Delphis Bank Limited (now Oriental Commercial Bank Limited) v Chatthe & 5 others (Civil Appeal 180 & 273 of 2008 (Consolidated)) [2014] KECA 808 (KLR)
The bottom line
#Kenya's Court of Appeal barred a lawyer who drafted the disputed documents from acting in the case and reinstated the bank's dismissed counter-claim.
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 allowing Mr. L. G. Menezes, Advocate, to participate in the proceedings as Counsel for the 5th Respondent despite having drawn the charge documents forming the subject matter of the suit and being a potential witness
- 2.Whether the learned Judge exercised his discretion wrongly in overruling the appellant's objection to Mr. Menezes appearing as Counsel
- 3.Whether the dismissal of the appellant's counter-claim, made in the absence of the appellant's counsel after an oral application, was proper and under what provision of law it was made
- 4.Whether the appellant was denied a fair hearing in the chain of events leading to the dismissal of the counter-claim
Key legal issues
#Whether an advocate who prepared the charge documents central to a suit may appear as counsel for a party in that suit
The learned Judge exercised his discretion wrongly in permitting Mr. Menezes to appear; given the allegations of fraud and forgery in the charge documents he drew, there was a real danger of misuse of confidential information and Mr. Menezes was a real, not merely potential, witness
The court applied Rule 8 of the Advocates (Practice) Rules and the reasoning in Uhuru Highway Development v Central Bank of Kenya: an advocate who authored a charge may know more behind it than is apparent and may use confidential information against former clients. Mr. Menezes never denied drawing the charge documents and himself offered to clarify alleged forgeries and ambiguities, making him a witness. Counsel for the appellant was casual in not placing material before the trial court, but the record, including exchanged documents and notices to admit facts, supplied sufficient material to establish the danger.
Whether the summary dismissal of the counter-claim was lawful
The dismissal was unlawful. The trial judge did not indicate the provision of law under which he acted; Order IXB Rule 4 (now Order 12 Rule 3(1)) governs non-attendance, which was not the case here since counsel had attended and left after adverse orders; the cumulative circumstances denied the appellant a fair opportunity to prosecute the counter-claim
The court reviewed Din Mohamed v Lalji Visram, Mugachia v Mwakibundu and its own decision in Channan Singh Chatthe v Delphis Bank, concluding that where a party attends but fails to prosecute, the non-attendance rule is inapplicable and the dismissal lacked a stated legal basis. Considering the whole chain of events — the order to adduce evidence first, refusal of adjournment despite leave to appeal, and the refusal to bar Mr. Menezes — counsel was left feeling unable to obtain justice, and the dismissal could not stand.
Legal principles established
#- An advocate who has drawn the contentious documents at the heart of a suit, and who offers to clarify their contents, becomes a real witness and may not appear as counsel in that matter
- The bar on an advocate acting and appearing as a witness does not depend on the nature or substance of the anticipated evidence but on the mere likelihood of the advocate being required as a witness
- Where an advocate's dismissal of a counter-claim arises not from non-attendance but from failure to prosecute after attendance, Order IXB Rule 4 (now Order 12 Rule 3(1)) does not apply, and a trial court must indicate the provision of law under which it dismisses
- Where counsel, duly instructed, withdraws after being refused an adjournment, the proceedings do not thereby become exparte and the dismissal order must be justified in law on the circumstances obtaining
Court orders
#- 1.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
- 2.The counter-claim dismissed by the High Court is reinstated
- 3.The original suit at the High Court to be listed for hearing before any Judge and be heard in the normal way
- 4.Costs of these appeals awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu HCCC No. 164 of 2003
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Appellate Jurisdiction Act (the judgment does not cite a specific provision); the decision below provoked three appeals, two of which were consolidated and heard together
- Consolidated with
- Civil Appeal No. 273 of 2008
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.
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 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 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
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
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.
We award costs of theses appeals to the appellant.
Issues in the judgment
#The record inconsistently attributes conduct to Mr. Menezes: at one point the judgment states that the appellant's counsel (Miss Muriu) was the one who left and was young and inexperienced, yet it quotes Mr. Menezes as saying the young counsel was “she”, while elsewhere the judgment describes counsel for the appellant as “she” but also suggests Mr. Menezes told the court about her
The disposition states the orders of the High Court are set aside and substituted, which reverses both the ruling allowing Mr. Menezes to act and the dismissal of the counter-claim, but the judgment does not expressly state the outcome of each ground separately
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Delphis Bank Limited (now Oriental Commercial Bank Limited) v Chatthe & 5 others (Civil Appeal 180 & 273 of 2008 (Consolidated)) [2014] KECA 808 (KLR)", Case Analysis (2014). Civil Appeal No. 180 of 2008 (consolidated with Civil Appeal No. 273 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/808/eng@2014-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.