Samson Owino Ger v Marmanet Forest Co-operative & Credit Society Ltd [1988] KECA 92 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once you pay an advocate to act for you, they must account for your money even if the deal falls through.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in finding that the relationship of advocate and client existed between the appellant and the respondent so as to require the advocate to deliver a cash account under Order 52 rule 4(1) of the Civil Procedure Rules
- 2.Whether the appellant was acting for the respondent as an advocate in the circumstances of the case
Key legal issues
#Existence of advocate-client relationship for purposes of Order 52 rule 4(1)
The respondent became the advocate's client upon retaining him and paying him Kshs 1.5 million; the judge's finding was amply supported on the evidence
The agreement of April 19, 1979 expressly provided the advocate would act for both parties, and the advocate admitted receiving a fee and the deposit. The submission that non-contribution by the other society negatived the relationship was rejected. Section 2 of the Advocates Act defines 'client' broadly to include anyone who retains or employs an advocate. The evidence of retention was unchallenged in cross-examination.
Advocate's obligation to account for monies received
Monies received by an advocate from his client for a transaction must be accounted for; purported payment to a third party is no discharge absent client authority
Client's money is defined by the Advocates (Accounts) Rules as money held or received on account of a person for whom the advocate acts. The advocate's half-hearted claim to have paid a third party could only be a valid discharge if the payment was authorised by the client.
Effect of retaining advocate notwithstanding failure of transaction
Even where the intended purchase did not materialise, the advocate was bound to refund the deposit less fees properly due
Once retained, the advocate's duty was to apply himself with utmost diligence to his instructions. The failure of Kongasis Farmers Co-operative Society to contribute did not relieve the advocate of his duties to the respondent, which alone had performed its obligations under the agreement.
Legal principles established
#- A person who retains an advocate in relation to a transaction thereby becomes that advocate's client within the meaning of section 2 of the Advocates Act
- Money paid to an advocate for a client's transaction is received as client's money and the advocate is under a duty to account for it; payment to a third party discharges that duty only if made with the client's authority
- An advocate retained but unable to execute instructions must refund the deposit subject to fees properly due
- Order 52 rule 4(1) provides a useful summary procedure for ordering an advocate to deliver a cash account
Court orders
#- 1.Appeal dismissed (announced November 10, 1988, with reasons delivered November 17, 1988)
- 2.Appellant to pay costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure regime (appeal from High Court ruling; specific statutory basis not stated in judgment)
Relief refused
#Setting aside the High Court finding that the advocate-client relationship existed
There was ample evidence supporting the judge's finding; the advocate was retained and received Kshs 1.5 million as the respondent's advocate
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
When a person says that he has instructed an advocate to act for him all he means, and is understood by the officious bystander to mean, is that he has retained the professional services of an advocate in relation to a particular transaction or business and he has in consequence become that particular advocate's client.
In our judgment, there is more than enough evidence to support the learned judge's finding that the relationship of advocate and client arose between the advocate and the respondent
These are the reasons why we dismissed the appeal.
Issues in the judgment
#Memorandum of appeal cites Order 53 rule 4(1) while the originating summons was taken out under Order 52 rule 4; the judgment analyses the matter under Order 52 rule 4(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Owino Ger v Marmanet Forest Co-operative & Credit Society Ltd [1988] KECA 92 (KLR)", Case Analysis (1988). Court of Appeal Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/92/eng@1988-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.