Uhuru Highway Development Ltd & 3 Others v Central Bank of Kenya & 4 Others
The bottom line
#Kenya's Court of Appeal ruled that a lawyer who acted for both sides in a property deal must be disqualified from the case, even after a long delay.
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 plaintiffs were clients of Oraro & Company (formerly Oraro & Rachier) Advocates in the transaction giving rise to the charge
- 2.Whether payment of fees pursuant to a provision in the charge excludes the payer from being a client
- 3.Whether rule 9 of the Advocates (Practice) Rules barred the advocate from continuing to appear as a potential witness
- 4.Whether a prima facie case of duress was made out
- 5.Whether absence of disclosed confidential information justified refusing the injunction
- 6.Whether delay in raising the objection defeated the application
- 7.Whether the Court should interfere with the exercise of discretion by the Superior Court
Key legal issues
#Whether the plaintiffs were clients of the advocate in the charge transaction
They were clients: the fee note and notice of taxation sent directly to the 2nd plaintiff raised a strong presumption of an advocate-client relationship, and the 2nd plaintiff paid the counsel's costs.
The court examined the fee note dated 23 October 1993 addressed to Kamlesh Pattni and the notice of taxation, concluding the relationship was that of advocate and client. Correspondence regarding the charge was sent directly to the 2nd plaintiff rather than through D V Kapila & Company, raising a strong presumption that Oraro & Rachier acted for the 1st plaintiff. Section 2 of the Advocates Act defines 'client' to include any person liable to pay an advocate's costs, and the 2nd plaintiff did so.
Whether rule 9 of the Advocates (Practice) Rules barred the advocate from continuing to appear
It did: the advocate, as author of the charge, may be required as a witness on the disputed circumstances of its execution, and the bar is objective.
The validity and circumstances of execution of the charge are in dispute in the main suit, and the advocate prepared it and personally authored the manuscript underlying it. Rule 9 provides that an advocate who has reason to believe he may be required as a witness shall not continue to appear. The bar does not depend on whether the evidence establishes a prima facie case with probability of success.
Whether a prima facie case of duress was made out
Yes: particulars of duress were given in the supporting affidavit and, absent a replying affidavit, stood undenied as evidence.
Paragraph 6 of the 2nd plaintiff's supporting affidavit gave particulars of duress. The counsel filed no replying affidavit despite order L rule 17 permitting one, so the allegations were not denied and constituted prima facie evidence. The learned judge erred in complaining there was no evidence of duress.
Whether the Court could interfere with the judge's discretionary refusal of the injunction
It could: the judge misdirected himself, acted on wrong principles and failed to apply the King Woollen principles, so his decision was clearly wrong.
The court applied the Mbogo v Shah principles: it will not interfere with a discretionary decision unless it is clearly wrong because of misdirection, acting on wrong matters, or failing to consider relevant matters leading to a wrong conclusion. Here the judge misdirected himself on client status, the witness bar, duress and confidential information, warranting interference.
Whether delay in raising the objection defeated the application
No: delay does not defeat the duty of a common advocate acting in breach of privileged protection, following Muli JA in King Woollen.
Mr Gatonye argued the plaintiffs lacked urgency and relief would be inappropriate. The court held delay matters only where the defendant's interests are prejudiced; where an advocate acts in breach of privileged protection, delay does not change or defeat the duty of the common advocate, citing section 134(1) of the Evidence Act and Muli JA's dictum.
Legal principles established
#- An advocate who acts for both parties in the same transaction may not subsequently act for one against the other; breach of that duty mandates disqualification as of right.
- A person who pays an advocate's costs, even under a provision in a charge, falls within the statutory definition of 'client' under section 2 of the Advocates Act.
- The bar on an advocate continuing to act where he may be a witness is objective, governed by rule 9 of the Advocates (Practice) Rules, and does not depend on the strength of the evidence.
- Delay in objecting to a common advocate acting in breach of privileged protection does not defeat the advocate's duty or obligation.
Court orders
#- 1.Appeal allowed
- 2.Order of the Superior Court given on 12 July 2001 set aside
- 3.Substituted order granting all the prayers in the plaintiffs' notice of motion dated 5 June 2001 as prayed
- 4.Defendants to pay plaintiffs the costs of the appeal and of the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No 589 of 1999
- Jurisdiction invoked
- Appeal from an interlocutory ruling of the High Court, with leave of the judge below
- Consolidated with
- Civil Appeal No 15 of 2002
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.
In the result, we allow the appeal, set aside the order of the Superior Court given on 12 July, 2001 and substitute therefor an order granting all the prayers in the plaintiffs' notice of motion dated 5 June, 2001 as prayed.
The defendants shall pay to the plaintiffs the costs of this appeal and in the Court below.
we remind ourselves that there is no cross-appeal by the counsel with the result that once rules were breached disqualification of the counsel must follow as of right.
Even if payment of fees was made pursuant to a provision in the charge, this does not exclude the person making payment being a client.
I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion
Where, as here, an advocate is acting in breach of privileged protection, delay in bringing an application such as the present one does not change or defeat the duty or obligation of the common advocate of the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Uhuru Highway Development Ltd & 3 Others v Central Bank of Kenya & 4 Others", Case Analysis (2003). Civil Appeals No 286 of 2001 & 15 of 2002 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/189/eng@2003-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.