[2018] KEHC 490 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 121 OF 2013

ANTHONY AMBAKA KEGODE.............................................................................PLAINTIFF

VERSUS

OCHIENG, ONYANGO KIBET & OHAGA ADVOCATES........................1ST DEFENDANT

JAMES OCHIENG ODUOL...........................................................................2ND DEFENDANT

JUDGMENT

On the 18th day of April, 2013, the plaintiff filed the suit herein against the defendants seeking special and general damages plus costs of the suit.

The plaintiff avers that during the period between 2000 to the 9th December, 2010, the 2nd defendant acted for him in Nairobi Chief Magistrate’s Court Criminal Case Number 2651 of 2004 (R. Vs. Antony Ambaka Kegode) where the plaintiff had been charged with various counts under the penal code, wherein he was eventually acquitted of all the charges, on the 9th day of December, 2010.

That the plaintiff felt aggrieved by the aforesaid criminal case and instructed the defendants on the 25th day of March 2011, to pursue the Attorney General and Chase bank for the tort of malicious prosecution. The plaintiff contends that as a professional firm of Advocates, the first defendant was under an obligation to diligently and faithfully pursue his claim as well as keep him appraised on the progress thereof. That there were also implied terms to the Advocates/client relationship between them, that the defendants would exercise reasonable skill, attention and care in performance of their duties or in the alternative, the defendants owed the plaintiff a duty of care to that effect.

Despite the said instructions, the plaintiff on or about the month of March, 2012 discovered that no action had since been taken in the matter within the mandatory statutory period in total disregard of his instructions and continued reminders to the defendants to institute a suit, thereby causing the plaintiff’s suit to be statute barred.

The Plaintiff avers that the inaction by the defendants to execute his instructions amounted to professional negligence and/or breach of duty of care owed to him as a consequence of which he suffered loss and damage for which the defendants are liable. The particulars of negligence and those of loss and damage are set out in paragraphs 14 and 15 of the plaint. He has thus prayed for judgment against the defendants jointly and severally.

The defendants in denying the claim, filed two defences both of which were filed on 26th September, 2013. One was filed by the 2nd defendant in person while the other is a joint defence for both defendants, meaning that there are two defences on record for the 2nd defendant. This issue was not addressed by either party and therefore, for purposes of this judgment, the court shall consider the joint statement of defence.

In the said defence, the defendants have admitted that the plaintiff was their client, but avers that though they were instructed to pursue proceeding against Chase Bank Limited and the Attorney General for damages arising from Criminal Case No.2651 of 2004, that did not of itself mean and presuppose that there was a cause of action to be out rightly litigated and vindicated. That the issue had to be referred to the first defendant for preliminary investigations as to whether there was a cause of action after which legal proceedings would be taken out.

The defendants contended that the matter respecting the merits of the proceedings was considered and was determined to be untenable and the plaintiff was advised of lack of merits in pursuing the case. That, the absence of merits was advised to the plaintiff from the facts that were before the court and matters that became known to the first defendant as attorneys for the plaintiff and which could only be pleaded herein if the plaintiff waives priviledge.

According to the defendants, upon counsel to the plaintiff that there was no merit in pursuing the claim, the defendants were discharged of their obligation to the plaintiff so far as the issue was concerned. That, at no time did the defendants accede and/or agree instructions to file the claim for and on behalf of the plaintiffs and that as Advocates, they were enjoined by law as professionals not to be a party to an intended fraud upon the court and/or abuse of the court process by the plaintiff.

The defendants deny that they were negligent and/or breached any duty of care towards the plaintiff, the said duty having been discharged and ending with advice to the plaintiff that they would not pursue the instructions to file the claim.

At the hearing, the plaintiff testified as the only witness. It was his evidence that he has sued the defendants because he had asked them to file a claim against the government and Chase Bank Limited but they neglected to carry out the said instructions as a result of which, he lost an opportunity to sue. He stated that he wanted to sue the government following his prosecution in Criminal Case No. 2651 of 2004 in which he was acquitted in all the counts. According to him, he was falsely accused and wanted to sue the government to recover costs and damages arising out of the said arrest. He stated that he gave written instructions on the 25th March, 2011 and discussed the issue of filing the case of malicious prosecution with the 2nd defendant who assured him that he had a good case. That, several meetings were held between himself and the 2nd defendant who assured him that he was proceeding as instructed but eventually they did not file. That, this fact was communicated to him on 30th March 2012 when he was informed that his claim was time barred. He stated that at no time was he ever told that there was a time limitation within which to file the claim until the 30th March, 2012 and that is why he sued the defendants.

