[2015] KEHC 1336 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 457 OF 2013

LAW SOCIETY OF KENYA........................................PLAINTIFF

VERSUS

MARTIN DAY................................................1ST DEFENDANTS

LEIGH DAY...................................................2ND DEFENDANTS

KENYA HUMAN RIGHTS COMMISSION........3RD DEFENDANTS

GITU WA KAHENGERI..................................4TH DEFENDANTS

RULING OF THE COURT

1. Before this court for determination is the 3rd and 4th Defendants' ('the Applicants') Notice of Motion dated 6th October, 2014. The application is brought under the provisions of Order 5 Rules 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30, Order 2 Rule 14 (sic) and Order 50 Rule 1 of the Civil Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act. The applicants seek the striking out of this suit with costs.

2. The application is predicated on the grounds in the body of the application and the supporting affidavit of Atsango Chesoni, the 4th defendant’s Executive Director.

3. Those grounds are: that the Plaintiffs have not complied with the requirements of Order 5 Rules 21 and 22 of the Civil Procedure Rules by failing to properly serve summons to enter appearance upon the 1st and 2nd Defendants; that in a ruling dated 16th September, 2014 this court pronounced itself that the matters which the Plaintiff is pursuing relate to London No. HQ 09XO 2666 of 2012 Ndiki Mutua & Others v. Commonwealth Office which is already spent and therefore the Plaintiffs have no locus standi to file a suit on matters arising there from and that as a result thereof, this court has no jurisdiction to entertain this suit.

4. The Plaintiffs filed grounds of opposition to the application on 22nd July, 2015. They contended that the application as filed is an abuse of court process; that the application is brought in bad faith; that the application is grounded on matters touching on service of summons to enter appearance on the 1st and 2nd Defendants yet the Applicants' counsel is not on record for the said 1st and 2nd Defendants; that the application is frivolous, misconceived and incompetent; that the Plaintiff has locus standi to file this suit; that the application has no merit as it violates Article 159 (2) (d) of the Constitution by seeking to delay the ends of justice; and that the application is based on a misapprehension of the governing law.

5. The applicants ‘application was canvassed by way of oral submissions. Senior Counsel Mr. Nzamba Kitonga for the Applicants submitted that the procedures set out under Order 5 Rules 21 to 30 of the Civil Procedure Rules should have been applied in effecting service of summons to Enter Appearance upon the 1st and 2nd Defendants who are not domiciled in Kenya. Mr Kitonga contended that this suit has never been validated and no directions have been given by the court as to how the summons against the 1st and 2nd Defendants is to be effected.

6. It was further submitted on behalf of the applicants that instead, the Plaintiffs purport to have effected service of summons to Enter Appearance through a firm of solicitors based in London and that as a result thereof, this suit is incurably incompetent and defective. Secondly, Mr. Nzamba argued that this suit has no standing since it is based on a suit that had already been concluded. Finally, it was argued by Senior Counsel that the terms of payment agreed upon between the client (Mau Mau victims) and their advocates the 1st and 2nd defendants were privileged communication and ought not be disclosed to a third party as that disclosure would contravene the provisions of sections 134 and 137 of the Evidence Act and Article 50 of the Constitution of Kenya.

7. Learned Counsel for the Plaintiffs Mr. Harrison Kinyanjui urged this court to be slow in striking out this suit. He submitted that the Law Society of Kenya s core mandate under section 4 of the Law Society of Kenya Act Cap 16 of Laws of Kenya is to ensure the rule of law. Further, those courts should endeavour to sustain claims which are filed in furtherance of statutory mandate. In addition, Mr Kinyanjui submitted that the subject matter of this suit is critical to the legal practice in Kenya and is therefore not a frivolous claim. He also maintained that the cause of action is not spent since the breach of law by the defendants is alive.

8. The Plaintiffs’ counsel further contended that although the plaintiffs had filed this suit in 2013, they were unable to serve summons upon the 1st and 2nd defendants in London. They also contended that the problem was compounded by an application by the Mau Mau victims to be enjoined and it was not feasible to deal with the application for validation of the suit since the file was in custody of Hon. Justice Onyancha. It was contended by the plaintiffs’ counsel that this court is being asked to shut the Plaintiffs from being heard based on interpretation of the cause of action that the victims themselves ought to have filed the suit. Mr Kinyanjui argued that the 3rd and 4th Defendants had not stated that they are ultra vires the suit and could not be heard to urge the cause for the 1st and 2nd defendants who are not before the court.

