Mohamed Faki Khatib Practising as Khatib and Company Advocates v Farid Ahmed Swaleh & another [2021] KECA 1013 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Advocate's fiduciary duty to account for client funds
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.
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.
Appellate court's mandate on a first appeal and deference to factual findings
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
The appeal was dismissed with costs to the respondents
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 find that this appeal has no merit. It is accordingly dismissed with costs.
failure to account for funds held by an advocate on behalf of a client is in fact a criminal offence.
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
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
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.