REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 539 of 2004

NATIONAL BANK OF KENYA LIMITED……....................….….PLAINTIFF

VERSUS

E. MURIU KAMAU

NJOROGE NANI MUNGAI both trading as

MURIU MUNGAI & COMPANY ADVOCATES………….…..DEFENDANT

JUDGEMENT

The plaintiff is one of the leading banks in the Republic of Kenya while the defendant is one
of the prominent firm of advocates. Before this dispute they had a client/advocate relationship
which has since gone sour. The basis of this dispute arises from the relationship of
client/advocate which has broken down. Sometimes in 1996 the plaintiff Bank advanced some
money to M/S Tai Jean Garments Limited. The plaintiff enlisted the defendant to recover the
debt outstanding on the account of Tai Jean Garments Limited which debt as at 27th January
2000 stood at over Kshs.95 million. The plaintiff sent the relevant documents concerning the
debt to the defendant in order to get a proper advice on the success of its case against the said
company. In a letter dated 18th May 2000 the defendant gave the plaintiff Bank the following
opinion on the strength of the documents supplied to them. It is important to quote the opinion;

(1) In our considered view you will be able to establish some liability as against the
debtor and also the three guarantors.

(2) The exact quantum of that liability will depend on your ability to put together a
clear and comprehensive statement of accounts. This is absolutely crucial.

(3) It will not be sufficient in this case for you to merely present a statement of
accounts.

The advocate went further and advised the bank that there were major irregularities in the way
the transaction was conducted by the Bank. The advocate stated that the major weakness of
the plaintiff’s case was on documentation. And in short the advocates made the following
recommendations;

(a) In our considered view and subject to the availability of the source of transactional
documents, you have a fair chance of success in a suit against the debtors. The actual
amount may not be as per in the statement since we expect some interest to be
disallowed owing to the irregular conduct on the accounts by your staff.
(b) The Company has been placed under receivership. As such your options lie with
the guarantors.

(c) If the guarantors are people of means we would recommend that suit be filed
against them.

In a letter dated 20th June 2000 the Bank instructed the Advocate to proceed and issue a formal
demand against the three directors who have signed the guarantee documents. On 26th June
2000 the Advocates sent out a demand letter to the three guarantors and demanded a sum of
Kshs.10 million being the amount guaranteed by them on the debt due from M/S Tai Jean
Garments Limited. After the lapse of the demand notice the Advocates in a letter dated 11 th
August 2000 stated as follows;

“We refer to the above matter and advise that we have filed suit herein and are awaiting
issuance of summons. Enclosed find verifying affidavit to support the claim to be signed
by Mr. Mwangi. According to the new rules plaints must be accompanied by an affidavit.
Return the affidavit to enable us proceed.”

Again in a letter dated 21 st August 2000 the Advocate informed the bank that they had filed
HCCC No.1464 of 2000 against Hulashba N. Darbar, Bhupendra Darbar & Naresh Darbar.
In the same letter the advocates sent a copy of the plaint to the bank for information and
record. In the plaint dated 24 th July 2000 the bank sought for judgement against the defendant
jointly and severally for;

(a) Kshs.10 million.

(b) Costs of the suit and interest at a rate of 36% per annum calculated on daily basis
and applied monthly from 15th October 1996 till payment in full.

The 1st and 2nd defendant in HCCC No.1464 of 2000 instructed the firm of Desai, Sarvia &
Palla Advocates while the 3rd defendant instructed the firm of Sharpley Barret & Co.
Advocates. The matter was then set down for hearing and on several occasions the matter was
adjourned. The defendants then filed a preliminary objection which was canvassed on 15 th
April 2002 before Mwera J. The objection was dated 16 th July 2001 and basically it was that the
verifying affidavit for the plaint is contrary to section 5 of Cap 15. It was the submission of the
Advocates for the defendants that the Plaint be struck out since it was contrary to Order 7 rules
1 & 2 of Civil Procedure Rules and contrary to section 5 of Cap 15 Laws of Kenya.

When it came to the turn for the bank’s Advocates to reply Mr. Mungai learned counsel for the
bank submitted as follows:

“We do agree that the verifying affidavit contravenes section 5 of Cap 15 Laws of Kenya.
But court should apply its discretion and find that the affidavit is not curably defective.
Section 5 of Cap 15 are obligatory on the commissioner. Here the plaintiff or its counsel
did not effect that omission so that error on the part of the commissioner should not be
visited on the plaintiff.”

After hearing the objection by the defendants and the reply of the plaintiff Mwera J reserved
the ruling on 29th April 2002. The ruling was not delivered on that day but delivered on 6 th May
2002. On that day the Advocates for the bank did not attend the delivery of the ruling. In that
ruling the Judge agreed with the objections raised by the defendants and upheld the preliminary
point by striking out the plaint together with the verifying affidavit with costs. In doing so the
Judge held;
“The verifying affidavit filed along with the plaint herein is invalid in the light of Section 5
of the Act which in mandatory terms says:

“5. Every commissioner for oaths before whom any oath or affidavit is taken or made
under this Act shall state truly in the jurat or attestation at what place and on what date
the oath or affidavit is taken or made”

Both sides have agreed here and it is clear from the affidavit in issue that it did not
comply with Section 5 aforesaid in that it did not state the place at which it was made.
The provision of law is mandatory and non-compliance with it is fatal. The court was not
told by either side the mischief Section 5 was meant to curb and so no further remarks
need to be made of it. The plaintiff had the obligation to ensure that the documents
placed before the court comply with the law. Section 5 of the Act cannot be superseded
by the subsidiary legislation (Order 18 Rule 7 Civil Procedure Rules). This court is
equally bound by Order 7 Rule 1(2) Civil Procedure Rules which in mandatory terms
requires that every plaint shall be accompanied with a verifying affidavit. That affidavit
must be valid. If it is defective as the one herein, then it leaves the plaint hanging. No
second affidavit will save it after the initial affidavit is found invalid and struck out. With
it goes the plaint.

The preliminary point is upheld. The verifying affidavit and accordingly the plaint herein
are struck out with costs of this application and the suit going to the defendants. If time
is still in favour of the plaintiff, it may consider bringing a fresh suit properly instituted.”

After the suit was struck out the Advocates addressed a letter dated 16 th May 2002 to the bank.
It is important to reproduce that letter;

“HCCC NO.1464 2000 MILIMANI

YOURSELVES –VS- HULASHBA N. DARBAR 7 OTHERS

We refer to the above matter and advice that the defendant applied to have the suit
dismissed on the grounds that the verifying affidavit thereof did not in the Jurat state
where the oath was taken.

We opposed the application. The learned judge, Justice Mwera, however, agreed with
the defendants and dismissed the suit. A copy of his ruling thereof is enclosed. We
have lodged a notice of appeal and applied for proceedings as we propose to appeal the
said ruling.

THE LAW

The point on which the suit was dismissed has been the cause of much controversy and
has resulted in a sharp division on opinion in the High court. The high court has taken
two divergent positions on the matter.

Justice Ringera and Justice Vishram

One school at the High Court has held that defects in the verifying affidavit are not fatal.
Further that even where a verifying affidavit is struck out, the plaintiff can file a
subsequent affidavit to remedy the defect. As such a suit should not be struck out on
the basis of a defective verifying affidavit. Justice Ringera has gone further to hold that
even if a suit was filed without a verifying affidavit it can still be remedied by filing an
affidavit.

This position is best captured by the decision of Justice Ringera in the case of Microsoft
Corporation –vs- Mitsumi Computer Garage Ltd & Anor, HCCC No.810 of 2001
(unreported). It is also the position taken by Justice Vishram in Agip (K) Limited –vs-
Jimmy Komo t/z Kiambu Stores HCCC No.1738 of 2000 (unreported).

Justice Onyango Otieno and the late Justice Hewett.

The contrary position is taken by Justice Onyango Otieno in James Francis Kariuki &
Anor –vs- United Insurance Company Limited, HCCC 1450 of 2000 (unreported) and the
late Justice Hewett in the Eastern and Southern African Development bank –vs- African
Green Fields Limited HCCC 1189 of 2000 (unreported).

They hold that the provisions of the Oaths and Statutory Declarations. Act Cap 15 that
the Commissioner for oaths must state where he takes the oath are mandatory.

Breach of the same in their view invalidates the verifying affidavit. Once a verifying
affidavit is struck out in their view, the suit must likewise be struck out.

STALEMATE

The position at the High Court then is that suits will be either dismissed or saved
pending on which judge they go to. This position will prevail until the court of appeal
makes an authoritative decision on the dispute.

RECOMMEDATION

In our considered view and with respect to the dissenting judges, the position taken by
Justice Ringera and Justice Vishram is the correct interpretation of the law. You will
note from copies of their rulings that they take into account their rivals rulings and point
out why they disagree with them.

The opposite side, the Justices Onyango Otieno/Hewett School do not give as detailed
an analysis of the issues nor do they take into account arguments of the rival school.

In our considered view, the Justice Ringera/Vishram School is the proper law. We would
recommend that you appeal the ruling.

We have set in motion the process by filing the notice of appeal. Confirm if we may do
so.

