his instructions are withdrawn.

88
Order III rule 6 of Civil Procedure Rules clearly stipulates that an advocate on record, until
properly removed or changed, is considered the advocate of the party until final conclusion
of the cause or matter, including any review or appeal.

The Advocates Act (Cap. 16 laws of Kenya) provides very clear safeguards for clients
whose moneys may be misappropriated by advocates. The advocates have to comply with
The Advocates (Accounts) Rules, The Advocates Deposit Interest) Rules and The
Advocates (Accountants Certificates) Rules. These are the safeguards provided. Any
dishonest lawyer will be subject to the jurisdiction of the Disciplinary Committee as set out
in the Advocates Act.

Insurers cannot take upon themselves the alleged duty of protecting the “insuring public”.
The law as stated takes care of the problems. Furthermore a third party who makes claims
against a tort-feasor is not a member of “the insuring public”.

The insurers must be aware that a discharge voucher duly signed by the claimant giving full
discharge to the insurer and the insured protects the insurers. It is not the concern of the
insurers to see if an advocate is honest or dishonest. The advocate after deducting his fees
(including advocate and client element thereof) is bound to pay the balance of the awarded
or agreed damages to his client.

The insurer when negotiating a settlement or defending a claim steps into the shoes of the
insured under the subrogation rights granted to the insurer in the contract (policy) of
insurance. It would therefore be wrong to say that “there is nothing between the insurer and
the claimant”, as the learned judge says. There again, with respect, the learned judge
misdirected himself. However in the end, as stated earlier by us, he arrived at the correct
decision.

The upshot is that this appeal is dismissed with costs. It is so ordered.

89
Dated and delivered at Nairobi this 8th day of March, 1996

J.E. GICHERU
………………..
JUDGE OF APPEAL

A. M. AKIWUMI
………………………
JUDGE OF APPEAL

A. B. SHAH
……………………………..
JUDGE OF APPEAL

90
KENYA REINSURANCE CORPORATION v. V. E. MUGUKU MURIU T/A M/S. V.
E. MUGUKU MURIU & COMPANY

IN THE COURT OF APPEAL

AT NAIROBI
CIVIL APPEAL NO.48 OF 1994
(CORAM: KWACH, AKIWUMI & SHAH JJ.A)
(An appeal from the judgment and decree of the High Court at Nairobi. (Mwera, J) dated on
the 18th day of July 1991, In HCCC No. 4060 of 1987)

Professional undertaking – when there is a dispute between the advocate’s client and the
party to whom it is given-whether this might absolve the advocate from honoring the
undertaking.

FACTS:
By a letter dated on the 22nd of April, 1986, the respondent advocate sought to know
from the appellant corporation the outstanding balance of a loan under a charge on
a plot, to enable him to discharge and transfer of the property. He requested that
title documents be released to him upon his professional undertaking to redeem the
mortgage. The undertaking was unequivocal. He was undertaking to pay to the
corporation a sum of Shs.499,023/95 plus interest thereon at the rate of Shs.140/50
daily until the date of payment plus the smaller amounts mentioned in that letter. On
being required to honour the undertaking the advocate brought in the issue of
alleged disputes between his client and the appellant corporation to qualify his
undertaking.

HELD:
1) Having given a solemn professional undertaking to pay a certain sum of
money an advocate is bound and cannot resile therefrom.
2) The undertaking thus given was unambiguous unequivocal and binding on
the advocate.

91
 3) A careful advocate would obtain very clear instructions from his client
before giving a professional undertaking on his behalf.
4) Appeal allowed judgment and decree of superior court set aside.

No cases referred to.

JUDGMENT OF THE COURT

Although the memorandum of appeal contains nine grounds of appeal, this appeal raises
primarily four main points which are
i. Can a professional undertaking given by an advocate be subject to
watering down on account of a dispute between the advocate’s client
and the party to whom the undertaking is given?
ii. Does it fall to the advocate to take up, on behalf of his client,
defences, which could be open to the client in a claim for
enforcement of an undertaking?
iii. If a cheque is sent for redemption of charge which cheque is not
accepted, does payment of interest under the charge cease?
iv. Can a court allow a counter-claim made by the advocate on behalf of
his client when the client is not even a party to the suit?

The background to this appeal is simple. By a letter dated 22 nd April, 1986 the respondent
advocate sought to know from the appellant corporation the outstanding balance of loan
under a charge on plot L.R. No. NAIROBI/BLOCK 93/736 (the property) to enable him to
prepare the discharge of charge and transfer of the property from his client Harjit Singh
Matharu to his other client James Muchiri Gathungu. This letter of 22 nd April, 1986 was
replied to by the appellant stating that the appellant’s advocates will respond thereto. The
appellant so wrote to the respondent advocate on 26th June, 1996. By another letter of the
same date, in which the appellant corporation enclosed a copy of a letter from Harjit Singh
Matharu and in which Matharu had set out what he though he owned the appellant

92
corporation, the appellant corporation nevertheless, reiterated in that letter to its advocates
M/s. Oraro & Rachier what in its view Matharu owed it, as follows:

“… The redemption amount as at 30th June, 1986 is

Kshs.499,023/95. Thereafter interest of Kshs.150.50 accrued daily
and premiums of Kshs.201.00 and Kshs.111/= for Mortgage
Protection Assurance and Houseowners Insurance Policies
respectively accrue monthly in advance. Please also note that the
following are also payable as part of the redemption moneys:

1. Kshs.3,382.35 being the apportionment

of Rates and land as at the date of
possession.

2. Legal costs incurred by ourselves to-

date……”

This letter was copied by the appellant corporation to the respondent advocate and also to
his client. The respondent advocate and also to his client. The respondent advocate wrote
to M/s. Oraro & Rachier by his letter of 1st July, 1986 and gave the following undertaking:

“We refer to a letter ref. KR/LD/PE/736 Reference: GOO/85 of 26 th

June, 1986 addressed to you by M/s. Kenya Reinsurance
Corporation and copies to us among others.

Please forward to us the title documents on our professional

undertaking to redeem the mortgage indicated in the letter above-
mentioned. (emphasis added).

Kindly treat this matter as urgent and oblige.”

It is clear that the respondent advocate was referring only to the letter of 26 th June, 1986
addressed to M/s. Oraro & Rachier by the appellant Corporation and which set out the
redemption amounts due. It is also clear that the undertaking given by the respondent
advocate was unequivocal and unconditional and applied only to the redemption amounts
set out as due in that letter. He was undertaking to pay to the appellant corporation a sum of

93
Shs.499,023/95 plus interest thereon at the rate of Shs.150/50 daily until the date of payment
plus the smaller amounts mentioned in that letter.

The respondent advocate was at pains to argue that his letter of undertaking (dated 1st July,
1986) must be read with his client’s letter of 26 th May, 1986 addressed to the Managing
Director of the appellant corporation. By that letter the client of the respondent advocate
had stated that according to him he ought to pay a sum of Shs.399,443/= including interest
due up to 30th June, 1986. What the respondent advocate did was to bring in the issue of
alleged disputes between his client and the appellant corporation to qualify his undertaking.
But we do not think that is right. Having given a solemn professional undertaking to pay a
certain sum of money an advocate is bound by the same and he cannot resile therefrom.

We hold that the undertaking given by the respondent advocate was unambiguous,
unequivocal and binding on him. An advocate cannot, after giving such an undertaking,
qualify the same on account of accounting disputes between the parties.

In this case the matter went further. On 22 nd July, 1986 M/s. Oraro & Rachier wrote a letter
to the respondent advocate under cover of which letter they dispatched the relevant
documents upon “your professional undertaking to redeem Mr. Matharu’s account with our
client corporation and to pay our fees on the discharge. Details of outstandings are set out in
a copy of our client’s letter of 26th June, 1986 (enclosed)”.

It is seen clearly that even on 22nd July, 1986 M/s. Oraro & Rachier are sending documents
to the respondent advocate on his undertaking to pay the sums mentioned in the appellant
corporation'’ letter of 26t h June, 1986.

At this stage it was incumbent upon the respondent advocate to return the documents to Mr.
Oraro & Rachier as his client was disputing the correctness of amount due under the charge.
But the respondent advocate did not do so. He proceeded to register the discharge of charge

94
and the transfer to Mr. James M. Gathungu. He did that after writing, on 28 th July, 1986, to
M/s. Oraro & Rachier as follows:

“Your letter GOO/85 dated 22nd July, 1986 refers.

We acknowledge receipt of your letter above-mentioned and the title

documents enclosed.

We undertake to redeem the account with your client corporation”.

Again, and it bears worthwhile repetition, the respondent advocate undertook to redeem his
client’s account with the appellant corporation, in terms of M/s. Oraro & Rachier’s letter of
22nd July, 1986 to which was attached the appellant corporation’s letter for 26 th June, 1986
which contained the figure claimed for redemption of the charge.

The respondent advocate argued with some force, that as his client actually obtained the
Certificate of Lease (transfer) from the appellant corporation as late as 31s t December, 1985
his client was not bound to pay interest until after that date as he himself could not create a
charge on the property until he was registered as proprietor. We say at once that that was a
matter between the respondent’s advocate’s client and the appellant corporation. It does not
vitiate or vary the professional undertaking given by the respondent advocate. If the amount
payable under the charge was disputed, the respondent advocate should not have given an
undertaking; but having done so, he should have at once returned the documents to Oraro &
Rachier if, for any reason, he did not intend to honour his undertaking. The date for
commencement for repayment of mortgage had nothing to do with the unequivocal
undertaking given by the respondent advocate.

The learned judge in our view, with respect, quite clearly erred in placing the respondent
advocate in the shoes of the client. He was only required to determine whether the
respondent advocate had given an undertaking, which was capable of being enforced.

The respondent’s arguments before us and also before the learned judge as regards section
65(1) of the Registered Land Act, regarding the powers of an absolute owner etc are of no
95
avail. It does not lie in the respondent advocate’s mouth to say that non-occupation of the
property by his client entitles him to pay no interest for the period of non-occupation when it
comes to enforcement of a clear undertaking. A careful advocate would obtain very clear
instructions from his client before giving a professional undertaking on his behalf. If he
does so without that elementary precaution then he must take the consequences.