9. It was further contended on behalf of the plaintiffs that the 1st and 2nd Defendants could not have taken the brief without being recognised to practice within the jurisdiction of this court and that the 1st and 2nd Defendants had no authority to practice law in Kenya. In Mr Kinyanjui’s view, if this suit is struck out, the court will have permitted an illegality without allowing the Plaintiff to demonstrate that there was breach of the law and Articles 10 (b) and 159 (2) (d) of the Constitution.

10. In a brief rejoinder, Senior Counsel Mr. Nzamba Kitonga contended that no replying affidavit was filed by the plaintiffs and that grounds of opposition filed were statements which the plaintiff’s counsel merely made from the bar to controvert serious issues of fact. Mr Kitonga stated that the Plaintiff should have lodged an application for validation of suit against the 1st and 2nd defendants by December, 2013. He added that this application was filed on 23rd January, 2014 and even then, the filing of the application hereto could not have barred the Plaintiffs from filing their own application, since the ruling by Justice Onyancha was delivered on 16th September, 2014 and to date no application for validation has been filed. Counsel submitted that the case of Shah v. Mbogo [1977] E.A. relied on by the Plaintiffs’ counsel is against the Plaintiffs since it abhors delay and indolence. He submitted that section 4 of the Law Society of Kenya Act is equally not helpful since the rule of law is about respecting client/advocate privileged relationship. Senior Counsel further submitted that Article 159 of the Constitution has been wrongly invoked by the Plaintiffs since mandatory provisions of the law are not procedural technicalities.

11. I have carefully considered the application by the 3rd and 4th defendants, the grounds of opposition by the plaintiff’s counsel and the parties advocates rival submissions together with relevant statutory provisions and case law. The following are the main issues for determination with several ancillary questions which the court shall consider alongside the main issues.

Whether the suit herein should be sustained against the defendants Whether the 3rd and 4th defendants have the locus standi to make this application

Whether the defendants can be ordered to disclose privileged communication between them and their clients

Whether the matters being litigated herein are based on a matter that has been determined by a London Court.

What orders should this court make

Who should bear the costs

12. On whether this suit should be sustained against the defendants, the power to strike out suits or pleadings is espoused in Order 2 rule 15 of the Civil Procedure Rules. It is a discretionary power. That discretion, nonetheless, must be exercised very judiciously and not capriciously. The yardstick for striking out pleadings was settled in the celebrated case of D. T. Dobie & Co (Kenya) Ltd v Muchina (1982) KLR 1, where the Court of Appeal pointed out that the power to strike out is a discretionary one but ought to be applied very sparingly. It would be exercisable in very plain cases.

13. In the above cited case, the court made it plainly clear that:

“a. The Court should not strike out if there is a cause of action with some chance of success.

b. The power should only be used in plain and obvious cases and with extreme caution.

c. The power should only be used in cases which are clear and beyond all doubt.

d. the Court should not engage in a minute and protracted examination of documents and facts.

e. If a suit shows a semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward.”

14. From the above decision, the power to strike out pleadings has been held to be a draconian measure which ought to be employed only as a last resort and only in the clearest of cases. The plaintiff maintained that this was not one of such clear cases.

15. The following sufficiently expounds the principles underlying the striking out of pleadings under Order 2 rule 15 of the Civil Procedure Rules:

A pleading is scandalous if it states (i) matters which are indecent; or (ii) matters that are offensive; or (iii) matters made for the mere purpose of abusing or prejudicing the opposite party; or (iv) matters that are immaterial or unnecessary which contain imputation on the opposite party; or (v) matters that charge the opposite party with bad faith or misconduct against him or anyone else; or (vi) matters that contain degrading charges; or (vii) matters that are necessary but otherwise accompanied by unnecessary details. SeeBlake vs. Albion Life Ass. Society (1876) LJQB 663; Marham vs. Werner, Beit & Company (1902) 18 TLR 763; Christie vs. Christie (1973) LR 8 Ch 499.

However, the word “scandalous” for the purposes of striking out a pleading under Order 2 rule 15 of the Civil Procedure Rules is not limited to the indecent, the offensive and the improper and that denial of a well-known fact can also be rightly described as scandalous. See J P Machira vs. Wangechi Mwangi vs. Nation Newspapers Civil Appeal No. 179 of 1997.

But they may not be scandalous if the matter however scandalizing is relevant and admissible in evidence in proof of the truth of the allegation in the plaint or defence so that when considering whether the matter is scandalous regard must be had to the nature of the action.

A matter is frivolous if (i) it has no substance; or (ii) it is fanciful; or (iii) where a party is trifling with the Court; or (iv) when to put up a defence would be wasting Court’s time; or (v) when it is not capable of reasoned argument. SeeDawkins vs. Prince Edward of Save Weimber (1976) 1 QBD 499; Chaffers vs. Golds Mid (1894) 1 QBD 186.