He contended that the defendants were negligent because they failed to institute the claim within the stipulated period and they failed to advise him about the statutory period. He testified that he suffered loss in that, he lost the opportunity to sue the government and Chase Bank Limited yet he spent considerable time and expense travelling to and from the United States. That, during the time the criminal case was ongoing, he was unable to undertake employment contracts in the United States because he had to report to the magistrates’ court once a month and it was difficult for him to get gainful employment and he missed that opportunity to make that claim. He denied that the defendants communicated lack of merits of the intended case to him.

On cross-examination, he stated that he was put on his defence in the criminal case and admitted that he was acquitted because some evidence was not produced by the prosecution. He stated that the nature of communication between him and the 2nd defendant was mainly verbal. That on 29th June, 2011, they held a meeting with the 2nd defendant during which they discussed the case and it was after that meeting that he wrote the letter dated 30th June 2011. He averred that he was reiterating what they agreed in the meeting and he would not have written the letter had he been told that the case had no merits and that his intended case would have been a fraud. He denied that he was informed of the merits of the intended case.

The 2nd defendant testified on his own behalf and that of the 1st defendant. He is a senior partner in the first defendant. He stated that he filed a witness statement dated the 26th September 2013, in support of the joint defence and applied that it be adopted in defence of the first and 2nd defendants.

It was his evidence that the plaintiff was their client and in the course of representing him, he became his friend. That, he represented him in Criminal Case No. 2651 of 2004 before the Chief Magistrate’s Court, which trial took six (6) years and was concluded on 9th December, 2010. He confirmed that the plaintiff was acquitted in the Criminal case in which he was charged with two counts of obtaining credit by false pretences and two other counts of making a false document.

He contended that the plaintiff was acquitted on a technicality in that, he was charged in his personal capacity and not as a director of his Company, East African Air express Limited, the company the loan was advanced to, by Chase Bank. According to him, what happened in that case gave rise to a reasonable and probable cause for the bank to make a complaint and for the plaintiff to be charged. That, the prosecution was not malicious and that there was a real complaint in the circumstances in which the money was sent to the plaintiff’s companies. He stated that he requested the plaintiff to waive the Advocate/Client privilege but no response came out of that request.

The 2nd defendant admitted that the plaintiff wrote a letter dated 25th March, 2011 for instructions to the 1st defendant, expressing his desire to sue Chase Bank Limited and the Attorney General. That, upon receipt of that letter, he held discussions with the plaintiff which culminated in a meeting on 29/6/2011 when he advised him that the intended action would not succeed in light of the reasonable and probable cause of his prosecution, the nature of the case and the evidence. That, after the advice, the plaintiff did state to him that the prosecution of that cause would be a matter of course and that he had made arrangements for him to be compensated to the tune of Kshs.50 million. That, in light of those particular circumstances, he indicated to him that the first defendant would not be part of that scheme.

The 2nd defendant further stated that at some point he was not able to attend to the calls made by the plaintiff due to reasons that were known to the plaintiff, which were; the death of his mother on 8/2/2011 who was in the intensive care unit for 45 days before her death and thus be spent a lot of time attending to her; that after the burial of their mother, his wife gave birth on 16/2/2011 and three months thereafter his brother passed on, on 8th June 2011 after he was in the intensive care unit for 56 days. It is only after the burial of his brother that he managed to resume duties and he held a meeting with the plaintiff on 29/6/2011 and by then the plaintiff was still within time to file the claim. He stated that for the six (6) years that he represented the plaintiff there was no complaint whatsoever apart from the delay that was caused by the court. That they had a very good working relationship and the plaintiff paid legal fees as and when demanded.

The first defendant contended that the plaintiff was at liberty to seek another counsel as the statutory period had not run out. He told the court that he has been in legal practice for 31 years and interms of standing, he has never been disciplined by the law society of Kenya and he remains a person of good standing both as an Advocate and a citizen of Kenya.

The court has carefully considered the pleadings, the evidence on record and the submissions by the parties. The plaintiff has sued the defendants for professional negligence, the particulars of negligence being that;

(1) They failed to process and lodge the plaintiff’s claim with reasonable diligence in particular, failing to institute the claim within the stipulated time.

(2) They failed to advise the plaintiff about the mandatory statutory limitation period concerning malicious prosecution cases against the government.

(3) Allowing the plaintiff’s case against the government to become time barred.

The plaintiff’s advocate filed a list of issues on the 15th November 2013 but the defendant did not file their own.

From the analysis of the evidence, and in my view, the following are the issues for determination;

(1) Whether the defendants owed a duty of care to the plaintiff to carry out his instructions.

(2) Whether the defendants breached that duty of care by failing to carry out the instructions given to them by the plaintiff.