We think, again with respect, the learned judge erred in treating Mr. Matharu’s claims
against the appellant corporation, as a defence by the respondent advocate, to the claim for
the enforcement of an undertaking.

On 11th November, 1986 the respondent advocate forwarded to M/s. Oraro Rachier a cheque
for Shs.426,839/75 for redemption of the charge. The letter of 11 th November 1986
followed the respondent advocate’s letter of 4 th November, 1986. In the letter of 4th
November, 1986 the respondent advocates says as follows:

“Despite our letter of undertaking, (emphasis supplied) our

instructions are for only the amount legally due and owing to your
client”.

It becomes clear once again that the respondent advocate was fully aware of the fact that he
was attempting to water down the undertaking by introducing what he called “the amount
legally due and owing.” That was not the sum (Shs.426,839/75) the respondent advocate
undertook to pay by his letter of 1st July, 1986.

M/s. Oraro & Rachier were therefore perfectly entitled to reject that sum because it was not
the amount covered by the undertaking.

With respect the learned judge erred in saying that “the defendant did his best to honour his
undertaking. He gave a cheque for Shs.426,839/75 on 11th November, 1986 to the
plaintiff’s lawyers”. Simply and plainly the respondent advocate was bringing in the dispute
between his client and the appellant corporation to qualify his clear undertaking. This was

96
quite wrong and if allowed to stand would encourage advocates to resile from their
undertakings.

Interest was payable on the amount covered by the undertaking and there was no question of
changing that date. The learned judge stated that the sum of Shs.426,839/75 should have
been accepted without prejudice subject to ascertainment of balance. Oraro & Rachier were
right in refusing to accept payment of a sum less that the amount covered by the undertaking
because if they had done so they ran the risk of being told “you did accept my cheque; you
banked it; you cannot now complain.”

We now come to the issue of the respondent advocate’s counter-claim in the superior court.
The counter-claim is pleaded as follows:

“Counterclaim
1.The defendant on behalf of the 3rd parties, i.e Harjit Singh
Matharu and James Muchiri Gathungu claims as against the
plaintiff general damages for selling to the said Harjit Singh
Matharu a house Nairobi/Block 93/736 without clear title in
breach of contract and in a dilapidated state which cost a
fortune to carry out repairs and this amounted to a
misrepresentation that the plaintiff was selling a new house
to the said Harjit Singh Matharu”.

Firstly, the respondent advocate had no locus standi to sue in his own name claiming
damages on behalf of his client Harjit Singh Matharu. Secondly, James Muchiri Gathungu
really had nothing to do with the matters in question. Thirdly, damages in the nature of
special damages must be pleaded and strictly proved. Fourthly, general damages cannot
generally be claimed for breach of contract. With respect the learned judge erred in even
considering such a counter-claim. He should have disallowed it.

As an afterthought the respondent advocate, for the first time in his written submissions
handed over the learned judge, raised the issue of a procedural irregularity namely that the
appellant corporation should have moved the superior court by an originating summons

97
rather than a plaint, for enforcing of the undertaking. It must be noted that the respondent
advocate entered appearance, and filed a defence and counter-claim. He cannot be heard to
say, at this late stage, that the procedure adopted was wrong.

This appeal is therefore allowed. The judgment and the decree of the superior court is set
aside and substituted therefore with an order giving judgment for the appellant directing the
respondent advocate to make good his professional undertaking by paying the following
total sum and interest thereon as ordered hereunder to the appellant corporation within thirty
days from today and in default execution to issue.

Principal sum -Shs.499,023.95

Interest thereon @
Kshs.150/50 per day from
1/7/86 to 26/3/88 Shs. 95,417.00
Total Shs.594,440.95

Less paid on 26/3/88 Shs.237,603.20

Add total amounts referred to
In the appellant’s letter of
20th June, 1996 Shs. 3,694.35
Total Shs.241,297.55

The sum Shs.241,297/55 will carry interest at 13% per annum from 27 th March, 1988 until
date of payment. The counter-claim raised by the respondent advocate is dismissed with
costs.

The respondent advocate will pay the appellant’s costs in the superior court. The appellant
will have the costs of this appeal.
Dated and delivered at Nairobi this 29th day of October, 1996

R.O. KWACH
…………………………………..
JUDGE OF APPEAL

A.M. AKIWUMI

………………………………
JUDGE OF APPEAL
98
 A. B. SHAH

…………………………..
JUDGE OF APPEAL

99
KARSAM LALJI PATEL v. PETER KIMANI KAIRU practising as KIMANI & CO.
ADVOCATES

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPEAL NO.135 OF 1999

(CORAM: KWACH, TUNOI & O’KUBASU, JJA)

(Being an appeal from a Ruling and Order of the High Court at Nairobi (Mbogholi, J)
Dated 9th March, 1999 In HCCC NO.2452 OF 1998 (O.S)

Professional undertakings – Summary jurisdiction of he court

FACTS:
The appellant took out an O.S. in the superior court under O.LIIIr.7, 10(2) to
enforce a professional undertaking given by his advocate Peter Kairu that he refused
to honour. In the superior court it was held that the advocates were not in breach of
the undertaking.

HELD:
1.That the advocates should honour their professionals undertaking by paying the
purchaser.
2.Appeal allowed costs awarded to the appellants.

CASES REFERRED TO:

Geoffrey Sliver & Drake v. Thomas Anthony Baines (19711) 1All ER 473
John Fox v. Banster King & Rigbeys (1987) 3 WLR 480

JUDGMENT OF THE COURT

KARSAM LALJI PATEL, the appellant, took out an originating summons in the superior
court under Order L11 rules 7 and 10(2) of the Civil Procedure Rules (the Rules) to enforce
a professional undertaking given to his Advocates by Mr. Peter Kimani Kairu, an advocate
of the High Court of Kenya practicing as Kimani Kairu and Company Advocates, in a letter
100
dated 26th August, 1998. The appellant was represented by the firm of Rayani Rach &
Sevany Advocates.

By an agreement for sale dated 9th April, 1998 made between Gateway Insurance Company
Limited (the vendor) and Karsam Lalji Patel (the Purchaser) the Vendor agreed to sell to the
Purchaser the property known as Plot L.R. No.330/1077 Nairobi (the suit land) for
Shs.6,250,000/-. The sale was with vacant possession and completion date was 31 st May,
1998. A deposit of Shs.625,000/=, being 10% of the purchase price, was paid by the
Purchaser to the Vendor’s Advocates, Kimani Kairu and Company Advocates (the
Advocates).

Along the way difficulties arose, as a result of which the vendor was unable to give vacant
possession in breach of condition No.5 which provided that the suit land was sold with
vacant possession. Apparently there was some encroachment upon the suit land by a third
party and the Vendor was unable to clear this. On 26th August, 1998, long after the date
fixed foe completion had passed, the Purchaser’s Advocates wrote to the Advocates in the
following terms:-

“Dear Sirs
SALE OF L.R. NO.330/1077
NAIROBI – GATEWAY INSURANCE
COMPANY LIMITED TO KARSAM LALJI
PATEL

We refer to your two letters dated 17th August, 1998

and in particular the one referring to retention of the
property (with all encroachments removed) is not
given to our client within the next 75 days, our client
would be entitled to pursue legal remedies for specific
performance and or damages for breach of the
agreement by your client as well as the right to retain
the said sum of Shs.750,000/- which your client will
forfeit.

Please confirm your agreement to the aforesaid

(including your professional undertaking as set out

101
 above) immediately so that we can attend to stamping
and registration of the Conveyance in favour of our
client. It is on this basis our cheque for
Shs.4,875,000/- is enclosed herewith. In case you are
unable to confirm the terms of this letter within next
seven day the enclosed cheque is to be returned to
us.

Yours faithfully,
RAYANI, RACH & SEVANY

JIMMY RAYANI”

That is the letter which contained the professional undertaking the purchaser sought to
enforce. On 1st September, 1998 the Advocates replied to the Purchaser’s Advocates as
follows-

“Dear Sirs

SALE OF L.R. NO.330/1077 NAIROBI:

GATEWAY INSURANCE COMPANY
LIMITED TO KARSAM LALJI PATEL

We acknowledge receipt of your letter dated 26th

August, 1998 together with the enclosed cheque. Our
official receipt is attached herewith. With regard to
the contents o the said letter, points 1 to 4 are
acceptable to us and are hereby confirmed. However,
with regard to point number 5, the contents thereof are
not acceptable. We shall discuss this matter further
with our client and shall revert to you shortly.

Yours faithfully,
Kimani Kairu & Co.,”

Point No.5 which the Advocates said categorically was unacceptable related to the removal
of the encroachments on the land and one would have thought that there would be no
argument about this as it had been made a condition of the sale. In the last paragraph of the
letter of 26th August, 1998 the Purchaser’s Advocates made it clear that the cheque for

102
Shs.4,875,000/- was forwarded on condition that the Advocates complied with all the 5
conditions and they made clear in the last sentence that-

“In case you are unable to confirm the terms

of this letter within the next seven days the
enclosed cheque is to be returned to us.”

In spite of the fact that the Vendor was unable to give the purchaser vacant to possession the
Advocates did not return either the cheque or proceeds thereof to the Purchase’s Advocates.
So on 1st October 1998, the latter wrote to the Advocates in the following terms-

“We refer to our letter of 26th August, 1998 addressed

to you and your response thereto vide your letter of
1st September, 1998. Our instructions are that view
of your client’s failure to accept the conditions set out
in our letter of 26th August, 1998 and further
conditions stated in our letter of 23rd September,
1998, we are under instructions to demand that all
proceeds paid to you be forthwith released to us.

Yours faithfully
RAYANI RACH & SEVANY”

In the final letter dated 7th October, 1998 addressed to the Purchaser’s Advocates, the
Advocates delivered what amounted to a coup de grace, saying-

“There has been no fundamental breach of the

agreement for sale by our client. Accordingly your
client is not entitled to rescind the contract. Your
client should now take possession of the above
property. After all, the part of the said property that
has been encroached by the neighbour’s wall is a
very small part of the entrance to the driveway.”

