Delphis Bank Limited (Now Oriental Commercial Bank Limited) v Channan Singh Chatthe, Satwant Singh Chatthe, Sukhwinder Singh Chatte, Raghbir Singh Chatthe (All T/A Channan, Agricultural Contractors, Charanjit Singh Hayer & Rajnikant Karsandas Somaia [2014] KECA 808 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:   GITHINJI, AZANGALALA & KANTAI, JJ. A)

CIVIL  APPEAL NO.  180   OF 2008

consolidated with

CIVIL APPEAL  NO. 273 OF 2008

BETWEEN

DELPHIS BANK LIMITED

(nowORIENTAL COMMERCIAL BANK LIMITED.................APPELLANT

AND

CHANNAN SINGH CHATTHE .............................1st RESPONDENT

SATWANT SINGH CHATTHE...............................2nd RESPONDENT

SUKHWINDER SINGH CHATTE............................3rd RESPONDENT

RAGHBIR SINGH CHATTHE (all t/aCHANNAN

AGRICULTURAL CONTRACTORS..........................4th RESPONDENT

CHARANJIT  SINGH HAYER …............................. 5th RESPONDENT

RAJNIKANT KARSANDAS SOMAIA.......................6th RESPONDENT

(Appeal from a Judgment  of the High Court of Kenya at

Kisumu  (Tanui,  J)  dated 4th May,  2005

in

KISUMU  HCCC  No.  164  OF 2003

**********************************

JUDGEMENT OF THE COURT

These consolidated appeals Nos. 180 and 273 of  2008 which involve the same parties and  arise from part of the decision of the High Court of Kenya, Kisumu, made by B. K. Tanui, J (as he then was) on 4th May, 2005 in Kisumu  HCCC No. 164 of 2003.  That decision provoked three appeals – Civil Appeal No. 179 of 2008 which concerned the part of the decision ordering the appellant to adduce evidence first; Civil Appeal No. 180 of 2008 concerning the part of the decision  where L. G. Menezes Advocate was allowed to participate in the proceedings and Civil Appeal No. 273 of 2008 which concerned the part of the decision where the appellants counter-claim was dismissed.   When the appeals came for hearing before us on 12th November, 2013 Civil Appeal No. 179 of 2008 was heard separately while these appeals were consolidated and heard together.

The detailed facts of the  case before the learned judge appear in Civil Appeal No. 179 of 2008 and it is not necessary to repeat them here.

In respect of Civil Appeal No. 180 of 2008  the appellant has taken  five (5) grounds of appeal as follows:

“1.        THAT the Learned Judge erred in law by overruling the Appellant's Preliminary Objection and thereby allowing Mr. L. G. Menezes Advocate to participate in the proceedings in Kisumu High Court Civil Case Number 164 of 2003 as Counsel for the 5th Respondent in spite of  the fact that the said Mr. L. G. Menezes Advocate had drawn up the security documents and in particular the charges forming the subject matter of that suit, on the

express instructions of the Appellant.

2. THAT the Learned Judge erred in Law by misdirecting  himself as to the position of Mr. Menezes as Counsel who prepared the charges forming the subject matter of the  suit.

3. THAT the Learned Judge erred in Law by failing to        recognize that Mr. L. G. Menezes Advocate was effectively a potential witness and his participation in the proceedings in the suit as Counsel for the 5th Respondent was prejudicial to the Appellant and    therefore not in the interest of justice.

4. THAT  the Learned Judge erred in Law by misdirecting himself as to the position held by Mr. L. G. Menezes  Advocate and failing to recognize an obvious conflict of  interest on the part of Mr. L. G. Menezes  Advocate.

5. THAT in all the circumstances of the case, the decision of the Learned Judge did not serve the interest of justice.”

In respect of Civil Appeal No. 273 of 2008 the appellant has taken four (4) grounds of appeal which are:

“1.        THAT the Learned Judge erred in law by granting the

order sought in an oral application when it was clear that the application had been made in contravention of the  express requirements of the Law.