(3) Whether the breach of that duty caused loss and damage to the plaintiff.

(4) If so, whether the defendants are liable and the quantum of damages.

(5) Who should meet the costs of the suit?

Whether the defendants owed the plaintiff a duty of care

The 1st defendant is a firm of Advocates, duly registered under a business name and the 2nd defendant is a partner in the 1st defendant. This fact is not denied. It is also not denied that there existed an Advocate/Client relationship between the plaintiff and the defendants.

Infact, the 2nd defendant admitted having acted for the plaintiff in Criminal Case No. 2651 of 2005, (R. Vs. Antony Ambaka Kegode) in which the plaintiff had been charged with two counts of obtaining credit by false pretences and two counts of making a false document. It is upon finalization of that case that the plaintiff instructed the defendants to pursue malicious prosecution case against the Attorney General and Chase Bank, as he felt his prosecution was malicious. The said instructions were given vide a letter that was received by the defendants on the 25th March 2011. The said letter instructed the defendants to proceed with commencing the court actions referred to in the memorandum of understanding that was produced and marked as Exhibit 6. In that Memorandum of understanding under Clause 1. 4.1. 3, the first defendant was instructed to commence proceedings and take steps as the firm shall deem fit against Chase Bank and the Attorney General for recovery of damages arising from the prosecution of the plaintiff in the aforesaid criminal case.

Pursuant to those instructions, the plaintiff forwarded a copy of the proceedings to the defendants for purposes of commencing the suit in malicious prosecution. This can be confirmed in the letter dated 30th June 2011 which the plaintiff wrote to the defendants. Thereafter, the plaintiff followed up the matter with the defendants and a few emails were exchanged in the course of time, resting with the one sent on 22nd August 2012 when the plaintiff wrote to the defendants wanting to know how they intended to handle things following the defendants email to him on the 30th March 2012 in which they informed him that his would be claim was time barred and that he did not have a good cause of action.

From the foregoing, it is clear that, instructions were given to the defendants who accepted the same and from then on, a relationship existed between them and by virtue of that relationship, the defendants owed the plaintiff a duty of care. The duty owed is to execute the plaintiff’s instructions unless they are withdrawn or are contrary to the law or to public policy.

Did the defendants breach that duty?

Under common law, a solicitor contracts to be diligent and careful, for a professional man gives an implied undertaking to exercise a reasonable degree of care and skill. It follows that, this undertaking is not fulfilled by a solicitor who either does not possess the requisite skill or does not exercise it. It is immaterial whether the solicitor is retainer for reward or not. A solicitor’s duty is to use reasonable care and skill in giving such advise and taking such action as the facts of the particular case demand.

But what is the extent of an Advocate’s liability to his client for negligence? The court in the case of Stephens & Co. Vs. Allen (1918), 7 E.A. LR 197 had the following to say;

“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 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 lordship 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”

Dealing with a similar position, Scritten L.J. in the case of Fletcher & Son Vs. Jubb Booth & Helliwell (2910) IKKB 275 at page 280 had this say:

“And moreover I accept the opinion of TINDAL, CJ in Cudefray Vs. Dalton 6 Bing 460 that it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor understands to furnish between that reasonable skill and diligence which appears to satisfy his undertaking and that crasa 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.

Solicitor’s duty is to use reasonable care and skill in giving such advise and taking action as facts of the particular case demand. It has been said that the court should be careful not to impose on solicitors, duties going beyond the scope of what they are requested and undertake to do. A solicitor is not bound to have a perfect knowledge of the law but he should have a good knowledge. In so stating, I find support in the case of Champion Motor Spares Limited Vs. Phadke & others (1969) E.A. 42, where the court held;

“An Advocate is not liable for any reasonable error of judgment or for ignorance of some obscure points of law, but is liable for an act of gross negligence or ignorance of elementary matters of law constantly 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 unified profession. In regard to negligence, as in all other matters, I think, that all Advocates must be treated alike……..”

And also the case of Rondel Vs. Worsley (1967) 3 ALL E.R. 993 where the court held:

“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 not merely because he overlooks one of a number of relevant authorities…….”

In the case herein, the defendants were instructed to file a suit for malicious prosecution. The instructions were given in writing vide a letter received on 21/3/2011 which referred to a memorandum of understanding between the plaintiff and the defendants. The defendants did not file the suit and it was caught up by limitation period.

The 2nd defendant in his evidence stated that he advised the plaintiff about the merits of the case, and that it did not have chances of success. He stated that this was revealed to the plaintiff in a meeting that took place on 29th June, 2011 although it is not clear whether it was on the 29th or 30th June 2011. On his part, the plaintiff stated that though the meeting took place, it is not true that he was informed that he did not have a good case.