The application was supported by an affidavit sworn by the Purchaser and the relief sought
was to pay back to the Purchaser the sum of Shs.4,875,000/- together with interest at bank

103
rates. The replying affidavit dated 19th November, 1998 was sworn by Mr. Peter Kimani
Kairu of the Advocates in which he deponed inter alia-

“(8) Based on what I state in paragraph 7 above the

plaintiff’s Advocates retained Shs.750,000/-
from the balance of the purchase price and
forwarded Kshs.4,875,000/- to me in terms of
the letter dated 26th August, 1998.

(9)I undertook not to release the purchase price to

my client, the vendor, until the issue of
encroachment was resolved. I continue to hold
the said amount in terms of the undertaking.
(10) The above undertaking was given to the
plaintiff’s Advocate and the plaintiff not being
privy to the undertaking, cannot purport to
enforce the same in his favour.
(12) In an effort to resolve the issue of
encroachment, the Vendor instituted
proceedings against the encroaching party to
compel him to remove the encroachment, and
this fact is within the plaintiff’s knowledge.”

The application was heard by Mbogholi J. He held that the Advocates were not in breach of
the undertaking and dismissed the application with costs. It is against that decision that the
Purchaser now appeals to this Court.

Although the memorandum of appeal sets out 8 grounds of appeal, Mr. Nagpal, for the
Purchaser, argued them all together. The learned Judge referred to a number of English
decisions concerning the jurisdiction of the court in an application for enforcement of a
professional undertaking. He noted that it is a summary jurisdiction over Advocates which
should be exercised only in a clear case. That it is an inherent jurisdiction, which the court
has over Advocates who are officers of the court. And that it is a jurisdiction which is
exercised, not for the purpose of enforcing legal rights, but for the purpose of but for the
purpose of enforcing honourable conduct on the part of the court’s own officers.

104
The learned judge directed himself correctly that the court must be satisfied that there has
been a breach of an undertaking given by an Advocate acting professionally. All these
principles which are a correct rehearsal of the law on the point can be gleaned from the sale
of Geoffrey Silver & Drake v. Thomas Anthony Baines [1971]1 All ER 473 and John Fox v.
Bannister, King & Rigbeys [1987]3 WLR 480. Having stated the principles the learned
Judge then referred to paragraph 9 of Mr. Kimani’s affidavit and continued-

“With respect, I see no breach of the undertaking

given by the defendant. Even if I were to find there is
as breach thereof the effect of an order thereunder
would be to compel the defendant to release the
money to his client and not to the plaintiff as sought
in the application before me. In that regard I am
inclined to agree with the submission that by this
application the plaintiff is trying to enforce his rights
and interest under the agreement.”

With greatest respect, we find it difficult to follow the reasoning of the learned Judge. He
found as a fact that there was an undertaking the terms of which were explicit and it was
made abundantly clear to the Advocates that if the terms were not acceptable to them, they
had to return the cheque. It was not part of the undertaking that the Advocates were to
retain the amount in question and not to release it to their client until the issue of
encroachment had been resolved. That was a new element injected into the matter by the
Advocates to justify their illegal retention of the money. The conditions of sale were clear
and the Vendor was required to give vacant possession. Mr. Kairu, or the Advocates, did
not disown the undertaking but his submission, which was cleverly tailored fit in with the
averments contained in Mr. Kimani’s affidavit, was that the undertaking had not been
breached as the money had not been passed on to the Vendor. Obviously the money could
not be passed to the Vendor because it had failed to give the Purchaser vacant possession of
the suit land. The Advocates have no right to retain the money when their client is in no
position to give vacant possession.

105
The remark by the learned judge that if he granted the order sought on the Originating
Summons the money would be released to the Vendor and not the purchaser is not
understood. The order sought required the Advocates to pay over the money to the
Purchaser. This money was paid by the Purchaser to his Advocates with instructions to pass
it on to the Advocates on the conditions stated in the letter of 26 th August, 1998. It was a
payment made by an agent on behalf of a disclosed principal, and at the end of the day, it
does not mater whether the suit for its recovery was brought by the Purchaser or his
Advocates.

Be that as it may, there would be nothing illegal if the enforcement of the undertaking
achieved the unintended result of enforcing the Purchaser’s legal rights under the agreement
for sale. The undertaking did not cover the full purchase price. It was limited to
Shs.4,875,000/= being the amount sent with the letter of 26th August, 1998. As the
Advocates did not accept payment under the terms stipulated in that letter they were obliged
to return the cheque or its proceeds either immediately or on demand. Having failed to do
so they were clearly in breach of the undertaking and the learned judge was clearly wrong to
deny the Purchaser the orders sought on the Originating Summons.

For the reasons we have given, this appeal succeeds and is allowed. The ruling and order of
Mbogholi j dated 9th March, 1999 are set aside and substituted by an order directing the
Advocates to honour their professional undertaking by paying to the Purchaser the sum of
Shs.4,875,000/= together with interest at 12% p.a. from 1 st September, 1998 within 14 days
from today. The Purchaser will also have his costs in the superior court and of this appeal.
Dated and delivered at Nairobi this 7th day of April, 2000

R. O. KWACH

…………………………..
JUDGE OF APPEAL

106
 P. K. TUNOI

…………………………….
JUDGE OF APPEAL

E. O’KUBASU
……………………………
JUDGE OF APPEAL

107
 WALKER KONTOS ADVOCATES V. S, MWIRIGI M’INOTI & COMPANY
ADVOCATES

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPEAL NO.20 OF 1997

(CORAM: KWACH, SHAH & PALL. JJ.A)

(An appeal from the ruling of the High Court of Kenya at Nairobi. (Mbito, J). Dated 9 th
October, 1996 in Civil Case No. 1717 of 1996 (O)

Professional undertakings – conveyancing advocates are involved.

FACTS:
The respondents on behalf of their client called for documents of title relating to a
parcel of land, charged to a bank as a security for a loan, apparently not properly
serviced. They wrote a letter, requesting for a discharge of the charge, and release
of title documents upon their professional undertaking. The contention though
arose, in respect to interest, then calculated at 28% per annum were it was not
agreed upon.

HELD:
1) That a solemn professional undertaking cannot be watered down by reference to
specific figures.
2) The advocates knew, or ought to have known that interest on the sum due by
chargor had to be paid and that the appellants had made that fact clear.

NO CASES REFERRED TO.

JUDGMENT OF THE COURT

This appeal raises one simple but important issue. Important, as it relates to undertaking
given by conveyancing advocates.

108
The respondents (hereinafter referred to as “the advocates”) acting for a client of theirs, one
Mr. Samson Mureithi, called for documents of title relating to a parcel of land known as
TIMAU SETTLEMENT SCHEME/152. This parcel of land was charged to Stanbic Bank
Kenya Limited and Stanbic Finance Kenya Limited (formerly known as Grindlays Bank
Limited and Grindlays International Finance Limited) as security for a loan advanced to Mr.
Mureithi who had apparently not serviced the loan properly and had agreed to sell the
property so as to be able to pay up the loan.

By their letters of 10th May, 1995 the advocates informed the appellants (the plaintiff
applicants in the superior court) inter alia as follows:

“Kindly let us have the title documents together with the

discharge of charge on our professional undertaking that
once the land is registered in the name of the buyer we shall
send you our cheque for Shs.661,333/- made up as follows:

(a) Amount of the loan together with the

interests Shs.600,533.80
(b) Your fees Shs. 60,799.20
Shs.661,333.00

The appellants responded by their letter of 16th May, 1995 which letter in parts material
reads as follows:

“We understand that you have called for the documents

pertaining to Title No. Timau Settlement Scheme/152 which
is presently charged to our clients by Mr. Samson Mureithi to
secure advances to himself. We enclose photocopies of the
title documents and will forward the originals to you upon
receipt from you of your professional undertaking:-

(a) that you will hold the documents to our order,

returnable on demand pending discharge of the
liabilities outstanding in the account of Samson
Mureithi and that you will not release them to any
Advocates or person whatsoever for any purpose
whatsoever without first obtaining our written
consent which will only be granted on such other

109
 Advocates giving an undertaking in similar terms
to the above undertaking and then on the
understanding that whether such Advocate
complies with the undertaking or not, we will
continue to hold you responsible on your
undertaking.

(b) You will pay us the sum of Kshs.599,632.50

outstanding and owed by Mr. Samson Mureithi to
our clients as at 28th April, 1995 on which sum
interest continues to accrue at the rate of 28% per
annum together with our handling and approval
charges amounting to Kshs.60,799.20 plus VAT
and disbursements; such payments to be made
within seven (7) days from the date of registration
of the Discharge; time being of the essence; and”

To this letter of 16th May, 1995 the advocates respondent materially as follows:

“We hereby give you our professional undertaking in

terms of your letter save for part of paragraph (b) of
your letter regarding VAT and Disbursements.
(Emphasis added) how much is (sic) VAT and
Disbursements?”

The letter of 16th May, 1995 addressed by the appellant to the advocates is specific and in
our view brooks of no two interpretations. This letter seeks a professional undertaking
clearly to the effect that the advocates shall pay a sum of Shs.599,632/50 to the appellants
on which sum interest continued to accrue at the rate of 28% per annum. It is obvious that
such interest continues to accrue until date of repayment. Further professional undertaking
sought was that the title documents will be held by the advocates to the appellants’ order,
returnable on demand pending discharge of liabilities outstanding in the account of Mr.
Samson Mureithi.

By their letter of 12th June, 1995 the advocates called for the documents. Those documents
were sent to them. If the advocates did not accept the undertaking proposed to be imposed
on them by the appellants they were obliged to return the documents to the appellants.

110
We revert to the letter of 12th June , 1995. The only items the advocates were querying were
VAT and disbursements. They did not query interest. That can only mean that they
undertook to abide by the undertakings sought to be imposed on them save VAT and
disbursements. This they did by saying so in so many words.

But Mr. Kithinji for the advocates relied on that part of the advocates’ letter of 12th June,
1995 which reads:

“We hereby confirm that our client has deposited the

following sums of money in our client’s account with
instructions to forward the same to you once the transfer is
registered.

(a) Kshs,599,632.50 being the outstanding amount of the

loan
(b) Kshs.60,799.20 being your fees.
We confirm that we will send you the above mentioned
sums of money within 7 days after discharge is
registered.

Kindly let us have documents urgently.”