Again a pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense. See Bullen & Leake and Jacobs Precedents of Pleading (12th Edn.) at 145.

c). A matter is said to be vexatious when (i) it has no foundation; or (ii) it has no chance of succeeding; or (iii) the defence (pleading) is brought merely for purposes of annoyance; or (iv) it is brought so that the party’s pleading should have some fanciful advantage; or (v). where it can really lead to no possible good. See Willis Vs. Earl Beauchamp (1886) 11 PD 59.

d). Pleading tend to prejudice, embarrass or delay fair trial when (i) it is evasive; or (ii) obscuring or concealing the real question in issue between the parties in the case. It is embarrassing if (i) It is ambiguous and unintelligible; or (ii) it raises immaterial matter thereby enlarging issues, creating more trouble, delay and expense; or (iii) it is a pleading the party is not entitled to make use of; or (iv) where the defendant does not say how much of the claim he admits and how much he denies.(Emphasis mine). SeeStrokes Vs. Grant (1878) AC 345; Hardnbord vs. Monk (1876) 1 Ex. D. 367; Preston vs. Lamont (1876).

e). A pleading which tends to embarrass or delay fair trial is described as a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues which may involve expenses, trouble and delay and that which contains unnecessary or irrelevant allegations which will prejudice the fair trial of the action and lastly a pleading which is abuse of the process of the court really means in brief a pleading which is a misuse of the Court machinery or process. See Trust Bank Limited vs. Hemanshu Siryakat Amin & Company Limited & Another Nairobi HCCC No. 984 of 1999.

f). A pleading is an abuse of the process where it is frivolous or vexatious or both

16. On the question of service of summons to enter appearance outside the jurisdiction of this court on a defendant who is residing outside Kenya, Order 5 Rule 25 of the Civil Procedure Rules provides that: where leave to serve a summons or notice of summons out of Kenya has to be granted under rule 21, and the defendant is a Commonwealth citizen as defined in sub sections (1) and (2) of section 95 of the( former ) Constitution or resides in any of the countries for the time being mentioned in sub section (3) of that section, the summons shall be served in such manner as the court may direct.”

17. The rider that exists is that leave may not be necessary if it is shown that the foreign company or foreigner is also either trading or domiciled in Kenya.

18. In the circumstances of this case, the plaint at paragraphs 2 and 3 thereof is clear that the 1st a 2nd defendants reside in London. It was not shown that the 1st and 2nd defendants reside in Kenya or that they trade or have a law firm registered in Kenya. The plaint is clear that the two defendants aforesaid are legal practitioners in London, United Kingdom. It was therefore mandatory for leave and directions of the court to be sought and obtained before summons are served considering that the 1st and 2nd Defendants were domiciled in London only.

19. The record shows that the original summons were issued on 1st November, 2013 upon filing of suit herein. However, after the 3rd and 4th defendants protested the submission of the said summons to the 1st and 2nd defendants through some law firm in London is when the plaintiffs obtained fresh summons issued on 20th April, 2015, which summons have to date never been served upon the 1st and 2nd defendants. The said latter summons was also issued about 6 months after this application was filed on 9th October, 2014, and over one year from the date of issue of the original summons.

20. The latter summons of 20th April, 2015 disclose the 1st and 2nd defendants’ place of service as Nairobi, whereas the first summons did not show the place of service for the two defendants who are said to be residing in the United Kingdom.

21. Moreover the summons issued on 1st November 2013 had by 20th April 2015 when the second summons were being issued expired. The lifespan and validity of the original summons is 12 months from date of issue, unless the validity thereof is extended by the court.

22. There is no record showing that the plaintiff has complied with the procedure for effecting service of summons outside the country. There is also no indication from the subsequent summons obtained in April 2015 after the original summons had expired that the plaintiff intended to serve them upon the foreign defendants who reside in London, since the said defendants’ address of service is shown as NAIROBI.

23. As indicated above, the validity of summons once issued is 12 months from the date of issue. Under Order 5 rule 1(7) of the Civil Procedure Rules, the lifespan of summons to enter appearance is 24 months and after the expiry of 24 months, if no application is made to extend, then the court without notice would dismiss a suit. In this case 24 months is not over from the date when the first summons were issued. Nonetheless, the said summons did expire after 12 months and there has been no attempt to validate them.