2. THAT the Learned Judge erred in Law by issuing an       Order which he had no jurisdiction to grant.

3. THAT the Learned Judge erred in Law and in fact by   finding the Appellants' case meritorious and summarily  dismissing the same with costs without the benefit of  any  evidence.

4. THAT in all the circumstances of the case the Learned      Judge failed to do justice before him.”

The record shows that when the case came for hearing before the learned Judge on 4th May 2005 counsel for the appellant (the defendant) informed the court that she was ready to proceed with the case but had realized that Mr. Menezes who was appearing for one of the defendants to the counter-claim was a potential witness because, according to counsel, Mr. Menezes had drawn charges in favour of the appellant which were central to the issues in the dispute.  Mr. Menezes disagreed stating that issues for determination in the case had been drawn and agreed when there had been no indication that any objection would be raised.   Counsel for the other parties agreed with Mr. Menezes and the learned Judge ordered:

“ORDER-

The  objections raised do not appear to affect the position  of Mr. Menezes as a counsel who prepared the charges. Hearing to proceed.”

There then followed  the application for the appellant as defendant to be ordered to adduce evidence first (this is the subject of Civil Appeal No. 179 of 2008) which the learned Judge granted and upon proceedings resuming in the afternoon counsel for the appellant was absent and this led to dismissal of the counter-claim.  Thereafter  the plaintiffs proceeded with their case against the defendant and the 1st and 2nd defendants to the counter-claim, now subject of this consolidated appeal.

Before us Miss Julie Soweto Aullo, the learned counsel for the  appellant submitted that the charge documents at the heart of the suit were drawn  for the appellant by Mr. L. G. Menezes as an Advocate and that it was wrong for the learned Judge to allow the said Advocate to appear for a  party in the suit when he was a potential witness for the appellant or other party.  For this proposition counsel citedUhuru Highway Development & others v Central Bank of Kenya & 2 others [2002] 2 EA 654 a decision of this Court involving a client /advocate relationship where the advocate acted for two parties to charge documents and acted for one of the parties in a subsequent litigation where the charge documents formed issues in  the litigation.   The advocate was prevented from acting in the litigation.

Counsel for the appellant referred us to paragraph 4 of the plaint where there is a pleading on charge documents and submitted that the same were drawn by Mr. Menezes.  Counsel submitted that the  appellant did not know until the matter was called to hearing that morning that  Mr. Menezes, who was not on record,  would appear for a party to the suit.   Counsel submitted therefore that objection to the said Advocate appearing could not have been brought earlier because the fact of Mr. Menezes appearing for a party to the suit  was unknown to the appellant until Mr. Menezes rose up in court and introduced himself as appearing as advocate for a party to the litigation.

In respect  of  the appeal against the dismissal of  the counter-claim learned counsel  for the appellant urged us to consider that appeal within the context of the two other appeals where the defendant was ordered to adduce evidence first and objection to Mr. Menezes appearing as counsel was disallowed.   Counsel submitted that proceedings were not conducted fairly or judiciously and counsel appearing for the appellant felt that the appellant was not getting a fair deal and thus decided not to attend the hearing at its resumption in the afternoon  leading to dismissal of the counter-claim.  Learned counsel submitted that the learned Judge erred in not citing the provision of law by which the dismissal of the counter-claim was ordered thus dis-entitling the appellant from availing itself of provisions of law on setting aside such a dismissal order.

As would be expected the respondents opposed the appeals.  Mr. P. Karanja, learned counsel for the 1st, 2nd, 3rd and 4th respondents, submitted that the objection to Mr. Menezes appearing as Advocate was flippant because the charge documents had not

been tendered for the court to satisfy itself  on the role of Mr. Menezes in drawing the same or identify what confidential information the Advocate may have had to lead to prejudice.

