https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6959

Safari v Kang’ahi t/a Kang’ahi S. & Associates (Civil Suit 6 of 2018) [2026] KEHC 6959 (KLR) (Civ) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 6959 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Suit 6 of 2018 JN Mulwa, J May 21, 2026 Between Kevin Lewis Safari Plaintiff and Stanley Kang’ahi t/a Kang’ahi S. & Associates Defendant Judgment Pleadings 1.By a Plaint dated 09/01/2018, Kevin Lewis Safari (hereafter the Plaintiff) sued Stanley Kang’ahi t/a Kang’ahi S. & Associates (hereafter the Defendant) seeking judgment as against the Defendant for-;a.A declaration that the Defendant is guilty of breach of contract and professional negligence in failing to represent the Plaintiff in the Arbitral proceedings;b.A declaration that the Defendant is liable to pay the decretal amount in High Court Misc. Civil Application No 232 of 2014 consolidated with Misc. Application No. 105 of 2014;c.Damages for breach of contract;d.Costs of the suit;e.Any other relief that the honorable Court may deem fit to grant. 2.The Plaintiff avers that on or about January 2013, he instructed the Defendant to represent him in arbitral proceedings between the Plaintiff and the complainant one Joseph Njogu Njuguna before the (late) Mr. Kyalo Mbobu, Arbitrator. That the Defendant failed to file a proper defence to the claim or attend to any proceedings before the Arbitrator, a consequence of which a final award was entered against the Plaintiff on 21/01/2014 for the sum of Kshs. 10,940,000/- plus interest thereon at 12% per annum and costs of the arbitration at Kshs. 300,000/-. 3.That the arbitral award was recognized by the High Court pursuant to proceedings in HC Misc. Civil Application No 232 of 2014 as consolidated with HC Misc. Civil Application No. 105 of 2014, a decree issued that was to be executed as against the Plaintiff. The Plaintiff’s claim as against the Defendant thus concerns professional negligence and failure to exercise due diligence on the premise of his misconduct, from which the Plaintiff was condemned unheard thereby suffered loss and damage. 4.The Defendant filed a statement of defence dated 15/02/2018 admitting to having been instructed by the Plaintiff and that the latter failed to pay legal fees to complete the instructions. The Defendant goes on to deny the other key averment in the plaint, meanwhile avers that at all material times during the period that is the subject of the suit and his dealing with the Plaintiff, he presented himself professionally, competently and in utmost good faith. 5.The suit proceeded to full hearing during which both parties called evidence in support of the averments in their respective pleadings. Plaintiff’s Case and Evidence 6.The Plaintiff testified as PW1. It was his evidence that he was unemployed and that he lives in Taita Taveta County. He proceeded to adopt his witness statement dated 09/01/2018 as his evidence in chief meanwhile proceeded to adduce the documents appearing in his list of documents dated 09/01/2018 and the one dated 07/10/2021 as Pexh.1 and Pexh.2, respectively. 7.The gist of his evidence as per his adopted witness statement is that sometime in 2013, he appointed the Defendant to represent him and take conduct of a matter on his behalf in an arbitration between himself and one Joseph Njogu Njuguna. That the Defendant failed to attend any proceedings in the arbitral Tribunal and as a result of the Defendant’s negligence an award was passed against him by the Arbitrator for the sum of Kshs. 10,940,000/- plus interest at 12% per annum and costs of the arbitration were assessed at Kshs. 300,000/-. 8.It was his evidence that the arbitral award was upheld by the High Court and as a consequence of the Defendant’s negligence, failure to exercise due diligence, he was condemned unheard and thereby suffered loss and damage, to for which the Defendant ought to be found liable to pay the decretal sum as awarded by the sole Arbitrator. 9.On cross-examination, the Plaintiff confirmed there being an agreement between Joseph Njogu Njuguna and his company, Goldpark Invest Limited. That there were issues around the agreement that led to arbitral proceedings. He confirmed having not attended the initial arbitral proceedings on 21/12/2012 where after he approached the Defendant to appear on his behalf in subsequent arbitral proceedings on 11/01/2013. 10.It was his evidence that he could not recall receiving any legal opinion from the Defendant. That on 20/03/2013, a hearing date in respect of the arbitral proceedings was taken however he was unaware of the same and therefore did not attend. He confirmed having not paid the arbitrator or for any expenses however remembers paying some cash to the Defendant. That no expenses or invoices were sent to him either by way of SMS or letters whereas the final arbitral award was equally not sent to him. He further confirmed that he had a prior relationship with the Defendant who was his friend and that at the time of instructions he had not paid him any legal fees in respect of the arbitration proceedings. 11.After the award, the plaintiff filed an application before the High Court to set aside the arbitral award however, the Court found no merit in his application and dismissed it. He maintained being aware of the arbitral, proceedings and that he had instructed the Defendant to attend the same on his behalf. He confirmed having not evinced a demand letter to the Defendant. In conclusion, he stated that he settled Joseph Njogu Njuguna award by transferring land to him in 2019. 12.In re-examination, the Plaintiff reiterated that the arbitral award was for 10 million Kenya Shillings plus costs and interest which sum was settled by way of transfer of his property to the complainant. He maintained that he had paid the Defendant some cash however could not remember the amount. That, with respect to his application before the High Court seeking to set aside the arbitral award, he informed the Court that his advocate was aware of the arbitral proceedings however failed to file a defence. In summation, he confirmed having not paid the Arbitrator’s fees however urged this Court to allow his suit as prayed. Defendant’s Case and Evidence 13.Stanley Kang’ahi testified as DW1. He began by identifying himself as an Advocate of the High Court of Kenya with 25 years standing. It was his evidence that the Plaintiff was his old friend for close to 40 years with familiarity with his family as they consisted of people he grew up with. He proceeded to adopt his witness statement dated 15/02/2018 as his evidence in chief meanwhile adduced into evidence the documents appearing in his bundle of document of even date, as Dexh.1 14.On his part, the gist of his evidence, as stated in his adopted witness statement is that the Plaintiff reached out to him through his wife concerning arbitration proceedings over a dispute with respect to a sale agreement dated 27/07/2012. That the Plaintiff thus requested him to attend an arbitral meeting scheduled for 11/01/2013 and thus considered himself duly instructed by the plaintiff. 15.He goes on to state that on the latter date, he duly attended the arbitral proceedings where rules of engagement were spelt out, documented and directions issued whereinafter he proceeded to draw out a fee note being a demand for his instruction fees, and advised the Plaintiff on what transpired upon which the latter sought an opinion on the way forward. 16.That he reduced the opinion in writing and shared the same with the Plaintiff while simultaneously requesting for his fees and informing him of the arbitrator’s position on fees payable before audience could be granted. He goes on to state that the Plaintiff kept on postponing the latter discussion and eventually would not call or pick up any of his calls. 17.The Defendant further testified that despite informing the Plaintiff, through the wife, of the urgency on filing a statement of defence and the likelihood of an award being issued against him, the Plaintiff was elusive and non-responsive on all of the above. He states that on accord of the forestated, an award was issued as against the Plaintiff whereas the latter has never reached out and or settled his fees or that of the Arbitrator. 18.On cross-examination, the Defendant on being referred to the arbitral award, confirmed that there was a defence filed in the matter however he did not attend the arbitral hearing for failure by the Plaintiff to pay the Arbitrator’s fees and his legal fees. He went on to state that he filed the statement of defence some four (4) months after the hearing of the arbitral proceedings, given that the arbitrator extended the time within which a defence would be filed. 19.The Defendant confirmed having been paid Kshs. 20,000/- as fees for his legal opinion meanwhile maintained that it would have been difficult to attend the arbitral proceedings when the Arbitrator’s fees had not been paid. He equally confirmed having not sought before the Arbitrator, to withdraw from acting for the Plaintiff when the latter failed to pay his fees. He continued to act for the Plaintiff however; he could not attend the arbitration proceedings. 20.In re-examination, the Defendant iterated that he filed the statement of defence after the extension granted by the Arbitrator, and upon receipt of the defence, he requested for payment of his fees. That he shared the Arbitrator’s directions with the Plaintiff whereas he would not have been accorded audience before the arbitral Tribunal due to non-payment of the latter’s fees. 21.He confirmed having been paid for his legal opinion by the Plaintiff’s wife, whereas he did not receive instructions to draft or file the statement of defence after rendering his opinion. That a fortnight after receiving the notice of hearing, he requested the Plaintiff to pay a small deposit for the Arbitrator, to no avail. He stated that the Arbitrator notified him of the delivery of his decision however he was unaware of the contents of the award upon its delivery. He concluded by stating that the reason he failed to withdraw from acting was because the Plaintiff’s wife kept urging him not to withdraw from the matter. 