[2004] KEHC 597 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA NAIROBI COMMERCIAL DIVISION, MILIMANI CIVIL SUIT NO. 485 OF 2004

H. K. ADVOCATE…………………. ……………………….APPLICANT

VERSUS

MUCIIMI MBAKA ……. ………………...…………………DEFENDANT

RULING

By an application dated 3. 08. 2004 and filed in Court on the same date, and brought by way of an Originating Summon pursuant to the provisions of Order LII rules 7 and 10 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the Plaintiff seeks orders for enforcement of the Defendant Advocate's undertaking given in his professional capacity on 9. 07. 2002.

In this Originating Summons the Respondent's Advocate entered an appearance through his advocate, Anthony M. Mulekyo, on 10. 09. 2004. Thereafter the Defendant Advocate filed A Replying Affidavit sworn and lodged on 22. 9.2004 and also filed a Change of Advocates on the same date, in which the firm of Kamundi Mbaka & Co. Advocates should act for him in place of Anthony M. Mulekyo.

A little later, on 15. 10. 2004, the Defendant Advocate filed a Chamber Summons in terms of Order XXXVI, rules 8A and 12 of the Civil Procedure Rules and sought the orders that the Court do issue directions in this suit, and that parties be at liberty to call viva voce evidence in addition to the affidavits on record, and that the plaintiff, H. K. Korir Advocate be cross examined on the Supporting Affidavit sworn on 3. 08. 2004. The application is further based upon the grounds that -

(a) The issues involved are of such nature as can only be fully resolved through viva voce evidence and cross - examination of the applicant,

(b) It is the respondent's defence that the undertaking sought to be enforced has been vitiated by the Plaintiff's Client's fraud,

(c) No prejudice will be suffered by the applicant if evidence is adduced in the manner proposed.

In his Preliminary volley in this application, Mr. Maina, Counsel for the Plaintiff told the court that Order XXXVI rules 8A (regarding directions on hearing of Originating Summons) has a unique provision and did not require a Respondent to file any Grounds of Opposition or any Replying Affidavit. I think Mr. Maina made correct observation as we shall see later in this ruling.

Mr. Mungata Counsel for the Defendant/Applicant urged the court to grant prayers Nos. 2 and 3 in the application, that is to say, that the court should issue directions as to the hearing of the Originating Summons and also order for the crossexamination of the Respondent/Plaintiff on his Affidavit of 3. 08. 2004. Counsel submitted that in matters of professional undertakings the Defendant would succeed if he shows that there was a valid and lawful excuse for non-compliance with the undertaking in his professional capacity. This lawful excuse can only be obtained from evidence to be gleaned from the Plaintiff/Respondent in cross-examination of his Supporting Affidavit. Counsel submitted that since the Defendant has not benefited from the terms of the Agreement for Sale, the Plaintiff should not benefit from alleged acts of fraud, and misrepresentation and so the Court should grant the two prayers sought.

Maina, following the theme earlier established in his opening remarks, that rule 8 of Order XXXVI (directions on hearing of Originating Summons) was a unique order as it put the onus on the applicant to say what directions were needed, and the Respondent had no cause to either file Grounds of Opposition or Replying Affidavit. He opposed the application. Counsel for the Respondent/Plaintiff told the court that there was absolutely no requirement for directions under Order LII, rule (1) (b) unlike Order XXXVI Rule 8B to which an appearance is required. Under Order LII rule 10 (a) no appearance is required. Counsel submitted that there is a deliberate distinction between an Originating Summons under Order LII rule 7 (1) (b) for enforcement of an Advocate's undertaking in his professional capacity, and an Originating Summons under Order XXXVI. The difference is that an undertaking by an advocate in his professional capacity is his bond. This is a cardinal principle of Advocacy, hence a deliberate distinction between Order LII, rule 7 and Order XXXVI in respect of other actions commenced by Originating Summons, and thereby requiring some form of directions by the court as such distinction is clearly established under rules 8A, and 8B of said Order.

Counsel also submitted that the Supporting Affidavit to the application of 14. 10. 2004 was skeletal in nature and did not contain any information alleging fraud. The directions sought were that viva voce evidence be adduced, and the crossexamination of the Plaintiff/Respondent. His submission was that an advocate cannot be examined on evidence that his client gave a fraudulent title. This is not a defence available to the Defendant/Respondent. It was held in the case of KENYA REINSURANCE CORPORATION VS. V. E. MUGUKU t/a V. E. MUGUKUMURIU & CO. (Civil Appeal No. 48 of 1994) inter alia that -

”It does not lie in the respondent Advocates mouth to say that nonoccupation of the property by his client entitles him to pay no interest for the period of non-occupation when it comes to enforcement of a clear undertaking. A careful advocate would obtain very clear instructions from his client before giving a professional undertaking on his behalf. If he does so without that elementary precaution then he must take the consequences."

Counsel submitted that the fact that the Defendant's client did not allegedly obtain a good title or a title at all, does not concern the Advocate's undertaking to his fellow Advocate. That relationship is unaffected by any dispute between the Vendor and the Purchaser. This Court is not however called upon to determine whether the Respondent Advocate's professional undertaking was enforceable. The application of 14. 10. 2004 calls this court to grant two prayers namely that directions be issued by the court on the hearing of the Plaintiff's Originating Summons dated 3. 04. 2004 and lodged in Court on the same day, and that the Plaintiff Advocate be called upon to be cross-examined on his Supporting Affidavit.

Having carefully considered the positions advanced by the rival Counsel on this matter, my views are as expressed in the paragraphs following.

I think the Respondent/Applicant's application dated 14. 10. 2004 seeking the above captioned prayers is incompetent, and ought to be dismissed and for the following reasons -

Firstly, the provisions of Order XXXVI are quite distinct from those of Order LII. Whereas Order XXXVI does indeed provide for commencement of action by Originating Summons in the circumstances prescribed in that Order as Order LII does provide, the major distinction comes in the manner the action commenced by an Originating Summons under both orders is thereafter proceeded with and concluded. Under order XXXVI, the Originating Summons may be converted into a plaint, and proceed to hearing like an ordinary suit commenced by plaint. Directions may also be given under an Originating Summons filed under Order XXXVI, pursuant to rule 8 A thereof. There is no such requirement under Order LII. On the contrary, rule 7 (2) of Order LII provides that save for special reasons to be recorded by the judge, the order shall in the first instance be that the Advocate honour his undertaking within a time fixed by the order, and only thereafter may an order in enforcement be made.

As already stated above, this court's mandate is limited to only determining the application of 14. 10. 2004 but it is quite clear the rules under Order LII are to be construed specifically, and strictly so. Further, Order LII rule 10 makes it abundantly clear that no directions are maintainable under this Order. Rule 10 (1) and (2) provide that an Originating Summons under this order shall be returnable for a fixed date before a judge in chambers and unless otherwise directed, shall be served on all parties at least seven clear days before the return date (rule 10 (1)), and no appearance need be entered to the summons and no affidavit need be filed and that all parties may be heard without entering appearance. There is no room for directions under Order LII, rules 7 (1) (b) and 10 (1) and (2).

Secondly, even if there was provision for directions (and there is none as stated above) the Respondent Advocate cannot rely upon the dispute between his client and the other party for failure to honour his professional undertaking to the other Advocate. His undertaking stands as a separate contract between the advocates, and is not contingent upon any terms of contract between his client and any other party. That is the effect of the decision in the case of KENYA REINSURANCE CORPORATION VS. V. E. MUGUKU MURIU t/a V. E. MUGUKU MURIU & COMPANY (supra).

In the result therefore, the Respondent/Applicant cannot invoke the provisions of Order XXXVI rule 8A, for directions in respect of an Originating Summons filed under Order LII, rule 7 (1) (b) and neither can he be allowed to adduce any evidence outside his contract, (undertaking). This would be contrary to the provisions of Section 97 of the Evidence Act (Cap 80) Laws of Kenya which provides that when the terms of a contract, … have been reduced into the form of a document; no evidence shall be given in proof of the terms of such contract … except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Act.

Section 98 of the Evidence Act is in similar vein when the terms of any contract … required by law to be reduced to the form of a document have been proved according to Section 97, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting varying, adding to or subtracting from its terms, except in the circumstances designated in the proviso to that Section. I hazard to say that such circumstances are not available to an Advocate in matters of his professional undertaking.

Thirdly, but not least, and although it is not for this court to say so, the defence which may be applicable to his client such as the circumstances set out in the proviso to Section 98 of the Evidence Act, namely, fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration or mistake in fact or law, or any of the other circumstances described in the proviso to Section 98 of the Evidence Act aforesaid are not available to the Advocate. They are not available to the Advocate because they did not exist at the time the Advocate gave his undertaking and if they did, they are matters extraneous to the Advocate's undertaking in his professional capacity.

In the result therefore, the Defendant/Applicant's application dated 14. 10. 2004, filed on 15. 10. 2004 fails, and is dismissed with costs.

Delivered and dated at Nairobi this 17th day of November 2004.

ANYARA EMUKULE

Ag. JUDGE