https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9393

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI CITY** **CIVIL DIVISION** **CIVIL APPEAL E121 OF 2022** **STEPHEN KIBUNGEI t/a** **KIBUNGEI & COMPANY ADVOCATES……………………APPELLANT** **-VERSUS-** **SOIN LIMITED…………………..…………………………..RESPONDENT** ***(Being an Appeal from the Judgment of the Hon. D . W Mburu (SPM) dated 4th February, 2022 in Milimani CMCC 2425 of 2019)*** **Introduction** 1. The respondent, who sued for breach of agreement in CMCC 2425 of 2019, was the plaintiff in that suit and is the respondent in this appeal; the appellant was the defendant in CMCC 2425 of 2019 and is the appellant before this Court. 2. The trial court allowed the respondent’s claim against the appellant and awarded the following reliefs: 3. ***repayment by the appellant to the respondent of KShs. 1,108,891.95 being the decree total sum paid by the respondent;*** 4. ***damages of KShs. 100,000 for breach of contract;*** 5. ***interest at court rates from the date of filing the suit and from the date of judgment until payment in full; and*** 6. ***costs of the suit.*** **Brief background** 1. The respondent’s case in the trial court was that on 21 December 2016, the respondent approached the appellant (a practicing advocate) and instructed the appellant to file an Application to set aside an *ex parte* judgment that had been entered against the respondent and also seek leave to file a statement of defence out of time. 2. The appellant filed an application in the subordinate court seeking to set aside or vary the *ex parte* judgment and obtained stay orders and a subsequent hearing date on 4th January, 2017. On the scheduled date, counsel for the appellant failed to attend. The application was dismissed. 3. The appellant attempted to set aside the order dismissing the Application but failed he thereafter approached the High court vide an application being High Court Civil Miscellaneous App. 268 of 2017 wherein interim orders staying the execution were issued and the matter scheduled for hearing on 12th July, 2017. 4. The matter was rescheduled for hearing on 21st September 2017, on the set hearing date counsel for the appellant again failed to appear and the application was dismissed. 5. According to the respondent, because the ex parte judgment was not set aside the respondent had warrants issued against them, and the auctioneers attached the respondent’s property. The appellant advised the respondent to pay Ksh. 1,108,891.95 (the decree total sum) which the respondent paid. The respondent then sued the appellant for a refund of that amount and damages for breach of contract and negligence. 6. At the trial the Court found for the Respondent and entered the orders summarized above. **Grounds of appeal** The appellant advances the following grounds of appeal: 1. ***That the learned trial magistrate erred in law and in fact in entering judgment against the appellant without properly considering the appellant’s submissions.*** 2. ***That the learned trial magistrate erred in law and in fact in entering judgment against the appellant without properly considering the appellant’s testimony and evidence.*** 3. ***The learned magistrate erred in finding that the appellant was negligent and in awarding KSh. 100,000 as damages.*** 4. ***The learned magistrate erred in ordering the appellant to repay the decree total sum of KSh. 1,108,891.95 to the respondent from a case the Appellant did not represent the Respondent in.*** 5. ***The learned magistrate’s decision occasioned a miscarriage of justice.*** **Submissions** 1. The Appeal was disposed by way of written submissions. Both parties filed their submissions which have been considered by the court. The Appellant in their submissions relied on the case of ***National Bank of Kenya Ltd v E. Muriu Kamau & Njoroge Nani Mungai t/a Muriu Mungai & Co. Advocates, HCCC No. 539 of 2004*** ***Where the court stated that ‘’the question of of negligence with regards to the performance of the solicitor’s duties must to some extent be affected by the local conditions and the local circumstances, as to which their lordships might not be perfectly informed….’’*** Also further relied on the case of; ***Stephens & company vs. Allen (1918) 7A LR 197*** ***“and moreover, I accept the opinion of Tindal CJ in Cudefraay vs. Dalton 6 bing 460 that it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor understands to furnish between that reasonable skill and the diligence which appears to satisfy his undertaking and the word crasa negligentia or lata culpa mentioned in some of the cases for which is undoubtedly responsible. it is a question of degree and there's a borderland within which is difficult to say whether a breach of duty has or has not been committed***’’ 1. The Respondent in their submissions relied on the case of ***Gabriel Mugai Njiri v Robert Hawi Wanga t/a RH Wanga & Co. Advocates Nairobi HCC 478 OF 2011*** where the court held that: ***“Professional negligence will normally arise when a person does exercise the degree of skill, duty and care of a reasonable person in that profession. An Advocate is not liable for any reasonable error of judgment or for ignorance of some obscure point of law, but is liable for an act of gross negligence or ignorance of elementary matters of law consistently arising in practice”*** The respondent also relied on the case of ***National Bank of Kenya Limited v. E. Muriu Kamau & another*,** where Justice Warsame affirmed that professionals must exercise reasonable care, emphasizing that a doctor leaving surgical materials inside a patient is liable for negligence unless extraordinary circumstances are proven. The court noted that liability cannot be avoided by claiming reasonable actions or partial payment, as the test is based on objective reasonability. **Issues for determination** 1. Having considered the record, the grounds of appeal and the respective submissions of the parties, the issues for determination are: 2. ***Whether the trial court properly evaluated the evidence and was justified in finding that the appellant had contracted with and owed duties to the respondent.*** 3. ***Whether the appellant was negligent or in breach of contract and, if so, whether the trial court correctly assessed liability, causation and damages.*** 4. ***Whether the trial court’s orders for refund, damages, interest and costs were lawful and supported by the evidence.*** 5. ***What remedy, if any, should follow.*** 6. Before we undertake the exercise, we remind ourselves that, as a first appellate Court, our duty is to reconsider the evidence tendered before the trial court, evaluate it ourselves, and draw our own conclusions, while bearing in mind that we neither saw nor heard the witnesses ***Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123;*** 7. We further consider that; we should only interfere with the findings of fact by the trial court where the decision is based on no evidence or on misapprehension of the evidence or where the trial court has demonstratively shown to have acted on wrong principles when reaching the finding (***[Mwanasokoni v Kenya Bus Services Ltd & 3 Others [1985] KECA 82 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1985/82/eng%401985-07-26)*** **Analysis** 1. **Existence of contract and scope of retainer** 2. The respondent’s cause of action was pleaded as professional misconduct and/or negligence by the appellant in failing to secure the setting aside of the *ex parte* judgment and in advising the respondent to pay the decree sum. 3. The key preliminary question is whether there was a retainer between the parties that is, whether the appellant agreed to represent or act for the respondent in respect of the *ex parte* judgment and, if so, upon what terms. 4. The appellant filed two Applications the first application was dated 20th December, 2016 which was dismissed on 4th January, 2017 for non-attendance. The second application was dated 30th June, 2017 which was also dismissed for want of prosecution. 5. The trial court recorded findings that the respondent instructed the appellant on 21 December 2016 to set aside the *ex parte* judgment and that the appellant accepted instructions, filed the necessary processes and obtained stay orders but subsequently failed to appear on subsequent hearing dates causing dismissal of the applications. 6. The trial court concluded that by accepting instructions and filing processes the appellant had assumed responsibility and owed a duty to exercise reasonable care in the performance of that retainer. 7. In law, a contract for legal services may be proved by a combination of direct evidence, correspondence, filing of processes, payment or part-payment, or other objective facts implying a retainer. In ***Pineapples Edge Limited v Kipkenei & Co Advocates***, the court affirmed that an advocate need not obtain written authority before commencing a matter. The advocate’s authority and the retainer's existence can be implied or discerned from the conduct of the parties, including the filing of processes on the client's behalf. 8. More recently, in ***Nyauke t/a Nyauke & Co Advocates v Trustees of Archdiocese* ([2023] eKLR)**, the court highlighted that an advocate-client relationship (retainer) is established not just by a formal written agreement, but can be implied from direct appointment and the advocate acting in reliance on instructions given by the client. On the evidence in the record (pleadings, affidavit evidence and exhibits tendered), there is material to support the trial court’s finding that the appellant accepted instructions and acted on filing of the application, securing temporary orders and giving advice. 1. Importantly, there is not an uncontested affidavit or exhibit showing that the appellant expressly refused instructions or that no instructions were ever given. Where the appellant denies retainer, the burden is on the appellant to establish that no agency relationship existed. In the absence of such clear disproving evidence, the trial court did not err in finding that a retainer existed. 2. **Did the appellant negligently or contractually fail to perform?** 3. The trial court found that after obtaining interim relief the appellant repeatedly failed to attend Court on fixed hearing dates and that the subsequent dismissals and the absence of setting aside of the ex parte judgment caused the respondent to pay the decretal sum. The trial court concluded that the appellant was negligent and in breach of agreement, thus liable to refund monies and to pay damages. 4. It therefore begs the question whether non-attendance of the court matters amounted to negligence or breach. Courts have held that An advocate who undertakes a retainer is obliged to exercise reasonable skill and care in performing the retainer ***National Bank of Kenya Limited v. Otieno Ragot and Company Advocates [2020] eKLR*** reinforces that a retainer acts as a contract for employment. Once the contract is formed, it imposes fiduciary duties and the mandatory obligation to act competently on the client's behalf*.* Therefore, unexplained failure to attend court on material hearing dates after having taken instructions and filed processes is, at a minimum, a serious lapse and may amount to breach of duty. 5. The trial court found that counsel did not show probable cause for non-attendance when given an opportunity to justify the default. Courts have held the position that they will only allow relief from dismissal only where reasonable cause is shown; conversely, unexplained defaults attract adverse consequences. 6. On the issue of causation it requires proof that the respondent’s loss, payment of the decretal sum, flowed from the appellant’s breach. The respondent adduced evidence that had the applications been heard and the *ex parte* judgment set aside, the warrants and consequent attachments would not have been executed or the respondent would not have been obliged to pay the decretal sum at the auction stage. The trial court accepted that inference and found a causal link. The appellant’s defence was that he did not represent the respondent in the initial suit and, in any event, that other factors caused the loss. However, the appellant produced no contemporaneous evidence to show that the failure to set aside would not have been remedied, or that the respondent voluntarily paid despite alternative remedies. 7. Given the evidence before the trial court and the standard of proof in civil claims, balance of probabilities, the trial court’s finding of breach and causation is supported by the record. The trial court carefully evaluated the sequence: instruction, filing, interim relief, failure to attend, dismissal of application(s), failure of subsequent remedies, consequent execution/attachment and payment. That chain is neither irrational nor unsupported. 8. **Remedy: refund of decretal sum** 9. The trial court ordered repayment of KShs. 1,108,891.95/= the amount the respondent paid. Where a legal practitioner negligently causes loss to a client by failing to perform agreed services, restitution of monies paid to redress the loss is a recognized remedy. 10. In the landmark case of ***Nyamogo & Nyamogo Advocates v. Barclays Bank of Kenya*** **(Civil Appeal 744 of 2015)**, the Court of Appeal affirmed that a retainer binds an advocate to act in a manner that protects the client's interests. If an advocate acts negligently or fails in their duty of care, they are liable in both contract and tort to put the client back in the same financial position as before the loss. It legally encompasses the refund of unearned or squandered legal fees 11. Courts have awarded restitution where the claimant had no obligation to pay but did so because of the professional’s default. The trial court’s order for refund was therefore competent and within the remedial powers of the court where causation and loss were established. 12. The appellant’s contention that they did not represent the respondent in the initial suit and therefore cannot be liable for the decree is unpersuasive on the record. The liability is not for the original decree but for the loss suffered as a consequence of the appellant’s breach of their separate contract to attempt to set aside the decree. The remedy ordered repayment of the sum paid by the respondent neatly restores the respondent to its pre-loss position. 13. **Damages assessment** 14. The trial court awarded KShs. 100,000/= as damages for breach of contract. The respondent claimed general damages for anxiety, inconvenience, and any incidental losses. The trial court determined a modest but compensatory award of KShs. 100,000/=. 15. On appeal the appellant argues the award was excessive and not supported. The assessment of non-pecuniary damages lies largely within the trial court’s discretion, exercised on evidence and judicial assessment. This Court will interfere only if the award is manifestly excessive or based on extraneous considerations. 16. *I*n; ***Tahir Sheikh Said T/A TSS Bus Services & 2 Others v. Mohamed Shee Ahmed* [2021] eKLR** the courtof appeal outlined that the trial court's discretion is paramount in non-pecuniary assessments. The appellate bench reiterated that unless the damages are so manifestly excessive or based on extraneous or wrong considerations, the trial court's award remains undisturbed. 17. The award of KShs. 100,000/=, given the sequence of events; loss of property by attachment, urgency of payment, distress and litigation costs, cannot be said to be outrageous or unsupported. The trial court reasonably found that the respondent was entitled to damages thus warranting the award. 18. **Interest and costs** 19. The trial court’s award of interest at court rates from the date of filing until payment and costs of suit are standard civil remedies where monetary sums are ordered. No compelling reason is shown to disturb those orders. 20. **Appellant’s procedural and evidentiary complaints** 21. The appellant complains that the trial court ignored appellant’s submissions or evidence. A full reading of the record, the judgment, and the hearing transcript shows the trial court considered the appellant’s defence, the explanation (or lack thereof) for non-attendance and the documentary material. The trial court explicitly noted absence of proof for the appellant’s denial that a retainer was agreed. Absent any indication of material misdirection or failure to consider crucial evidence, this Court will not supplant the trial court’s findings. **(g) Determination** **For the reasons set out above, this Court finds:** 1. ***The trial court was entitled to find on the balance of probabilities that the appellant accepted instructions from the respondent to seek to set aside an ex parte Judgment and that the appellant thereby undertook a retainer.*** 2. ***The appellant breached the duty to exercise reasonable skill and care by failing to attend court on material hearing dates without adequate explanation. That breach caused the respondent to suffer loss in the form of payment of KSh. 1,108,891.95 to satisfy the decree.*** 3. ***The trial court’s orders for repayment of KSh. 1,108,891.95, damages of KSh. 100,000, interest at court rates from the date of filing and from judgment until payment in full, and costs of the suit are justified and within the Court’s remedial powers.*** 4. ***There is no ground to interfere with the trial court’s factual findings or with the assessment of damages on the record before this Court.*** **Disposition / Orders** 1. Accordingly, the appeal is dismissed in its entirety. The judgment and orders of the **Milimani Commercial Court in CMCC 2425 OF 2019** delivered on 4 February 2022 by Hon. Mburu are hereby affirmed. 2. Costs of this appeal shall be borne by the appellant. **DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 1ST DAY OF JULY 2026.** **HON L, P. KASSAN** **JUDGE** **In the presence of;** Ndegwa holding brief for Webo for Appellant No appearance for Respondent Leonard – Court Assistant