We enclose herewith copies of the rulings referred to above that set out the conflicting
positions. We referred Justice Mwera to these but he did not analyse or distinguish the
same in his ruling.

The alternative to an appeal is that you can re-file the suit as it was not thrown out on
substantive grounds. We await your substantive instructions herein.”

In reply the letter dated 16th May 2002 the bank stated;

“We refer to your letter dated 16 th May 2002 and the meeting held in our offices on 12 th
June, 2002 between your Mr. Mungai and the undersigned.

You have given us two options in this matter. One is to appeal against the ruling which
dismissed our plaint and the other is to file a fresh suit. Urgently let us know the most
efficient option to take and one which will be cost effective and time saving.

Yours faithfully
Z. K. MOGAKA (Mrs)

MANAGER – LEGAL SERVICES.”

It appears after the exchange of correspondences the advocates filed a notice of appeal dated
16th May 2002. The said notice was filed in court on 21 st May 2002. In that notice, the Notice
of appeal was in respect of the decision by Mwera J given at Nairobi on 29 th day of April, 2002.
In a letter dated 16th May 2002 to the Deputy Registrar of the High Court Nairobi, the advocates
requested to be furnished with certified copies of the proceedings and ruling delivered on 29 th
April 2002 by Mwera J to enable them to file an appeal against the said ruling.

In a letter dated 13th June 2002 the advocates wrote to the bank to give further opinion on the
mode and procedure to be adopted in rectifying the ruling delivered by Mwera J and which
struck out the plaintiff’s suit. It is important to reproduce the contents of that letter;

“We refer to the above matter, our letter dated 16 th May, 2002 and the meeting held at
your offices on 12th June, 2002.

As advised you have two options in this matter;

1. To file a fresh suit,

2. to file an appeal

APPEAL

As stated in our opinion of 16th May, 2002 the issue raised has not been determined by
the court of appeal. In our considered view the position as set out by Justice Ringera is
the correct law. However, we cannot say authoritatively what position the court of
appeal will take.

There is therefore the chance (however remote) that the appeal may fail. If it does then
you would have to file a fresh suit after the appeal is determined. The danger there is
that if the appeal takes too long to be heard then you may find that you are barred by
limitation from filing a fresh suit.

It would therefore be prudent to file a fresh suit to avoid uncertainties of an appeal. If

you file a fresh suit you shall have to pay court filing fees of Kshs.70,150/=.

Confirm the course of action we should adopt. If you agree with our recommendation
then forward your cheque for the court filing fees of Kshs.70,150/=.”

In a letter dated 17th June 2002 the bank instructed the advocates to urgently proceed to file a
fresh suit to avoid the claim being time-barred in the event the bank loses the appeal. That
letter was followed by a letter dated 17 th June 2002 from the advocates to the bank informing
the bank that the defendant’s bill of costs for the dismissed suit was taxed on 14 th June 2002
and the ruling would be delivered on 18 th June 2002. The advocates again wrote a letter dated
21st June 2002 advising the bank that the bill of costs was taxed as follows:

(i) 1st and 2nd defendants were awarded Kshs.343,648/= each for a total of
Kshs.687,296/=

(ii) The 3rd defendant was awarded Kshs.352,420/=

Kindly make out cheques in the names of Desai, Sarvia & Pallan Advocates for
Kshs.687,296/= for the 1st and 2nd defendant and Sharpley Barret & Co. Advocates for
Kshs.352,420/= for the 3rd defendants to avoid execution.

We shall forward the plaint and verifying affidavits under separate cover.”

The bank replied through a letter dated 24 th June 2002 and expressed its displeasure at the
amount it was required to pay as costs to the defendants for the suit which was struck out. The
letter states as follows;

“We acknowledge receipt of your letter dated 21 st June, 2002 and have noted the
contents therein.

We are dismayed at the amount of money the Bank is required to pay as costs in this
matter. Please confirm that you attended the taxation and the amount is correct as
assessed.

In the meantime, we note that the reason our case was struck out is because of an
omission in the affidavit which was caused by yourselves. In the circumstances, we
hold you liable for the loss we have incurred in this matter including court filing fees and
the taxed costs.

If you think you have a good chance of success in the appeal, we instruct you to proceed
with the same without any further delay. Should you however find that you do not have
sufficient ground for appeal, we suggest that you compensate us the loss incurred
including the taxed costs and court filing fees. We expect your response as soon as
possible but not later than 7 days from the date hereof.

In the meantime, once you confirm that the taxed costs are correctly assessed, we shall
effect payment to avoid execution.”

The above letter is an expression of the first fall out between the bank and the advocates and it
is also the foundation of what would be a long and protracted dispute over the suit which was
struck out. From then the parties removed the kidgloves from their hands in order to be ready
for the battle that would be the subject of this determination. The advocates in a letter dated
25th June 2002 tried to inform the bank that they were not liable for what happened to the suit
and the incidental costs incurred by the bank. The letter says as follows:

“We set out at length in our letter of 16 th May, 2002 our considered view of the learned
judge’s dismissal of the suit.

As stated in our opinion it is our considered view that the learned judge was wrong in
dismissing the suit. We are fortified in our view, as stated by the rulings of Justices
Ringera and Vishram referred to in our letter.

In our respectful view, we are not liable for the costs and filing fees incurred here which
flow in our view, from a wrong decision in law. Liability is therefore denied. In our view
there are good grounds to appeal the learned judge’s ruling.

We however note that you have decided to move the file herein to another firm of
advocates with instructions to file a fresh suit.

By filing a fresh suit, you will lose the opportunity to correct the learned judge’s ruling
on appeal.
Be that as it may we note your instructions to pass on the file to Rachuonyo &
Rachuonyo Advocates. We shall forward our final fee note tomorrow and release the file
to them upon payment of our fees.”

The above letter is a second indication that all was not well between the bank and the
advocates and that the relationship was about to be thrown to the dogs. This was followed by
a letter dated 27th June 2002 from the bank to the advocates in which the bank enclosed
cheques in respect of the costs awarded by court and taxed against them by the Deputy
Registrar. The letter says in part;

“As indicated in our letter dated 24th June 2002 you should proceed with the appeal if
you have sufficient grounds to support your case. We have discussed and agreed with
M/S Rachuonyo & Rachuonyo advocates on how to handle the fresh suit. In the
meantime we forward herewith our cheque No.007141 for Kshs.352420/= payable to
Sharpley Barret & Co. Advocates and cheque No.007142 for Kshs.687296/= payable to
Desai, Savia & Pallan Advocates. ”

At this time there was another advocate who had come into the picture and in a letter dated 26 th
June 2002 M/S Rachuonyo & Rachuonyo enquired from M/S Muriu Mungai & Co. Advocates
as to when limitation in the case set in. The advocates incidentally did not reply to that letter
and M/S Rachuonyo & Rachuonyo advocates followed it in a letter dated 8 th July 2002
seeking response from the earlier letter. The bank in a letter dated 29 th July 2002 enquired
from the Advocates what was holding the release of the file to M/S Rachuonyo & Rachuonyo as
earlier been instructed. The advocates reply came in a letter dated 29 th October 2002 asking
for settlement of their costs to enable them to forward the file to M/S Rachuonyo & Rachuonyo
Advocates. The advocates sent a fee note of Kshs.2,838,899/=. This was followed by another
letter from the Advocates again asking for settlement of their fee note and threatened that they
may be forced to tax their bill and thereafter execute against the bank.

In a letter dated 17th December 2002 the bank wrote to the advocates and stated as
hereunder;

“Your Mr. Mungai last informed the undersigned that you were awaiting for typed
proceedings to enable you file the appeal. Urgently let us know whether you have now
filed the appeal. As indicated to you earlier you should proceed with the appeal if you
have sufficient grounds to support your case. Kindly confirm the position to us at the
earliest.”

In a letter dated 6th January 2003 M/S Rachuonyo & Rachuonyo Advocates wrote to the bank
and stated;

“We need your clear instructions on our letter dated 3 rd December 2002 to enable us
proceed with speed. We do not wish to file a defective plaint, and request to see all
existing pleadings to consider fully the contents of the intended new plaint and all
relevant issues including limitation and cause of action.”

When the bank got the above letter, it proceeded to write a letter dated 17 th January 2003 to
M/S Muriu Mungai & Co. Advocates. And in that letter the bank stated as follows;

“We refer to past communication on the above matter.

We are anxious to know whether you have filed the appeal as instructed. Kindly note
that we expect you to conclude the appeal as our decision on your potential liability to
us will depend on the outcome of the appeal. We therefore, urge you to pursue the issue
vigorously and conclusively. Failure to pursue the appeal will be deemed as an
admission of liability in which case we can discuss the issue of quantum. Kindly letter
us hear from you at the earliest.”

This was the third warning shot fired by the bank towards the advocates but it appears it did not
illicit a quick and comprehensive answer from the advocates.

In a letter dated 18th February 2003 the bank again addressed the advocates as hereunder;

“We are unable to understand your silence in this matter despite its urgency. Do we take
it that you are admitting liability?