24. In Raytheon Aircraft Credit Corporation & Another vs Air Al- Faraj Limited [2005] 2 KLR 47 the Court of Appeal stated as follows:-

“… the High Court will not assume jurisdiction in relation to any matter arising from the contract unless the contract is of the nature specified in Order V Rule 21 (e) of the Civil Procedure Rules, that is, inter alia, the contract is made in Kenya or if it is governed by the laws of Kenya or if a breach of contract is committed in Kenya. The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country under Order V Rules 23 and after such summons are served in accordance with the machinery stipulated therein… The record does not show nor is it contended that the respondent moved the High Court for leave to serve the first appellant outside the jurisdiction and that such leave was given…Thus, there cannot be any question that Raytheon was not amenable to the jurisdiction of the High Court and the objection to jurisdiction should have been allowed on this ground alone.”(emphasis added).

25. The Court made a similar finding on the issue of jurisdiction of the High Court in Kenya in Fonville v. Kelly III & Others [2002] 1 EA 71.

26. I reiterate that the first summons which were never served upon the 1st and 2nd defendants were issued on 1st November, 2013. They expired on 1st November, 2014 and their validity was never sought and or obtained pursuant to the provisions of order 5 rule 2 of the Civil Procedure Rules which provide that:

2. (1)A summons other than a concurrent summons shall be valid in the first instance for twelve months beginning with the date of its issue...

(2) Where summons have not been served on a defendant the court may extend the validity of the summons from time to time if satisfied to do so.

27. Thus, Order 5 rule 2 allows this court to extend the validity of summons which have not been served on the defendant from time to time if satisfied it is just to do so. However, under Order 5 rule 5 thereof, an application for validity of summons which have not been served must be made, by filing an affidavit setting out the attempts made at service and their result, and the order may be made without the advocate or plaintiff in person being heard.

28. Rule 7 of Order 5, stipulates that where no application is made under rule 2, the court may without notice to the parties dismiss the suit on expiry of 24 months from the date of issue of the original summons. In the instant case, 24 months are not yet over. Nonetheless, no application has been made by the plaintiff to validate the original summons which have since lapsed and neither has an application for leave to serve outside the country been made, to place the 1st and 2nd defendants within the jurisdiction of this court.

29. It is not sufficient for a plaintiff to institute suit against a party. That party must be invited to submit to the authority of the court in order for the legal process of setting down the suit for trial to commence. The circumstances of this case are such that Summons must be served in the manner provided for in the rules to enable the defendants who have no registered office or business in Kenya submits to the jurisdiction of this court. It therefore follows that their knowledge of the existence of the suit is not sufficient enough to proceed against them. They may be aware of the suit but unless they are prompted by the summons in the manner provided for in the rules, the jurisdiction of this court is not invoked and therefore the 1st and 2nd defendants may choose never to appear or respond to the suit and nothing can happen to them. Consequently, the suit will never proceed against them and neither can the plaintiffs obtain interlocutory judgment against then nor set down the suit for hearing against the defendants since no interlocutory judgment can be entered in such a suit as this in default of appearance or defence.

30. In my humble view, order 5 of the CPR is designed to enable the parties to follow certain procedures to achieve due process. In this case, there is no plausible explanation why the plaintiff has not served the 1st and 2nd defendants with Summons to enter appearance in the manner provided for in the Civil Procedure Rules since 2013. In addition, the summons initially issued did not indicate the place wherein the said defendants were to be served. Then the second summons were issued and the place of service is shown as Nairobi, when it is crystal clear that the said defendants reside in London. Those latter summons were issued without leave of court and validating the first unserved summons which had lapsed and therefore the latter summons are invalid.

31. The procedure for service of summons on a defendant residing outside Kenya must be followed, inviting the defendants to submit to the jurisdiction of the court. If that is not done, the suit herein shall remain archived against the said defendants forever. That procedure which is explicit in the rules was never followed by the plaintiffs n this case and there is no indication from the re issued summons on record which are in effect invalid for want of leave that there was any such intention to effect service of the summons in London as provided for under the rules. I must add that a court of law has never been an archive of pleadings that are not activated.

32. The plaintiff urged this court to spare the suit against the 1st and 2nd defendants as it is filed in the public interest. That may be so, and this court indeed appreciates that lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or cause miscarriage of justice to the opposite party ought not to be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. In addition, the general trend, following the enactment of Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d)of the Constitution, is that courts today strive to sustain rather than strike out pleadings on purely technical grounds.

33. The question is whether failure to adhere to such clear elaborate procedural requirements of the Civil Procedure rules on the validity of and service of summons outside the jurisdiction of this court are mere procedural technicalities that can be sacrificed at the altar of substantive justice.

