[2021] KEHC 8462 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 583 OF 2018

NELSON HEZRON OUNDU.................APPELLANT

-VERSUS-

PHILIP OGETO..................................RESPONDENT

(Being an appeal from the ruling and order of the Advocates

Disciplinary Tribunal delivered on 12th November, 2018 in

Advocates Disciplinary Tribunal Cause No. 58 of 2016)

JUDGEMENT

1. A brief background of the matter is that the appellant who is anAdvocate of the High Court of Kenya, represented the respondent in a criminal case, namelyAnti-corruption Case No. 35 of 2006 (Republic v Philip Ogeto & Another)which case was later withdrawn by the prosecution.

2. It is alleged that thereafter, the respondent instructed theappellant to institute a malicious prosecution claim on his behalf and which claim was allegedly settled in the sum of Kshs.3,300,000/= received by the appellant on behalf of the respondent.

3. It is further alleged that the appellant did not pay theabovementioned sum to the respondent despite several requestsfor him to do so.

4. The above circumstances led the respondent who was thecomplainant before the Advocates Disciplinary Tribunal (“the Tribunal”) to institute a complaint against the appellant and a third party inthe Advocates Disciplinary Tribunal Cause No. 58 of 2016for withholding funds and for failure to account for the sum of Kshs.3,300,000/=.

5. The appellant filed a replying affidavit to oppose therespondent’s complaint, to which the respondent rejoined witha further affidavit.

6. Upon hearing the parties, the Tribunal vide its judgmentdelivered on 12thJune, 2017 found the appellant guilty ofprofessional misconduct and convicted him accordingly.

7. The above was followed by sentencing which took place on 22ndJanuary, 2018 whereby the appellant was orderedinter alia, to pay to the respondent the sum of Kshs.3,300,000/= plus interest of 12% p.a. with effect from 24thDecember, 2014 within 60 days, failing which the appellant would be suspended from practicing law for a period of one (1) year; and further ordered to pay a fine of Kshs.100,000/ and costs in the sum of Kshs.50,000/ within 60 days from the aforementioned date.

8. The complaint against the third party was dismissed and shewas discharged accordingly.

9. Subsequently, the appellant filed the application dated 6th June,2018 and sought for an order for review of the orders made bythe Tribunal on 22ndJanuary, 2018.

10. To oppose the application, the respondent swore a replyingaffidavit.

11. Upon hearing the parties, the Tribunal dismissed the applicationfor review with no order as to costs, in its ruling delivered on12thNovember, 2018.

12. Being dissatisfied with the aforesaid ruling, the appellant hassought to challenge the same in the instant appeal vide the memorandum of appeal dated 10thDecember, 2018 and has put forward the following grounds of appeal:

i. THAT the Honourable Tribunal erred in law and fact in holding that there was settlement in regards to a malicious prosecution case against Kenya Revenue Authority.

ii. THAT the Honourable Tribunal erred in law and fact in holding that the appellant had received and withheld Kshs.3,300,000/ belonging to the respondent herein.

iii. THAT the Honourable Tribunal erred in law and fact in shifting the burden of proof to the appellant herein.

iv. THAT the Honourable Tribunal erred in law and fact in holding that the appellant had issued a Kshs.3,300,000/ cheque to the respondent as his legal obligation to his client.

v. THAT the Honourable Tribunal erred in law and fact by failing to exercise its discretion judicially.

vi. THAT the Honourable Tribunal erred in law and fact in holding that the application for review lacked merit.

vii.THAT the Honourable Tribunal erred in law and fact by not applying the law on review correctly.

13. In response, the respondent filed a reply to the memorandum ofappeal dated 13thMarch, 2019.

14. Subsequently, this court gave directions that the appeal becanvassed by written submissions. In his submissions dated 7thDecember, 2020 the appellant argues that the differences that have arisen between the parties herein are of a personal nature and that the claim by the respondent that the sum of Kshs.3,300,000/= was paid by the Kenya Revenue Authority (KRA) as a settlement arising out of a malicious prosecution claim is purely false.

