[2024] KEHC 11282 (KLR)

D'Souza v Njoroge t/a Stephanie, Racheal, Wambui & Co Advocates (Commercial Cause E426 of 2023) [2024] KEHC 11282 (KLR) (Commercial and Tax) (19 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11282 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Commercial Cause E426 of 2023

PM Mulwa, J

September 19, 2024

IN THE MATTER OF THE APPLICATION FOR ORDERS OF MONEY RECEIVED AND HELD BY THE ADVOCATE IN TRUST FOR THE CLIENT

Between

Lyndon Joseph D'Souza

Applicant

and

Stephanie Wambui Njoroge t/a Stephanie, Racheal, Wambui & Co Advocates

Respondent

Judgment

1. The applicant Lyndon Joseph has moved this court vide the Originating Summons (OS) dated 28th August 2023 accompanied by a supporting affidavit sworn on even date. It is premised on the provisions of Sections 3A and 63 of the Civil Procedure Act and Order 52 Rule 4 of the Civil Procedure Rules 2010. The summons sought for orders that:a.Spentb.The Court be pleased to issue an order compelling the respondent to render/ deliver a cash account of the exact amounts of monies received on behalf of the applicant in relation to the transaction involving the sale and purchase of Laikipia/Daiga/Ethi Block 2/105. c.An order compelling the respondent to remit the balance of the purchase price to the applicant for the sum of Kshs 7,223,150/- money held in the trust for the applicant for the sale of Laikipia/Daiga/Ethi Block 2/105

2. In summary the gist of the application is that the respondent acting as an Advocate of the High Court of Kenya represented the applicant in the sale and purchase of the parcel of land known as Laikipia/Daiga/Ethi Block 2/105. The purchase price was Kshs10,803,500/-, the respondent was to hold the purchase price in trust for the applicant until the completion of the transaction and after that remit the same to the applicant. The respondent remitted the initial deposit of Kshs 1,080,350/- in August 2021. And despite the completion of the transaction and the title changing hands in favour of the purchaser the respondent failed, refused, and/or ignored to remit the balance of the purchase price to the applicant. After a settlement agreement was reached on 24th November 2023 the respondent remitted a sum of Kshs 2,500,000/- leaving a balance of Kshs. 7,223,150/-.

3. In response the respondent filed a Notice of Preliminary Objection (PO) dated 6th December 2023 on the grounds that the OS offends the doctrine of exhaustion and Article 159(c) of the Constitution.

4. The application was canvassed through written submissions. The applicant and the respondent filed submissions dated 11th June 2024 and 14th May 2024 respectively.

5. The respondent raises the doctrine of exhaustion. It was submitted that the applicant filed a complaint with the Advocates Complaint Commission - CC/PE/May/23/46(TR 7526) regarding the same issue and which complaint is pending determination thereby forfeiting his right to approach this court. Further, the respondent submits the applicant violates the provisions of Article 159 of the Constitution citing the Court of Appeal case of Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others (2015) eKLR.

6. According to the respondent Section 53(6B) of the Advocates Act confers the Advocate Complaints Commission with the jurisdiction to address complaints of this nature and urges the court to dismiss the suit.

7. The applicant submits that before filing the instant suit he employed alternative means to resolve the dispute which the respondent failed to adhere to. That the provisions of Article 159 of the Constitution do not give protection to any party who fails, neglects, or refuses to settle his or her obligation. Reference was made to the case of Gabriel Mugai Njiri vs Wanga Robert Hawi t/a R.H. Wanga & Co. Advocates (2018) eKLR. It was argued that the Advocate Complaints Commission deals with the professional misconduct of an advocate while the court deals with other reliefs sought by the complaint.

8. The applicant argues the suit is properly before this court and pleads with the court to grant the prayers sought.

9. Having carefully analysed the parties' pleadings and submissions I frame the following issues for determination:a.Whether the suit offends the doctrine of exhaustion of remediesb.Whether the applicant is entitled to the prayers sought

10. On the first issue, the doctrine of exhaustion is defined in Black’s Law Dictionary 10th Edition as follows:“Exhaustion of remedies - The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.”

11. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR the Court held as follows:“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”

12. However, there are exceptions to the doctrine of exhaustion. In Republic v The Independent Electoral and Boundaries Commission (IEBC), Ex-parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, the Court while asserting that exceptions to the doctrine of exhaustion requirement will be decided on a case-by-case basis, held that:“As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.”

13. Also, in the Chief Justice and President of the Supreme Court of Kenya & another v Khaemba - Civil Appeal No. 522 of 2019 (2021) KECA 322 (KLR) (17 December 2021) eKLR, the Court held that the doctrine of exhaustion notwithstanding, courts still retain residual jurisdiction to intervene in exceptional circumstances despite the existence of alternative remedies where the action complained of is marred by illegality and procedural irregularities.

14. The issue in dispute herein relates to an advocate-client relationship, where the client alleges the advocate breached the terms of the professional undertaking by failing to remit the balance of the purchase price to the client upon registration of the title in favour of the buyer. The respondent does not dispute owing the applicant Kshs. 7,223,150/-. She converted the money into her personal use thus depriving the applicant of his money.

15. The applicant (client) has pursued several remedies geared towards having the advocate remit the money. According to the Advocate, this court lacks the jurisdiction to hear the matter as the client has filed the matter with the disciplinary tribunal which is vested with the jurisdiction to determine claims of this nature.

16. The disciplinary tribunal is created under Section 57 of the Advocates Act and is mandated to receive, hear and dispose of complaints brought against advocates. Section 60 of the Act allows members of the public to bring complaints against advocates. Since the complaint herein is against the misconduct of an advocate, in my view the tribunal has jurisdiction to inquire into the matter and make a finding.

17. Nevertheless, every person is entitled to a fair hearing of a dispute before an impartial court as enshrined under Article 50(1) of the Constitution, which provides:“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”17. The settlement agreement dated 24th November 2022 allowed either party to seek redress in a court of law if the need arose. It is trite that parties are bound to adhere to the terms of the contract and the court ought not to rewrite a contract on behalf of the parties (see Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd (2017) eKLR).

18. In my view the existence of the settlement agreement which allowed the parties to seek redress before this court, creates an exceptional circumstance to the doctrine of exhaustion. The instant application does not offend the provisions of the doctrine of exhaustive mechanism. I find that the application is proper before this court.

19. The second issue is whether the applicant is entitled to the orders sought. Clause 3 of the sale agreement dated 16th August 2021 for the sale and purchase of the property known as Laikipia/Daiga/Ethi Block2/105 provided that the purchaser shall deposit the purchase price to the vendor’s advocates ABSA Bank Kenya Plc, Account No. 2042257624, Westland Branch in the name of Stephanie R. Wambui & Co. Advocates to hold as stakeholder immediately upon the execution of the agreement to be released on completion of the agreement.

20. A perusal of the documents attached, the respondent’s bank statement confirms she received the sum of Kshs. 9,723,150/- on 28th February 2022. The balance of Kshs. 7,223,150/- is not disputed.

21. The respondent being an advocate of the applicant was expected to act diligently and professionally in the best interest of the client, but failed to do so. No proper reasons have been adduced to elaborate why the balance of the purchase price remains unpaid to date despite the settlement agreement of November 2022. This is a case of gross negligence and misconduct which will not be condoned. The respondent ought to be held liable for professional negligence.

22. For the above-stated reasons, it is my finding that the applicant is deserving of the orders sought. Consequently, I find the Originating Summons dated 28th August 2023 is merited. I allow the same and make the following orders:a.The respondent be and is hereby compelled to render/deliver a cash account of the money received on behalf of the applicant for the transaction involving the sale and purchase of land parcel no. Laikipia/Daiga/Ethi Block 2/105. b.The respondent be and is hereby compelled to remit the balance of the purchase price to the applicant for the sum of Kshs. 7,223,150/- money held in trust for the applicant for the sale of land parcel no. Laikipia/Daiga/Ethi Block 2/105. c.The applicant shall have the costs of the suit.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 19TH DAY OF SEPTEMBER 2024. P. MULWAJUDGEIn the presence of:Mr. Gulam for applicantMs. King’ara for respondentCourt Assistant: Carlos