[2023] KEHC 25353 (KLR)

K'Opere trading as TO K’Opere & Co Advocates v Disciplinary Committee of the LSK & another (Civil Appeal 461 of 2011) [2023] KEHC 25353 (KLR) (Civ) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25353 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 461 of 2011

AN Ongeri, J

November 17, 2023

Between

Tom K'Opere trading as TO K’Opere & Co Advocates

Appellant

and

The Disciplinary Committee Of The Lsk

1st Respondent

Sister Mary Dominic Savio Akoth

2nd Respondent

(Being an appeal from the judgment of the Disciplinary Committee of the Law Society of Kenya given on 12/09/2011 in D. C. no. 26of 2011)

Ruling

1. The 2nd respondent filed a complaint against the appellant at the Laws Society of Kenya being D.C. No. 26 of 2011.

2. The complaint was in respect of the appellant’s failure to release to the 2nd respondent’s documents received by his firm on behalf of the 2nd respondent.

3. The documents were in respect of land parcel TITLE NO. WESTKASIPUL/KARABACH/599 (hereafter referred to as the suit property) situated at Rachuonyo which the 2nd respondent allegedly bought by way or public auction from National Bank of Kenya(NBK).

4. A brief background of this case was that the owner of the suit property (Richard Omanya (now deceased)) charged the suit property to the National bank of Kenya (NBK) to secure a loan of kshs.300,000.

5. The deceased was running a school at the suit property which collapsed and the deceased converted it into a health centre.

6. When the health centre did not do well, the deceased leased the health centre to the second respondent.

7. The deceased was unable to service the loan and the bank (NBK) invoked its statutory power of sale.

8. The appellant thereafter participated in negotiations between the family of the deceased and the 2nd respondent in which the 2nd respondent offered to buy 5 acres of the suit property comprising the Health centre for ksh.3,000,000.

9. Subsequently the 2nd complainant purchased the entire suit property at an auction held on 7/12/2001 at Kshs. 1,500,000.

10. The appellant refused to release the documents he was holding in respect of the suit property and the 2nd respondent filed the complaint at the LSK on 16/3/2011.

11. The 1st respondent found that the appellant was guilty of professional misconduct for reasons that he released the title documents of the suit property to one of the parties after acting for both the family of the deceased and the 2nd respondent in the transaction.

12. The 1st respondent said that as advocate acting for both parties, the appellant was under a duty to balance the parties’ interests and not to favour one party over another.

13. The 1st respondent also stated in their judgment that the appellant was in breach of his professional responsibility by releasing the title documents of the suit property to one of the parties.

14. The 1st respondent said that the appellant ought to have returned the documents to the bank (NBK) instead of releasing them to the family of the deceased.

15. The Appellant filed an interpleader suit in Nairobi and the case was transferred to Kisumu ELC court where it was determined.

16. The appellant is aggrieved with the decision of the 1st respondent and he filed this appeal on the following grounds;i.The entire judgment/order/conviction is contrary to law in that it totally ignores the Provisions of the Land Control act – Cap 302 Laws of Kenya and more specifically Sections 6, 8 and 22 thereof in the manner the advocate made his decision not to release the title documents to the complainants.ii.The Disciplinary committee erred both in law and fact in holding that the appellant/advocate withheld completion documents of a transaction which transaction was void in law and any furtherance thereof would constitute a criminal offence in terms of Section 22 of the Land Control Act there being no consent from the Land Control Board as required under Section 6 and 8 thereof, no purpose would have been achieved by releasing the title documents which were still in the name of the deceased to the complainants.iii.The judgment/order/conviction is premised on the purport/presumption that the 2nd respondent/ complainant was a client of the appellant/advocate when there is no evidence tendered in support to show:-a.Any instructions given by the 2nd respondent to the advocate, written or otherwise as by the law required.b.Any direct communication between the complainants and the advocate to suggest any instructions.c.Any payment of fees or commitment to pay fees so as to create advocate-client relationship.d.Clear admission of fact that the advocate was representing the deceased owner of the property in dispute and thereafter the estate.iv.The disciplinary committee erred in law and fact in failing to consider and appreciate the undisputed and overwhelming fact that the complainants were purely nominees to the auction transaction and never participated or attended any auction sale and their name was only given by the Highest Bidder pursuant to an arrangement with the deceased family and at no time were they a client of the advocate/appellant and grossly misinterpreted the advocates letter of 04/10/06 almost two (2) years after the transaction.v.The disciplinary committee erred in law and fact in failing to consider and appreciate the correspondences annexed to the advocate’s replying affidavit which clearly demonstrated that the complainants were at no time the clients of the advocate and there has never been any advocate-client relationship between the appellant and the 2nd respondent.vi.The disciplinary committee exceeded its jurisdiction and mandate, in purporting to determine a commercial dispute between the complainants and the estate of the deceased owner of the suit property without hearing the other parties who were involved in the transaction and clearly named in the proceedings thus rendering a decision which is ultra vires its powers and jurisdiction and further violating the fundamental rules of natural justice by deciding who was entitled to the release of the title documents in relation to Title No. West Kasipul/Karabach/599 which is still in the name of the deceased without hearing the members of the deceased family who transacted with the complainant herein. This dispute is recognized in paragraph 16 of the judgment (page 6).vii.The disciplinary committee erred in law and fact in ignoring the correspondences exchanged between the complainant’s advocates and the appellant for six (6) years between 2005 and 2011 thus arriving at a wrong and absurd conclusion that the advocate failed to reply to correspondence a decision which is not supported by any logic.viii.The disciplinary committee erred in law and fact in convicting the appellant for professional misconduct when in its own finding at paragraph 21 (page 9) it recognizes that the dealings between the transaction is valid under the Land Control Act and the effect of this finding is that in the absence of any consent from the Land Control Board, and the property remaining in the name of the deceased, the only claim the complainants may have is over any sums paid towards the transaction and not the property, which confirm the position that no documents of the title could be released to the complainants.ix.The disciplinary committee erred in law and fact in its interpretation of Sections 55, 60 and 60a of the Advocates Act thus arriving at a wrong decision.x.The judgment/order/conviction of the appellant by the disciplinary committee was arrived at based on an erroneous reasoning, failure to appreciate the facts and evidence before the committee and based on wrong conclusions.