15. According to the appellant, a cheque for the above sum issuedby himself to the respondent was purely a means to calm a nasty argument that had ensued between the wives of the parties, and was never intended to actually be banked or cashed in.

16. The appellant further argues that following delivery of thejudgment and impugned ruling, he discovered upon enquiry that no such case for malicious prosecution had been filed, where a settlement was made out of court. The appellant is therefore of the view that the Tribunal erred in declining to review its earlier orders on the grounds of discovery of new and important evidence.

17. To support his submissions, the appellant relied on inter alia,the case ofZablon Mokua v Solomon M. Choti & 3 others [2016] eKLRin which the court reviewed and set aside an earlier order on grounds of error apparent on the face of the record.

18. In his reply submissions dated 6th January, 2021 therespondent who agreed fully with the findings of the Tribunal, contends that the Tribunal correctly found that the issue of compensation for malicious prosecution did not necessarily depend on whether a suit was filed or not, since the appellant informed the respondent that the matter was settled out of court and hence he did not have to attend court for the hearing of the matter.

19. The respondent further contends that it is on that basis that theappellant issued him with the relevant cheque for the sum of Kshs.3,300,000/=, and that the appellant has failed to demonstrate any other reasons that would warrant the issuance of such cheque.

20. It is the submission of the respondent that the Tribunal hadexhaustively addressed the issue touching on any settlements made by KRA in respect to the malicious prosecution claim and that the letter written by the official from KRA was not conclusive evidence of the absence of such settlement.

21. The respondent is also of the view that it is strange that theappellant is claiming the non-existence of any payments made to him on behalf of the respondent and yet he was aware of the accusations made against him in the Tribunal case, at all material times.

22. According to the respondent, the application for review was amere afterthought and hence the appeal is wanting of merit andis deserving of a dismissal.

23. I have considered the contending submissions and authoritiescited on appeal. I have likewise re-evaluated the material placed before the trial court. It is clear that the appeal lies principally against the decision by the Tribunal dismissing the appellant’s application seeking a review of its earlier orders. I will therefore deal with the four (7) grounds of appeal under the two (2) limbs below.

24. The first and foremost limb on appeal has to do with whether theTribunal correctly applied the law on review in respect to thegrounds brought forward by the appellant.

25. In his application for review, the appellant stated that thecheque for the sum of Kshs.3,300,000/= was issued to the respondent under personal circumstances, namely in the course of personal differences that ensued between his family and that of the respondent.

26. The appellant further stated that the respondent neitherinstructed him to file any civil suit for malicious prosecution,nor paid any instruction fees in that regard.

27. It was also stated by the appellant that the above was confirmedthrough his visit to KRA and Milimani Commercial Courts, where he came to learn that no such case was ever filed or settlement arrived at.

28. The appellant further denied withholding any funds belonging tothe respondent.

29. In his reply, the respondent stated that the appellant was hislegal representative at all material times, during which times he lacked capacity to practice law for failure to take up practicing certificates in the years between 2009 and 2016.

30. The respondent similarly stated that if at all the appellant didnot receive any funds from KRA as settlement for any civil claims, he ought to have raised this issue with the Tribunal at the onset, and that the documents annexed to his application do not constitute conclusive evidence of the absence of payments made on account of the respondent.

31. It was also the assertion of the respondent that the appellanthas not sufficiently explained his reasons for issuing the cheque and that if at all no such payments had been made to the respondent, then the actions of the appellant completely misled the respondent into thinking a malicious prosecution claim had been filed on his behalf when this was not the case, thereby amounting to professional misconduct.

32. In its ruling, the Tribunal found that the settlement of therespondent’s claim for malicious prosecution did not have to arise out of a civil suit filed in court, and hence the arguments by the appellant in this respect could not constitute proper grounds for review.

33. On the subject of the alleged payments by KRA, the Tribunalfound that the letter dated 5thJune, 2018 from a KRA official did not specifically confirm the absence of any payments by KRA and could therefore not be relied upon conclusively.