34. In my humble view, those rules of engagement that prompt the hearing and disposal of a suit cannot be mere procedural technicalities contemplated by Article 159(2)(d) of the Constitution of Kenya, 2010 and or the overriding objectives espoused in sections 1A and 1B of the Civil Procedure Act.

35. As was held in the case of Nicholas Kiptoo Arap Korir Salat Vs IEBC & 6 Others [2013] eKLR by Kiage JA, Courts must never provide succor and cover to parties who exhibit scant respect for rules and timelines which make the process of judicial adjudication and determination fair, just, certain and even-handed….” The Supreme Court in the case of Raila Odinga & 5 Others Vs IEBC & 3 Others Petition 5/2013 SC [2013] eKLR, also held that Article 159 (2) (d) of the Constitution is not a panacea for all procedural shortfalls, …it is plain to us that Article 159(2) (d) is applicable on a case to case basis.”

36. The procedures set out in the rules for service of summons outside the jurisdiction of this court were in my view, promulgated to achieve justice to the rival parties who reside outside the jurisdiction of this court by ensuring that due process is followed before any action is taken against them in the instituted suit.

37. Indeed, public policy demands that cases be heard and determined expeditiously since delay defeats equity, and denies the parties legitimate expectations that disputes between or among them would be resolved expeditiously. In addition, the Constitution of Kenya, by dint of Article 159(2) (b) thereof commands courts to administer justice without undue delay.

38. A summons is a judicial document calling upon the defendant to submit to the jurisdiction of the court and if the party is not given that opportunity to so appear and either defend or admit the claim, how else would that party submit to the jurisdiction of the court particularly when that defendant is a foreigner residing outside the jurisdiction of the court.

39. In my view, the Law Society of Kenya which is the premier Bar Association in this country regulating advocates’ legal practice should be the last to seek to be excused from applying such elaborate rules of procedure for service of summons outside the jurisdiction of the court and taking umbrage in the provisions of Article 159 (2) (d) of the Constitution. In addition, what would a suit filed in the public interest in 2013 be doing in this court two years down the line without making any attempt to invite the 1st and 2nd defendants to respond to the summons to enable the suit be prosecuted? Is that not delayed justice for the 3rd and 4th defendants who are also parties to the suit and who are also entitled to expeditious justice? For how long shall they wait for the other defendants to be invited to submit to the jurisdiction of the court and to respond to the suit before this suit can be set down for trial?

40. In Karuturu Networks Ltd & another vs Dally Figgis Advocates, Nairobi Courtof Appeal CA NO. 293/2009 it was held that:

“ The application of the overriding objective principle does not operate to uproot the established principles and procedures but to embolden the court to be guided by a broad sense of justice and fairness and that in interpreting the law or rules made there under, the court is under a duty to ensure that the application or interpretation being given to any rule will facilitate the just, expeditious, proportionate and affordable resolution of appeals.”(Emphasis added).

41. Whereas it is possible to downplay the issue of service of summons on a defendant who resides within the jurisdiction of this court. However, that cannot be applicable to a defendant who resides outside Kenya. In Industrial and Commercial Development Corporation vs. Sum Model Industries Limited Civil Appeal No. 229 of 2001, the Court of Appeal held:

“Service of the summons to enter though important, a failure to do so within the stipulated period does not necessarily render proceedings null and void. It will depend largely on the circumstances of each case. On the facts and circumstances of this case, nothing turns on the issue.”(emphasis added).

42. In my view the provision for sanctions where summons have been issued and not served within twelve months thereby invalidating them was meant to do away with suits which are filed for the sake of speculation. Secondly, the elaborate procedure for service of summons outside the jurisdiction of the court is intended to invoke the jurisdiction of the court to try a case against a foreigner residing outside Kenya, without which the court is devoid of any jurisdiction to hear and determine the dispute against the foreigner.

43. In the end, I find that non compliance with the stipulated rules for service of summons, which summons are nonetheless invalid renders this suit against the 1st and 2nd defendants invalid and I so hold.

44. The next question that arises is whether the 3rd and 4th Defendants have the capacity or locus standi to contest the service of summons upon the 1st and 2nd defendants and therefore to bring this application. The applicants are parties to this suit and their legitimate expectation is that the suit against them shall be heard and determined without undue delay. Delayed justice is denied justice. The delay in effecting service of summons upon the applicants’ co-defendants obviously holds the applicants hostage. They cannot move the court to hear this case against them to the exclusion of their co defendants who are described in a manner that makes the applicants agents of the principals-1st and 2nd defendants at the material time when the alleged cause of action arose. I say so because it has not been alleged that the applicants were jointly practicing law in London or in Kenya with their co defendants the 21st and 2nd defendants. The respective roles and capacities of each of the defendants to this suit are as clearly spelt out in paragraph 7. 1 -7. 3 of the plaint. The applicants herein are accused of assisting the foreign defendants to illegally practice law in Kenya and locating and getting instructions from the victims of torture during colonial administration.