Mr. Kithinji’s submissions was that despite the preceding paragraph of the letter of 12th
June, 1995 earlier reproduced by us, his client’s undertaking was limited to Shs.660,431/70.
In our view that submission is not correct as the advocates had given a professional
undertaking to pay sums referred to in the said letter of 16th May, 1995. That solemn
undertaking cannot be watered down by reference to specific figures. The advocates knew,
or ought to have known, that interest on the sum due by the chargor (Mr. Mureithi) had to be
paid and that the appellants had made that fact clear.

It appears that the learned judge in the superior court (Mbito J) without going into the effect
of the contents of paragraphs (a) and (b) of the appellant’s letter of 16 th May, 1997 went
simply and literally by that part of the letter of 12th June, 1997 to which we have already

111
alluded. That part of the letter could not be read in isolation to say that the undertaking is
fully discharged. With respect, the learned judge erred in giving a simplistic interpretation.

The upshot of all this is that this appeal is allowed and the ruling and order of the learned
judge, dated 9th October, 1996 is set aside. The advocates are ordered to pay (to leave no
room for doubt) to the appellants a sum of Shs.51,688/60 with interest thereon at 28% per
annum from 12th August, 1995 until date of payment in full. The appellants will have costs
of this appeal and the costs of the proceedings in the superior court.

Dated and delivered at Nairobi this 24th day of October, 1997

R.O. KWACH

………………………….
JUDGE OF APPEAL

A. B. SHAH

………………………….
JUDGE OF APPEAL

B. S. PALL

…………………………….
JUDGE OF APPEAL

112
 KENNETH KIPLAGAT V. THE LAW SOCIETY OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL SUIT NO. 542 OF 1996

S.4. of the Law Society Act – Whether it contravened the constitution – whether fee
payable to the society was compulsory and therefore unconstitutional

FACTS:
By an originating Notice of Motion, the applicant sought various reliefs as it
appeared in the application. He sought a declaration that Section 4 of the Law
Society Act was inconsistent with sections 70(b), 78(1) and 80(1) of the Kenyan
constitution. The applicant therefore sought to have the objects clause in the Act
namely section 4 struck out.
HELD:
1) Section 4 which was the objects section of the Law Society Act did not in any way
make it compulsory for the applicant or any other Advocate to become a member
of the Law Society and there was no reason for it to be struck out. To do so
would give the Law Society unlimited powers as it would have no objects within
which to work.
2) So far as the press releases were concerned, they were ultranies the powers of
the Law Society. The Society’s constitution did not allow the Society to indulge
in matters of a political nature.
Application dismissed.
CASE REFERRED TO:
Republic v. George Benedict Maina Kariuki NAI 6 OF 1994
RULING
By an Originating Notice of Motion dated 5th June, 1996, the applicant sought various
reliefs as appears in the application.
Firstly, it sought a declaration that Section 4 of the Law Society Act of Kenya (the act) is
inconsistent with sections 70(b), 78(1) and 80(1) of the Kenyan Constitution. This Section
falls in chapter 5 of the Constitution and provides for the protection of fundamental rights
113
and freedom of the individual. Section 70(b) entitles every person in Kenya to the freedom
of conscience of expression and of assembly and association: Section 78(1) states that:
“except with his own consent, no person shall be
hindered in the enjoyment of his freedom of
conscience”.

And section 80 is in the following terms:

1. ‘except with his own consent, no person shall be
hindered in the enjoyment of his freedom of
assembly and association, that is to say, his
right to assemble freely and associate with other
persons and in particular to form or belong to trade
unions or other associations for the protection of his
interests.
2.Nothing contained in or done under the authority
of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the
law in question makes provision:-

(a)that is reasonably required in the

interests of defence, public safety, public
order, public morality or public health;
(b) that is reasonably required for the
purpose of protecting the rights or freedoms
of other persons.
(c) that imposes restrictions upon public
officers, members of a disciplined force, or
persons in the service of a local government
authority; or
(d) for the registration of trade unions and
associations or trade unions in a register
established by or under any law, and for
imposing reasonable conditions relating to the
requirements for entry on such a register
(including conditions as to the minimum
number of persons necessary to constitute a
trade union qualified for registration, or of
members necessary to constitute an
association of trade unions qualified for
registration, and conditions whereby
registration may be refused on the grounds
that another trade union already registered
or association of trade unions already

114
 registered, as the case may be, is sufficiently
representative of the whole or of a substantial
proportion of the interests in respect of which
registration of a trade union or association of
trade unions is sought), and except so far as
that provision or, as the case may be, the
thing done under the authority thereof is
shown not to be reasonably justifiable in a
democratic society.

It will be seen that the freedom of assembly and association is subject to the exceptions set
out in sub-section 2. It will also be seen that none of those exceptions are relevant in the
present case. We also take the word “and except that” at the end of sub-section (2) to be
conjunctive and therefore qualifies those matters, which are set out in (a) – (d) of sub-
section (2). So that if any of those things are shown not to be justified in a democratic
society, then they would not apply as exceptions. The question arises as to whether the right
of freedom of assembly enables a person to refuse to be a member of an organisation which
the law imposes on him, a duty to be member of. The applicant relied upon the case of
Keller vs. State Bar of California, 496 U.S. 1. This is a case which was decided in the
Supreme Court of the United States. Mr. G. B. Kariuki for the Law Society submitted that
this was a decision of a foreign jurisdiction and that in any event the Constitution of the
United States of America was absolute unlike in Kenya where it is qualified and that
therefore this court should not take notice of that decision. We have considered the reasons
for the decision and in our view if the facts are sufficiently analogous and if the provisions
of the law are similar, then this court would be entitled to adopt some or part of the
reasoning which is relevant to the situation in Kenya. Not unlike the position in Kenya the
State Bar of California required members to pay dues as a condition of practicing law. The
object of the Bar was “to promote the improvement of the administration of justice” and
the membership dues were for self-regulatory functions, such as formulating rules of
professional conduct and disciplining members for misconduct. The Bar also used to lobby
the legislature, to hold annual delegate’s conferences for the debate of current issues and the
approval of resolutions and engage in educational programmes. The petitioners brought in
the State Court a suit claiming that through the latter activities the bar expends mandatory

115
dues. Payments to advance political and ideological causes to which they did not subscribe,
in violation of their rights under the 1 st and 4th amendments, rights to freedom of speech and
association and as a result they sought an injunction restraining the State Bar from those
activities.
The first holding which is at page 2 of the record of the proceedings, states:
“The State Bar use of Petitioner’s compulsory dues to
finance political and ideological activities with which
Petitioners disagree violates their First Amendment
right of free speech when such expenditures are not
necessary or reasonably incurred for the purposes of
regulating the legal profession or improving the
quality of legal services”.

Applying this reasoning to the situation in Kenya, we are of the view that if the compulsory
fees paid by a member of the Law Society are not used for purposes which fall within the
objects set out in the Act then it is possible that the same can constitute an infringement of a
member’s rights under Constitution to freedom of assembly and association.
The power to declare void and provision of any law is given to the court by Sec. 3 of the
Constitution, which states as follows:

“This Constitution of the Republic of Kenya and shall

have the force of law throughout Kenya and, subject
to Section 47, if any other law is consistent with this
Constitution, this Constitution shall prevail and the
other law shall, to the extent of the inconsistency, be
void”.

What the applicant seeks to do in this case is to have the objects clause in the Act namely
Section 4 struck out. The interpretation of the Section was dealt with by the Court of
Appeal (In) Criminal Application No. NAI. 6 of 1994 between the Republic and George
Benedict Maina Kariuki in which the learned judges at page 3 stated:
“The society is primarily meant to regulate the affairs
and conduct of its members in their practice and
provision of Law”.

116
In that case the Learned Justices of Appeal held that the society had no power under its
object clause to intervene in any proceeding before any court whether or not the parties to
those proceedings agree to its intervention.

The Law Society must therefore act totally within the bounds of its objects but we shall deal
with that matter later in this Ruling. It is necessary for the court therefore to decide whether
or not by virtue of Section 4 of the Act the Applicant’s constitutional rights are being
infringed by being forced to become a member of the Law Society.
The compulsion to be a member of the Law Society is to be found in Section 21 (1)(b) and
Section 23(1) of the Advocates Act which are in the following terms:

21(b) “The Registrar shall issue in accordance with,

but subject to, this Part and any rules made under
this Act certificates and annual licences authorizing
the advocates named therein to practice as
advocates.” and 23(1) “Every advocate to whom a
practising certificate is issued under this Part
thereupon and without payment of any further fee,
subscription, election, admission or appointment, and
notwithstanding anything contained in the Law
Society of Kenya Act or in any regulations made
thereunder, become a member of the Society and the
Advocates Benevolent Association and the subject to
any provision of law or rule of the Society and the
Advocates Benevolent Association for the time being
affecting the members thereof”.

The Applicant has however not applied to strike out these sections in his application. Had
he done so the court would have had to consider whether these are reasonable and if so
whether they should be struck out or not.

Section 4 which is the object’s section of the Law Society Act in our view does not in any
way make it compulsory for the Applicant or any other Advocate to become a member of
the Law Society and we can see no reason why this should be struck out. In fact to do so
would give the Law Society unlimited powers as it would have no objects within which to

117
work. The other section of the Act which might have applied is Section 8 of the Law
Society of Kenya Act which is in the following terms:

“Subject to the provisions of sections 27 and 28 of the

Advocates Act, every member of the Society shall pay the
Society such annual subscription as may be prescribed from
time to time: Provided that no honorary member shall be
liable to pay any such subscription.”

In the circumstances we are not able to grant the declaration sought for in Prayer 3 of the
application.

We now turn to the declaration sought in Prayer 4 of the Notice of Motion, which is in the
following terms: Declaration that the only constitutionally justifiable activities that the Law
Society of Kenya Act can sanction are activities which are germane to the practice of Law to
wit:- a) collection of dues b) discipline of members c) regulation of profession. We have
already cited the decision of the Court of Appeal earlier in this Ruling and we would
reiterate that the Law Society is bound to stay within the objects which are set out in the Act
in Section 4 as to go outside these objects would be ultra vires its powers.