34. The Tribunal further found that going by the averments made bythe appellant, it is plausible that the purported payments to the respondent could have either been made by KRA or the complainant in the Anti-corruption case (now deceased) or his estate.

35. On the subject of actual issuance of the cheque, the Tribunalheld that if at all the appellant issued the cheque to the respondent under duress or coercion, he ought to have reported the matter to the authorities but there is no indication that he did; thereby making the cheque binding and enforceable.

36. Similarly, the Tribunal held that by holding himself out as anadvocate qualified to practice law in the absence of valid practicing certificates, the appellant committed a grave offence and discredited himself.

37. In conclusion, the Tribunal found that an advocate cannot issuea cheque for such a large amount in favour of a client, without the existence of a legal obligation for payment and hence in the present instance, the appellant is duty bound to remit the sum of Kshs.3,300,000/= to the respondent.

38. The Tribunal found that the appellant had not satisfied any ofthe legal grounds to warrant a review of its earlier orders, further noting that there was an inordinate delay in bringing the application.

39. It is clear that the application which was before the Tribunalconcerned itself with an order for review and was brought under the provisions ofOrder 45, Rule 1(1)of theCivil Procedure Rules, 2010andSection 80of theCivil Procedure Act Cap. 21 Laws of Kenyastipulating that:

“Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

40. The principles/grounds upon which an order for review can begranted are as follows:

a) the discovery of new and important matter or evidence, or

b) some mistake or error apparent on the face of the record, or

c) any other sufficient reason.

41. On the issue of delay, upon my perusal of the record, I note thatthe application was filed close to six (6) months following the order of sentencing which was the basis of the review. Contrary to the averments of the Tribunal that there was an unreasonable delay in bringing the application, I find that the delay was not inordinate since it was essentially against the sentencing order and not specifically against the judgment.

42. On the merits of the application, from my perusal of the record,it is apparent that the appellant approached the Tribunal underthe three (3) grounds for review provided for.

43. Under the first ground of error apparent on the face of therecord, the appellant argues that the error arose from the finding of the Tribunal that the appellant had withheld the respondent’s funds.

44. What amounts to an error apparent on the face of the recordwas explored by the Court of Appeal in the case ofMuyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243as cited in the case ofZablon Mokua v Solomon M. Choti & 3 others [2016] eKLRin the appellant’s submissions, thus:

“In Nyamogo and Nyamogo v Kogo [2001] EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”

45. From my re-examination of the averments and exhibits availedto the Tribunal, I am of the view that the issue of whether the appellant truly withheld the funds which the respondent was entitled to does not constitute a ground for review though it may apply as a ground of appeal.

46. The mere fact that the appellant does not agree with the findingof the Tribunal on the above subject does not amount to an error apparent on the face of the record within the definition of the term. The appellant, in my view, did not demonstrate the manner in which the finding of the Tribunal constituted an apparent error requiring a review.

47. The appellant also approached the court under the ground ofnew and important evidence on account of the letter dated 5thJune, 2018 from KRA and the purported visits by the appellant to Milimani Commercial Courts.

48. An answer into what constitutes new and important evidencecan be found in the case ofRepublic v Advocates DisciplinaryTribunal Ex parte Apollo Mboya [2019] eKLRthus:

“For material to qualify to be new and important evidence or matter, it must be of such a nature that it could not have been discovered had the applicant exercised due diligence. It must be such evidence or material that was not available to the applicant or the court.”

49. The court further borrowed from the following reasoning by theSupreme Court of India in the case ofAjit Kumar Rath v State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608:

“the power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made.”

50. From my study of the application for review and re-examinationof the exhibits annexed thereto, I have not come across anything to suggest that the information relied upon was not within the knowledge of the appellant or that he was unable to obtain, produce or attach those exhibits prior to the ruling or the judgment for that matter.

51. It is apparent from the record that the issues associated with thepurported funds and existence or lack thereof of a malicious prosecution claim ought to have been within the knowledge of the appellant but there is nothing to show that he sought confirmation at the earliest opportunity.

52. Consequently, I am not convinced that the ground of discoveryof new and important evidence has been satisfied in the presentinstance.