17. The parties filed written submissions as follows: the appellant submitted that the disciplinary committee appreciated that there were other parties involved including the deceased’s family members, widow (consolata Omanya), the deceased daughter in law (Bertha Omanya), the charge Bank (National Bank of Kenya and the deceased daughters who took out letter of administration of the deceased estate have been enjoined in this appeal and were parties to the interpleader proceedings. None of these parties were enjoined in the primary complaint by the complainant and the disciplinary committee recognized this fact but did not hear the said parties before rendering its judgement.

18. The appellant argued that the Interpleader Application was very Specific on only two Prayers; the first issue was for determination of who between the 1st and 2nd Respondents was entitled to the Release of the Title Documents which had already been deposited in Court; and secondly, who between the two parties was to pay the Appellant Advocate's Costs/Fees. The trial judge in his judgment instead proceeded to frame Seven (7) Issues most of which were not relevant to the Interpleader Proceedings but the only portion which touched on the Prayers in the Originating Summons dated 27/4/12. The judge came to the finding that the suit property could not be effected to the 1st respondent as there was no valid consent and therefore the court was of the view that the property still belonged to the deceased and therefore his beneficiaries should benefit from his estate.

19. The appellant argued that this is the legal position that he took before being taken to the disciplinary committee and that is why in his letter dated 7/4/2011 indicated that there being no consent from the land control board, the transfer could not be effected and preferred to release the title documents to the deceased estate on condition that the estate make arrangements to refund the 2nd respondent the total amount paid to the charge Kshs. 1,500,000 to secure the release of the title and discharge of the property pursuant to the botched auction sale.

20. The appellant indicated that the 2nd respondent had for the past six years instructed several advocates among them; Muniafu Ondari & Co. Advocates, Mose & Mose Advocates, Kiage & co. Advocates to act for them. The appellant advocate copied the letter dated 7/4/2011 to the 2nd respondent, her advocates and the secretary LSK setting out the conditions for the intended release of the title documents to the deceased family which condition was never complied with by the deceased family forcing the advocate to continue holding the title documents until the same were deposited in court.

21. As relating to the issue of advocate client relationship between the appellant and the 2nd respondent the appellant argued the same was raised in the proceedings but not conclusively dealt with by the disciplinary committee. The 2nd respondent in her various affidavits confirmed that she never dealt with the appellant directly but through the two family members of the deceased and never attended the public auction sale and insisted that the appellant advocate received the title documents on their behalf but all subsequent correspondences for 6 years from 2005-2011 show that they were represented by 4 different firms of advocates.

22. The appellant argued that the action by the Appellant Advocate for which the Disciplinary Committee convicted him involved a question of Interpretation of the Law in a Transaction. The Decision of the Committee presupposes that the Advocate cannot and should not make a Legal Opinion or Decision on a mater he is acting for Two (2) Competing Clients by advising on the way forward where a provision for the Law (Section 22 of the Land Control Act) clearly stipulates a Criminal Sanction where an Advocate or Party takes a particular action in furtherance of a void transaction. To this extent the Disciplinary Committee in acknowledging the Dilemma caused by the Provisions of the Land Control Act should not have proceeded with the Hearing of the Complaint and convicted the Appellant but hold the Complaint in abeyance or decline Jurisdiction pending a Determination by the Court on the Interpretation of the Provisions of the Land Control Act through the Interpleader Proceedings. In this Case, notwithstanding the Conviction and Sentence, the Disciplinary Committee file is still open and being Mentioned after every Six (6) Months to determine what the Court has determined. This should form a basis and Justification for Setting Aside the Decision of the Disciplinary Committee for want of Jurisdiction.