Kindly note that if you fail to respond within seven days from the date hereof we shall
instruct our lawyers to make formal demand.”

The above letter is a clear manifestation that the advocates/client relationship had broken down
and on the same breadth the bank clearly intimated to the advocates that all was not well in
their relationship. The bank in a letter dated 14th July 2003 addressed the advocates as
hereunder;

“We refer to the above matter and telephone discussion this morning between your Mr.
Mungai and the undersigned.

Mr. Mungai advised that you have not yet obtained the typed proceedings to enable you
file the appeal. Note that it is one year since our case was dismissed and we are of the
view that by now you should have filed the appeal. What is holding the proceedings?

If the delay is caused by the court, kindly let us know if it would be in order for us to
write directly to court to protest the delay.

In the meantime, as discussed and agreed, kindly release copies of all the documents
required by M/S Rachuonyo & Rachuonyo Advocates. Our Mr. G. Rutto of Harambee
Avenue branch will call on you to identify the relevant documents.”

What followed that is a demand letter to the advocates where the advocates were being asked
to admit liability for the events that had caused the bank to lose its case and failure of the
advocates to file an appeal and at the same time to release the documents to M/S Rachuonyo &
Rachuonyo Advocates. The plaintiff then filed the present suit on 5 th October 2004. And in
paragraph 6 of the plaint, the plaintiff contends as hereunder;

“By the said retainer, it was agreed or contemplated between the parties that the
Defendants in the performance and/or execution of the Plaintiff’s instructions, shall, inter
alia:

(a) Carry out the Plaintiff’s instructions by all proper means;

(b) Follow the correct procedure in pursuing the Plaintiff’s case;

(c) Exercise reasonable care and skill;

(d) Adopt recognized methods of Legal drafting;

(e) Observe statutory requirements in drafting and presenting cases to Court;

(f) Protect the Plaintiff’s interests by all proper means;

(g) Keep the Plaintiff informed of the progress of the matters;

(h) At all times make available to the Plaintiff all documents relating to its matters and;

(i) Promptly respond to the Plaintiff’s inquiries.

And in paragraph 7 the plaintiff contends;

“In execution of the Plaintiff’s instructions, the Defendants drew pleadings and filed a
suit namely H. C.C.C. No.1464 of 2000 at Milimani Commercial Court between the Plaintiff
herein (as Plaintiff therein) and the Guarantors (as the Defendants therein) for recovery
of Kshs.10,000,000.00 with interest at 36% per annum from 15.10.96 and cost. The
Plaintiff shall at the hearing refer to the Plaint and verifying affidavit for their full tenor
meaning an purport.”

The cause of action against the defendant has been defined and/or stated in paragraph 12 of
the Plaint;

“The Defendants have therefore breached the express, implied or contemplated terms of
the retainer agreement.

Particulars of breach of contract.

(a) Drawing and filing defective pleadings;

(b) Failing to carry out the instructions of the Plaintiff by proper means;

(c) Failing to observe statutory requirements in drafting the Plaint and verifying
affidavit;

(d) Failing to disclose where the verifying affidavit was drawn;

(e) Failing to take remedial measures or other steps to prevent the striking out of the
suit;

(f) Failing to lodge or file appeal as instructed;

(g) Failing to inform and keep the Plaintiff informed of the progress of the matters;

(h) Failing to avail to the Plaintiff necessary documents relating to the matter
including files, rulings and orders;

(i) Withholding documents and information relating to the matter and

(j) Failing to attend to the Plaintiff’s instructions with reasonable care and skill.

In paragraph 14 & 15 of the Plaint the plaintiff avers as follows;

14. In the alternative and without prejudice to the aforegoing, the Plaintiff avers that the
Defendants were negligent in drafting, filing and prosecuting the claim, and in failing to
file the appeal.

Particulars of negligence

(a) Filing a defective suit;

(b) Failing to exercise reasonable care and skill;

(c) Failing to observe mandatory rules and regulations;

(d) Failing to disclose where the verifying Affidavit was drawn;

(e) Failing to take action as to prevent the striking out of the suit;

(f) Failing to observe common professional practice;

(g) Failing to notice the defect in the Verifying Affidavit;

(h) Failing to remedy the defect in the Verifying Affidavit in good time or at all;

(i) Allowing the suit to be struck out;

(j) Failing to file the intended appeal; and

(k) Failing to inform client of the progress of suit.

15. As a consequence, the Plaintiff has suffered loss and damage.

Particulars of loss and damage

(a) Kshs.1,039,716.00 being costs awarded to Defendants in HCCC No.1464/2000

(b) Kshs.2,838,899.98 being costs paid to the Defendants herein.

(c) Kshs.10,000,000.00 with interest at 36% per annum from 15.10.96 until full
settlement.

(d) Kshs.71,000.00 being filing charges of HCCC No.1464/2000.

In their defence dated 10th November 2004 the advocates contend that it is true that sometimes
between January and February 2000 they were requested to peruse various files relating to a
debt of Kshs.95839627.60 allegedly owing to the plaintiffs by a company known as Tai Jean
Garments Limited and guaranteed by some of its directors. It was then that Mr. Njoroge
Nani Mungai Advocate visited the Plaintiff’s offices and held meetings with its officials in order
to peruse the files and advise the bank on the contents. It is alleged that the records availed to
the 2nd defendant revealed that the plaintiff had the opportunity to recovery of its outlay to Tai
Jean Garments Limited from proceeds of letters of credit that had secured the advances
thereof but had failed to do so. It is also contended that there had been deliberate suppression
of internal bank vouchers that would have enabled the bank to recover the money advanced to
Tai Jean Garments Limited. The bank was also asked by the advocates whether it had
reconciled its statement of accounts and made adjustments to reverse and write bank interest
charged for late credits that had arisen from suppression of vouchers. The advocate also
found that payment instructions effected by the plaintiff to Tai Jean Garments account had
been done or were signed by persons who did not have the legitimate instructions or mandate.
There were also discrepancies in the documentation creating and evidencing the facilities. The
advocate then advised the bank and expressed reservation on success of the claim of Kshs.95
million against Tai Jean Garments Limited.

It was then that the decision to pursue the directors and/or guarantors was arrived at since the
principal debtor had gone under. It is the contention of the defendant that the decision by the
plaintiff to file suit was made in full knowledge of the inherent weakness of their case.
However, the advocates allegedly carried out the instructions to file suit properly, professionally
and exercised due care and conformed to the common practice of lawyers in Kenya in drawing
up the plaintiff and the affidavit in question.

In paragraph 9 the defendants contend that;

i) They informed the plaintiffs promptly of the striking out of the verifying affidavit in
question, gave them their professional opinion on the ruling and set out the options
available to the plaintiffs.

ii) Specifically the defendant adviced the plaintiffs that the ruling was contrary to
existing High court decisions and was in the defendants considered view wrong in law.

iii) Further that the plaintiffs had the option of either appealing the said ruling or in the
alternative filing a fresh suit.

iv) That as a pre-caution the defendants filed a notice of appeal on time and
requested for typed proceedings to facilitate an appeal.

v) That the plaintiff elected to file a fresh suit despite the defendant’s express
opinion that filing a fresh suit would disentitle them to an appeal.

vi) The plaintiffs requested the defendants to release requisite documents to M/S
Rachuonyo to enable them file a fresh suit which was done.

And in paragraph 11 and 12 the defendants contend;

11. The defendant further deny that they were negligent as alleged in paragraph 14 of
the plaint or at all and repeat paragraph 3-9 of the defence. In particular the defendant;

i) Deny that they filed a defective suit as alleged.

ii) Aver that they exercised proper care and skill and conformed to the practice of
drafting that was common in Kenya.

iii) Aver that they made spirited arguments in defence of the striking out of the
affidavit.

iv) Aver that they commenced the required actions to file an appeal but the plaintiffs
elected to file a fresh suit instead.

12. The defendants deny that the plaintiffs suffered the loss and damage set out in
paragraph 15 and further aver that by electing to file a fresh suit the plaintiffs opted to
forego their right and the opportunity to mitigate any loss. Further the defendants;

i) Aver that costs paid to the defendant in HCCC 1464 of 2000 would have been
reversed on appeal. The plaintiffs opted to forego this option by filing a fresh suit.

ii) Aver that the defendants have not been paid their fees for acting in that suit.

iii) Aver that the plaintiffs cannot claim the principal amount due in HCCC 1464 of
2000 from the defendant since they elected to file a fresh suit thereof as that would
amount to unjust enrichment.

iv) Aver that the plaintiff’s claim in HCCC 1464 of 2000 was in any event not certain in
light of the discrepancies in the Plaintiff’s records and the deliberate actions of its staff
detailed above.
v) Aver that HCCC 1464 of 2000 was a speculative suit filed by the Plaintiff in spite of
the defendant’s advice. And the defendants plead the doctrine of volenti non fit injuria.

vi) The defendants repeat (i) – (v) above in respect of the claim for filing fees.