22.At the close of the trial, directions were taken on filing of submissions. The respective parties duly complied. Plaintiff’s Submissions 23.Counsel for the Plaintiff restated the history of the matter, pleadings and evidence by the respective parties meanwhile condensed his submission into three (3) cogent issues. As to whether the Defendant as an advocate was entitled to withhold representation on grounds of non-payment of fees, counsel submitted that the Defendant was duly instructed and attended to the matter, filed a statement of defence after the hearing had already taken place, and failed to notify the Plaintiff of the hearing date and received Kshs. 20,000/- in fees. Therefore, the alleged non-payment of arbitral fees was not a lawful basis for abandoning representation given that the discretion to deny audience lay with the Arbitrator meanwhile there was no evidence that the Defendant was denied audience. In any event, he submitted that the Plaintiff was eventually issued with a fee note after the proceedings. 24.Counsel equally submitted that an advocate who is on record cannot simply stop acting because his fees has not been paid up. While citing Order 9 Rule 1 and 13 of the Civil Procedure Rules (CPR) counsel posited that an advocate who wishes to cease acting must formally apply and inform the Court whereas until properly discharged, the advocate remains obligated to represent the client. The decisions in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others [1995] eKLR and Belgo Holdings Ltd v National Bank of Kenya Ltd [2022] eKLR were cited in the above regard. 25.On whether the Defendant was guilty of professional negligence, counsel anchored his submissions on the decisions in Kimbio & Another v Nyaribo t/a Nyaribo & Company Advocates [2024] KEHC 6120 (KLR) and Kakunia v Ndung’u practicing as Annie W. Thoronjo & Co. Advocates [2023] KEHC 17324 (KLR) to submit that an advocate owes a duty in contract, in tort, duty to inform, duty to act professionally, to act in accordance with client’s instructions, to act in the client’s best interest and to exercise reasonable care and skill. 26.That the Defendant’s conduct was negligent and fell below professional standards when he failed to file a proper & arguable defence, failed to attend the arbitral proceedings and failed to keep the Plaintiff informed. It was further argued that the Defendant cannot excuse himself on ground of non-payment of fees while it was foreseeable that failure to defend the arbitral proceedings would expose the Plaintiff to substantial liability, urging that the Defendant ought to bear the responsibility for the resultant arbitral award. 27.Lastly, concerning whether the Defendant should be liable for the judgment amount entered against the Plaintiff, it was submitted that the Defendant’s negligence was the proximate cause of the arbitral award meanwhile deprived the Plaintiff of fair hearing, stating that if the Plaintiff’s case had been properly presented and or defended, the Arbitrator might have arrived at a different decision therefore the Defendant ought to be found liable, for the decretal amount arising from the arbitral proceedings, consequential loss and damage. The Court was thus urged to allow the claim as lodged. Defendant’s Submission 28.On his part, the Defendant’s counsel equally restated the events leading up to the suit, the pleadings and evidence by the respective parties meanwhile condensed his submission into four (4) salient issues for the Court’s consideration. 29.Addressing the Court on whether the suit herein is Res Judicata, counsel anchored his submissions on the decisions in Kenya Commercial Bank Limited vs. Muiri Coffee Estate & Another [2016] eKLR, John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) (Civ) and Arnold & Others vs. National Westminster Bank PLC (1991) 2 A.C to posit that the Plaintiff previously sought to set aside the arbitral award on the basis that the Defendant advocate failing to attend the arbitration proceedings therefore the instant proceedings are an attempt to re-litigate the same issue through a negligence claim; 30.That by entertaining the instant suit, it would amount to a collateral attack on an earlier decision of this Court over the same issue, and an affront to Section 7 of the Civil Procedure Act (CPA) on the doctrine of res judicata. 31.On whether the negligence as against the Defendant was proved, firstly, it was submitted that Plaintiff signed a verifying affidavit confirming the defence whereas if the same was improper the Plaintiff ought not to have verified it. Secondly, the Defendant attended to the one of the arbitral proceedings whereafter he informed and continuously communicated with the Plaintiff to no avail. Thirdly, the Plaintiff’s loss arose from his own contractual breach, therefore notwithstanding the Defendant’s involvement, the Plaintiff would still have been found liable given the admission that he owned the purchase price. Fourthly, the Plaintiff’s failure to pay the arbitral fees, prevented participation by the Defendant, to wit, the Defendant could not compel the Tribunal to hear a party who had not complied with fees requirement. That the Plaintiff’s failure on the latter constituted a superseding intervention as to cause thereby breaking causation of any negligence on the part of the Defendant. The decisions in Moses Kiplolum Kogo v Nyamongo and Nyamongo Advocates [2004] 1 KLR 367 and Kakunia (supra) were called to aid. 32.As to whether the instant suit is an affront to the doctrine of exhaustion, counsel relied Section 57 & 62 of the Advocates Act, Order 3 Rule 2 of the CPR, the Zambian decision in Lukasu Properties Ltd v Africa Banking Corporation Zambia Ltd (SCZ/08/10/2013) [2024] ZMSC 28, the decisions in Mumba & 7 others v Munyao & 148 others [2019] KESC 83 (KLR) and Speaker of National Assembly v Njenga Karume [1992] KECA 42 KLR) to submit that failure to issue a demand letter before action and failure to utilize the Advocate Disciplinary Tribunal was fundamentally fatal to the suit and bypassed statutory dispute resolution mechanisms. Lastly, while calling to aid the decision in Mumbi M'Nabea v David M. Wachira [2016] KECA 773 (KLR), counsel argued that the Plaintiff failed to prove his case on a balance of probabilities therefore the suit ought to be dismissed with attendant costs. Analysis and Determination 33.The Court has carefully considered the respective parties’ pleadings, the evidence adduced, and the parties' written submissions, and postulates that the Issues for determination concern-;a.Whether the Plaintiff has made out a case as against the Defendant for professional negligence on a balance of probabilities?b.Whether the Plaintiff is entitled to the reliefs sought?c.Who ought to bear costs? Whether the Plaintiff has made out a case as against the Defendant for professional negligence on a balance of probabilities? 34.Pertinent to the determination of the said issues, are the pleadings, which form the basis of the respective parties’ case before this Court. See-; Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91. Akin to pleadings is evidence in support of the pleadings. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that-:“The burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” 35.Before addressing the substratum of the suit, I wish to settle the twin questions of Res Judicata and Doctrine of Exhaustion raised by the Defendant in his submissions. 36.As concerns the doctrine of Res Judicata the same was elaborately addressed by the Court of Appeal in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR), which Court considered in extenso the application of the doctrine of res judicata generally, and to constitutional petitions specifically. The Court had this to say:“The doctrine of res judicata in Kenyan law is embodied or anchored on Section 7 of the Civil Procedure Act. It is in these terms: -“7.Res judicataNo court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”From the above, the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally. (see Karia & Another v the Attorney General and Others [2005] 1 EA 83).Res judicata is a subject which is not at all novel. It is a discourse on which a lot of judicial ink has been spilt and is now sufficiently settled. We therefore do not intend to re-invent any new wheel. We can however do no better than reproduce the re-indention of the doctrine many centuries ago as captured in the case of Henderson v Henderson [1843] 67 ER 313: -“…..where a given matter becomes the subject of litigation in and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time….”See also Kamunye & others v Pioneer General Assurance Society Ltd [1971] E.A. 263. Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of the court's limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability, which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application, …….The doctrine of res judicata has two main dimensions: cause of action res judicata and issue res judicata. Res judicata based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings. In such a case, the bar is absolute unless fraud or collusion is alleged. Issue res judicata may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to re-open that issue.”See also Gurbacham V. Yowani Ekori [1958] EA 450; George Kihara Mbiyu V. Margaret Njeri & 15 Others [2018] eKLR. 37.With respect to the doctrine of exhaustion, the same is more or less codified under Article 159(2)(c) of the Constitution. In Mutanga Tea & Coffee Company Ltd v Shikara Limited & another [2015] KECA 469 (KLR) the Court of Appeal discussed the rationale underlying the doctrine. Later, the Supreme Court in Mumba & 7 others v Munyao & 148 others [2019] KESC 83 (KLR) pithily put it that-;“In pursuit of sound legal principles, it is our disposition that the disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of the superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to the relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.”See also-; Speaker of National Assembly v Njenga Karume [1992] KECA 42 KLR 38.Applying my mind to the ratio decidendi emanating from the above decisions, it must be remembered what is saliently for consideration is whether this Court ought to arrive at a finding that the Defendant is guilty of professional negligence. While the parties herein may have litigated over setting aside the arbitral award, pursuant to provisions of the Arbitration Act, and on the premise of the Defendant’s failure to attend the arbitral proceedings, the above is not what is in issue in the present suit. Therefore, the plea of Res Judicata cannot attach in the circumstance. 39.Further, while Section 57 as read with Section 60 of the Advocates Act provides for an avenue within which a person may lodge a complaint to the Disciplinary Tribunal against an advocate for professional misconduct, which expression includes disgraceful and dishonorable conduct incompatible with the status of an advocate, it must be emphasized that professional misconduct is not synonymous with professional negligence. 40.While the purport of the above provisions essentially concern disciplinary measure as against advocates, as earlier stated, what the Plaintiff seeks before this Court is inter alia damages for a civil wrong by the Defendant, of which, is not encompassed within realms of the Advocates Act. Therefore, similarly to the earlier preliminary issue, the plea of exhaustion cannot attach as well. 41.Moving on to the substratum of the suit, at the heart of the dispute is whether the Plaintiff is entitled to the judgment by way of a finding that the Defendant is guilty of breach of contract and professional negligence in failing to represent the Plaintiff in the arbitral proceedings and as a consequence a declaration does issue that the Defendant is liable to pay the decretal amount in High Court Misc. Civil Application No 232 of 2014 consolidated with Misc. Application No. 105 of 2014 alongside damages for breach of contract, among others. 42.It is not in issue that the parties hereto, had an existing advocate-client relationship. To the aforestated end, a cursory review of Dexh.1, the Defendant had accepted instructions to act as counsel in respect of the arbitration proceedings as against the Plaintiff before the (late) Mr. Kyalo Mbobu, Arbitrator.The common law obligation of an advocate arising out of a retainer, Aburili, J. in Co-operative Insurance Company Limited v Secucentre Limited & another [2016] KEHC 5343 (KLR) quoted with approval the learned authors of Cordeny’s Laws Relating to Solicitors 7th Edition page 150 who stated that-;B.Obligations arising out of retainer;1.TO BE SKILFUL AND CAREFUL“ At common law, a solicitor contracts to be skillful and careful for a professional man gives an implied undertaking to bring to the exercise of his profession 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 volunteers his services, or whether or not he has a practicing certificate in force at the time. A solicitor’s duty is to use reasonable care and skill in giving such advice and taking such action as the facts of the particular case demand. The standard of care is that of the reasonably competent solicitor, and the duty is directly related to the confines of the retainer. It has been said that the court should beware of imposing on solicitors duties going beyond the scope of what they are requested and undertake to do. There is no such thing as a general retainer imposing on the solicitor a duty. Whenever consulted to consider all aspects of the clients interests generally. A solicitor is not bound to have a perfect knowledge of the law, but he should have a good knowledge eg: he should know about the statutes of limitation. Although a solicitor is not liable for a mistake as to the construction of a doubtful statute, difficult to interpret or unexplained by decisions, he may be liable if he fails to realize that the statute presents difficulties of interpretation. On the question as to how far a solicitor may be liable in negligence for delay, it has been said that it would be wrong to hold a professional man guilty of negligence because everything is not dealt with by return of post.” 43.Here, what I garner to be the Defendant’s position, is that the Plaintiff having failed to pay his legal fees to complete instructions and also the Arbitrator’s fees, he was not in breach of any contract and or liable for professional negligence. Meanwhile, I note that the Plaintiff’s claim on professional negligence, as against the Defendant, is particularized on the facts that the latter purportedly failed to file a proper defence in the arbitral proceedings, failed to attend to the arbitral proceedings or hearing, failed to keep the Plaintiff informed as to proceedings before the Arbitrator, and acted in an unprofessional manner. 44.Concerning professional negligence involving an advocate, the Court of Appeal in Moses Kiplolum Kogo v Nyamogo & Nyamogo Advocates [2004] KECA 164 (KLR) had this to say-;“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] EA 42 the predecessor of this Court held, among other things, that an advocate is not liable for any reasonable error of judgment 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.” 45.Warsame, J as he then was, in National Bank of Kenya Limited v E. Muriu Kamau & another [2009] KEHC 3684 (KLR) while elaborately addressing himself to professional negligence by an advocate, which i concur with, stated that-;“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 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 the 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.…… when a client goes to an advocate, it is a reasonably foreseeable consequence that if anything goes wrong with 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.” 