On dismissal of the counter-claim learned counsel submitted that the learned Judge had no choice in  the matter as the suit had been called for hearing and the appellant was absent and could not prosecute the counter-claim.  Absenting herself after not getting favourable  orders from the learned Judge smacked of arrogance, disrespect and negligence on the part of counsel which should not be condoned, argued counsel.

Mr. L. G. Menezes, the learned counsel for the 5th respondent, wondered why the appellant was casting aspersions  on him when he had a wealth of experience gathered from many years of law practice where he had drawn many charge documents, all in good faith  without mischief.  Counsel submitted that he had appeared before the said learned Judge holding brief  for another  Advocate and ready to proceed and since there was no formal application for him not to appear the learned Judge was right to refuse the objection .  Mr. Menezes submitted further that had the appellant placed before the learned Judge a charge document drawn by him he would readily have agreed that he should not act in the litigation.

On the related appeal Mr. Menezes decried the conduct of the counsel who walked out on the court after failing to get favourable orders wondering what options were left for the judge but to dismiss the suit.

Learned counsel for the 6th respondent Mr. W. Gichaba essentially agreed with the submissions of the other respondents' counsel  adding that for an Advocate to be barred from representing a party  in a litigation a fiduciary relationship must be shown placing a duty on the Advocate not to disclose information  without consent of the client.

In reply the learned counsel for the appellant urged us to do justice to the parties and consider all  the  circumstances that existed leading to the chain of events that led to the decision the subject of the  three appeals.

We have considered the Memoranda of Appeals, the submissions made by learned counsel  before us and the law.

In respect of the appeal against the decision of the learned Judge allowing Mr. Menezes to appear as holding brief for counsel for the 1st defendant to the counter-claim we note that Statement of Defence of the 1st Defendant to the counter-claim was drawn by Jacob Ogachi Ombiro Advocate.  When the matter  came for hearing before the learned Judge Mr. Menezes is recorded as appearing for Mr. Ombiro for the 1st defendant to the counter-claim.

It is alleged at paragraph 4 of plaint that:

“ On or about the 7th day of July, 1998, the Plaintiffs, at the request of the Defendant, executed an instrument of charge wherein the Plaintiffs charged their interest in the parcel aforesaid to the Defendant in consideration of the Defendant agreeing to advance Kibos Sugar Industries an aggregate

amount not exceeding Kshs. 22,000,000/=, full particulars whereof are in the knowledge of the Defendant. The Plaintiffs will refer to the said charge for its true tenor, purport, meaning and effect.”

In the particulars of fraud allegedly committed by the appellant it is alleged at paragraph 8 of the plaint, inter alia, that the defendant caused the registration of a charge against the plaintiffs property (parcel number South Wanga / Lureko/1892) to secure payment  of advances which had already been  advanced and that the defendant fraudulently caused the plaintiffs to execute the same in its favour for a facility that did not exist.

At paragraphs 12 and 13 of the plaint it is pleaded:

“12.      The Plaintiffs will crave that the Plaintiffs are not indebted to the Defendant under the charge as the  Plaintiffs were induced to execute the charge by various misrepresentation and fraud of the Defendant as pleaded  herein above.

13.        The Plaintiffs claim against the Defendant for orders of  declaration and cancellation of the registration in respect of the charge and for the refund of moneys paid by the  Plaintiffs to the Defendant in settlement of the alleged non -existent financial facility.”

It is therefore prayed that a declaration be issued to the effect that the charge over the said parcel  of land be declared to be null and void; that it be declared that there was no consideration for the charge created over the said parcel of land; that the charge be discharged and our order be made for refund of money paid.

In the Statement of Defence and Counter-Claim it is alleged at paragraph 4 thereof in so far as is relevant to the matters now in issue that:

“4.        …....

Further, the Defendant states as follows:

(a)        …...

(b)        …...

(c )        …...

(d)        …....

(e)         However, prior to the creation and execution of the said Guarantees and First Legal Charges the Defendant, at the  instance and request of the partners of Kibos Sugar Industries duly disbursed the proceeds of the said loan  facility in a sum of K.Shs. 40,000,000. 00 to Dolphin Management Services Limited.