The 2nd defendant stated that having acted for the plaintiff in the criminal case, they had become friends and most of the communication between them was oral and that, according to him, explains why he did not communicate to the plaintiff in writing about the chances his case had. The plaintiff on his part contends that if indeed he had been informed that his case was not going to succeed during the meeting held on 29th June, 2011, there would have been no need for him to write the letter dated 30th June, 2011 in which he forwarded the proceedings in the Criminal case.

The said letter, referred to the discussion the plaintiff and the 2nd defendant had in the meeting, in which, he is reminding the 2nd defendant to send a demand letter by 4th July 2011 and that the claim be filed by the end of the week that was following.

The defendants denied having received that letter and argued that if it had been delivered to the 1st defendant, it would have been stamped with their stamp as a sign of receipt. From the evidence on record, it is not clear whether the letter was delivered to the defendants or not. However, the court takes note of the email dated 30th day of March 2012 sent by Mr. Ohaga a Senior Partner in the 1st defendant to the plaintiff. The said email read in part;

“I have now reviewed this file and established that the judgment was delivered on 9th December, 2010. Any claim against the Government should have been brought within one (1) year of the decision. However, I am unable to find any instructions from you to commence proceedings against the Government for malicious prosecution. Further, having taken time to go through the proceedings, I do not consider that you have a good cause of action against the Government arising from the prosecution”.

In his response to that email, the plaintiff stated:

“……At no time was I informed of the opinions you have expressed, that I did not have a good cause of action”

The defendants did not respond to the said email even after the plaintiff had lamented that he had not been informed he did not have a good cause of action. If indeed it is true that the 2nd defendant had informed him that he did not have a good case during the meeting held on 29th June 2011, one would have expected that Mr. Ohaga would have reminded him as much. It is therefore doubtful that the defendants had made that communication to the plaintiff on 29th June 2012 as alleged.

Though the 2nd defendant told the court that he was undergoing some challenges in the family during or around that period, the plaintiff had instructed the first defendant which is a firm of Advocates and not the 2nd defendant in person. The other partners and/or advocates in the first defendant were aware of the challenges that he was going through and ought to have taken up the matter during that time he was away from the office. The case for malicious prosecution ought to have been filed within one year from 9th December, 2010 but the defendants failed to do so. I find that they breached their duty to the plaintiff by failing to carry out the instructions given to them and they are therefore liable.

On the quantum of damages, the plaintiff has claimed both special and general damages. Special damages were neither pleaded nor proven. It is a cardinal principle of law that special damages have to be pleaded and proven. See the case of Mohammed Hassan Musa & Another Vs. Peter M. Mailanyi & Another (Civil Appeal No. 243 of 1998 in which the court held;

“It has been held time and again by this court that special damages must be specifically pleaded and of course strictly proved.”

As for general damages, the plaintiff has attached a number of authorities to guide the court on quantum. He has proposed that in making the award, the court should bear in mind the fact that such damages ought to equal what the plaintiff would have received from a successful suit of malicious prosecution. The defendants did not submit on damages but instead attached authorities on the principles applicable when the court is considering a case for malicious prosecution. I beg to differ with the counsel for the plaintiff that the damages should equal what the court would have awarded the plaintiff had he filed and succeeded in the malicious prosecution case. With all due respect to counsel, I have perused the criminal proceedings and I have also considered the submissions by the counsel for the defendants that the plaintiff did not have good cause. I am alive to the fact that I am not hearing a case of malicious prosecution but as rightly submitted by counsel for the defendants the plaintiff was acquitted on a technicality, having been sued in his personal capacity and not as a director of East Africa Safari Air Limited. This could have been a relevant consideration in the case of malicious prosecution in determining whether there was a reasonable or probable cause.

On damages, the amount awarded in the authorities attached by the plaintiff are too much on the higher side. The defendants did not address the court on the quantum of damages. In my opinion a total of Kshs.300,000 is reasonable. I wish to rely on the case of Co-operative Insurance Company Limited Vs. Secu-centre Limited & Susan Kahoya t/a Susan Kahoya & Co. Advocates (High Court Civil Appeal No. 482/2010) where Justice Aburili awarded general damages of Kshs.100,000 and that of Gabriel Muigai Njiri Vs Wanga Robert Hawi t/a R.W. Wanga & Co. Advocates & Another where a sum of Kshs.200,000 was awarded.

The costs of the case are awarded to the plaintiff.

Dated, Signed and Delivered at Nairobi this 5th day of October, 2018

………………………

L. NJUGUNA

JUDGE

In the presence of:

…………………………….. For the Appellant

……………………………… For the Respondent