The plaintiff called one witness who heavily relied on documentary evidence that were produced
before court on consent of both sides. In her evidence she stated that the defendant was
instructed pursuant to a retainer to file suit HCCC No.1464 of 2000 in Milimani Commercial
Courts. That suit was struck out on 6 th May 2002 with costs to the defendants on the ground
that the verifying affidavit was defective. She stated that the defect leading to the striking out of
the suit was identified as non compliance of section 5 of Cap 15 Laws of Kenya. More
particularly that the jurat did not indicate the place of his commissioning.

In her evidence she contended that the affidavit together with the plaint was drawn by the
defendant herein. She also contended that the advocate Mr. Nani Mungai who is the 2nd
defendant in his submission before court conceded that the verifying affidavit did not comply
with section 5 of Cap 15 Laws of Kenya therefore, the position taken by the plaintiff in this
matter is that the defendant ought to have drawn a proper affidavit and in failing to do so they
were negligent. It is also the position of the plaintiff that the advocates knew of the provisions of
law requiring them to disclose the place where the affidavit is sworn and in proceeding to
prepare and file an affidavit which was improper, they acted without reasonable care which they
owe to the plaintiff. It is further contended that the defendants failed to notice the defect in the
affidavit in good time despite a preliminary objection having been raised by the defendants in
that suit. It is the position of the plaintiff that the defendants took no steps to remedy or correct
the defect.

It is also the evidence of the plaintiff that upon striking out of the suit the defendant gave an
opinion to the plaintiff in which opinion they said that the plaintiff had a good chance on appeal
and required the bank to pursue an appeal and also file a fresh suit, which fresh suit was to lay
dormant pending the hearing and determination of the intended appeal. The plaintiff contends
that it gave the defendants full and proper instructions in order to remedy the situation. In
conclusion it is the case of the plaintiff that the defendants had not filed appeal and has
subsequently refused to release its documents and files to another advocate for perusal and
further action. And that since no appeal was filed and that since the defendants had refused to
reply to correspondences from the plaintiff, they are responsible for the losses incurred being
the costs of the suit dismissed, the sum claimed in the earlier suit plus the costs of this suit.

The defendants on their part called one witness Mr. Njoroge Nani Mungai Advocate and who
was personally dealing with the plaintiff’s matter from the start to the end. He stated that after
filing the plaint in HCCC No.1464 of 2000, he received a notice of preliminary objection by the
defendants in that suit. He stated that it is true that they did not notify the bank of the filing of
the preliminary objection because it raised a purely point of law. However, he prepared
adequately for the preliminary objection and argued in opposition to it substantively before
Justice Mwera. He relied on legal authorities and distinguished the ones relied upon by the
defendant’s advocates. The preliminary objection was upheld by the learned Judge that the
verifying affidavit in support of the plaint was defective for failure to disclose the place the oath
was taken as required by section 5 of cap 15 Laws of Kenya.

The evidence of Mr. Njoroge Nani Mungai before this court is that the omission was not on the
part of the present defendant but on the part of commissioner for oaths. He contended that
section 5 of Cap 15 places obligation of stating the place where the oath is taken on the
commissioner. i.e. the date and the time the affidavit was sworn. It was also his evidence that
the ruling was delivered on 29 th April 2002 and he informed the bank through a letter dated 16 th
May 2002. In that letter he gave the bank two options to appeal or to file a fresh suit since the
striking out was on technicality. He also stated that as a precaution he had filed a Notice of
Appeal dated 16th May 2002 before getting substantive instructions from the bank. And that he
also contended that no ruling was delivered on 6 th May 2002 as alleged by the plaintiff.

After the close of the respective cases the parties filed written skeleton submissions
adequately supported by various authorities. The submissions were made by Mr. Ojiambo for
the plaintiff and Mr. Billing for the defendants.

It is clear that the plaintiff enlisted the services of the defendant to recover a huge debt from
M/S Tai Jean Garments Limited. At the time the debt stood at over Kshs.95 million. The
defendants having perused the relevant documents and the law applicable advised the plaintiff
herein to limit its claim to the sum of Kshs.10 million given by the directors of the said company
plus interest at 36% per annum being the interest in the facility letter. The defendant advised
the plaintiff bank to file suit and ask for filing fees and the necessary charges. No doubt the
plaintiff accepted the advice and instructed the defendant’s advocates to sue for Kshs.10 million
as proposed. Based on that instruction the advocates through a plaint dated 24 th July 2002 with
a verifying affidavit and filed the same at Milimani as HCCC No.1464 of 2000 against the three
directors of Tai Jean Garments Limited. The defendant in that suit instructed two firms of
advocates and after various false starts the matter was set down for hearing on 15 th April 2002.

Before the hearing date, the defendants in that suit filed a preliminary objection on a point of law
dated 16th July 2001 seeking to strike out the plaint that the verifying affidavit did not comply
with section 5 of Cap 15 Laws of Kenya. After hearing the rival submissions of both sides, the
trial judge struck out the plaint with costs to the defendants. The basis of the current dispute
can be rightly attributed to the preliminary objection dated 16 th July 2001 and which was upheld
by the trial court.

The question that arises is the legal position of a defective verifying affidavit filed on behalf
of a party and who subsequently loses his claim by virtue of that defect. Section 5 of Cap 15
states;

“Every commissioner for oaths before whom any oath or affidavit is taken or made under
this Act shall state truly in the jurat or attestation at what place and on what date the oath
or affidavit is taken or made.”

It is clear that the defendants were instructed to protect the interest of the bank in HCC No.1464
of 2000. The plaint and the supporting verifying affidavit was duly prepared by the defendants
herein. The objection to the verifying affidavit came to the knowledge of the defendants herein
through a notice dated 16th July 2001.

The objection was canvassed before the trial court on 15 th April 2002. Mr. Njoroge Nani
Mungai advocate in his submission readily conceded that the verifying affidavit contravenes
section 5 of Cap 15 Laws of Kenya. The Defendants admit having drawn the verifying affidavit
and Mr. Njoroge Nani Mungai also confirmed having checked it before filing it in court. In
paragraph 8 of their defence the defendant maintained that in drawing the plaint and the
affidavit in question they confronted the practice common in Kenya and that they were
professional and exercised due care. They also contend that admission that the verifying
affidavit was defective is qualified or conditional in that the verifying affidavit is not fatally
defective and it was the duty of the commissioner of oaths under section 5 of Cap 15 Laws of
Kenya to certify that the affidavit was in order. They also deny that they were negligent but
admit that there was a mistake.

The question that falls for my determination in such circumstance is whether first it was the
responsibility of the commissioner for oaths to detect and certify the affidavit was in correct
form. And secondly whether the failure to conform to section 5 of Cap 15 is an ordinary
mistake. It is also important for me to determine whether ignorance of a statute constantly
being invoked constitutes to negligence. It has long been established principle that every
person who enters into the legal profession impliedly agrees to bring himself to a reasonable
degree of care and skill, thus what is required of an advocate is a fair, reasonable and
competent degree of skill. Therefore, there is plainly a duty on all advocates to exercise
exceptional care in handling matters on behalf of their clients. However, the standard of care
depends on the circumstances in each particular case. So long as there is an assumption of
responsibility by the professional men, he owes a duty of care to all those relying on his skills
and judgement.

I wish to state that it is impossible to find the correct answer on the facts to the plaintiff’s claim
until the relevant criteria for ascertaining whether or not there was a duty to take care has been
clearly established. This court is aware of the dangers of imposing upon advocates or upon
professional men in other spheres, duties which go beyond the scope of what they are
requested to undertake. It is often true, that a particularly meticulous and conscientious
practitioner would in his client’s general interests, take it upon himself, to pursue a line of inquiry
beyond the strict limits comprehended by his instructions. Under such situations the test is
what a reasonable and competent practitioner would do having regard to the standards and
limits normally and/or usually adopted in his profession. i.e. to deal with any hazards of the kind
which should be obvious at the material time when the dance is in progress at the dance floor.
In my view a party cannot be allowed to correct an error committed when the dance is over and
the horse has bolted.

The point I am making is that a doctor who forgets his surgical materials inside the stomach of
his client after closing the wound would be liable for negligence unless he can show that the
surgical room was attacked by the illegal gang who endangered his life or that he found himself
in an extraordinary or unusual circumstances at the time he was closing the wound. The law
places a responsibility on all professionals to exercise prudent and reasonable care for the
safety, security and protection and preservation of the property/life entrusted on them. One
cannot escape liability by asking for half payment or for saying that what he/she did was
reasonable. The test is not what he endeavours or undertakes to do but that which can meet
the test of reasonability.

It is also important to note that an action by a client against an advocate alleging negligence
in the conduct of the client’s affairs is an action of breach of contract. It is also the law that
where at the time of making a contract it is within the contemplation of the contracting parties
that a foreseeable result of a breach of the contract will be to cause loss or damages then if a
breach occurs which does bring about that result, damages are reasonable under that heading.
In this case the bank instructed the advocate to take the proceedings at law to protect and
return monies lost by the bank and as a result HCCC No.1464 of 2000 was commenced. The
advocates in law were under a duty by contract to use reasonable care and to avoid putting the
bank in a situation that would result in want of care. It must have been in the contemplation of
the parties herein that if the advocates failed on their duty the bank would be susceptible to
grave loss and damages.

