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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 93 of 2019

Mohamed Faki Khatib Practising as Khatib and Company Advocates v Farid Ahmed Swaleh & another [2021] KECA 1013 (KLR)

Court of Appeal
29 January 2021
2,703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that advocates who cannot properly account for client money must repay it, dismissing the appeal with costs.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa (Nambuye, Okwengu and Musinga, JJ.A) against the judgment of Otieno, J. of the High Court at Mombasa dated 16th February 2018 in H.C.C.C No. 109 of 2015 (O.S). The respondents, former clients of the appellant advocate, had sued by originating summons seeking a cash account of monies the appellant received on their behalf in transactions involving the sale of parcel Kilifi/Mtwapa/79 to the 1st respondent and the subsequent sale of a subdivision to Hilaa Abdulla Amin, claiming Kshs. 6,799,000 was unaccounted for. The trial judge directed the matter proceed by affidavit evidence on three issues and found the appellant had failed to account for Kshs. 2,415,760, ordering him to render accounts within 30 days or pay that sum, with costs to the respondents. The appellant appealed on five grounds, contending his accounts were sufficient. The Court of Appeal, applying Selle v Associated Motor Boat Company Ltd and Rule 29(1), and citing Kim Jong Kyu v Housing Finance Company Ltd on the fiduciary advocate/client relationship and section 80 of the Advocates Act, held that the appellant bore the duty to account and had given contradictory accounts with no paper trail, while the respondents tendered cheques and bank statements. The trial judge's findings of fact were not shown to be wrong. The appeal was dismissed with costs. The decision of the High Court was affirmed in its entirety.

Questions the Court framed

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

  1. 1.Whether the appellant provided a true and proper account of all the money he received with regard to the transactions involving the sale of the suit property, its subdivision, and sale of the subdivision to Hilaa
  2. 2.Whether the learned Judge erred in rejecting the accounts furnished by the appellant and in finding that the balance of Kshs. 2,415,760 was unaccounted for

Key legal issues

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01

Advocate's fiduciary duty to account for client funds

Holding

The advocate had a duty to account for all monies received on behalf of the clients, and having given contradictory accounts with no paper trail, failed to discharge that duty.

Reasoning

The advocate/client relationship is fiduciary. Section 80 of the Advocates Act criminalises failure to account for entrusted funds, and the Advocates (Accounts) Rules govern dealings with client money. The trial court traced cheque payments and bank statements tendered by the respondents, while the appellant produced no evidence of the money trail and gave inconsistent figures, even in submissions. The Court found no basis to disturb the trial court's finding that Kshs. 2,415,760 remained unaccounted for.

p. 4
02

Appellate court's mandate on a first appeal and deference to factual findings

Holding

The Court has a mandate to re-appraise evidence and draw inferences of fact, but will not interfere with the trial judge's findings absent no evidence, misapprehension of evidence, or wrong principles.

Reasoning

Relying on Selle v Associated Motor Boat Company Ltd and Rule 29(1) of the Court's Rules, the Court re-appraised the affidavit evidence, including the mediation outcome and the trial judge's analysis of the cheque trail, and concluded that the learned Judge properly considered and analysed the evidence and that the appellant was unable to give a proper account.

p. 4

Legal principles established

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  • An advocate standing in a fiduciary relationship with a client bears the burden of rendering a true account of monies received on the client's behalf, supported by a proper paper trail; failure to account is an offence under section 80 of the Advocates Act.
  • An appellate court will not interfere with a trial court's finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or on demonstrably wrong principles.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 109 of 2015 (O.S)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1))

Relief refused

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Appellant's prayer that the appeal be allowed and the High Court findings on the accounts be set aside

The appellant failed to discharge his fiduciary duty to account; his accounts were contradictory and lacked a paper trail

p. 4

Costs

The appeal was dismissed with costs to the respondents

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.

We find that this appeal has no merit. It is accordingly dismissed with costs.
p. 4Final orders - dismissal of appeal
failure to account for funds held by an advocate on behalf of a client is in fact a criminal offence.
p. 3Advocate's duty to account
the advocate/client relationship has long been recognized as fiduciary relationship in which the client places his or her confidence, faith, reliance and trust in the advocate
p. 3Fiduciary nature of advocate/client relationship
an appellate court will not normally interfere with a finding of fact by the trial court, unless such finding is based on no evidence or on a misapprehension of the evidence
p. 3First appeal - deference to findings of fact

Issues in the judgment

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minor

The judgment records the appellant's submission that he received a total of Kshs. 13,799,000, but the itemised breakdown given actually totals Kshs. 17,399,000, an internal inconsistency noted by the court itself.

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, "Mohamed Faki Khatib Practising as Khatib and Company Advocates v Farid Ahmed Swaleh & another [2021] KECA 1013 (KLR)", Case Analysis (2021). Civil Appeal No. 93 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1013/eng@2021-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.