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Court of AppealDismissedCourt of Appeal Appeal (number not stated in judgment)

Samson Owino Ger v Marmanet Forest Co-operative & Credit Society Ltd [1988] KECA 92 (KLR)

Court of Appeal of Kenya
17 November 1988
1,771 words in judgment
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The bottom line

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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

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Executive summary

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The appellant, an advocate practising as Ger & Company Advocates, appealed against a High Court ruling by Shields J finding that a relationship of advocate and client existed between him and Marmanet Forest Co-operative Savings and Credit Society Limited, so as to found an application under Order 52 rule 4(1) of the Civil Procedure Rules for delivery of a cash account. The respondent had paid the advocate Kshs 1.5 million towards the purchase of land (LR 9000 and LR 3884 Timau, Laikipia) under an agreement in which the advocate expressly agreed to act for both the respondent and Kongasis Farmers Co-operative Society. The transaction did not materialise. The advocate sought to strike out the originating summons on limitation and other grounds, and later argued on appeal that because Kongasis never paid its share he was not the respondent's advocate. The Court of Appeal (Apaloo, Masime JJA and Kwach Ag JA) unanimously dismissed the appeal with costs. It held that a person who retains an advocate becomes that advocate's client within section 2 of the Advocates Act; that monies received by an advocate for a client are client's money which he must account for; and that payment to a third party discharges the duty to account only if made with the client's authority. The finding that the advocate-client relationship existed was amply supported by unchallenged evidence, and the appeal was an attempt to postpone the day of reckoning.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the appellant was acting for the respondent as an advocate in the circumstances of the case

Key legal issues

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01

Existence of advocate-client relationship for purposes of Order 52 rule 4(1)

Holding

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

Reasoning

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.

p. 4
02

Advocate's obligation to account for monies received

Holding

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

Reasoning

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.

p. 4
03

Effect of retaining advocate notwithstanding failure of transaction

Holding

Even where the intended purchase did not materialise, the advocate was bound to refund the deposit less fees properly due

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal dismissed (announced November 10, 1988, with reasons delivered November 17, 1988)
  2. 2.Appellant to pay costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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

p. 4

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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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.
p. 3Definition of client / advocate-client relationship
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
p. 4Finding of advocate-client relationship affirmed
These are the reasons why we dismissed the appeal.
p. 4Final orders - appeal dismissed

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.