The case of the defendant is that the plaintiff has not proved that they were grossly negligent
and they relied on several authorities on that proposition. In Champion Motor Spares Limited
vs Phadke & others (1969) E.A. 42, the Court of Appeal held;

“An Advocate is not liable for any reasonable error of Judgement or for ignorance of
some obscure point of Law, but is liable for an act of gross negligence or ignorance of
elementary matters of law consistently arising in practice. ….on an advocate’s liability for
negligence, the English cases are not, I think, of great assistance, because the law in
England relating to barristers is different from that relating to solicitors, while in East
Africa we have a unified profession. In regard to negligence, as in all other matters, I
think all advocates must be treated alike. It is clear from s. 72 of the Advocates Act
(Cap.258), that advocates in Uganda may be liable for negligence and cannot divest
themselves of that liability, and it would seem, from Barry v. Keharchand (1919), 8
E.A.L.R. 102, that that liability extends to instituting proceedings on the instructions of a
client, without informing the client that those proceedings were bound to fail. That
seems to me analogous to the present position, where the respondents were, in the
words of the plaint “instructed by the Plaintiff… to defend the Plaintiff and to take all
steps necessary to protect the Plaintiff’s interests in the said suit” and where they failed
to advise their client that the third party proceedings could and should be resisted.

It is probable that the failure of the respondents to adopt this course was at least in part,
due to the fact that there were three other suits arising out of the same accident, where
the third party procedure was appropriate. While that might explain, it cannot, I think,
excuse the mistake.

It was, I think, agreed by counsel, and I would agree, that an advocate cannot be liable for
any reasonable error of judgement or for ignorance of some obscure point of law. He
may, however, be liable for an act of gross negligence or ignorance of elementary
matters of law constantly arising in practice. It is impossible to draw any precise line:
ultimately, every case will be one of degree.”

In the same judgement DUFFUS, Ag. V.P. of the court had this to say;

“The extent of an advocate’s liability to his client for negligence has been considered at
various times by this Court. I would refer to the case of Stephens & co. v Allen (1918), 7
E.A.L.R. 197. This case went to the Privy Council (1921), 8 E.A.L.R. 211. The following
extract from the judgement of the Privy Council is of some assistance:

“The question of negligence with regard to the performance of a solicitor’s duty must to
some extent be affected by the local conditions and the local circumstances, as to which
their Lordships might not be perfectly informed. In the present case the negligence is
alleged to be due to the ignorance of the provisions of an Act of Parliament. It may well
be that in Nairobi this Act of Parliament has practically never been heard of in judicial
proceedings; it is impossible for their Lordships to know; but the question as to whether
a solicitor is negligent or not in omitting to give effect to a statutory provision cannot be
disentangled from the consideration of whether the statute that is involved is one which
is of constant and common occurrence in practice or whether it is one unfamiliar and
remote. With those circumstances their Lordships are unable to deal”.

RUSSEL, J., in his judgement on appeal considered this question very fully and with
respect has in my view, correctly set out the degree of care required by an advocate
practicing in Uganda. He quoted from the following passages from the judgment of
LORD DENNING, in the recent English decision of Rondel v Worsley, (1967) 3 All E.R.
993:

“Finally it must be remembered that counsel is not liable in negligence merely because
he expresses an opinion which ultimately turns out to be wrong nor merely because he
overlooks one of a number of relevant authorities. Further, in spite of the expression of
LYNSKEY, J., in Pentecost v London District auditor, (1951) 2 All E. R. 330 that so far as
civil proceedings are concerned gross negligence is not known to the English Common
Law, I remain of the opinion that counsel will only be guilty of crass negligentia or gross
negligence by some really elementary blunder, see Purves v Landelll (1845), 12 Cl. & Fn.
91”.

I agree with RUSSEL, J., that the liability of an advocate to his client for negligence in
performing his professional duties must generally arise from some really elementary
mistake and not be an error of judgement on some complicated point or one of doubtful
construction. Each case must depend on its own particular facts, and as SCRUTTEN, L.
J., said in Fletcher & Son v Jubb Booth & Helliwell, (1920) 1 K.B. 275 at p. 280:
“And moreover I accept the opinion of TINDAL, C.J., in Godefroy v Dalton, 6 Bing. 460,
that it would be extremely difficult to define the exact limit by which the skill and
diligence which a solicitor undertakes to furnish between that reasonable skill and
diligence which appears to satisfy his undertaking, and that crassa negligentia, or lata
culpa mentioned in some of the cases, for which he is undoubtedly responsible. It is a
question of degree and there is a borderland within which it is difficult to say whether a
breach of duty has or has not been committed”.”

The first question for me to determine is whether or not the defendant made any mistake or
error in their handling of the plaintiff’s case. The law is that an advocate is not guilty of
negligence if he merely committed an error of judgement whether on matters of discretion or
law. It is alleged that the plaintiff has not proved that the defendants were ignorant of law
constantly arising in practice. And that the submission made by Mr. Nani before Justice
Mwera shows that the issue of verifying affidavit is not elementary because there are
conflicting decisions of the High Court. The defendant relied on the case of Insurance
Company of North America case [1960]EA page 993 where it was held;

“What is necessary to maintain such an action? Most undoubtedly, that the professional
adviser should be guilty of some misconduct, some fraudulent proceeding, or should be
chargeable with gross negligence or with gross ignorance. It is only upon one or other
of those grounds that the client can maintain an action against the professional
adviser”…..it would be extremely difficult to define the exact limit by which the skill and
diligence….it is a question of degree and there is a borderland within which it is difficult
to say whether a breach of duty has or has not been committed”.

In my understanding of the defendant’s case is that an advocate is only responsible in

negligence to his client for gross ignorance or gross negligence in the performance of his
professional services. And that the advocates herein did what was expected of them in the
circumstances of the case. It is also contended by the defendants that an advocate is not
responsible for the failure of a case entrusted to his management when he pursues the ordinary
and accustomed course in the conduct of it, except for gross negligence or ignorance. In
essence to make an advocate liable there must be evidence to show there was a manifest want
of skill or great negligence. And that you can only expect from an advocate that he will be
honest and diligent and if there is no fault to be found either with his integrity or diligence, then
he is not answerable. It is clear that it would be utterly impossible that you will ever find a class
of men who would give a guarantee, binding themselves, in giving legal advice and conducting
suits to be always in the right. In general an advocate owes a duty to his client to take
reasonable care not only to protect his client against committing a breach of the law but also to
protect him against a risk being in a litigation which is hopeless. However, it may not be part of
the duty of an advocate to know the success or guarantee, a success in a litigation, yet it is his
duty to take care, not to draw wrong or defective documents on behalf of his client.

The gist of the plaintiff’s claim is that the defendants are solely responsible for filing the
defective verifying affidavit. And that having conceded that the one filed did not conform with
the requirements of section 5 of Cap 15 they ought to have taken remedial measures to correct
the situation. It is clear that the verifying affidavit was filed by the defendants together with the
plaint, therefore, in drawing the plaint and the affidavit in question they were required to conform
to a practice common in Kenya since they were professional advocates engaged in the
business of litigation. The drawing of an affidavit and more particularly the style and mode of a
jurat is a matter that has to be within the requirement of section 5 of Cap 15. In my view Cap 15
is a common and well known Act and a lawyer of ordinary experience is taken to know its
provisions. In any case an advocate is bound to acquaint himself with the machinery by which
the practice of a particular court is regulated and to see that it is adequate to the carrying out of
the objects of the suit, he intends to undertake on behalf of his client. Before filing a suit an
advocate should or is expected to take care to identify the proper parties, the correct cause of
action, the pleadings are in order and above all, all documents are proper and/or legitimate to
appear before court. It is also contended by the plaintiff that the drawing of an affidavit is not an
obscure point of law. The jurat is provided under rule 10 of the Oaths and Statutory rules. The
form of the jurat and identification of exhibits must be as as set out in the third schedule.

In ordinary parlance drawing of an affidavit is an elementary matter of law constantly arising in

practice and advocates who are engaged in litigation are expected to know the requirements of
section 5 and rule 10 of Cap 15. As a result the plaint and the verifying affidavit is required to
be checked by the advocate who is engaged by the client before it is filed in court. As human
beings, we can and we should be expected to make errors however, it is important to show
steps taken which eliminates the existence of a common error of judgement.

In this case, the defendants did not contest that the affidavit as drawn and filed contravene the
law. DW1 readily accepted that the affidavit was defective in not disclosing where it was
sworn. However, he contended that the defect and omission in that affidavit can only be
attributed to the commissioner. The advocate who commissioned the verifying affidavit was not
instructed by the bank but by the defendants who took the affidavit for commissioning. It can
therefore be safely concluded that there was no privity of contract or relationship between the
bank and Mr. L. Njoroge who commissioned the affidavit on 24th July 2002. In essence there
is no sufficient cause of action that flows from the failure by Mr. L. Njoroge to conform with the
requirement of section 5 of Cap 15 that can be pursued by the bank.