(f)         Kibos Sugar Industries refused, neglected and/or  otherwise failed  to service the said loan facility and as

consequence whereof as at 30th June, 1998 the loan debt stood at K.Shs. 66,000,000. 00

(g)        It was then agreed between the Defendant on the one hand and the said partners of Kibos Sugar Industries on the other that the said sum of Kshs. 66,000,000. 00 be secured by Legal Charges over specified immovable properties, namely, land parcel Number South Wanga /  Lureko/1892, land parcel Kisumu Municipality / Block 11/119 and Kisumu Municipality / Block 12/288.

(h)        ….

(I)         ….

(j)         (iii)    That the existing securities to continue operating as securities for the new debt assigned to the Debtors as aforesaid as follows; land parcel Number South  Wanga/Lureko /1892 to secure that part of the loan  amount apportioned and assigned to Mr. Raghbir Singh  Chathe, (the 4th Plaintiff herein); and parcel Kisumu Municipality / Block 11/119 to secure that part of the loan amount apportioned and assigned to Mr. Charanjit Singh Hayer and land parcel Kisumu Municipality/Block 12/288

to secure that part of the loan amount apportioned and  assigned to Mr. Rajnikant Karsandas Somaia.

(k)  …..”

In the amended statement of defence  of the 1st defendant to the counter-claim against the plaintiff to the counter-claim various allegations are made relating to creation of the charge over parcel number Kisumu Municipality / Block 11/119 and it is prayed inter alia that the same be declared invalid and the charge be discharged.

In the statement of defence of the 3rd defendant to the counter-claim and 3rd defendants counter-claim various allegations are made relating to the creation of  the charge over parcel number of Kisumu Municipality / Block 12 / 288 and it is prayed, inter alia, that the same be declared invalid and the charge be discharged.

The parties to the suit agreed to the issues calling for determination by the learned Judge and signed a statement to that effect on 25th April, 2005.  Issues 6, 7, 8 and 9 of the “Agreed  Issues” ask the following questions as issues to the suit:

“6.        Are the charges registered against land parcels number South / Wanga/ Lureko / 1892, Kisumu Municipality  Block 12/ 288 and Kisumu Municipality Block 11/119 null  and void  for:-

(a)        Fraudulent misrepresentation

(b)        Lack of consideration

7.          Was there any valuable consideration for the charges

created against the above three properties in favour of     Delphis Bank Limited?

8.          Are the charges registered against the above three  properties valid and enforceable?

9.           Should the Delphis Bank Limited be ordered to discharge the charges registered against the three properties above described registered in the names of Rajnikant Karsandas Somaia, Charanjit Singh Hayer and Raghbir  Singh Chatthe respectively, unconditionally......?

The parties therefore agreed before trial that validity of the charges created over the three parcels of land was an issue to be determined at the trial.   The trial court had to find whether  the charges were valid entitling the appellant to exercise statutory powers donated by the same but if the court found that the charges were invalid the appellant  would be disentitled to  exercise such power and not have a remedy through the charge documents.

As we have already seen when the matter was called for hearing before the learned Judge counsel for the appellant though indicating readiness to proceed indicated to court that she had realized that Mr. Menezes who, according to her, was a potential witness, was  appearing for one of the parties (Mr. Menezes is on record shown as appearing for Mr. Ombiro for the 1st defendant to the counter-claim).  Mr. Menezes response to the issue raised on whether he could appear in the face  of the objection was:

“MENEZES – I disagree with Miss Muriu.  Issues have been

framed and documents have been exchanged.

When the agreed issues were framed, there was no indication that any objection would be raised.   There is claim of forgeries or ambiguities in the charge documents which will require me to clarify...”

Before us Mr. Menezes stated that he could not remember drawing charges for the appellant but that if it had been shown that he had indeed drawn the same he would have readily withdrawn from the litigation.