53. This leaves me with the ground of sufficient reason. Upon mystudy of the record, it is not in dispute that the appellant and respondent enjoyed an advocate-client relationship at all material times. It is also not in dispute that the appellant represented the respondent in the Anti-corruption case, which was later withdrawn.

54. Further to the above, the appellant is not denying in hisevidence that he issued a cheque to the respondent in the sumof Kshs.3,300,000/= a copy of which was availed to the Tribunal.

55. The key issues for determination on appeal revolve around theexistence and settlement of the malicious prosecution claim; the cheque issued to the respondent; and the professional standing of the appellant.

56. Concerning the malicious prosecution claim, I note that nocredible evidence was adduced before the Tribunal to confirm its existence or to ascertain the instructions given by the respondent to the appellant to file the same.

57. I concur with the Tribunal that whereas the letter from KRAindicates that no such claim was filed, it does not offer a conclusive position on the subject. In addition, I note that the said letter is referenced:“Philip Ogeto (VAT Domestic Taxes Department) v Nelson Hezron Oundu”which to my mind may have created some confusion regarding any claim made by the respondent against KRA.

58. Suffice it to say that and in respect to the cheque issued by theappellant to the respondent, I find the averments by therespondent to be more plausible than those made by theappellant.

59. Notwithstanding the absence of any evidence to indicateinstructions or the existence of a suit, it is more plausible than not that the respondent had instructed the appellant to file a suit on his behalf and that some form of settlement may have been entered into in that respect, resulting in issuance of the cheque.

60. I note that though the appellant was claiming that he issued thecheque in the name of the respondent solely with the intention of calming the stormy relationship between his family and that of the respondent and that the cheque was never intended to be banked, he did not bring any credible evidence to corroborate this position or to show that his decision was driven by some form of duress or coercion by the respondent.

61. In my view and upon considering the fact that the parties hereinenjoyed an advocate-client relationship, coupled with the colossal nature of the sum indicated in the cheque, I find it more plausible than not, as the Tribunal did, that the sum was intended to be remitted to the respondent. In any event, the appellant did not offer any reasonable explanation as to why he issued a cheque for such a large sum if he never intended for it to be banked or cashed.

62. Likewise, the record and material tendered on appeal shows thatbetween the years 2009 and 2016 the appellant had not taken out valid practicing certificates. This position was not explicitly denied by the appellant, who explained that he was attending to personal matters, and yet it appears he engaged in legal practice at one point or another during that period.

63. It is clear that failure by the appellant to take out practicingcertificates amounted to professional misconduct within the provisions ofSection 34B (1)ofthe Advocates Act Cap. 16 Laws of Kenyawhich reads as follows:

“A practising advocate who is not exempt under section 10 and who fails to take out a practising certificate in any year, commits an act of professional misconduct.”

64. For all the foregoing reasons, I support the finding of theTribunal that the appellant did not satisfy the required threshold to warrant a review of its earlier orders of 22ndJanuary, 2018 arising out of the judgment. Grounds (i), (ii), 9iv), (v), (vi) and (vii) of the appeal cannot stand.

65. The second limb on appeal touches on whether the Tribunalcorrectly applied the burden of proof.

66. The law is clear that the burden of proof lies with he who alleges.

The application in question concerned itself with an order for review. Consequently, the burden of proof rested with the appellant to demonstrate sufficient grounds for review. I have already established that he did not meet the threshold for review.

67. Moreover, upon my perusal of the record and material, I havefound nothing to indicate that the Tribunal misapplied the principles surrounding the burden of proof. Since the respondent had brought reasonable evidence to show that the appellant had withheld his funds, the appellant ought to have disproved this position through credible evidence to the contrary but did not. Resultantly, ground (iii) of appeal failed.

68. In the end therefore, the appeal is dismissed with costs. Thedecision of the Tribunal is upheld.

Dated, signed and delivered online via Microsoft Teams at Nairobi this 12th day of March, 2021.

.................................

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Appellant

……………………………. for the Respondent