45. In Halsbury’s Laws of England, 4th edition page 825 it is stated:

“Where a contract is made by an agent on behalf of a foreign principal there is no presumption that the agent necessarily incurs personal liability and has no authority to establish privity of contract between the principal and third party. Where the intention of the parties is not clear or the terms of the contract are in dispute, the fact that the principal is a foreigner is a factor to be taken into account in determining whether in the circumstances the contract is enforceable by or against the foreign principal or whether the agent is personally liable.”(emphasis added).Further at page 827 is stated:

“where the other contracting party whether in the presence of the principal’s existence or not, obtains judgment against the agent or, though he knows at the time when the contract is made or discovers afterwards who the principal is, elects to look to the agent to the exclusion of the principal, the principal is discharged from liability to the third party and his liability cannot be revived.”

46. See also the decision by the Court of Appeal in CA 247 OF 2005 Victor Mabachi, David Oliwa and another v Nutun Bates Ltd [2013]Eklr- Kihara Kariuki(PCA), Mwilu and Gatembu,JJA held that an agent could not be sued where there was a disclosed principal.

47. However, a party can elect to proceed against the agent alone in which case the liability of the principal is discharged. But that is not what the plaintiff is saying here. What the plaintiff has disclosed in the plaint is that the 3rd and 4th defendants were the local contact persons for the 1st and 2nd defendants, mobilizing and identifying the alleged victims of human rights abuse and Mau Mau torture by the colonial Government. The latter then proceeded to file suit in a London court culminating in a settlement which the plaintiffs aver was insufficient.

48. The applicants herein cannot be described as advocates but did advocacy work for the 1st and 2nd defendants by looking for and tracing the alleged fictitious clients for their co defendants the 1st and 2nd defendants, with the financial and legal assistance from the foreign solicitors who eventually instituted suit in London. In the circumstances of this case, a principal/agent relationship can be inferred between the applicants and the 1st and 2dn defendants even if there was no express contract to that effect.

49. In my opinion the applicants being parties to this suit have the necessary locus standi and full capacity to bring this application that challenges the legal status of this suit. A lead may however be found in the holding in the case of John Akasirwa v. Alfred Inai Kimuso (C.A. NO. 164 of 1999) (UR) where the Court of Appeal held as follows:-

“Proper service of summons to enter appearance in litigation is a crucial matter in the process whereby the court satisfies itself that the other party to litigation has notice of the same and therefore chose to enter appearance or not. Hence the need for strict compliance with order 5 Rule 9 [1]. The ideal form of service is personal service, it is only when the defendant cannot be found, that service on his agent empowered to accept service is acceptable.”

50. In any case, the issue of non service of summons to enter appearance upon the applicants’ co-defendants is not the only legal issue raised by the applicants. Further, the 3rd and 4th defendants/ applicants are parties to this suit and are enjoined by the overriding objectives of the law to assist this court achieve those overriding objectives. That is exactly what the applicants have done and they cannot be demonised to be busybodies for being vigilant.

51. The plaintiffs did not cite any law in their grounds of opposition that support their proposition that the applicants have no locus standi in bringing an application seeking to challenge the service or delay in effecting service of summons to enter appearance on their co-defendants who reside outside the jurisdiction of this court, which in effect delays the fair, just and expeditious and proportionate administration of justice.

52. Neither have I have found any law barring the applicants from raising such serious points of law, and bringing them to the attention of the court for determination. It has also not been demonstrated by way of affidavit evidence that the plaintiff effected service of summons on the 1st and 2nd Defendants. They have indeed admitted that they were unable to serve summons in London because there was another application to enjoin Maua Mau victims of torture to this suit which explanation is, in any event, not being advanced in an application for validation of summons that lapsed.

53. In my view, and in light of the statement in John Akasirwa (supra)the suit against the those foreign Defendants shall be found to be incompetent if service was not effected upon them. So that it is neither here nor there whether that issue of an incompetent suit has been raised by the 3rd and 4th Defendants. what is vital is for the proper procedure to be followed in effecting service outside the jurisdiction of the court to ensure the ends of justice are met.

54. Furthermore, the Plaintiff has merely filed grounds of opposition and not responded to facts raised by the applicants on oath, [See: Kennedy Otieno Odiyo & 12 others v. Kenya Electricity Generating Company Limited ( 2010) eKLR where it was held inter alia:-

"The respondents only filed grounds of opposition to the application...Grounds of opposition addresses only issues of law and no more. The grounds of opposition aforesaid are basically general averments and in no way respond to the issues raised by the application in its supporting affidavit. Thus what is deponed to was not rebutted by the Respondents. It must be taken to be true..."

55. On whether the advocate is entitled to disclose privileged communication between him and his client, which is the basis of this suit as against the defendants, Section 2 of the Advocates Act is instructive defines a client as:

“any person who as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity has power express or implied, to retain or employ and retains or employs or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs.”

56. A client/advocate relationship therefore arises when a client retains an advocate to offer legal services specifically or generally.

57. The advocate/client privilege is one of the incidents of the retainer between the advocate and client and binds the advocate not to disclose information reposed to him without the client’s consent to other persons. There is some level of confidentiality and where an advocate is compelled to disclose such information, and then the court will be forcing the advocate to betray the confidentiality he owes to his clients and thereby violate their professional and ethical duties to a client. See Halsbury’s Laws of England 3rd Edition Vol. 3 para 67 the learned writers observe:

“67. Duty not to disclose or misuse information: The employment of counsel places him in a confidential position, and imposes upon him a duty not to communicate to any third person the information which has been confided to him as counsel to his client’s detriment(p) this duty continues after the relation of counsel and client has ceased.”

58. Parties enjoy the freedom of instructing an advocate of their own choice to achieve fair hearing or fair trial and they should have the confidence that the information disclosed to their advocates shall not be divulged to third parties to the client’s detriment. The above position finds support in Section 134 of the Evidence Act that:

“no advocate shall at any time be permitted , unless with 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 conditions of any document with which he has been 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..”(emphasis added). See also King Woollen

Mills & another v Kaplan &Stratton Advocates (1993)KLR 273.

59. The only exception to the above rule protecting advocate client privileged communication is the communication made in furtherance of an illegal purpose or any fact observed by an advocate in the course of his employment showing that a crime or fraud has been committed. Albeit the plaintiff has alleged fraud in this case against the defendants, there is no specific prayer seeking for waiver of that privilege as between the 1st and 2nd defendants and their undisclosed clients.

60. The plaintiff alleges that the 1st and 2nd defendants illegally practiced law in Kenya without a valid licence by recruiting clients and offering them legal services. Those clients are not disclosed and neither are the over 50,000 persons who were passed over to the 2nd defendant without instructions.

61. The plaintiff is a body that administers and regulates the practice of law in Kenya as mandated by statute. The plaint alleges that an illegality took place and the claim was settled. The question is, where was the plaintiff when all that illegality was being committed until after the claim was settled is when they sought to prohibit payments and or the defendants from practicing law in Kenya without a licence? And how is this court going to issue an injunction to restrain an illegality which has already taken place- that of practicing in Kenya without a valid practicing licence particularly when the case has been already been settled.

62. Is the plaintiff contemplating that the defendants are on another similar mission and so they seek anticipatory injunction? it is for those reasons that I wholly agree with Hon Justice Onyancha in his ruling of 16th September, 2014 that admittedly there was already a decree in the London suit and the prospects of reversing that process has not been demonstrated to be possible in law. None was demonstrated during the hearing of the application subject of this ruling.

63. In the instant case, it is not the defendants’ clients who have complained to the court thereby waiving the privilege by the client. The advocate/ client privilege is for the benefit of a client and cannot be asserted by a third party, in this case, the Law Society of Kenya, in the name of public interest.

64. This kind of case must be distinguished from a case where a party seeks to enforce the constitutional right of the right of access to information as espoused in Article 35 (1) of the Constitution, which right does underpin the national values and principles of good governance under Article 10 namely, integrity, transparency and accountability among other values. In Delphis Bank Ltd v Channan Singh Chatthe &6 others CA No Nai 136 of 2005the Court of Appeal held that:

“the starting point is of course to reiterate that most valued constitutional right to a litigant: the right to legal representative or advocate of his choice. In some cases, however, particularly civil, the right may be put to serious test if there is a conflict of interest which may endanger the equally hallowed principle of confidentiality in advocate/client fiduciary relationships or where the advocate would double up as a witness……..see King Woolen Mills Ltd v Kaplan &Stratton and Uhuru Highway Development Ltd &other v CBK Ltd &others 2 (2002)EA654. In King Woolen Mills Ltd & Another vs. Kaplan and Stratton Advocates [1990-1994] E.A. 244.