23. In opposition the 1st respondent submitted that 2nd Respondent purchased the subject property through an auction as the property had been charged by the late Richard Omanya Adongo to National Bank of Kenya. The Appellant, who was acting for both the 2nd Respondent and the family of the deceased received the completion documents from the Bank on behalf of the 2nd Respondent and instead released the same to the family of the deceased. It is on this basis that the 1st Respondent found the Appellant guilty for professional misconduct.

24. The Appellant as the advocate for the 2nd Respondent received the purchase price for the property from the 2nd Respondent vide Cheque No. 100688 and partly through a direct deposit. Subsequently, the National bank of Kenya released the completion documents to the Appellant vide the letter dated 26/4/2005 on behalf of the 2nd Respondent. It was therefore imperative for the Appellant to release the completion documents to the 2nd Respondent who rightfully bought the subject property in a public auction. On the contrary, the Appellant released the completion documents to the family of the deceased, Richard Omanya Adongo, whom he was also acting for.

25. The 1st respondent argued further that it was not within the mandate of the 1st Respondent to determine the validity of the transaction. It's on this basis that the 1st Respondent only addressed the professional misconduct of the Appellant, which is within its realm. In that regard, the contention that the transaction was void in law is without merit.

26. The 1st respondent noted a letter dated 21/7/2006 where the appellant admitted that the 2nd respondent was his client and it was on this basis that the appellant received the documents from Legacy Auctioneering Services. It was also in his capacity as the advocate that the appellant received the purchase price vide cheque No. 100688 and partly through a direct deposit. The appellant also issued a fee not vide the letter dated 4/10/2006 to be paid by both the 2nd respondent and the family of the deceased.

27. The 2nd respondent in its submissions reiterated the sentiments of the 1st respondent. The 2nd respondent further argued that the appellant is attempting to hide his misconduct by invoking the provisions of section 6 and 8 of the Land Control Act. The 1st respondent has the disciplinary jurisdiction to hear and determine a complaint brought to it by any person against an advocate pursuant to section 55 of the Advocates Act.

28. This being a first appeal, the duty of the 1st appellate court is to re-evaluate the evidence before the Disciplinary Committee and to come up with its own conclusion whether to support the findings of the committee. In Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

29. The issues for determination in this appeal are as follows;i.Whether the 2nd respondent was a client of the appellant.ii.Whether the 1st respondent was right in finding that the appellant was guilty of professional misconduct.iii.Whether the 1st respondent exceeded its jurisdiction by determining a land dispute between the 2nd respondent and the family of the deceased.iv.Whether the decision of the 1st respondent should be set aside.

30. On the issue as to whether the 2nd respondent was a client of the appellant, the 2nd respondent maintained that she was the one who had instructed the appellant to act for her in the sale transaction of the property.

31. The appellant denied having any client/advocate relationship with the 2nd respondent and said he did not have any written or verbal instructions to act for her.

32. The appellant denied that there was any direct communication between him and the 2nd respondent or payment of fees.

33. I have perused the proceedings correspondences and the judgment of the 1st respondent and I find that the appellant was acting for both parties.

34. There is evidence that the appellant participated in negotiations between the 2nd respondent and the family of the deceased for the sale of the suit property prior to the auction.

35. The 2nd respondent was a tenant of the deceased while the deceased was the initial client of the deceased before the sale negotiations.

36. I find that the 1st respondent was right in pointing out at paragraph 31 of their judgment that the appellant was an advocate for both the 2nd respondent and the family of the deceased.

37. On the issue as to whether the 1st respondent was right in finding the appellant guilty of professional misconduct, I find that the 1st respondent found that the appellant was wrong in releasing the documents to one of the parties.

38. The complaint filed by the 2nd respondent was in respect of withholding the documents. In the judgment the 1st respondent found the appellant guilty of having released the same to one of the parties.

39. I find that the appellant deposited the documents in court by order of the court and he filed interpleader proceeding at the NAIROBI ELC NO.220 OF 2012 which was later transferred Kisumu and it became KISUMU ELC NO. 64 OF 2019.

40. The said case has since been determined and it is awaiting determination of an appeal at the Court of Appeal at Kisumu being KISUMU CA 054 OF 2023.

41. The title documents were deposited with the Registrar of the Court of appeal by order of this court dated 15th August 2023 awaiting the determination of the appeal to the Court of Appeal.

42. In the circumstances, the appellant did not release the documents to one of the parties. He may have threatened to release them but he did not do so.

43. I therefore find that the 1st respondent was not right in finding the appellant guilty of professional misconduct.

44. On the issue as to whether the 1st respondent exceeded its jurisdiction by determining a land dispute between the 2nd respondent and the family of the deceased, I find that the family of the deceased was not a party in D. C. no. 26of 2011 between the Appellant and the 2nd Respondent.

45. In the circumstances, the 1st Respondent did not have the mandate to decide who was entitled to the title documents of the suit property since they were made aware that there was a dispute between the 2nd Respondent and the family of the deceased.

46. I accordingly allow the appeal and I set aside the decision of the 1st respondent.

47. On the issue of costs, I direct that each party bears its own costs of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent