[2022] KEBPRT 693 (KLR)

Total Security Limited & another v Teleposta Pension Scheme & 8 others (Tribunal Case BPRT/903/2016 of 2016) [2022] KEBPRT 693 (KLR) (Civ) (9 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 693 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case BPRT/903/2016 of 2016

Andrew Muma, Vice Chair

September 9, 2022

Between

Total Security Limited

1st Claimant

Lemolok Ltd

2nd Claimant

and

Teleposta Pension Scheme Registered Trustees

1st Respondent

Intercountries Importers and Exporters & 7 others

2nd Respondent

Ruling

1. The tenants, Total Security Limited and Le Molok Limited, entered into tenancy agreement for business premises on LR 209/13238 formerly known as LR 209/2397 (herein after referred to as the ‘tenants’)

2. The firm of MS Wandabwa &Company Advocates is on record for the tenants in this reference. info@wandabwaadvocates.co.ke

3. The firm of MS Kale Maina & Bondotich Advocates is on record for the 1st respondent/landlord in this matter. kaleb@kmbadvo.co.ke

4. The firm of MS Kilonzo and Company Advocates is on record for the 2nd respondent/landlord in this matter. info@kilonzoadvocates.co.ke

The Dispute Background 5. On the May 16, 2022, the 2nd respondent made an application under certificate of urgency seeking orders inter alia that summons do issue to Anne Mathenge Advocate and Steve Bundotich Advocate to appear as witnesses at the inter partes hearing on the June 13, 2022.

6. The application was certified as urgent and the tribunal issued orders on the May 20, 2022 directing that summons do issue to Anne Mathenge and Steve Bundotich.

7. On the June 7, 2022, the 1st respondent filed an application under certificate of urgency seeking to set aside the orders dated May 20, 2022 and expunge from the record the summons to witness dated May 27, 2022.

8. Vide orders dated June 9, 2022, the tribunal ordered that the application be served for virtual hearing slated for June 13, 2022 and file an affidavit of service.

Jurisdiction 9. The jurisdiction of this tribunal is not in dispute.

1st Respondents Claim 10. The 1st respondent seeks to set aside the orders dated May 20, 2022 and expunge from the record the summons to witness dated May 27, 2022.

11. The basis of the claim is that advocates as espoused under section 134 of the Evidence Act are not compellable witnesses.

12. Relying on the case of Wanjiru Yusuf Abdallah vs Elizabeth Mueni Ewin, the 1st respondents contends that the practice of Advocates turning up as a witness for a client they had acted for earlier on is frowned upon in the ‘fair administration of justice’

13. As such, the summons to witness were irregularly issued as the Advocates, who were to be called as witnesses were in conduct of the matter before the tribunal.

The 2nd Respondents Claim 14. By a replying affidavit sworn on July 26, 2022, the 2nd respondent avers that the legal privilege accorded to the Advocates as under section 134 of the Evidence Act does not extend to public documents.

15. That the tenants and the 1st respondent herein entered into a tenancy agreement dated May 25, 2015. Both Anne Mathenge Advocate and Steve Bundotich Advocate were the attesting witnesses for the tenancy agreements, which agreements were curated to defeat the 2nd respondents legal title to the premises.

16. Further, rule 8 of theAdvocates (Practice) Rules,1996prohibits an Advocate from appearing in any matter, where it is apparent that they may be required to give evidence.

17. The 2nd respondents note that both Anne Mathenge Advocate and Steve Bundotich Advocate were served with notice to cross examine on March 27, 2017.

18. Additionally, none of the clients of the above-named Advocates has objected to the summons to witness to their Advocates.

19. I have had occasion to peruse the pleadings above-mentioned of both the landlord and tenant and also the landlords and tenants written submissions and I will not rehearse the same again as they are brief and to the point.

20. I will refer to them in my analysis below where relevant and I thank parties for the same.

Issue for Determination 21. The parties raised certain issues for determination in their submissions and in their affidavits that centered on the key issue hereunder, therefore, the tribunal shall proceed to distill the key issue of contention discussed by parties and their counsels who submitted in writing as below:Under what circumstances can an Advocate be compelled to witness as to the documents they had attested to?

Analysis and Findings 22. The key issue is the application of section 71, 72 and 134 of the Evidence Act and whether the advocate may be compelled to testify in relation to documents previously witnessed.

23. Section 134 of the Evidence Act provides that;(1)No advocate shall at any time be permitted unless with his 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 condition of any document with which he has become 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:Provided that nothing in this section shall protect from disclosure—a.Any communication made in furtherance of any illegal purpose;b.Any fact observed by any advocate in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to the fact by or on behalf of his client.

24. The section reproduced above outlines the concept of legal privilege and duty of confidentiality that the Advocate owes to his client at all material times. The legal privilege and consequent duty of confidentiality is not absolute as there are instances where the same may be waived and the advocate may take the stand and testify as to the matter which he had conduct of.

25. Further, the section provides that the client may expressly consent to the disclosure. This amounts to express waiver of the duty of confidentiality that the Advocate owes to the client. In the absence of such express consent and the circumstances envisioned above as to fall beyond the ambit of the duty of confidentiality, the advocate is bound not to disclose any information obtained in the course of employment.

26. In synthesizing the applicability of this section, the court in the case of Manani Lilan & Mwetich Co Advocates v Veronica Sum [2022] eKLR, demonstrated the legal privilege exists primarily to protect the client. This is to mean only the client may expressly consent to the disclosure of the information held by an advocate. It is essentially not up to the advocate to determine what information may be disclosed. To this effect, the court held that ‘…that an advocate/client privilege binds an advocate not to be compellable to disclose a client’s affairs without express authority or consent of his or her client. An advocate cannot therefore be compelled to breach the said requirement either by court or any other person. The waiver/lifting of the same can only be done by the client.’

27. In my considered view, in the reference herein, in the absence of express consent from the client, the advocates may not compelled to testify in this matter.

28. Further, the series of transactions in this reference does not disclose any furtherance of an illegality or commission of fraud that would dispel the privilege accorded under section 134 of the Evidence Act. The 2nd respondent has not proven the existence of the fraud or any conduct tending towards the commission of fraud as to warrant the advocates to be compelled to testify on the matter.

29. Section 71 and 72 of the Evidence Act, provides that where a document needs to be attested in law, the same shall not be adduced unless one of the attesting witnesses testifies to that effect. In the instant case, there is no dispute as to the attestation of the document.

30. The witnesses being 1st respondents’ directors/ trustees can produce the document for interrogation. I thereore find that i am unable to summon the witnesses now unless the necessity will arise in the course of the hearing in which event parties will be at liberty to apply orally.

OrdersFor the reasons given above I order as follows:a.The application dated June 7, 2022 by 1st respondent is allowed the witness summons issued are hereby set aside and expunged from the court recordb.Tenants reference will be heard on 17th of October 2022. Hearing notice to issue to the tenants.c.The costs of this application shall be in cause.

HON A. MUMA VICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A. Muma this 29th day of August 2022 in the presence of Kethi for the 2nd respondent, Bundetich holding brief for Ann for the 1st respondent/Landlord.GIVEN under my hand and Seal of this Court on 2022-09-09 14:15:07SIGNED BY: HON. ANDREW MUMA (VICE CHAIRPERSON) (ADMINISTER JUDGEMENTS)THE JUDICIARY OF KENYA. BUSINESS PREMISES RENT TRIBUNAL NAIROBIDATE: 2022-09-09 14:15:07