In Uhuru Highway Development Ltd. (supra)the Plaintiff applied by Notice of Motion that the firm of Oraro and Company Advocates, and in particular, Mr. George Oraro, the leading partner in the firm, be restrained from acting for the 1st and 2nd defendants in the suit the contention being that the said Advocate had acted for both parties in the preparation of a charge that was a substantial matter in the suit and that by acting for the 1st and 2nd defendants he would be acting contrary to law.  The said Advocate contended that the plaintiffs were not his clients and he could not therefore be held  to have been in breach of a duty as a solicitor to his client and argued further that the fees paid to him were by way of enforcement of a provision made in the charge and not because the plaintiffs were his clients.  The trial Judge agreed with the Advocate and dismissed the application.  It was held on appeal that the question whether the plaintiffs were counsels' clients could be discerned from a careful consideration of the

correspondence on record and in particular a fee note and notice of taxation served by him and the conclusion would be that the relationship was that of advocate and client.  It was further held that the counsel being the author of the charge may know much more behind the charge than was apparent and was bound to use such knowledge against the Plaintiffs, his former clients.  The Court further held that the role of the counsel in bringing about the 1st and 2nd plaintiffs to execute the charge may in the premises lead him into consciously  or unconsciously or even inadvertently using the confidential information acquired during the charge and this would lead to prejudice.

Section 2 of the Advocates Act defines “client” as

“Client”  includes 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.”

The bar to an Advocate being a witness is not dependent upon the nature of the evidence from which a decision can be made as to its substance  establishing a prima facie case with the probability of success  but on the basis of Rule 8 of the Advocates (Practice) Rules which provides:

“ 8.  No advocate may appear as such before  any court or

tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that  he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear:

Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in  any matter in which he acts or appears.”

In the case before the learned Judge it was pleaded by the plaintiffs and the defendants to the counter-claim that the charges to the three  properties parcel numbers  South  Wanga / Lureko / 1892, Kisumu Municipality Block 12/ 288 and  Kisumu Municipality Block 11 / 119 charged as security for money advanced by the appellant were as a result of misrepresentation and fraud; that they were  invalid null and void and should be so declared and be  discharged.

The Court of Appeal in England in Re – a firm of Solicitors [1992] 1 All ER 353 observed that there was no general rule that a firm of solicitors who had acted for a former client could never thereafter act for another client against the former client but  held that a firm of solicitors would not be permitted to act for existing client against a former client if a reasonable man with knowledge of the facts would reasonably anticipate that there was a danger of information gained while acting for the former client being used against him or there was some degree of likelihood of mischief in confidential information imparted by the former  client being used for the benefit of the former client.

The Supreme Court of Samoa inApia  Quality Meats Limited v Westfield Holdings Limited [2007] 3 LRC 172held on the subject  of removal of an Advocate from proceedings that such an application had to be considered under the relevant legal principles on the courts exercise of inherent jurisdiction to control the conduct of the proceedings and those who appeared before it as counsel.   The factors to be considered were such factors as conflict of interest, actual or potential breach of the duty to protect confidential  information, or misconduct.  It was further held that removal of an Advocate from acting for a party in proceedings was an extraordinary and drastic remedy to be contemplated only in the most extraordinary circumstances, requiring misconduct so serious that removal was the only way of safeguarding the future integrity of the proceedings.

As has been seen in the appeal against the decision allowing Mr. Menezes to continue acting as an Advocate when the matter was called for hearing Mr. Menezes is recorded as appearing for Mr. Ombiro for the 1st defendant to the counter-claim.

The counsel appearing for the defendant then raised an objection indicating that she had realized that Mr. Menezes was a potential witness because he had drawn the charge documents subject of the suit.  To which Mr. Menezes replied that issues had

been framed when there had been  no indication that any objection would be raised.