46.With the above in reserve, on the question of whether the Defendant was negligent for failing to file a proper defence in the arbitration proceedings, I note from the arbitral award delivered on 21/01/2014 adduced as part of Pexh.1, the Arbitrator captured in the body of his award, under pleadings, that Plaintiff despite being accorded a generous extension of time by the Tribunal failed to file a statement of claim, to wit, the Tribunal proceeded to determine the dispute in line with Section 26(b) of the Arbitration Act. 47.It is apparent from the face of the award, given the Plaintiff’s lack of a defence, his pleadings in part or substantially, did not inform the final decision of the Tribunal, a question as to the propriety of the defence filed by the Defendant, may be called to fore. 48.Had the Defendant filed a defence that was not arguable for one reason or another, and the same considered by the Tribunal, it would have been an invitation for this Court to determine the propriety of the statement of defence on the premise of gross negligence or ignorance of elementary matters of law constantly arising in practice, as may concern the averments therein. 49.As it were, the Tribunal was only obligated to continue with the arbitral proceedings without treating the Plaintiff’s failure to file a statement of defence as an admission of the claimant’s allegations therein. (See-: Section 26(b) of the Arbitration Act). Consequently, a question on professional negligence as against the propriety of the statement of defence, filed by the Defendant, cannot arise. 50.Concerning the Defendant’s failure to attend to the arbitral proceedings or hearing, failure to keep the Plaintiff informed as to proceedings before the Arbitrator and acting in an unprofessional manner, the Court proposes to concomitantly address the tripartite issues. 51.Here, the Defendant readily admitted that he was duly instructed by the Plaintiff to represent him in the arbitration proceedings before the (late) Mr. Kyalo Mbobu, Arbitrator. The Defendant equally confirmed that upon receipt of instructions he attended an arbitral meeting scheduled for 11/01/2013 and considered himself duly instructed. That on the latter date the rules of engagement were spelt out, documented and directions issued whereinafter he proceeded to draw out a fee note being a demand for his instruction fees meanwhile advised the Plaintiff on what transpired. 52.The Plaintiff contended on cross-examination that he did not receive any legal opinion of Defendant, was unaware of the hearing date of 20/03/2013 in respect of the arbitral proceedings, that no expenses or invoices were sent to him either by way of SMS or letters whereas the final arbitral award was also not sent to him. He however confirmed having not paid the arbitrator though he paid the advocate some cash which amount he did not state. 53.However, the Defendant confirmed having received Kshs. 20,000/- for his legal opinion, but it proved difficult to attend the arbitration proceedings given that the Arbitrator’s fees had not been paid or settled. Therefore, it is irrefutable given the Defendant’s own admission, that he did not attend to the arbitral proceedings due to non-payment of his fees alongside that of the Arbitrator.However, upon being put to task whether he sought to cease acting for the Plaintiff given the aforestated, he confirmed having not undertaken such steps in the forestated regard. 54.I also note that the (late) Mr. Kyalo Mbobu, Arbitrator correspondences adduced, as exhibits by the respective parties were at all material times addressed to the Defendant as counsel for the claimant in the arbitral proceedings.To the forestated end, this Court concurs with Musyoka, J’s rendition in Mutua Waweru & Co. Advocates v Gilphine Mokeira Omwenga & Another [2022] KEHC 2048 (KLR), where while addressing himself to the duties of counsel on record, he observed that-;17.An Advocate who places themselves on record in a matter, as appearing for a party, does not get out of the record, for lack of instructions, by merely dropping out, by failing to attend court, while continuing to accept service of process. An Advocate on record owes a duty, to the party that they represent, to attend court at all times, so long as they are on record for them. They owe a duty to the court to attend or show up in court on the date indicated in the process served on them. Failure to attend court, upon being duly served, is a dereliction of duty. It is an act of breach of professional etiquette and decorum on the part of the Advocate. It amounts to professional negligence and a let down to the party who had instructed the Advocate. An Advocate who strictly adheres to the ethics of the legal profession and upholds the standards of professional conduct expected of him as Advocate, must dutifully attend court whenever he is served and required to. If he is unavailable, for whatever reason to attend court, professional courtesy and decorum requires that they brief another Advocate to stand in for them, or, should that not be possible, write to both the court and the other party explaining themselves. If an Advocate is unable to discharge their duties due to lack of instructions, they should apply formally, for they had come on record formally, for leave of the court, to cease acting. Seeking leave of court to cease acting is part of the professional discipline that Advocates are expected to adhere to. It is courteous, decorous and good etiquette. The formal application for leave to cease acting must be served on the party that the Advocate is on record for, and the Advocate should stop attending court only after court has granted leave to cease acting. It is part of the courtesies that Advocates are expected to extend to the courts for the sake of good order. An Advocate comes on record formally, by filing a notice of appointment or notice of change of Advocates, which ought to be served on all the parties on record. Conversely, when an Advocate has to get out of the matter or the record, they have to do so formally, either upon leave of court vide an application to cease acting, or by way of another Advocate coming on record by filing a notice of change of Advocates. The notion that an Advocate on record can get or come out of a matter or the record, as appearing for a party, informally, by merely disappearing or stopping to attend court, is alien to the tenets of professional conduct and legal practice. It is an impediment to proper and smooth administration of justice, and it should be abhorred…..” 