The bank in this case instructed the defendants and it was incumbent upon them to sustain a
proper documentation before court. The duty of the defendants was to ensure pleadings and/or
documents filed before court are within the requirement of ordinary and known law and
procedure. Any failure that would result from that omission or action can only be attributed to
the advocates on record for the client. It was submitted by Mr. Ojiambo advocate that by
drawing the affidavit in question, the defendants failed to observe elementary statutory
requirement under section 5 of Cap 15. And that the defendants’ fault constitutes negligence
and therefore, they are liable to the plaintiff.

In deciding whether the defendants committed an act which constitutes negligence, it is

important to address the degree and the circumstances surrounding the whole issue. The
starting point is there is no specific provision in the Advocates Act setting out the standard of
duty required by an advocate in the discharge of his professional duties but generally the law
recognizes that an advocate may be liable to his client for negligence. The extent of an
advocate’s liability to his client for negligence has been a mute point for judicial consideration.
In my view it is not enough to prove that the advocate had made an error of judgement or
ignorance of some particular point of law. But the error must be one that ordinarily a competent
and skilled advocate exercising due care would not have made or shown it. It would be
extremely difficult to define exact limit by which the skill and diligence which an advocate
undertakes to furnish in conduct of a case is founded. It is also difficult to define precisely the
dividing line between what is reasonable skill and diligence which appears to satisfy his
undertaking for which he is undoubtedly responsible.

It is well known that litigation is always hazardous, therefore, an advocate must always realize
that most questions have more than one aspect or interpretation. It is not possible to lay down
any hard and fast rule that an advocate would be required to follow in the discharge of his
duties/mandate. It suffices to say, that the variety of matters with which an advocate has to
have some familiarity increases by the day due to the emerging trend of litigation which involves
a lot of special skills, sophistication and modern ingenuity. I must add, that the conduct of
litigation is pre-eminently an art, which requires exceptional ingenuity or foresight to avoid
ordinary perils to a client. The facts found by a court after hearing evidence and considering
the law on both sides may be far greatly from the facts pleaded at the outset. It is also clear
that, in the application of the law to the facts and with exercise of discretion, the approach/route
of one judge may possibly be far from that of another. In such circumstances an advocate is
required to display reasonable skill and care to avoid perils to his client. He must show that he
fully and properly performed his instructions and that he faithfully carries out the clients
instructions to the letter.

The defendants were instructed to file a proper case with all the relevant documents before
court on behalf of the plaintiff herein. In undertaking that instruction, it is not open to the
advocates to say any defects in the documents filed before court is attributable to a third party
who had no relationship with the bank. In deed therefore, that the advocates were required to
file a proper verifying affidavit and ensure that the same was proper within the requirements of
section 5 of Cap 15. The failure to observe elementary statutory requirements and take the
necessary steps to remedy the defects can only be placed at the door steps of the party who
was instructed the bank. The commissioner for oaths had not prepared the verifying affidavit
but his role was only limited to commissioning the same. It means therefore, that the fault to file
a proper affidavit before court was the responsibility of the advocates who took instructions from
the bank.

The defendants in HCC No.1464 of 2000 filed a preliminary objection on a point of law dated
16th July 2001 seeking to strike out the plaint that the verifying affidavit did not comply with
section 5 of Cap 15. The matter was set down for hearing on 15 th April 2002. There is no
indication that the advocates filed an application seeking leave to be allowed to file a proper
affidavit which conforms with the necessary requirement of the law. In their submission before
court, the advocates readily conceded to court that the verifying affidavit contrived section 5 of
Cap 15. They also admit that having drawn the verifying affidavit, hence they were required to
check it before filing it in court. The defendants at paragraph 8 of the defence maintain that in
drawing the plaint and the affidavit in question they conformed to a practice in Kenya and that
they were professional and exercised due care.

In my understanding the requirements under Cap 15 is a common and elementary requirement

well known to all competent and practicing advocates. A lawyer of ordinary practice is taken to
know the provisions concerning the drawing of an affidavit and more particularly the way the
jurat is supposed to appear in the affidavit. In my determination the question that arises is
whether the requirement under section 5 is an obscure point of law. In my view drawing of an
affidavit is an elementary matter of law constantly arising in practice and the defendants were
expected to know the same. The defendants were aware and alive that there was an obvious
danger that a different view might be taken by the Judge who would hear or who was bound to
hear the preliminary objection since the question had not been settled. The advocates knew,
that matters which are contentious like the issue of verifying affidavit frequently involve or
require a higher degree of judgement.

I agree that an advocate is not liable for any reasonable error of judgement or for ignorance of
some obscure point of law however, he can be held liable for any act of gross negligence or
ignorance of elementary matters of law constantly arising in practice. The defendants were well
aware of the two schools of thoughts that existed in the High Court. Where an advocate is in
dilemma which is not of his making and he is forced to chose between two or more evils and/or
routes, the court would be slow to castigate his actual decision as negligent. In fact where the
issue at stake is a difficult point of law then he is not liable in negligence so long as the opinion
which expresses or the route which he takes is a reasonable one. Nevertheless, it is always
prudent for an advocate to take the safe route and also qualify his advice when he is not sure of
the outcome.

In a letter dated 16th May 2002 to the bank, the advocates analyzed the sharp divisions or
opinions in the High Court on the issue of the verifying affidavit that did not in the jurat state
where the oath was taken. From the analysis of that letter, the advocates were aware of the
stalemate and the position taken by different judges. They also gave a detailed analysis on the
arguments of the rival schools of thought taken by the judges of the High Court. In the opinion
of the advocates the proper law was that as advanced by Ringera and Visram JJ in the
decision of Microsoft Corporation and Agip Kenya Limited respectively. In giving that
proposition after the bank’s suit was struck out the advocates were well aware of the divergent
and contradictory positions taken by different judges of the High court on the issue that was at
stake.

In such circumstances, the advocate had a duty to consider the situation with great care and
skill. They were aware or had knowledge of the two conflicting or potentially conflicting
opinions/decisions taken by different judges of High Court. The advocates were not exposed to
somewhat difficult question of law but one of the most prolific but simple disagreements
amongst Judges on the route to be taken when the jurat of a verifying affidavit did not conform
with section 5 Cap 15 Laws of Kenya. The position taken by most Judges in High Court is that
where the plaintiff has attempted to comply with the law requiring verification of a plaint but has
fallen short of prescribed standards, the court would not elevate form and procedure to a fetish
position to strike out the suit. In essence the failure to state the place where an affidavit was
taken in the jurat does not ipso facto make such an affidavit fatally defective and that discretion
of the court should be exercised in the case of an omission or defect of the verifying affidavit
which did not go to the jurisdiction of the court or does not prejudice the opposite party in any
fundamental aspect. The opposing side is the one expressed by Mwera J in his ruling dated 6th
May 2002. In my respective view the advocates were in a position to salvage the case of the
client before it was heard on 15th April 2002.

The issue in dispute was not some obscure point of law but was an elementary matter of law
constantly arising before advocates practicing in the High Court. The issue of the jurat was a
point of common occurrence. It was not difficult but a fairly straightforward issue that would
ordinarily arise in a common litigation in the High Court. The advocates did not file an
application seeking leave to be allowed to file a proper verifying affidavit. It is clear that in their
legal opinion dated 16th May 2002, the advocates observed that where a verifying affidavit was
defective or was struck out, the court could allow the offending party to file a replacement or
substitute affidavit to remedy the defect.

The law is that an advocate who holds himself out to his client as having adequate skills and
knowledge to conduct the case he is instructed owes a duty to his client both in contract and
tort. Where the advocates is in breach of his contractual duty to his client or where he fails to
use proper care towards the fulfillment of the instructions he was given, he is liable in damages
in so far as the client suffers the loss. However, when the obligation becomes impossible of
performance not because of lack of skill or care, then the advocate is not liable. What the
advocate is required where he has been entrusted with the management of a client’s case is to
follow or pursue ordinary and accustomed course in the conduct of that case. To make him
liable, it is essential to show that there was either a manifest want of skill or great negligence.
What is expected of an advocate is that he would be honest, faithful and diligent in the
discharge of his instructions. As they say it would be utterly impossible that you could ever
have a class of men who would give a guarantee binding themselves in giving legal advice and
conducting suits at law to be always in the right. In essence an advocate is only liable where it
has been shown that in his dealings or conduct there is an element of want of reasonable skill
or that he has been guilty of gross negligence.

In Civil Appeal No.53 of 2003 Moses Kipkolum Kogo vs Nyamogo & Nyamogo Advocates
the Court of Appeal had this to say in cases involving negligence of an advocate;

“As regards the preparation of the memorandum of appeal, it was the appellant’s
contention that the respondent was negligent. It transpired that after the judgement of
Juma, J, in H.C.C.C. No.4925 of 1989, it was the appellant who brought pressure on the
respondent to file the appeal which was dismissed and we have already set out
elsewhere in this judgement what this Court said in that appeal.