We have shown in this judgement that the statement of defence of the 1st defendant to the counter-claim was drawn by Jacob Ogachi Ombiro, Advocate.  This is the Advocate whose brief Mr. Menezes was holding on 4th May, 2005 when he (Mr.  Menezes) indicated to the learned Judge that he was ready to proceed on behalf of the 1st defendant to the counter-claim.  Mr. Menezes submitted to the learned Judge that documents had been exchanged and issues agreed and that the appellant had not given any indication that an objection would be raised.

How could such a submission be made by Mr. Menezes when he  had not drawn any pleading in the suit and was appearing in the suit for the first time on behalf of the counsel who had drawn the pleading and was on record for the 1st defendant to the counter-claim? Was there any form of prior notice or indication to the appellant that Mr. Menezes would  appear for any party to enable the appellant to raise any formal application against appearance of Mr. Menezes as an Advocate for the said party?  Mr. Menezes himself submitted to court that documents relevant to the suit had been exchanged.  Such documents must have included the charge documents which were subject of the suit and which it was said he had drawn.  Mr. Menezes did not deny drawing the charge documents but merely took technical objections to the fact that he had no information that an objection would be raised and that issues had been agreed.   The counsel appearing for the appellant appears to have taken a rather casual approach to the rather serious application that Mr. Menezes be prevented from appearing for the 1st defendant to the counter-claim.  We say this because it would appear from the record that counsel for the appellant did not place any material before the learned Judge to establish the allegation that the contentious charge documents had been drawn by the said Advocate.  And yet we note from the  record that the parties  had served Notices to Admit Facts and exchanged  Lists of Documents before the trial each of which List made reference to the charge documents and, as we have said, Mr.  Menezes indicated to the learned Judge that documents had indeed been exchanged by the parties.  For instance in the Notice to Admit Facts drawn by counsel for the plaintiffs the defendant is required to admit to the fact :

“11.  The charge over South Wanga /Lureko/1892 was        registered on 14th October, 1998.

12.        That the charge was over South Wanga / Lureko /1892    was to secure payment not exceeding Kshs.           22,000,000/=...”

In the Notice to Admit Facts drawn by the 3rd defendant to the counter-claim the 3rd defendant to the counter-claim requires the defendant to admit to the fact:

“12.      That the charge over Kisumu Municipality / Block 12 /    288 was registered on

13.       That the charge over Kisumu Municipality / Block 12 /    288 was to secure (as guarantor) payment to Kibos

Sugar Industries not exceeding Kshs. 22,000,000/=..”

The fact that parcel numbers South Wanga / Lureko / 1892 and Kisumu Municipality / Block 12 / 288 were registered to secure loans was readily admitted in the Admissions to Admit Facts Pursuant to Notice which were on record.

Coming to the Lists of Documents there is the one drawn by counsel for the plaintiffs which listed as the first document  Charge dated 7th July 1998 over South Wanga / Lureko / 1892.   Then there is the List drawn by counsel for the 3rd defendant to the counter-claim which lists as first document the same Charge.

The appellant in its List of Documents listed as documents in its possession the Charges over the three  parcels of land South Wanga / Lureko / 1892; Kisumu Municipality/ Block 12 / 288 and Kisumu Municipality / Block 11/119.

All the parties had information of the substratum of the suit which hinged on the charge documents.

The matter was coming for hearing that day and it is the practice of that court that parties  exchange documents to be used at the trial.  It is indeed the practice of that court that  a bundle of documents are agreed and exchanged  before the trial.  Which is to say that charge documents were then in possession of all the counsel present and it would not have been difficult for the counsel, or the court, to establish as a fact whether the charge documents were drawn by Mr. Menezes Advocate as stated by learned counsel for the appellant.   It appears to us that the learned Judge, with respect, as did counsel before him, treated the whole issue casually in making the order that the objection raised did not affect the position of Mr. Menezes as counsel.   There was no denial by Mr. Menezes that he had prepared the charge documents.  Mr. Menezes told us  at the hearing of these appeals that he would have freely withdrawn from the litigation had it been proved that the charge documents had been drawn either by himself personally or by his law firm.   We observe here that having accepted the brief from Mr. Ombiro Advocate, and it is on record that Mr. Menezes was ready to proceed when the matter was called for hearing, Mr. Menezes had in his possession the 1st defendant to the counter-claims' file which contained at the very least copies of the charge documents subject of the suit.