“An advocate cannot act in a manner prejudicial to his client or disclose any confidential information to anyone without the client’s consent. An advocate who has acted for two common clients cannot later act for either party in litigation when a dispute arises between the common clients concerning the original transaction or the subject matter for which he acted for the clients as a common advocate. Acting for two or more common clients did not remove the necessity of confidentiality between the advocate and each of the clients separately. Conclusion of the transaction for which the retainer was made did not extinguish the duties and obligations of the common advocate. Delay in objecting to an advocate’s continued representation of a certain client does not defeat or change the duty or obligations of the common advocate imposed on him under the retainer. Real prejudice and mischief is anticipated if the respondents are permitted to continue acting or one of the parties.” See also In Rakusen v. Ellis Munday &Clarke [1912] 1 Ch 831. (emphasis added).

65. The plaintiffs in their plaint also alleged that the 1st and 2nd defendants acted as solicitors for the undisclosed clients in the London case leading to an agreement with the British Government to compensate them the disclosed sums of money. According to the plaintiff, the said defendants had no authority to practice law in Kenya. What the plaintiffs do not say is whether a Kenyan can instruct an advocate who has legal practice in London to represent them in a claim against the British Government in London as was in this case.

66. If the defendants practiced law in Kenya without authority of clients and or a valid practicing certificate, there are sanctions both civil and criminal under Section 9 and civil sanctions under 34 of the Advocates Act. The plaintiffs have not invoked any of those sanctions to be applied against the defendants. And even if the plaintiffs did that now, it would be in vain since the claim as admitted has already been settled that is why the plaintiffs seek for disclosure of those persons paid. Would that in itself reverse the case settled in London with the British Government? I highly doubt.With utmost respect to the plaintiff, this was a genuinely “wild goose chase” game or were “shooting in the dark” with the hope of hitting a desired target.

67. On whether the matters in this suit based on a suit that was determined in London court, no proceedings or judgment from the London Court were exhibited to show that there was conclusion of the suit by a court of competent jurisdiction. However, pleadings by both the plaintiff and applicants are clear that the plaintiff complains about the suit that was concluded in London Court thus Ndiku Mutua &others v Commonwealth Office Case No. HQO9X02666 of 2012 on behalf of victims in Kenya during the colonial period. Paragraph 8 of the plaint is clear that there was an out of court settlement for British Pounds 1,900,000 equivalent to SHS 2,547,000,000 and in addition, that the British Government agreed to construct a memorial for victims of torture and ill treatment during the colonial era.

68. So the answer is yes but in my view, that in itself alone would not invalidate this suit save that the plaintiff herein seeks to relitigate the concluded and settled matter by claiming that the amount of compensation was inadequate and or that some of the named victims are fictitious hence the need to disclose who they were.

69. In my view, the intervention by Law Society of Kenya vide tis suit on behalf of the public, however well intended is coming too late in the day after the alleged fictitious victims have already agreed to be compensated and paid and in view of the protected advocate client privileged relationship and communication, this court would hold that these proceedings are instituted in vain. Furthermore, the plaintiff Bar Association knows only too well that it has not and cannot purport to bring into this court a foreign judgement for purposes of invalidating it. See the provisions ofForeign Judgmentand Reciprocal Enforcement) Act Chapter 43 of the Laws of Kenya).

70. In the end, I find that the failure to serve summons upon the 1st and 2nd defendants in London in the manner provided for in the rules, which summons expired and no application made to validate them is fatal.

71. I further find that the suit violates the principle of non disclosure of advocate/ client privileged communication.

72. As against the 3rd and 4th defendants, since the claim against them is premised on the allegations that they were assisting the 1st and 2nd defendants in coordinating and soliciting and compiling a list of the over 50,000 names of the victims of human rights violations with financial and legal advice and assistance from the 1st defendants, no doubt, the principals in the case were the 1st and 2nd defendants. To sustain a suit against the applicants would be tantamount to saying that whereas the principal cannot be allowed to disclose privileged communication between client and advocate, the advocates agent, who are the applicants herein by inference, and who have custody of that privileged communication between advocate and client are not protected by that rule, which in my view will defeat the purpose of section 134 of the Evidence Act and Article 50 of the Constitution on the right to legal representation including representation by an intermediary.

73. I also find that as there is no allegation that the 3rd and 4th defendants are holding the settled funds for disbursement on behalf of the victims, it would be superfluous to allow this case to proceed to hearing against them.

74. I therefore allow this application and strike out the plaintiff’s suit against all the defendants for scandalous, misconceived, frivolous, vexatious, and bad in law and an abuse of the court process.

75. I make no orders as to costs as the suit was made in the name of public interest.

Dated, signed and delivered in open court at NAIROBI this 26th day of October, 2015.

R.E.ABURILI

JUDGE