On the contentious issue of an advocate’s negligence towards his client and the basis
for liability, we wish to point out that in CHAMPION MOTOR SPARES LTD. V. PHADKE
AND OTHERS [1969] E.A. 42 the predecessor of this Court held, among other things, that
an advocate is not liable for any reasonable error of judgement or for ignorance of some
obscure point of law, but is liable for an act of gross negligence or ignorance of
elementary matters of law constantly arising in practice.

We have considered very carefully the conduct of the respondent in handling the
appellant’s case before Juma J. up to the filing and handling of Civil Appeal No.74 of
1998 and it is our considered opinion that we decipher nothing close to professional
negligence. It was not the duty of the advocates to help the appellant in gathering the
evidence with which to prove his case. He himself said he was not receiving pay-slips
and when cross-examined he did not say that the pay-roll through which he received his
salary was still available and could be produced. So that even if the respondent had told
him to bring his pay-slips, the appellant could not have done so because they were not
there. We find no fault in the judgement of Githinji, J. and it follows that the appellant’s
appeal must fail.”

One of the principal areas in which the client looks to his advocate for guidance is the
explanation of legal documents. It is normally in reliance of the advocates advice that the client
signs such documents or permits them to be signed on his behalf. The advocate therefore,
owes a general duty to explain such documents to the client or at least to ensure that he
understands the material and contents of that document. An advocate is required always to
make sure that his client is distinctly acquainted with any legal step he may take. In essence a
shoe maker who agrees to make a pair of shoes cannot offer the owner of the shoes one shoe
and ask him to pay one half the price since the other shoe has been lost.

The point I am trying to make is that when a client goes to an advocate, it is a reasonably
foreseeable consequence that if anything goes wrong to the litigation, owing to the advocate’s
negligence, there will be a liability that would arise or accrue. It is also clear that a charge of
negligence against an advocate is a serious matter and must be strictly and distinctly proved.
However, the issue of negligence should be approached with the greatest care and caution. It
is an established principle that advocates should not be harassed or intimidated by claims of
negligence years after the event. On the other hand, as the courts are often at pains to
emphasize, not every mistake amounting to professional negligence is deserving of some moral
censure. Therefore liability will always depend upon the nature and description of mistake and
want of skill which has been shown.

The matter that brought about this dispute concerns the provisions of section 5 of Cap 15.
In my view this was a matter with which advocates ought to have been familiar or if not with
which they should have familiarized themselves with. And their failure to advise their client
properly or to file a proper affidavit amounted to a clear lapse of responsibility. The point was
not a difficult one and there was no error of judgement to say that the advocates were able to
bring out another dimension to the issue. It has been alleged that, it is probable that the failure
of the defendants to adopt a proper course were due to the fact that there were divergent views
and verdicts given by High Court on the issue of verifying affidavit and in particular the
provisions of section 5 of Cap 15. The point was novel but it was not difficult and it had been
repeatedly canvassed before the High Court, therefore, the advocates were duty bound to take
remedial measures that would not prejudice the case of the bank.

With respect, the defendants’ handling of the High Court action the following criticisms can
be put at the doorstep of the defendants;

(1) The advocates were throughout very ambivalent in their attitudes on their responsibility
and obligation towards the bank.

(2) It was reasonably contemplated that they were required to perform the instructions given
to them by the bank and to take proceedings at law to protect and return monies lost to the
defendant in HCCC 1464 of 2000. The advocates were under duty by contract to use
reasonable care and to avoid instances that would result in want of care. It must have been in
their contemplation that if they failed on their duty the bank would be skeptical to grave loss and
damage. It was obvious that carelessness on their part would likely to cause loss and
damages.

(3) The advocates were expected to have knowledge where the question was one of
practical procedure not involving any special difficulty. In essence ignorance or non
observance of the rules of practice, want of care in the preparation of action for trial or failure to
attend during hearings and delivery of rulings would be a foreseeable result of negligence.

(4) An advocate is usually liable for negligence where before bringing the action he fails to
make proper investigations into the cause of action, preparing wrong or defective pleadings or
failure to check documents in order to establish whether they conform with the law, practice and
procedure commonly used within the corridors of the High Court and Court of Appeal. Where
an advocate advises a party to commence proceedings for a particular sum and where he
advises the client to enter into litigation even though success is improbable, where he proceeds
under wrong statutes or where he fails to remedy the situation in time to prevent limitation,
where there is inexcusable delay in the prosecution of the claim or where he fails to inform his
client the details and progress achieved in his case or where he fails to prepare the case
properly for trial or where he advises a hopeless appeal which could not benefit the client, or
where he fails to register a pending action, the implication or the law stipulates negligence on
the part of the advocate.

(5) The advocate should not have filed the verifying affidavit without checking whether it was
within the requirements of the law. By failing to take adequate or precautionary step after the
objection was filed is a clear indication that the advocates were guilty of negligence.

(6) The advocates failed to appear for the ruling on the day when it was scheduled to be
delivered. They also did not send any person or advocate to hold their brief.

In my view if the advocates had time to peruse the pleadings and in particular the verifying
affidavit before it was filed in court, they would have discovered that it was improper or irregular
document. They did not do so. And even after the defendants raised an objection they did not
take any remedial steps by making any application to court to enable them file another verifying
affidavit in place of the defective one. They did not seek leave of the court to withdraw the
offending affidavit and file a proper and compliant verifying affidavit. In my opinion the
defendants failed to take any remedial measures or steps to prevent the striking out of the
verifying affidavit after the objection was brought to their attention sometimes in July 2001. A
plain reading of section 5 of Cap 15 Laws of Kenya makes it abundantly clear that the verifying
affidavit was defective. In my view therefore, the High Court Judges were in agreement on the
requirement of section 5 of Cap 15 but the divergence/departure is whether to strike out the
whole suit or not, when the plaint is accompanied by a defective verifying affidavit. In those
decisions or determinations what the judges were not in agreement is the way the ultimate
discretion after the event or defect should be exercised. And you cannot fault a Judge in
exercise of his discretion so long as the yardstick is established which is judicially and to the
best interest of justice. The advocates had the obligation to ensure that the documents placed
before court complied with the law in particular section 5 of Cap 15. The verifying affidavit must
be valid and if it is defective the blame is on the shoulders of the party who took the same
before court.

Again the advocates were negligent and failed to meet the standard of care and skill demanded
of a reasonably competent and diligent advocate. Their action and conduct is a clear case of
gross negligence and gross ignorance. As stated they did not appear on the day when the
ruling was delivered and that even after the delivery of the ruling, the steps they took shows lack
of skill and knowledge. The suit having been struck out, they allegedly filed notice of appeal
dated 16th May 2002. The notice of appeal is against the decision of Mwera J given at Nairobi
on 29th April 2002. They also wrote a letter dated 16 th May 2002 to the Deputy Registrar High
Court of Kenya asking for certified copies of proceedings and ruling delivered on 29 th April 2002
for them to undertake an appeal against the said ruling. It is clear from the record that the
ruling by Mwera J on the issue of the verifying affidavit was to be delivered on 29 th April 2002
but it was not delivered on that day. The record and the ruling itself show that it was delivered
on 6th May 2002 in the absence of bank’s advocates.

It is therefore, beyond doubt that there was no ruling that was delivered on 29 th April 2002 but
the actual position is that the ruling was delivered on 6 th May 2002. It means the notice of
appeal as framed is utterly misconceived and defective. In any case the advocates did not
seriously pursue the avenue of appeal for they were quick to advise the bank to pay huge taxed
costs to the advocates of the defendants in HCCC No.1464 of 2000. If they had the interest of
the bank at heart they should have attended court for the delivery of the ruling and take the
necessary steps to pursue the appeal in which they were instructed to undertake. They were
quick to ask the bank to pay costs to parties they intended to overturn their case in an appeal.

Seriously the advocates did not make any known efforts to perfect the instructions given to them
by way of seriously pursuing the appeal. No letter of a reminder to the court registry and no
other evidence of follow up for proceedings. It is not true as alleged by the defendants that the
proceedings were never ready. And there is ample evidence to show that certified proceedings
were ready for collection as at 28 th November 2003. It shows that the defendant either received
the proceedings or with some due diligence could have received them as at 28 th November
2003. I am in agreement with the plaintiff’s advocates that the defendant did not attend to the
plaintiff’s instructions with diligence, reasonable care and skill expected of a prudent and
reasonable advocate.

Further the advocates informed the bank of the order dismissing the suit in the letter dated 16 th
May 2002 but in that letter they did not mention the actual date when the ruling or order was
made. The plaintiff was made to believe that a ruling had been made on 29 th April 2002
striking out their suit. Even at the time of filing this suit, the plaintiff was in the dark and false
premise that their suit had been dismissed on the date mentioned in the letter dated 16 th May
2002. The record of proceedings produced before me clearly shows that no ruling was
delivered on 29th April 2002 but the ruling was delivered on 6 th May 2002. It is my view that by
failing to inform the bank the date when the ruling was delivered and by failing to attend court at
the time when the ruling was delivered, is a proper case that the advocates failed to carry out
the bank’s instructions by proper means, hence jeopardized the rights and interests of the
bank. Further it is clear beyond doubt that the notice of appeal filed by the advocates is
defective since it is the order of 6 th May 2002 striking out the suit that aggrieved the bank,
therefore, no proper notice of appeal was filed on behalf of the bank by the advocates.