The next declaration sought for by the Applicant is that the said Constitutional standard
precludes the Law society of Kenya Act from conferring powers that will result in the
propagation of any communication to any person or persons not a member or members of
the Law Society of Kenya. We find it difficult to make such a declaration, as this would be
much too wide. It may it the course of its business be necessary for the Law society to
communicate with persons who are not members of the Law Society to communicate with
persons who are not members of the Law Society and indeed it would be proper to do so as
for example Section 4(e) of the Law Society Act is in the following terms:
“To protect and assist the public of Kenya in all matters
touching ancillary or incidental to the law”.

This of necessity would involve speaking to or writing to members of the public in respect
of matters which are of interest to both.
118
In his application, the Applicant exhibited a number of documents which broadly fall into
three categories. In the first category are documents which are either extracts from Law
Society Minutes or Deliberations or otherwise press releases and in one case a letter of
complaint to the Commissioner of Police dated 25t h July, 1994. So far as the press released
are concerned we are of the view that these are ultra vires the powers of the Law Society as
it has no right to make press releases. An in fact the contents of these releases are to a large
extent scandalous and are not matters which should have been dealt with in this way if at all.
In one of the council meetings the council referred to its role in the democratisation process.
Again with respect we do not think that this falls within the constitution of the Law Society
to indulge in matters of this kind which is in the following terms:

“To assist the Government and the courts in all

matters affecting legislation in the Administration and
practice of law in Kenya the Society does have a role
in assisting government and the courts.”

However in our view this relates to existing legislation and matters affecting it and the
purpose of this object are for the better implementation of justice in the court through more
efficient and better procedures.
With regard to the complaint to the Commissioner of Police, this we think would again go
outside the Law Society’s mandate as it is not relating to a complaint or assistance of a
member but relates to a complaint in respect of a women’s seminar which though involving
some Advocates, was not a matter which the Law Society should have become seized of.
However the matters complained of in this group are now of an academic nature as they
took place some four or so years ago and we can see no remedy that would assist in respect
of those complaints at this time.
The second group of complaints relates to exhibits 9 – 14 inclusive and arises largely out of
an investigation for a final report prepared by Koimburi Tucker & Company which is
exhibit KK12. It is our considered view that these matters are of an internal nature and that
the proper method for dealing with them is at the meetings of the Law Society whether at
the ordinary General Meeting or at a Special General Meeting called by any of the members
119
to raise the matters pertained therein. As such we do not think that the courts have
jurisdiction to interfere with these matters as they are provided for within the Act itself.
The third group of complaints relates to press cuttings, which are contained in exhibits 15,
16 and 17. In our view these constitute hearsay and as such this court can not grant relief in
respect of them as they are generally accounts of matters related to them by third parties.

The Applicant lastly seeks a permanent injunction barring the Law Society of Kenya from
engaging in activities not germane to the practice of law and to be discussed or expending
any monies to fund any activities not direct germane to the practice of law, that is to say,
activities which are of (a) a political nature, (b) an ideological nature and (c) philosophical
nature. In our view it would be too broad a remedy to grant. We have already set out in this
Ruling our views as to what is and what is not within the constitution of the Society. If nay
particular matter arises which goes outside and to ultra vires the powers of the Law Society
then at that time any aggrieved member would be entitled to apply to the court for an
injunction restraining the activity complained of, in which event it would be dealt with on its
merits at that particular time. As a result we do not think we are able to issue a blanket
injunction of this kind but we have already made our observations on the interpretation of
section 4. Application is therefore dismissed with costs.
We think the most appropriate order for costs is that each party should pay their own costs.

Dated at Nairobi this 1st day of August, 2000

JOYCE ALUOCH
PUISNE JUDGE

P.J. RANSLEY
COMMISSIONER OF ASSIZE

120
 KING WOOLEN MILLS LTD (formerly known as MANCHESTER OUTFITTERS
SUITING DIVISION LTD & GALOT INDUSTRIES LTD VS. M/S. KAPLAN &
STRATON ADVOCATES

IN THE COURT OF APPEAL

AT NAIROBI

CORAM: COCKAR, MULI & AKIWUMI, JJ.A)

CIVIL APPEAL NO.55 OF 1993

(Appeal from the ruling and order of the High Court of Kenya at Nairobi (Mr. Justice
Shields) dated 25th February, 1993)

in

H.C.C.C NO.279 OF 1993

Professional Ethics and Responsibility – Advocate/client relationship – duty of the advocate

to disclose conflict of interest – duty not to act when conflict arises – the effect of the
retainer – fiduciary duty between advocate and client.

FACTS:
In a mortgage transaction, the respondent firm of advocates had acted for the
lenders during the negotiations and the preparation of the loan agreement and
security documents. However the course of the transaction the respondents had
acted as the common advocate for both the lender and the borrower as well. The
respondents had prepared to loan agreement, the guarantee, the debenture and the
legal charge on behalf of both parties and also furnished the requisite legal opinion.

Thereafter disputes arose as between the parties and as suit was filed in the High
Court. During the pendency of that suit, the appellants instituted the present suit
against the respondents wherein they sought a declaration that the respondents were
not entitled to act for or represent the lenders or any other party involved in the
borrowing transaction entered into between the lenders and the borrowers. The
borrower’s (appellant’s) applications to so restrain the respondents was dismissed
hence the appeal. The issue on appeal was whether the respondents by having

121
 accepted to act for both the lenders and the borrowers (appellants) were in breach
of their fiduciary relationship of client advocate by representing the lenders in any
litigation arising from the loan transaction, more so when the validity of the loan
and security documents are challenged.

HELD:
1.The respondents having been retained in the first place by the lender there was a
contractual relationship between the two parties. Once the retainer is established
the general principle is that an advocate should not accept instructions to act for two
or more clients where there is a conflict of interests between those clients.

2.In cases where an advocate is retained by two parties as a common advocate each
client has a separate retainer relationship with the common advocate so that the
advocate cannot act for one of them in enforcing certain obligations against the
other since such advocate would already have obtained relevant knowledge that may
be detrimental to the other party’s case.

3.The fiduciary relationship created by the retainer between client and advocate
demands that the knowledge acquired by the advocate while acting for the client be
treated as confidential and should not be disclosed to anyone else without that
client’s consent. This principle exists even where an advocate acts for more than
one parties as a common advocate and continues long after the matter for which the
retainer was created has been concluded.

Appeal allowed and an injunction granted as prayed.

JUDGMENT OF MULI, J.A.

The appellants, the Manchester Outfitters Suiting Ltd. and Galot Industries, are limited
liability companies incorporated and registered in Kenya and carrying on the business of
manufacturing clothes and property developers respectively. The former is a subsidiary

122
company of the latter hereinafter collectively referred to as “the borrowers” where the
context so requires. The respondents are a prominent firm of advocates practicing law in
Kenya and based in Nairobi.

The 1st appellant negotiated successfully a loan from the Standard Merchant Bank Ltd. (The
London Bank), through the East Africa Acceptances Ltd; another company incorporated in
Kenya, (The Acceptances), to the tune of 1.3 million Deutsche Marks and 1.05 million
Swiss Francs. The loan was guaranteed by the Acceptances Ltd. hereinafter collectively
referred to as “the lenders” where the context so requires. The names of the 1st appellant
and the acceptances appear to have changed but nothing turns on this.

The respondents were initially retained to act for the London Bank and the Acceptances
during the negotiations and the preparation of the loan agreement and security documents.

The 1st appellant wrote to the respondents on 9th October, 1981, as follows:-

M/S. Kaplan & Straton

Advocates
P.O. Box 40111,
NAIROBI

ATTN: MR. J. M. KIBUCHI

Gentlemen,

We have negotiated a medium term loan for Shs.12.00

million, from Standard Chartered Bank, (Merchant Banking
Division), through East African Acceptances Ltd., Nairobi.

The loan is secured against an unconditioned guarantee from

East African Acceptances Ltd. (EAA). In turn we have
agreed to a first legal charge on our property at Athi River,
and a Debenture on the Assets of the company in favour of
East African Acceptances Ltd.

The loan documents from Standard Chartered Bank have

now been received by East African Acceptances and they
will shortly be instructing their Advocates to draw up the

123
 legal charge and debenture. As you are aware, the property
in question is plot No.2, of the land at Athi River. Since the
main title and Sub-titles are under registration, we would
request you to confirm to East African Acceptances Ltd, as
under.

1.That you are acting on our behalf through Galot

Industries Ltd, in the matter of transfer and registration
of titles this piece of land.

2.That you would be issuing a professional undertaking to

surrender the title pertaining to plot 2, to East African
Acceptances, upon receipt of the
same, so as to register the legal charge as mentioned
above.

Through this letter, we request you to issue the letter of

undertaking, so that we could obtain the disbursement of loan
at the earliest.

We understand that you firm would also be acting on behalf

of East African Acceptances Ltd, and the loan documentation
being forwarded by them for legal opinion. We would very
much appreciate, if you could clear the documents on our
behalf also and advice us accordingly.

Yours faithfully,
MANCHESTER OUTFITTERS SUITING DIVISION
LIMITED

SIGNED

T. R. Laxman
SECRETARY

This letter constituted the request by the 1 st appellant that the respondents do act for them in
clearing the loan and security documents as well as advising them accordingly. The 1 st
appellant received a copy of the letter from the respondents to the Acceptances informing
them that the respondents were acting for the 2nd appellant in connection with the purchase
of properties, one of which was to be offered to the Acceptances as security for the loan to
the 1st appellant company and that the respondents would hold the Deed Plan, when

124
released, to the Order of the Acceptances. As this letter is also relevant in the negotiations, I
reproduce it’s contents hereunder:-

“East African Acceptances Ltd.,

Stanbank House
NAIROBI

Dear Sirs,

GALOT INDUSTRIES LTD

PURCHASE OF L.R. NOS. 1337 AND 1338/2

We represent Galot Industries Ltd. in connection with the

purchases of the above mentioned properties. When the
transfers of the properties, which have been presented at the
Land Office, are complete, a sub-division scheme which has
already been approved by the commissioner of Lands, will be
implemented resulting in thirty sub-divisions of which one
will be offered to you as security for a loan in the name of
Manchester Outfitters suiting Division Limited. We confirm
that when all the formalities have been finalized, and the
Deed Plan for the sub-division designated L.R. NO.12867/1
is released by the Director of Survey, we shall hold the same
to your order.

We understand that you will be instructing us separately in

connection with the completion of a Legal Charge in your
favour over the said property.