55.Applying my mind to the above decision, even if there was an issue as to the Defendant’s and Arbitrator fees, the Defendant owed a duty to the Plaintiff to represent and attend to the Tribunal proceedings at all times, as long as he was on record. Failure to settle the aforestated fees, that may have had the unintended consequence of materially affecting the Defendant’s ability to offer representation, obligated of him to promptly notify both the Plaintiff and Tribunal of his inability to act in the matter rather than an abandonment of the proceedings, while still on record for the Plaintiff, as it would appear in this case. 56.As to the question whether the Plaintiff received correspondences and invoices prepared by the Defendant, here I draw guidance from the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others [2014] eKLR regarding the question of legal and evidential burden that:-“The person who makes an allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue”. 57.On the above, I note during the course of the trial, the Defendant made heavy weather of the fact there was no communication forthcoming from the Plaintiff. In my view, the evidential burden was on his part to prove that indeed his correspondences and invoices were actually received by the Plaintiff and that the latter failed and or opted not to respond to the same.The invoice and letter dated 11/01/2013, letter dated 13/01/2013, Legal opinion dated 13/01/2013, letter dated 15/01/2013, letter dated 06/06/2013 and letter dated 14/06/2013 adduced as part of Dexh.1, ex facie do not capture whether they were sent by mail or hand delivered to the Plaintiff. It may well be, the Plaintiff never received any of the said communication whereas the same were only adduced and or prepared after the fact. 58.Nevertheless, the only evidence of communication that appears to have been sent to the Plaintiff and possibly received was the email dated 27/03/2013, titled “draft defence” wherein the Defendant acknowledges his silence and shares a copy of a draft defence. It is likewise interesting that the defence in question seems to have been served upon the Arbitrator on 17/07/2013, and as earlier noted, did play any part in his final award,. That said, in the whole, I believe the Plaintiff has made out a case for professional negligence as against the Defendant. Whether the Plaintiff is entitled to the reliefs sought? 59.Before I proceed to address the above issue, it would be remiss of the Court not to address the Plaintiff’s pleadings, of which, has drawn the Court’s interest. The authors of Bullen and Leake (12th edition), Pg 3 under the rubric Nature of Pleadings stated that-:“The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which the parties can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two fold purposes of informing each party what is the case of the opposite party which he will have to meet before and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial.” 60.Within our jurisdiction, in the case of Galaxy Paints Co. Limited v Falcon Guards Limited [2000] 2 EA 385, it was succinctly held that the issues for determination in a suit generally flow from the pleadings and a trial Court can only pronounce judgment on the issues arising from the pleadings or such issues as the parties framed for determination. By his plaint, the Plaintiff sought a declaration that the Defendant is liable to pay the decretal amount in High Court Misc. Civil Application No 232 of 2014 consolidated with Misc. Application No. 105 of 2014 alongside damages for breach of contract, among others. 61.While it is not in dispute that the nature of the relationship between the parties herein was one of Advocate-Client, of which, is contractual by nature, as a general rule, general damages do not issue for breach of contract. The Court of Appeal in Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312 (KLR) held that;“As a general rule general damages are not recoverable in cases of alleged breach of contract and that has been the settled position of law in our jurisdiction, and with good reason. In DHARAMSHI vs. KARSAN [1974] EA 41, the former Court of Appeal held that general damages are not allowable in addition to quantified damages with Mustafa J.A expressing the view that such an award would amount to duplication” 62.An injured party would however be entitled to special damages in respect of actual loss suffered as a result of the breach. In Anson’s Law of Contract, 28th Edition at Pg. 589 - 590, it is stated: -“Every breach of a contract entitles the injured party to damages for the loss he or she has suffered. Damages for breach of contract are designed to compensate for the damage, loss or injury the claimant has suffered through that breach. A claimant, who has not, in fact, suffered any loss by reason of that breach, is nevertheless entitled to a verdict but the damages recoverable will be purely nominal”. 63.On the above, I note that the Plaintiff failed to quantify, in his plaint, the exact nature of his loss as a consequence of the Defendant’s breach of contract. Nevertheless, while the gist of Pexh.2 appears to have been intended to shore up the relief seeking a declaration that the Defendant is liable to pay the decretal amount in High Court Misc. Civil Application No. 232 of 2014 consolidated with Misc. Application No. 105 of 2014, it does necessitate that I mention the following-; Firstly, HC Misc. Application No. 105 of 2014 concerned an application brought pursuant to Section 35(2)(iii) of the Arbitration Act seeking to set aside the (late) Mr. Kyalo Mbobu, arbitral award whereas HC. Misc. Civil Application No 232 of 2014 was brought pursuant to Section 36 of the same Act and sought for recognition and enforcement of the arbitral award. By dint of ruling appearing in Pexh.2, it would seem that the applications were consolidated. In the end, the motion seeking to set aside the arbitral award was dismissed. 64.Secondly, notwithstanding this Court’s earlier finding on professional negligence as against the Defendant, the same was not synonymous with the Plaintiff’s success in defending the arbitral proceedings. The claim before the Arbitrator concerned breach of a sale agreement alongside an order for payment of Kshs. 10,940,000/- and interest at 10% from 30/07/2012. Had the Plaintiff promptly filed a defence to the arbitral claim, onus was on his part to tender evidence to shore up the averment in his defence, towards deflecting the claim. In nutshell, there was no guarantee as to the outcome of the Plaintiff’s defence, if so filed, with either its success or otherwise being abstract, speculative, uncertain, or incapable of objective quantification. 65.In the end, applying my mind to the facts of the matter, evidence tendered and relevant case law relied on by the respective parties, the Court is not convinced that by dint of the Defendant’s negligence, the Plaintiff demonstrably proved direct correlation between the Defendant’s negligence and or the net consequential loss of the action by the Plaintiff. I beg to repeat, the success of the Plaintiff’s likely defence before the Arbitral Tribunal was abstract, speculative, uncertain, or incapable of objective quantification given the nature of claim before the Tribunal. 66.That said, the Plaintiff also sought any other relief that the honorable Court deems fit. On the above, as observed in the decision in E. Muriu Kamau (supra), an advocate owes a duty to his client both in contract and tort. My understanding of the above, of which, I concur with wholly, is that a client can claim damages both in tort and in contract for professional negligence by counsel. Nevertheless, it bears reminder that general damages are not awardable for breach of contract; however, damages generally are awardable for professional negligence, in appropriate cases. 67.Here, notwithstanding this Court’s earlier position on the speculative nature of the Plaintiff’s defence before the arbitral tribunal, I do believe that the Defendant’s actions occasioned the Plaintiff some foreseeable element of loss, particularly by condemning the Plaintiff unheard before the arbitral Tribunal. Therefore, in the circumstance, the Plaintiff is entitled to some form of recompense by way of general damage on the backdrop of the finding of professional negligence as against the Defendant. 68.Applying my mind to persuasive decisions of this Court in Olew & another v Michael t/a SM Onyango Associates Advocates [2025] KEHC 13286 (KLR), Anthony Ambaka Kegode v Ochieng, Onyango Kibet & Ohaga Advocates & another [2018] KEHC 490 (KLR) and Co-operative Insurance Company Limited v Secucentre Limited & another [2016] KEHC 5343 (KLR) I proceed to award the Plaintiff nominal general damages for professional negligence in the sum of Kshs. 200,000/-. Final Disposition 69.Accordingly, the Court finds and issues the following orders-;a.The Defendant is found and held liable for breach of contract and professional negligence in failing to represent the Plaintiff in the Arbitral proceedings.b.The declaration that the Defendant is liable to pay the decretal amount in High Court Misc. Civil Application No 232 of 2014 consolidated with Misc. Application No. 105 of 2014, is unmerited and damages for breach of contract, IS DENIED.c.General damages for professional negligence, is awarded to the Plaintiff in the sum of Kshs. 200,000/-The above amount shall attract interest at Court rates from the date of this judgment until full settlement. 70.Finally, on costs, applying my mind to the provision of Section 27 of the Civil Procedure Act, and the proviso thereto, for good reason and circumstance, I award costs of the suit in favour of the Plaintiff at half rate - scale fees, to be borne by the Defendant.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF MAY 2026.……………………….JANET MULWA.JUDGE