Another issue that has been contested between the parties is that alleged failure of the
advocates to act on the express and urgent instructions to file the appeal. The correspondence
between the parties is a clear manifestation that the advocates did not respond to the bank’s
repeated correspondence on the matter of appeal starting from 27 th June 2002 to 14th July
2003. The basis cited by the advocates is that they consider instructions had been withdrawn
when the bank elected to assign the filing of a fresh suit to M/S Rachuonyo & Rachuonyo
advocates sometimes in June 2002. The contention of the bank is that the instructions to file
the appeal was left to the present defendant and as late as 14 th July 2003 the defendants
witness Mr. Njoroge Nani Mungai Advocate informed the plaintiff’s PW1 that he was awaiting
typed proceedings and that he cannot now argue that instructions had been withdrawn.

I have gone through the correspondence that was exchanged between the advocates and the
bank and in my mind the bank had not withdrawn instructions on the issue of appeal from the
advocates. The correspondence gives a clear indication that the advocates did not wish to
proceed with filing the appeal as instructed by the bank. In my view they had an obligation to
file an appeal against the decision that struck out the suit. They did not do so and they willfully
and negligently represented to the Bank that they were pursuing an appeal when the evidence
shows otherwise.

The defendants contend that their instructions to file the intended appeal were withdrawn by the
plaintiff through a letter dated 24 th June 2002. And whether or not the typed proceedings were
ready on 28th November 2003 was irrelevant as the plaintiff had elected to file a new suit and
that instructions had been withdrawn. In the letter dated 24 th June 2002 the bank informed the
advocates that the reason why the case was struck out was because of an omission in the
affidavit which was caused by them. And as a result the bank was holding the advocates liable
for the loss they have incurred in the matter including court filing fees and taxed costs. The
letter in the last paragraph states as follows;

”If you think you have a good chance of success in the appeal, we instruct you to
proceed with the same without any further delay.”

The bank made it crystal clear to the advocates that if the appeal had a good chance of
success, they had full instructions to proceed with the same. In the same letter the bank wrote
as hereunder;

“Should you however find that you do not have sufficient grounds for appeal, we suggest
that you compensate us the loss incurred including the taxed costs and court filing
fees.”

It is not therefore, true as alleged by the advocates that instructions had been withdrawn
through that letter. In deed the bank gave the advocates two options which were;

(1) To proceed with the appeal if it had a good chance of success and if not

(2) To compensate them for the loss incurred including the taxed costs and court filing fees.

I therefore hold that the failure of the advocates to file and proceed with the appeal is a clear
testimony that they had not intended to salvage the error committed by them. From the
evidence on record, there is a clear indication that there was failure on the part of the advocates
in replying to correspondences, keeping the plaintiff informed of the progress and advising on
the law and option open to them. In short the defendants failed to prosecute the intended
appeal and elected not to correspond or deal with the bank any further. In my view the
advocates did not act reasonably with fairness and openness towards the bank. They failed to
answer telephone correspondence and breached the terms of the retainer as enshrined in the
letter of 8th February 2001.

I make a finding that there was a retainer agreement between the plaintiff and the defendant
which was breached and/or violated by the defendant. It is not true as alleged by the advocate
that the retainer agreement dated 8 th February 2001 expired after 12 months since there is
evidence that the parties had dealt together and exchanged correspondences. As late as 14th
July 2003 the defendant informed the plaintiff that they were awaiting typed proceedings,
therefore, the allegations that instructions had been withdrawn and that there was no retainer is
a merely preposterous proposition on the part of the advocates. If the advocates had no
intention to file an appeal, they had an obligation to inform the bank but nevertheless they failed
to give a false hope and failed to respond to correspondences and communicate their decision
not to appeal to the bank.

In my view the failure to communicate their decision not to appeal amounts to negligence of
duty on the part of the advocates. I also make a determination that the defendants were under
duty to reply to the bank and answer inquiries raised in the repeated correspondences. The
defendant therefore, breached their retainer for failing to act with strict diligence and due care.
In the letter dated 8th February 2001 on terms and conditions of service the defendants
undertook to submit comprehensive feed back report on matters handled by them. They did
not do so and it is clear from the numerous correspondences by the plaintiff to them that the
same was not answered and no progress report was given as agreed in that letter.

In the same letter the advocates also waived any right of lien over the files on matters allocated
to them by the bank and undertook upon demand to submit the files. The bank requested the
advocates to release the relevant files to the firm of M/S Rachuonyo & Rachuonyo advocates
to undertake further instructions but they failed to act and in a letter dated 29 th October 2002
they stated that they had a lien over the file.

In my view the advocates had no powers and in attempting to exercise a non-existent lien over
the documents of the plaintiff, they committed a further breach which resulted in grave loss to
the rights and interest of the bank. The release of the ofirinal documents or file would have
enabled the firm of M/S Rachuonyo & Rachuonyo advocates to see all the existing pleadings,
consider fully the contents of the intended new plaint and all relevant issues including limitation
of the cause of action. By refusing to provide the original file and by saying in their defence that
there was nothing useful in the file, they committed another breach which was incompatible with
the care expected of an advocate to his client. I am therefore in agreement with the plaintiff’s
advocate that the defendants knowingly and with intent to injure the plaintiff’s interest refused to
file the appeal and further refused to inform the client of the progress or lack of progress in the
matter. They also refused to release documents concerning HCCC No.1464 of 2000 and even
refused to produce copies to the plaintiff or its advocates for action hence the defendants are
guilty of professional negligence.

The measure of damages is a compensation for consequences which follow as a natural and
probable consequence of the breach or in other words which could reasonably be foreseen. It
was obvious that carelessness or lack of exercise of proper skill and care on the part of the
advocates would likely to cause loss and damages to the bank. It is also foreseen that for their
ignorance and non observance of the rules and practice, for want of care in preparation of the
plaintiff’s case for trial or for their failure to attend at the time when the ruling was delivered and
generally for their mismanagement of the plaintiff’s case, is an indication of gross negligence on
the part advocates. An advocate who conducts himself improperly advises a hopeless appeal
or where he files wrong documents which could not benefit the client, the inevitable result is that
he is negligent/liable for any loss that occurs. In my view the loss or damages suffered must be
sufficiently proximate to the advocates’ breach of duty, the breach of duty must have caused the
loss or damage and that the damage or loss in question was foreseeable. It is essential to
determine whether the advocates’ breach of duty was the cause of the damage complained of.
Clearly it is not the cause if the damage would have occurred in any event. Where the claim is
brought in contract or tort, the fundamental principle governing the measure of damages/loss is
that the plaintiff should be put so far as the money can do it in position he would have occupied
if the advocates would have discharged his duty. In my judgement the inconvenience or loss in
this case suffered by the plaintiff was caused directly from the advocates’ negligence. The only
way to compensate the plaintiff for the loss incurred is;

(1) By paying him the monetary equivalent of any benefit of which he has been deprived and

(2) By indemnifying the plaintiff against any expense of liability which he has incurred had the
advocate performed his duty.

The plaintiff prays for a sum of Kshs.1,039,716/= with interest at 29% per annum from 27 th
June 2002 until payment in full. This money was incurred by the plaintiff as party and party
costs as a result of the suit namely HCCC 1464 of 2002 being struck out. The plaintiff also
prays for Kshs.71,000/= being the filing fees incurred in HCCC No.1464 of 2000 being monies
paid in consideration which had wholly failed. The plaintiff further claims a sum of Kshs.10
million with interest thereon at 36% per annum from 15 th October 1996 until payment in full.
This claim was a subject matter of the suit HCCC No.1464 of 2000 which was struck out on the
account of negligence by the defendant. The defendant failure to appeal despite being of that
persuasion clearly denied the bank a chance to recover that sum.

In my view if the case would not have been struck out by virtue of defective verifying affidavit,
the bank would not have incurred the above sums claimed in this plaint. That was reasonably
foreseen cause of action in respect of the negligence attitude manifested by the advocates
towards their client. The prospect of a successful outcome had the case gone for full trial was
a matter to be determined by the trial court but that prospect was prematurely and wrongly
determined by the negligence of the defendants. The bank therefore, lost an opportunity to
present its case on merit and have its claim considered by court. On the same breadth it was
the opinion or advice of the advocates that the plaintiff stood a good or reasonable chance of
success or recovery in their pursuit of that claim. Once again that hope or prospect was cut
short by fragrant and reckless negligence of the defendant. The redress of the plaintiff is
squarely against the advocates who put them in the current position. The plaintiff is therefore
entitled to damages for the loss of the chance of a favourable outcome and the damage ought
to be the sums prayed for in the plaint. The only issue is whether interest should be as claimed
in the plaint. In my view interest should be at court rate and not as prayed by the plaintiff in their
plaint. The suit against the defendant succeeds to that extent.

In the premises I enter judgement for the plaintiff against the defendant as prayed in the
plaint with costs and interests as hereinabove held.

Dated, signed and delivered at Nairobi this 13 th day of May 2009.

M. WARSAME

JUDGE