In view of the contentious nature of the suit where there were allegations and counter- allegations relating to the validity of the charge documents where it was alleged that parties were coerced through false misrepresentations to execute documents alleged to have been drawn by Mr. Menezes as counsel and in the face of the objection taken in the proceedings against his appearing as counsel we are satisfied that there was sufficient material before the learned Judge to come to the conclusion that there was a real danger of Mr. Menezes using confidential information received by him when he received instructions to draw the  charge documents.   Mr. Menezes himself informed the learned Judge that because there was a claim of forgeries and ambiguities in the charge documents he was required to clarify.  How would he clarify  alleged forgeries or ambiguities in the charge documents while appearing in the suit for one of the parties?  The fact that Mr. Menezes offered to “clarify” the contents of contentious documents central to the suit made him not a potential but a real witness and the learned Judge exercised his discretion wrongly in not seeing the danger inherent in Mr. Menezes appearing as counsel in the suit.

The appellant has appealed against dismissal of the counter-claim.   The circumstances leading to that dismissal have been set out in this judgement.

When the suit resumed in the afternoon before the learned Judge after a lunch break counsel for the defendant was  absent.  An oral application was made by counsel for the Plaintiff for dismissal of the counter-claim.   The learned Judge duly obliged dismissing the counter-claim with costs and ordering the suit by the plaintiffs and the 1st and 2nd defendants to the counter-claim to proceed.   The learned Judge did not indicate in the order under which provision of law the said orders were made.

Proceedings in respect of circumstances as obtained before the learned judge would ordinarily  be governed by Order IXB Civil Procedure Rules (now Order 12).   The said  Order empowered the court to dismiss the counter-claim when the suit was called and the defendant was not in court to prosecute the counter-claim and there was no  valid or any explanation for the defendants absence.

Yet the circumstances that obtained before the learned Judge call for more enquiry and scrutiny on the procedure adopted by the learned Judge.

The record shows that the matter was called at 2:30 p.m. when the learned Judge recorded:

“COURT -  It appears that after the defendants counsel failed to  obtain an adjournment she left the court pre units (sic)  with client.

ORDER – Hearing to proceed as ordered earlier.

KARANJA – I pray that the defendants counter-claim against all the defendants to the counter-claim be dismissed with costs.

ORDER:

The defendant's counter-claim against the three defendants to the counter-claim namely; Charanjit Singh Hayer, Rajnitkant Somaia and Reghbir Singh Chatthe is hereby dismissed with costs.

The plaintiffs to proceed to prove their case against    defendant and 1st and 2nd defendant to the counter-claim.

B. K. TANUI/JUDGE.”

As we have stated the dismissal order did not indicate the provision of law under which the order was made.

It is important to remember that when the suit itself was called for hearing that morning the learned Judge  allowed an application for the defendant to adduce evidence first.  He granted leave to the defendant to appeal that decision but refused the subsequent application for adjournment.   Then follows an application by the defendant for a counsel appearing for a  party to be barred from appearing for reasons stated which   application is also refused.  The advocate who has lost in both applications then absents herself when the court resumes in the afternoon leading to orders dismissing the counter-claim.

The dismissal order for the counter-claim was presumably made under the then Order IXB Civil Procedure Rules.

As we have stated the learned Judge had granted leave to the defendant to appeal his decision ordering the defendant to adduce evidence first.