Yours faithfully
KAPLAN & STRATON

SIGNED

J.M. KIBUCHI

c.c. Manchester Outfitters Suiting

Division Limited
JMK/mb”

On the 23rd October, 1981, the Acceptances confirmed their instructions to the respondents
as follows:-

125
“Messrs Kaplan & Straton
Queensway House
Kaunda Street
NAIROBI

Your Ref: JMK/23577)

Dear Sirs,

MANCHESTER OUTFITTERS SUITING DIVISION

We write with reference to your letter dated 16th October,

1981, and our earlier telephone conversation with Mr. Keith
and confirm as follows:

1.That you will approve on behalf of Standard Chartered

Merchant Bank the Loan Agreement referred to in the
letter of 1st October, 1981.

2.You will approve on our behalf the guarantee to be issued

by us to Standard Chartered Merchant Bank, London and
confirm Exchange Control approval thereof

3.To act on our behalf in the prepation of all Assets

Debenture to be issued to us by Manchester Outfitters
Suiting Division.

4.To prepare a Legal Charge over Plot No.2 at Athi River.

We observe your remarks that the factory was apparently
being constructed on Plot No. 1. The Company had in
fact confirmed that the construction is being carried out
on Plot No.1. We therefore request you to prepare a
Legal Charge over the pot or plot being occupied by the
building.

Regarding the guarantee to be issued by Manchester

Outfitters we do not think that we shall require any further
tangible security since Manchester Outfitters is offering
adequate security to cover the loan.

We enclose herewith a photocopy of Central Bank of Kenya

letter of approval dated 26th August, 1981. We understand
that this letter has since been amended to cover the
remittances of the loan and interest without having to
126
 produce evidence of receipt of machinery into the country in
a approved manner. This was necessary because our loan
was not directly related to the importation of the machinery.

We assume that the Certificate of Approved Enterprise has

erroneously been issued and we expect the borrower to
obtain the correct Certificate of an Approved Enterprise in
accordance with your advice.

We have been advised by Standard Chartered Merchant

Bank, London that they would prefer Kaplan & Stratton to
draft a suitable guarantee and to submit the text to them for
final approval. Regarding the borrowing powers of the
Company we shall expect you to advice them to make the
necessary amendments to the Memorandum and Articles of
Association to enable the Company to borrow as necessary.
This will be appropriate since we have no objection to your
acting for Manchester Outfitters and ourselves. In the event
of an apparent conflict of interest we expect you to advise us
accordingly.

We note that you require a substantial deposit on account of

legal expenses related to this transaction. We shall make
arrangements to pay this as soon as you advice us of the
figure.

Yours faithfully,
For : EAST AFRICAN ACCEPTANCES LIMITED

SIGNED

GENERAL MANAGER

Encls.”

On the same date, Mr. K.H.W. Keith for the respondents, wrote to Mr. Mohan Galot,
Chairman of the 2nd appellant’s company as follows:-

“Mohan Galot Ese.,

Chairman,
Galot Industries Ltd.
P.O. Box 57387
NAIROBI

127
Dear Mr. Galot,

RE: STANDARD CHARTERED MERCHANT BANK

LIMITED
LOAN TO MANCHESTER OUTFITTERS SUITING
DIVISION LIMITED

I refer to my meeting with you of yesterday and as arranged

now enclosed a copy of my letter of todays date to East
African acceptances Limited for your information and action
where necessary.

As you will appreciate, East African Acceptances Limited

and Standard Chartered Merchant Bank Limited are my
principal clients in this particular transaction and accordingly
if at any time it appears that there is or there may be conflict
between yourselves and East African Acceptances Limited, I
must reserve the right to continue acting for them and ask
you to seek independent legal advice. At the present time
however, there does not seem to be any difficulty.

You agreed that you would expedite the obtaining of the sub-
divisional land survey Deed Plan, so that the two sites
presently owned by Galot Industries Limited could be
transferred to Manchester Outfitters Suiting Division Limited
as a matter of urgency. Will you please also forward to me a
copy of the original Certificate of Incorporation of
Manchester Suiting division and Manchester Outfitters
Limited together with further copies of the Memorandum of
Association all certified by yourselves as being true copies of
the originals. If the Companies have passed any resolution
amending the Memorandum and Articles of Association, I
also require certified copies of those.

I also require a copy of the Central Bank’s approval which

you apparently hold for the borrowing so that I may ensure
that it covers all matters which require Exchange Control
approval.

Finally, you will recall that I discussed the likely amount of

my firms fees, which I estimate will amount to 10,000
pounds. On this I require 5,000 pounds to be paid now and I
look forward to receiving this amount within the next few
days, and the balance together with the disbursements or

128
 stamp duty etc., should be paid when the documentation is
ready for execution.

I will let you know as soon as I receive further instructions

from East African Acceptances Limited with regard to the
necessary revision to the Loan Agreement. As requested, I
enclose a further copy of the Loan Agreement.

Yours sincerely,

SIGNED

K.H.W. KEITH

KHK/as

ENCLS.”

This letter confirmed conclusion of the respondents’ acceptance to act for the appellants’ as
well as for the London Bank and the Acceptances. For the period from 1981, to 1982, the
respondents so acted for the appellants, the borrowers, on the one part and the London Bank,
the lender and the Acceptances, on the other part. They were thus accepted to act for the
appellants as well as their principal clients (the London Bank and the Acceptances).

There was no dispute that the respondents so acted as the common advocate for the
appellants, the London Bank and the Acceptances. During this period the formalities of the
loan were successfully completed. The loan was guaranteed by the 1 st appellant with the
legal charge and all assets Debenture in favour of the Acceptances. The respondents had
prepared the loan agreement, the guarantee, the debenture and the legal charge on behalf of
the London Bank, the Acceptances and the appellants as well as furnishing the requisite
legal opinion. There were also other transactions concerning the security property at Athi
River. The loan agreement and the security documents were duly executed by the parties
without any objection. The transaction having been successfully concluded the London
Bank disbursed the loan to the appellants under the loan agreement.

129
In 1989, disputes arose between the appellants and the Acceptances resulting in an action
being filed by the appellants in the High Court (H.C.C.C Suit No.5002 of 1990) against the
Acceptances and their appointed Receivers, particulars of which were pleaded in an
Amended plaint containing 39 paragraphs, a defence and counter-claim containing 62
paragraphs and a reply thereto containing 35 paragraphs. This suit is pending before the
High court and I will say no more about it except that on the eve of the resumed hearing of
that suit, the appellants filed the present suit from which this appeal lies.

The appellants instituted the present suit against the respondents praying for a declaration
that they were not entitled to represent or to act for the Acceptances, the London Bank, and
the Receivers or any other party which was involved in the borrowing transaction entered
into between the appellants, the London Bank and the Acceptances. They also sought an
injunction to restrain the respondents from breaching the terms of the client/advocate
contract of retainer entered into by the appellants between 1981 and 1982.

The application by way of chamber summons for an injunction to restrain the respondents
from so acting for the Acceptances and other associated companies or persons came up
before the superior court (Shields, J.) who in his usual short and crisp ruling dismissed the
appellants’ application with costs. Hence this appeal.

Mr. Kamau, for the appellants filed some ten (10) grounds of appeal, which he argued
together. He advance three propositions, namely:

1. An advocate who acts for both the purchaser and the seller will be restrained from
acting for the seller in any action in which validity of any documents is challenged by
the borrower.

2. The principles upon which this court will upset the decision of the High Court is laid
down by Madan, J. in the United India Insurance Co. v. EA. Underwriters C.A. No. of
1983.

3. That the respondents having drawn the loan agreement, the debenture, the legal charge
as well as the legal opinion and their legal advice thereof on behalf of the lenders, and
the appellants are disqualified from acting for the leaders and in any subsequent
130
 litigation or dispute arising from the same loan transaction in which the validity of the
loan and security documents are challenged.

Looking at the groups of appeal as a whole, we are of the view that these revolve around the
above propositions and may be telescoped in one main ground, namely –

The respondents having accepted to act for both the appellants and the Acceptances in the
loan transaction between the appellants and the London Bank and the Acceptances, are they
in breach of their fiduciary relationship of client and advocate by representing the lenders in
any litigation arising from the said loan transaction in which the validity of the loan and
security documents are challenged. Put simply, is the advocate who acts for both the
borrower and the lender in a transaction disqualified from acting or representing one of the
parties or clients in any subsequent litigation concerning the said transaction? I am of the
view that the points raised in the other grounds of appeal are incidental thereto.

It is not in dispute that the respondents accepted and acted for both the appellants, the
London Bank and the Acceptances in all the transactions involving the loan to the appellants
from the London Bank and the guarantee, the legal charge and the Debenture in favour of
the Acceptances. Mr. Keith of the respondents’ firm of Advocates was responsible for
putting together the transaction. For all intents and purposes, he was the advocate for both
the borrower ( the appellants) and the lenders (the London Bank and the Acceptances). The
fiduciary relationship of advocate/client existed upon Mr. Keith’s acceptance of the retainer
from the appellants. Thjis is quite clear from his letter of 23 rd October, 1981, to the
Chairman of the 2nd appellant: (supra) –

“As you will appreciate East Africa Acceptances Ltd. and the
Standard Chartered Bank Ltd. are my principle clients in this
particular transaction and accordingly if at any time it
appears that there is or there may be conflict between
yourselves and the East Africa Acceptances Ltd; I must
reserve the right to continue acting for them and ask you to
seek independent legal advice. At the present time however,
there does not seem to be any difficulty.”

131
Thus there was a retained – a contractual relationship between the appellants and Mr. Keith
on behalf of his firm whereby he undertook expressly or by implication to fulfil the
appellants’ obligations in connection with the transactions involving the loan from 1981 –
1982.

Once the retained is established, then the general principle is that an advocate should not
accept instructions to act for two or more clients where there is a conflict of interests
between those clients. Of course there are exceptions to this general principle. In the
instant case the respondents throught Mr. Keith were the advocates for their principal
clients, the London Bank and the Acceptances. They accepted the retained from the
appellants although they put a caveat that in the event of a conflict of interest arising
between the appellants and their principal clients that they reserved the right to continue
acting for their principal clients and to ask the appellants to seek independent legal advice.
However, Mr. Keith saw no conflict of interests at that time although he foresaw such an
eventuality arising subsequently.

