[2014] KEHC 3486 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL &ADMIRALTY DIVISION

CIVIL CASE NO. 456 OF 2005

FRANCIS MUREITHI ::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

-VERSUS-

PATRICK KIARIE KAGWANJA :::::::::::::::::::::::::::::: 1ST DEFENDANT

BARCLAYS BANK OF KENYA ::::::::::::::::::::::::::::::: 2ND DEFENDANT

REGISTRAR OF TITLES :::::::::::::::::::::::::::::::::::::: 3RD DEFENDANT

KANGERI WANJOHI

T/A KINDEST AUCTIONEERS :::::::::::::::::::::::::::::: 4TH DEFENDANT

R U L I N G

This matter came up for hearing on 21st May 2014 when Counsel for the 2nd Defendant raised an objection. Counsel objected to the production of correspondences between the 2nd Defendant and its Advocates. This was on the basis that such correspondences were privileged unless waived by the Client.

In opposition to the said objection, Counsel for the Plaintiff submitted that once an Advocate had written a letter to the Client the same became a public document. With regard to the letters in question, Counsel submitted that the same had been copied to third parties and therefore the letters were public documents. It was therefore his position that the letters could be admitted in evidence. In addition, Counsel submitted that the said letters were not marked ‘confidential’.

The only issue for determination is whether the correspondences between the 2nd Defendant and its Advocates amount to privileged communication. I am guided by section 134(1) of the Evidence Act which provides as follows:-

“No advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure–

(a) any communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to the fact by or on behalf of his client.Underlining supplied

In view of the above provision it is evident that for the said correspondences to be produced as evidence, the client should have waived the Advocate-Client privilege envisaged therein. There is nothing to show that the 2nd Defendant has waived such privilege. Therefore, the production of the Correspondences between the 2nd Defendant and its advocates would upset the Advocate-Client privilege.

In the upshot, I uphold the objection as raised by Counsel for the 2nd Defendant.

DATED, READ AND DELIVERED AT NAIROBI

THIS 4th DAY OF JULY 2014

E. K. O. OGOLA

JUDGE

PRESENT:

M/s Macharia for Plaintiff

Githinji for 1st Defendant

Isinta holding brief for Ogunde for 2nd Defendant

Teresia – Court Clerk