[2017] KEHC 10052 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 239 OF 2014

PATRICK SAGWA KISIA T/A STEG CONSULTANTS LTD……........PLAINTIFF

-VERSUS -

BURRELL INTERNATIONAL LIMITED.....................................1ST DEFENDANT

MACHARIA P. MWITHAGA ……………….…….……………….2ND DEFENDANT

PRINCIPAL SECRETARY MINISTRY OF LANDS,

HOUSING AND URBAN DEVELOPMENT……………...………3RD DEFENDANT

THE HONOURABLE THE ATT0RNEY GENERAL……....….….4TH DEFENDANT

RULING NO.2

1. The defendant has raised a Preliminary Objection against the two witnesses whom the plaintiff has lined up as his witnesses. The said two witnesses are;

a)William Githara, and

b)Festus Mukunda Litiku.

2. The defendant, BURRELL INTERNATIONAL LIMITED, has asked the court to expunge from the court records, the Witness Statements signed by those 2 witnesses.

3. It is common ground that William Githara advocate did represent the defendant during Arbitration proceedings which were between Burrel International Limited and Kenya Industrial Training Institute [K I T I].

4. The sole arbitrator in the said arbitral proceedings was Festus Mukunda Litiku. That is an indisputed fact.

5. The defendant filed an affidavit to support its Preliminary Objection. And in the said affidavit, which was sworn by PAUL MACHARIA MWITHAGA, it is stated that the matters about which the 2 witnesses know, and which are in issue in this case, had come to their knowledge in the process of the arbitration.

6. Therefore, the defendant reasoned that the witnesses had been held in a position of trust and confidence, when they were the advocate for the defendant, and the arbitrator, respectively.

7. In particular, when William Githara wrote a witness statement in this matter, he is said to have breached the fiduciary relationship between him and the defendant, who had been his client during the arbitration proceedings.

8. There is no doubt whatsoever that the knowledge which an advocate acquired whilst acting for a client is treated as confidential, and the same should not be disclosed to any other person without the consent of the client.

9. It is well settled that the advocate remains duty-bound even after the advocate/client relationship had come to an end.

10. In an endeavour to demonstrate that the advocate had obtained some information from it, during the arbitration proceedings, the defendant filed an affidavit.

11. By filing an affidavit, the defendant had indicated that there was a need for it to provide the court with facts, which would then enable the court appreciate the point of law which the defendant was putting forward.

12. If one takes note of what was said by LAW J.A in the celebrated case of MUKISA BISCUIT MANUFACTURING COMPANY LIMITED Vs WEST END DISTRIBUTORS LIMITED [1969] E.A. 696, at page 700, it will be appreciate that;

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion?.

13. My take is that when a party feels the need to file an affidavit, in order to make out his case, it is because the party believes that there a need to ascertain facts.

14. Affidavits are depositions on oath, through which evidence is determined. Therefore, when a party was only concerned with matters of law, it would be unnecessary to file an affidavit.

15. In ORARO Vs MBAJA [2005] eKLR Ojwang J. (as he then was) said;

“Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principles a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point?.

16. In this case, I find that the defendant needed to lead factual evidence so as to build the foundation for its legal arguments. Therefore, the matters being raised by the defendant do not qualify as a preliminary objection.

17. However, I have also given careful consideration to the Witness Statements in contention. I find that William Githara has not stated anything which can be said to have come to him from the defendant, when he was representing the defendant.

18. He has only talked about the role which the plaintiff, PATRICK SAGWA KISIA had played during the arbitration proceedings.

19. As the said arbitration proceedings are not of a confidential nature, a statement indicating the role which the plaintiff had played in the said proceedings cannot be confidential.

20. I further find that the limited scope of the evidence contained in the Witness Statement of William Githara cannot be prejudicial to the defendant. In any event, the defendant would have an opportunity to cross-examine the witness before the court can make an informed decision on the evidence tendered.

21. Meanwhile, the arbitrator was mutually appointed by the parties to the arbitration.

22. In my considered view, when the arbitrator testifies about the role which the plaintiff played in the arbitration proceedings, he cannot be said to have misused any information.

23. It was an arbitration between the defendant herein and K I T I. The plaintiff in this case was not a party to the arbitration proceedings. Therefore, the arbitrator could not have awarded to the plaintiff any payment.

24. The proper forum where the plaintiff’s claim can be determined is the court.

25. If a Judge who had presided over court proceedings was asked to testify about whether or not an advocate had represented one of the parties in that case, the answer could be derived from the record of the proceedings. The information could also be obtained from the Judge.

26. In my considered view, there was no legal bar to a Judge giving evidence, provided that he was not being required to justify his decisions.

27. Accordingly, I find no merit in the Preliminary Objection. It is therefore overruled. The costs thereof are awarded to the plaintiff.

DATED, SIGNED and DELIVERED at NAIROBI this13th dayof November2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

No appearance for the Plaintiff

No appearance for the 1st Defendant

No appearance for the 2nd Defendant

Kimetto for the 3rd Defendant

No appearance for the 4th Defendant

Collins Odhiambo – Court clerk.