The retainer created a contractual relationship between the advocate and the client
irrespective of whether two or more clients are involved. That is to say that the relationship
is not tripartite. Each client has a separate retainer relationship with the common advocate.
For example like in the instant case. Mr. Keith for the respondents having accepted to act for
the appellants, the borrowers, and the lenders, in putting together the loan transaction, he has
a duty to the borrower and should not subsequently act for the lenders to enforce repayment
of the loan because he had obtained relevant knowledge of the borrower’s financial position
when acting for him in connection with the original loan transaction. In these
circumstances, he should take unfair advantage prejudicial to the borrowers if he so acts for
the lenders because of apparent conflict of interests.

The fiduciary relationship created by the retainer between client and advocate demands that
the knowledge acquired by the advocate while acting for the client be treated as confidential
and should not be disclosed to anyone else without that client’s consent. That fiduciary

132
relationship exists even after conclusion of the matter for which the retainer was created.
This principle applies equally where an advocate acts for two or more clients in the same
transaction or subject matter because the retainer is specific between the individual client
and the common advocate. There exists no fiduciary relationship between the two or more
clients of the common advocate. Any knowledge received from each client and their
common advocate, although the common advocate acting for two or more clients will be
able to complete the transaction speedily and save the clients expense by engaging one
common advocate; this fact alone is for convenience only does not affect the general
principle that he should not so act or divulge the confidential information received by him
one client to the other client or clients without the consent of the client in the retained
imparting the confidential information. The corollary to the cardinal principle is that the
advocate having so acted for two or more clients should be wary to act for one client against
the other client or clients in a subsequent action or litigation concerning the original
transaction or the subject matter for which he acted for the clients as their common
advocate. The reason for this is not far fetched. The information or knowledge so acquired
and which is confidential by reason of the fiduciary relationship between the opponent client
and the common advocate will place the other client or clients at a disadvantage
occasioning prejudice if that knowledge or information is used against them by the common
advocate in a subsequent litigation arising from the original transaction or subject matter for
which he acted for the clients as their common advocate. As such the conflict of interest is
apparent and the common advocate should not act for one of his client or clients against the
other client or clients in a subsequent litigation arising from the original transaction or the
subject matter.

I am persuaded to adopt the rule as has emerged since in Rukesen vs. Eliis, Munday and
Clerk as reported in Orderly on Solicitors 7th Edition page 70.

“A solicitor who has been retained by a client is under an

absolute duty not to disclose any information of a
confidential nature which has come to his knowledge by
virtue of a retainer, and to exercise the utmost good faith
towards his client not only for so long as the retainer lasts but
133
 even after the termination of the retained, in respect of any
information acquired during the course of and by virtue of
the retainer and the court will restrain the solicitor by
injunction from any breach likely to damnify the client and
award damages for breach. There is no general rule
prohibiting a solicitor who has acted for one client in a matter
acting for an opposite party in the same matter, but where a
solicitor owes a duty to a third party which conflicts his duty
to a particular client he is not relieved of his duty to the
client”.

In Rukessen v. Ellis Munday & Clerke (1912) 1 Ch. P. 831 COZENS - HARDY M.R. as he
then was put the principle as follows p.835.

“A solicitor can be restrained as a matter of absolute

obligation and as a general principle from disclosing any
secrets which are confidentially reposed in him. In that
respect, it does not very much differ from the position of any
confidential agent who is employed by the principal. But in
the present case we have to consider something further. It is
aid that in addition to the absolute obligation not to disclose
secrets there is a general principle as a solicitor who has
acted in a particular matter, whether before or after litigation
has commenced, cannot act for the opposite party under any
circumstances, and it is said that that is so much a general
rule and the danger is such that the court ought not to have
regard to the special circumstances of the case. I do not
doubt for a moment that the circumstances may be such that
a solicitor ought not to be allowed to put himself in such a
position that, human nature being what it is, he cannot clear
his mind from the information which he has confidentially
obtained from his former client, but in my view we must treat
each of the cases, not as a matter of form, not as a matter to
be decided on the mere proof of a former acting for a client
but, as a matter of substance, before we allow the special
jurisdiction over solicitors to be invoked, we must be
satisfied that real mischief and real prejudice will in all
human probability, result if his solicitor is allowed to act.”

The injunction was refused notwithstanding proof of contract of retainer and the general
principle that once the solicitor has acted for a client, he should never act for the client or
opponent client in a subsequent litigation arising from the transaction or subject matter for
which he had acted for the client. Rukesen had consulted Munday and no one else. Clerke

134
was on vacation and knew nothing about Rukesen’s consultation with Munday. The
solicitors in the firm of Ellis, Munday and Clerke used to act for clients separately without
the knowledge of the other solicitor. Clerke was a complete stranger to Rukesen’s
communications to Munday. In the special circumstances of that case, there was no
possibility of Clerke disclosing confidential information imparted to Munday by Rukesen.
There was no mischief or probability of mischief or prejudice ever arising from Clerke
acting for the opponent company.

Rukesens v. Ellis & Clerke was considered in Re – A Firm of Solicitors [1992] 1 ALL E.R.
353,354. In that case a firm acted for ASM. Both the firm and ASM received much
confidential information from ASM and its subsidiaries which would be of value to Mr.
Derby in the main action and that they should not therefore be permitted to act for Mr.
Derby in that action. The issues raised in the main action were very closely bound up with
the matters being investigated by ASM and the firm between 1982-1985.

It was held Parker, L.J. p.354:

“1. There was no general rule that a firm of solicitors who had
acted for a former client could never thereafter act for another
client against the former client, but a firm of solicitors would
not be permitted to act for an existing client against a former
client if (per Parker L. J. and Sir David Croom-Johnson) a
reasonable man with knowledge of the facts would reasonably
anticipate that there was a danger that information gained
while acting for the former client would be used against him or
(per Stanghton L.J.) there was some degree of likelihood of
mischief, i.e of the confidential information imparted by the former
client being used for the benefit of the new client. If (Stanghton
L.J.dissenting) there was such a conflict of interest it was only in
very special cases that the court would consider that a Chinese
Wall would provide an impregnable barrier against the leakage
of confidential information…………..

2.(Stanghton L.J. dissenting) On the facts, a reasonable man with

knowledge of all the facts including the measures for a Chinese Wall
proposed to be taken by the firm would, notwithstanding those
measures, still consider that if the firm was allowed to continue to
135
 act for the defendant, there would be a risk that some of the
confidential information provided by the ASA companies to the firm
when it was acting for ASM might inadvertently be revealed to the
firm’s team who were to act for the defendant. Accordingly, the
appeal would be dismissed and the injunction restraining the firm
from acting for the defendant would be continued …………..”

The facts in the present case are simple. Mr. Keith of the firm of advocates (the
Respondents) acted for the appellants as borrowers and the lenders between 1981-1982 or
thereabout. He was to put together a deal whereby the appellants were to borrow money
from the lenders – the off-shore Bank through the Acceptances. In all, Mr. Keith drew up at
least six documents and advised both his clients accordingly. It was not in dispute as
evidenced by correspondence exchanged between the parties (supra) that contractual,
fiduciary or retainer relationship existed between Mr. Keith and the individual clients as
their common advocate. That being the case the information imparted to Mr. Keith by the
individual clients was confidential. Mr. Keith owed a duty to his individual clients not to
disclose or divulge any confidential or secret information imparted to him in confidence to
anyone else including the other clients in the loan transaction without the consent of the
client imparting the confidential information. There is no doubt in my mind that to put
together the loan transaction of this magnitude for the appellants to get the loan from the
off-shore Bank, the appellants must have furnished much confidential information to Mr.
Keith to convince the off-shore Bank that they were viable. The many loan and security
documents which were necessary to put together the loan confidential information about
themselves and their backgroup. Mr. Kamau for the appellants submitted that Mr. Keith and
knowledge of the appellants’ “financial positions and vulnerabilities”.

Quite apart from the loan and security documents and the correspondence exchanged
between the parties and in particular the preparation of the debenture whose validity is now
challenged by the appellant, Mr. Keith must have more confidential information to enable
him to draw up the debenture and the other loan and security documents. The debenture, the
loan agreement, the legal charge, the guarantee and the amendment of the appellant
companies’ Memorandum and Article of Association, in themselves may not be confidential

136
because some of them had to be exchanged and executed by the appellants, the lenders and
the Acceptances. Similarly the letters exchanged between the appellants and the
respondents (supra) necessary for the preparation of the loan and security documents, in
themselves may not be confidential because, by their very nature were necessary and
common information to all the parties to enable Mr. Keith to conclude the loan and security
documents. Nevertheless, much more confidential and secret information mush have been
imparted to Mr. Keith by the appellants. The lenders may not have imparted much
confidential information for their desire was to be satisfied that the appellants’ were viable
borrowers and the loan and security documents were water-tight in their favour. I would
imagine Mr. Keith of the respondents’ firm enquiring from the appellants of their viability,
background and financial standing. For instance I would imagine Mr. Keith asking whether
the appellant Companies’ were solvent or not. Whether they had borrowed from the local
banks and if so whether the loans so raised had been liquidated, whether there were pending
suits against the appellant companies, the assets and liabilities of the appellant companies,
the financial turn-over the appellants’ companies, businesses, creditors of the appellant
companies, whether or not any of the directors of the appellants’ companies has been
declared bankrupt or discharged bankrupt and so forth. The questionnaire may not be
exhaustive. This information imparted to Mr. Keith on these and such other questions is
confidential and secret between the appellants, Mr. Keith and the respondents and should
never be revealed to anyone else including the lenders without the appellants’ consent. It
was confidential information and secrets of the appellants imparted to Mr. Keith and the
respondents in confidence under retainer to enable Mr. Keith to successfully conclude the
loan transaction. Mr. Keith and the respondents had knowledge of this vital confidential
information which would, in all probabilities, damnify the appellants in the pending suit
between the appellants and the Acceptances to which the respondents have been acting and
intend to act for the Acceptances and their appointed receivers against their former clients,
the appellants in the original loan transaction.

The respondent’s case is based on the affidavit of Mr. Keith in opposition to the Chamber
Summons dated 2nd February, 1993. Mr. Keith admitted that there existed a contract of

137
retainer by both the appellants who also knew the existence of the retainer by the lending
London Bank and the Acceptances. As a matter of practice, Mr. Keith deponed that it is
common in Kenya for the advocates instructed by the lending Financial Institution or Bank
also to act for the borrowers for convenience of speed, saving costs and lack of conflicts
which cannot be resolved. According to Mr. Keith, there was an express term of the retainer
that in the event of any conflict arising between the appellants and the lending bank or the
Acceptances, the respondents reserved the right to continue to act for the lending bank and
the Acceptances. He also believed that there was an implied term of the retainer that all
information from all clients would be made available to the other client providing the
information expressly stipulated the information was to be kept confidential from one or
more of the other parties.

That he had never received any request that he should treat any information confidential as
against the other clients involved in the transaction. That no conflict arose during 1981 and
1982 during preparation of the loan and security documents. That he never acted for the
parties thereafter although he acted for the acceptances in the appointment of Receivers and
Managers who were appointed in September 1990. That at no time did the appellants
complain or object to the respondents continuing to act for the Acceptances until after the
hearing of the main suit had commenced and at no time did the appellants complain about
the validity of the Debenture until the allegation appeared for the first time in the Re-
Amended Plaint.

In his opinion, Mr. Keith deponed as follows in paragraph 32.

“I verily believe that it would cause a great injustice to SCFS

and the Receivers if they were forced to change Advocates in
the middle of the hearing as complex as this particularly
when the plaintiffs have acquiesced in their continued
representation by the defendants for long and there is no
information in the defendants’ possession of a confidential
nature which it acquired from the first plaintiff. It will be
extremely difficult, time consuming and costly for another
firm to become dully familiar with all the details of the case.

138
 It may well necessitate an adjournment which would be very
lengthy given the commitments of Counsel and the
congestion in the courts which will probably be made worse
by the impending Election Petitions. SCFS and the
Receivers are at the moment constrained by an interim
injunction from enforcing their security until the hearing so
that it is of the utmost importance to them that there is a
speedy hearing”.

Quite apart from the affidavit containing argumentative statements, the above is pure
opinion of Mr. Keith and Mr. Deverell who is conducting the defence in the main suit.

Mr. Guram for the respondents submitted firstly that there was no confidential information
imparted to Mr. Keith by the appellants and secondly there was no possibility of real
mischief arising if the respondents are allowed to continue acting against their former client,
the appellants. The trust of the respondents’ case is that there was no confidential
information pleaded in The Re-Amended Plaint and none can exist in a transaction where
the advocate is acting for two or more clients because he owned all the clients a duty under
the retainers.

I do not think for a moment that it can be argued that no confidential information existed
because the respondents were acting for the appellants, the lending bank and the
Acceptances in the original loan transaction. The very nature of the contract of retainer
imposed a duty on Mr. Keith to treat the information imparted to him by the appellants as
confidential. It also imposed on him an obligation not to disclose such confidential
information to any one else including the other clients involved in the transaction without
the consent of the client providing the confidential information in this case the appellants.
Nor do I think for a moment that it can be argued that the duty and obligations imposed on
him as a common advocate ceased after conclusion of the transaction for which the retainers
were made. Further, the mere delay in raising the point of objection to the respondents
continuing acting against the appellants does not defeat or change the duty or the obligations
of the common advocate imposed on him under the retainer. Mr. Keith has already admitted

139
that he had discussed the transactions with Mr. I Deverrel, and the advocate of the
respondents’ firm.

The learned trial judge refused the injunction sought on the following lines –

“I must confess I can envisage no sort of confidential

information disclosed by the borrowers to his solicitor or his
advocate that could by being disclosed to the lender, would
work any mischief to the borrower’s detriment”.

With greatest respect this was a misdirection. The learned trial judge failed to appreciate
that the information under the retainer was confidential ab initio. Although he applied the
principle correctly, he failed to appreciate that the respondents may have had more
confidential information. He also failed to appreciate that the validity of one of the security
documents was challenged in the main suit and that the respondents being the authors
thereof, knew much more behind the documents than is apparent on the documents and are
bound to use that knowledge at their trial against the appellants; their former clients.

Mr. Keith admitted in his affidavit (supra) that he had a discussion with Mr. Laxman and
Mr. Mohan Galot on 25th March, 1982 when they discussed the debenture now under
challenge to provide additional facilities. This discussion was confidential with the result
that if the respondents are permitted to continue to act for the Acceptances, the information
imparted during those discussions will be used by the respondents to defeat the very
challenge of the validity of the Debenture by the appellants.

I have used the phrases “Mr. Keith and the respondents” because, unlike in Rukesen v. Ellis,
Munday and Clerke’s case where Mr. Munday alone acted for Rukesen separately and
independently with exclusive knowledge while Mr. Clerke was on holiday and unaware of
the communication imparted to Mr. Munday by Mr. Rukesen, this is not so in the present
case for there is evidence of other advocates, Mr. Kibuchi and Mr. Deverrel of the same firm
of the respondents acting for the same parties during the period in question. The

140
respondents had imputed knowledge of the vital confidential information imparted to Mr.
Keith by the appellants – So I hold.

Reverting to the consideration of the main issues, counsel referred us to the recent decision
in Supasave Retail Ltd. v. Coward Chance and others [1991] 1 ALL E.R. p. 668 in which
Rukusen v. Ellis, Munday & Clarke and Re a Firm of Solicitors (SUPRA) were applied and
followed. In that case Sir Nicolas Browne-Wilkinson v C summed up the general rule at p.
673 as follows:-

“The English law on the matter has been laid down for a
considerable period by the decision of the Court of Appeal in
Rukusen v. Ellis, Munday & Clerke (1912) 1 Ch. 831 … The
law as laid down there is that there is no absolute bar on
solicitor in a case where a partner in a firm of solicitors has
acted for one side and another partner in that firm wishes to
act for the other side in litigation. The law is laid down that
each case must be considered as a matter of substance on the
facts of each case. It was also laid down that the court will
only intervene to stop such a practice if satisfied that the
continued action of one partner in the firm against a former
client of another partner is likely to cause (and …) real
prejudice to the former client unhappily, the standard to be
satisfied is expressed in numerous different forms in
Rukusens case itself. Cozens – Hardy M.R. laid down the
test as being that a court must be satisfied that real mischief
and real prejudice will, in all human probability result if the
solicitor is allowed to act …1 As a general rule, the court will
not interfere unless there be a case where mischief is rightly
anticipated”.

Applying the above tests to the facts in the present case, I must be satisfied that real
mischief or real prejudice are rightly anticipated. It must be remembered that the pending
main suit prays for declaration that the security documents and in particular, the Debenture
are unenforceable and should be discharged. The appointment of Receivers and Managers
is also unenforceable being based on invalid security documents. There are other prayers in
the main suit all arising from the loan transaction and the appointment of receivers and
Managers. The loan and security documentation as well as transactions for the appointment

141
of Receivers and Managers were all drawn by Mr. Keith on behalf of the respondents. In
order to conclude these documents much more confidential information was imparted to Mr.
Keith by the appellants. Mr. Keith also acted for the defendants in the main suit to enforce
realization of the loan securities on the ground of non-payment of the loan. I have no doubt
in my that the respondents will consciously or unconsciously or even inadvertently use that
confidential information acquired from the appellants under the retainer during preparation
of the loan agreement and the security documents as well as knowledge of subsequent
events against the appellants in the main suit. The result will be that the appellants will not
only be confronted with their own confidential information but will suffer great injustice
and prejudice during the trail of the main suit. Mr. Keith admitted in his affidavit that the
defendants in the main suit will suffer great injustice if they changed advocates that this late
hour when the main suit is pending as part-heard. If great injustice is to be suffered by any
party, it will be the appellants who have so far engaged several advocates on several
occasions in an attempt to get one to represent them in this suit which Mr. Keith describes as
“complex”. I am of the view that the appellants will suffer prejudice if the respondents are
allowed to continue acting for the defendants in the main suit. I am also satisfied that it
cannot be said that the respondents will not take unfair advantage of the confidential
information they acquired from the appellants during the formation of the loan transaction to
defeat the appellants’ case during the hearing of the main suit. There is a dispute as to the
validity of the debenture and Mr. Keith admitted having disclosed what was discussed
between him, Mr. Laxman and Mr. Mohan Galot regarding the excess facilities provided
there under. This alone is a mischief because the information will now be thrown at the
appellants’ faces in an attempt to uphold the validity of the Debenture. The extent of the
confidential information acquired from the appellants between 1981 – 1990 and which is
now in the possession of the respondents is not known but if is there. There has been no
measures taken to protect disclosure of that information even by the use of the impregnable
barrier of a Chinese wall to prevent that confidential information being used against the
appellants at the trial of the main suit.

142
Mr. Guram sought to distinguish the Rukesen case (supra) on the facts of this case on the
ground that although there was confidential information, that information was not known by
Mr. Clerke. Hence refusal of the injunction. He also sought to distinguish Re. A. Firm of
Solicitors case on the ground that the confidential information was contained in a long letter
whose contents appear in the judgment, hence grant of the injunction. In Supasave Retail v.
Cowards Chance’s case, injunction was granted because no adequate measures were taken
to prevent disclosure of the confidential information. Mr. Guram submitted further that if
there be breach of the duty and obligations of the respondents in respect of any disclosure of
confidential information, the appellants’ remedies, other than injunctions, lay elsewhere. I
do not agree. The appellants are perfectly entitled to take any measures including issuance
of an injunction to stop mischief and prejudice occurring at the trial of the main suit.

I have considered authorities which were cited by both counsel and their submissions and
have come to the firm conclusion that real prejudice and real mischief are anticipated if the
respondents are permitted to act for the defendants in the main suit.

In the result, I would allow this appeal, set aside the Ruling and orders of the superior court.
I would grant an order for injunction to restrain Mr. Keith and nay partner in the
respondents’ firm of advocates from continuing to act for the defendants in the main suit or
in any litigation or proceedings arising from the loan transactions of 1981 – 1982. I would
award costs of the appeal to the appellants. As Cockar and Akiwumi J.J. agree judgment is
hereby entered on the terms I have proposed.

Dated and delivered at Nairobi this 16th day of December, 1993

M.G. MULI
………………………………….
JUDGE OF APPEAL

143