In Din Mohamed v Lalji Visram & Co [1937] 4 (EACA) 1 the defendant's counsel applied for adjournment of the plaintiffs suit on the ground, inter alia, that the principal defence witness was ill.   The application  was disallowed and the defendant's counsel withdrew from the case whereupon the plaintiffs case was heard and judgement entered accordingly. A subsequent application to set aside the judgement was dismissed by the trial court on   grounds that the judgement so entered was not exparte.  On appeal to the High Court the decision of the trial court was reversed.   On further appeal to the predecessor of this Court it was held that, if a counsel duly instructed, on being refused an adjournment, elects to leave the court, and take no further part in the case, that fact alone does not constitute the proceedings exparte.   In the course of the judgement the court stated:

“The defendants cannot say that they had no opportunity of putting their case before the court.   Whatever label is given to the proceedings of that date, the Magistrate on refusing an adjournment could only have proceeded to hear the case as he did, and if the plaintiff proved his case, enter judgment for him.   On the facts here that was not in my opinion an ex parte judgment and the remedy of the defendants was to appeal and not to apply under Order IX Rule 24”.

In Mugachia v Mwakibundu [1984] KLR 572 where there was a counter-claim to the suit the plaintiffs advocate applied for adjournment which application was disallowed whereupon the plaintiffs advocate stated that he had no evidence to offer.  The suit was then dismissed.  The plaintiff thereafter applied for the setting aside of the judgment under Order IXB Rule 4 Civil Procedure Rules.   That application was dismissed by the trial Judge on the ground that there was no question of non- attendance.   The appellant appealed.   At the hearing of the appeal the appellants counsel conceded that his decision not to offer evidence did not constitute the proceeding exparte.   The court made  a finding that the decision to dismiss the suit was not made under Order IXB Rule 4 and dismissed the appeal against the order dismissing the application to set aside as misconceived.   This Court however allowed  the appeal against the order  dismissing the suit saying that was the proper course and that no leave was required to file such appeal.

And in Channan Singh Chatthe & others  v Delphis Bank Limited (Kisumu) Civil Appeal (Application) No. 273 of 2008  this Court held that Order IXB Rule 4 (1) (now Order 12 Rule 3 (1) Civil Procedure Rules) applies in cases of non-attendance – that is where the plaintiff or his counsel does not attend the hearing of the case as opposed to cases where the plaintiff or his advocate has in fact attended hearing of the suit but for one reason or another fails to prosecute the suit or counter-claim as the case may be as happened in the present case.   The counter-claim was not dismissed under that Rule as, indeed, the learned Judge  did not say so and there is no indication to show under which  provision of law the court  proceeded.

This court would not condone the conduct of an advocate who absents themselves from court for no good reason not least that the advocate may be unhappy with an order made by the Court.  And yet looking at all circumstances  that obtained before the learned Judge – an order for the defendant who attended court for hearing and without any notice is ordered to adduce evidence first; leave to appeal the decision is granted but  no opportunity is accorded to the party to give effect to that grant of leave as  an application by that party for adjournment  is refused; an application for a counsel appearing to be barred from acting for a party in the matter is refused  - all these facts lead to an inescapable conclusion that the counsel for the defendant - Mr. Menezes told us that she was very young and probably inexperienced – felt sufficiently cornered as not to be able to get any kind of justice in the case. The other counsel appearing in the case were all her seniors who should probably have held her hand in the face of adverse orders which she had not expected  at all.   They instead left her at sea where she felt so completely alone, unprotected and unable to get any form of justice in the case.

The upshot of all this is that the appeals have merit.

We allow the appeals by setting aside the orders of the High Court and substitute thereof an order that Mr. L. G. Menezes, Advocate, be and is hereby barred from participating as an Advocate in the proceedings in Kisumu HCCC No. 164 of 2003 and a further order reinstating the counter-claim.   The original suit at the High Court to be listed for hearing before any Judge and be  heard in the normal way.

We award costs of theses appeals to the appellant.

Dated and Delivered at Kisumu this   21st  day of   February,  2014

E. M. GITHINJI

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JUDGE OF APPEAL

AZANGALALA

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JUDGE OF APPEAL

S. ole  KANTAI

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR