King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd & another v M/s Kaplan & Straton Advocates

Court of Appeal, at Nairobi December 16, 1993

Muli JA

Civil Appeal No 55 of 1993

(Appeal from the ruling and order of the High Court of Kenya at Nairobi

(Mr Justice Shields) dated 25th February, 1993

in HCCC No 279 of 1993)

Advocate/client – conflict of interest - advocate acting for several parties – whether such advocate can proceed to act for one or more of the parties against the other(s) in a suit involving a matter where he/she was their common advocate.

Advocate/client – retainer – nature of - personal to each client - fiduciary relationship between client and advocate - whether there is a fiduciary relationship between two or more clients of a common advocate.

The appellants sort injunction in the superior court to restrain the respondent from acting in a matter involving the appellants and two other defendants on the grounds that the respondent was a common advocate for all the parties in that suit.

The application for injunction was dismissed by the superior court prompting an appeal. It was argued on behalf of the appellant that the respondents having drawn the loan agreement, the debenture, the legal charge as well as the legal opinion on behalf of the lenders and the appellants were disqualified from acting for the lender in any subsequent litigation or dispute arising from the same loan transaction in which the validity of the loan and security documents were challenged.

The question for determination by the Court of Appeal was whether the respondents having accepted to act for both the appellants and the Acceptances in the loan transaction between the appellants and the London Bank and the acceptances, they were in breach of their fiduciary relationship of client and advocate by representing the lenders in any litigation arising from the said loan transaction in which the validity of the loan and security documents were challenged.

Held:

1. Once the retainer is established, then the general principle is that an advocate should not accept instructions to act for two or more clients where there is a conflict of interest between those clients.

2. The retainer created a contractual relationship between the advocate and the client irrespective of whether two or more clients are involved. That is to say that the relationship is not tripartite, each client has a separate retainer relationship with the common advocate.

3. The respondents’ advocates having accepted to act for the appellants, the borrowers and the lenders, in putting together the loan transaction had a duty to the borrower and should not subsequently act for the lenders to enforce repayment of the loan because the advocate had obtained relevant knowledge of the borrower’s financial position when acting for him in connection with the original loan transaction: in these circumstances, he would take unfair advantage prejudicial to the borrowers if he so acts for the lenders because of apparent conflict of interest.

4. The fiduciary relationship created by the retainer between client and advocate demands that the knowledge acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without that client’s consent. That fiduciary relationship exists even after conclusion of the matter for which the retainer was created. This principle applies equally where an advocate acts for two or more clients in the same transaction or subject matter because the retainer is specific between the individual client and the common advocate.

5. There exists no fiduciary relationship between the two or more clients of the common advocate.

6. Although the common advocate acting for two or more clients will be able to complete the transaction speedily and save expense by engaging one common advocate; this fact alone is for convenience only and does not affect the general principle that he should not so act or divulge the confidential information received without the consent of the client in the retainer.

Appeal allowed.

Cases

1. United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898; [1982-88] 1 KAR 639

2. Radusen v Ellis Munday & Clerke [1912] 1 Ch 831; [1911-13] All ER Rep 813

3. Solicitors, Re a firm [1992] 1 All ER 353; [1992] QB 959

4. Supashare Retail Ltd v Coward Chance (afirm) [1991] 1 All ER 668; [1990] 3 WLR 1278

Statutes

No statutes referred.

Texts

Orderly on Solicitors 7th edition page 70

Advocates

Mr Kamau for Appellants

Mr Huram for the Respondents

Joseph Munyao Malebe  & 2 others v Republic

 High Court, at Nairobi

November 11, 1982

Muli J

Criminal Appeal No 546, 547 & 548 of 1982

Criminal Practice and Procedure - charge - joinder of charges - misjoinder of persons - misjoinder of offences - joint charge sheet - charges of stealing by servant against three accused - charge alleging different items stolen on separate dates - accused persons not charged jointly as having common intention - no evidence linking accused with offence - accused convicted and sentenced - whether conviction and sentence proper - miscarriage of justice - whether the trial a nullity - whether retrial proper - Penal Code (Cap 63) Section 281.

The three appellants were charged separately on separate counts in one charge sheet with the offence of stealing by servant contrary to Section 281 of the Penal Code (Cap 63). The particulars of the joint charge sheet alleged that the offences were committed on separate dates. The items alleged to have been stolen were different and the appellants were alleged to have stolen them on unknown dates between different months. Moreover, the appellants were not charged jointly as having had a common intention. They were convicted and each sentenced to eight months’ imprisonment. They appealed against their convictions and sentences.

Held:

1. A joint charge against several persons alleged to have committed separate offences on different dates amounts to a misjoinder and such a charge is defective. There should have been a separate charge for each person and separate count for each alleged offence committed on a different date.

2. The misjoinder occasioned prejudice to the appellants because they did not know what charges were against them jointly or separately and when committed. The misjoinder occasioned a failure of justice and being an incurable defect, the trial was a nullity.

3. The trial magistrate’s failure to consider, from the available evidence, that other employees might have been involved in the loss of the stolen property was a misdirection which occasioned a further failure of justice.

4. It would not meet the ends of justice to send the case for fresh charges and retrials when there was no evidence to connect the appellants with the alleged offences.

Appeals allowed.

Cases

No case referred to.

Statutes

Penal Code (Cap 63) Section 281

Macharia v Republic

High Court, at Nairobi November 11, 1982

Muli J

Criminal Appeal No 448 & 156 of 1982

Evidence - statement of admission - retraction of - trial within a trial not ordered - admission of statement in evidence - whether proper.

Evidence - corroboration by accomplice - evidence of an accomplice - whether corroboration necessary for accomplice evidence - sufficiency of such evidence.

The two appellants were convicted and sentenced for shop breaking and dishonest handling of stolen property. At the trial, the only evidence given against the first appellant was that of a person who had received the stolen property from him. The second appellant had retracted a statement alleged to have been made by him under caution but the trial magistrate nevertheless admitted it in evidence without ordering a trial within a trial.

Held:

1. The prosecution witness who had received the stolen property from the first appellant may have been an accomplice and her evidence, therefore, needed corroboration.

2. The trial magistrate misdirected himself by not holding a trial within a trial and in admitting a retracted statement without such a trial.

3. There had not been sufficient evidence on which to convict, and the guilt of the appellants had not been proved beyond reasonable doubt.

Appeals allowed.

Cases

No case referred to.

Statutes

Penal Code Sections 306(a); 322(2)

Charles Njoroge v Republic

High Court, at Nairobi

November 5, 1982

Muli J

Criminal Appeal No 274 of 1982

Evidence - evidence of identification - evidence of identification by a single witness - conviction upon such evidence - fingerprint expert corroborating evidence of identification - expert evidence unchallenged - sufficiency of evidence to sustain conviction - propriety of such a conviction.

Judicial bias - existence of bias - same accused previously convicted by same magistrate - whether this warrants retrial by another magistrate - meaning of prejudice and bias - effect of such bias.

The appellant was charged before a Magistrate’s court with the offence of robbery with violence contrary to Section 296(2) of the Penal Code (Cap 63) and sentenced to death after conviction. The evidence was that the appellant had on the night of March 1/2, 1981, in the company of three other persons, robbed the complainant of property at his house and used violence on him, his wife and his sister-in-law and thereafter escaped.

Police later lifted fingerprint impressions from a radiogram that had been in the house at the time of the robbery. Later, when the appellant was arrested in connection with another robbery, fingerprint experts found that his left thumb-print impression matched the one lifted from the radiogram. Moreover, an identification parade was conducted at which the complainant’s sister-in-law picked out the appellant as one of the persons who had committed the robbery at the complainant’s house.

However, the complainant and his wife both testified that they were unable to identify any of the attackers. The appellant appealed on the grounds, inter alia, that the trial magistrate had previously convicted him of another offence and that he was therefore prejudicial and for that his case should be retried by another court. He also claimed that the charge had not been read to him and that he did not understand the language used at his trial.

Held:

1. It would be unsafe to base a conviction on the evidence of identification given by a single witness when the alleged identification occurred at night in circumstances not favouring accurate identification.

2. The evidence of the fingerprint expert, who was an independent witness, was not challenged by the appellant even when given ample opportunity by the court. It was corroborated by the evidence of identification. The trial magistrate having cautioned himself on the identification evidence of a single witness was justified in convicting the appellant.

3. A retrial of a case can only be ordered only if the record reveals that there was miscarriage of justice or that there was judicial bias. In this case examination of the grounds of appeals and the record confirm that the appellant was properly convicted.

Appeal dismissed.

Cases

No case referred to.

Statutes

Penal Code (Cap 63) Section 296(2)

Advocates

Mr Mbai for Respondent

Wycliffe Karisa Charo v Republic

High Court, at Nairobi

October 29, 1982

Muli J

Criminal Appeal No 808 of 1982

Criminal Law - possession of stolen property contrary to Section 323 of the Penal Code - the ingredients of the offence.

Criminal Practice and Procedure - plea of guilty - failure to explain ingredients of charge to accused - whether charge was supported by facts - accused not given opportunity to explain how he came to be in possession of stolen property - whether conviction proper - Criminal Procedure Code (Cap 75) Section 26(1)(c).

Police acting on information visited the appellant’s flat on the same house on which he worked as a watchman and after searching it, found a television set that had been stolen. The appellant had neither a permit nor a receipt for the television set. He was arrested and charged and he pleaded guilty to the offence of being in possession of suspected stolen property contrary to Section 323 of the Penal Code (Cap 63) for which he was convicted and sentenced to one year and six months’ imprisonment.

He appealed against the sentence, pleading certain circumstances in mitigation of it. His advocate, who had filed a supplementary memorandum of appeal, submitted that the facts as stated did not support the charge as the appellant had not been given a chance to give an explanation as to how he came to be in possession of the television set as required under Section 323 of the Penal Code.

Held:

1. The ingredients of a charge under Section 323 of the Penal Code are that a person must have been detained pursuant to Section 26 of the Criminal Procedure Code (Cap 75); the person must be charged with having in his possession or conveying anything reasonably suspected of having been stolen or unlawfully obtained; and the person must have failed to give an account to the satisfaction of the court of how he came by the thing so suspected.

2. It had not been shown that the police, in searching the appellant’s house, had been acting under powers conferred by Section 26 of the Criminal Procedure Code as is required by Section 323 of the Penal Code.

3. It is a fatal omission not to explain to the appellant all the ingredients of a charge and not to ask the accused to give an explanation as to how he came to be in possession of the property, when the charge is one of handling stolen property contrary to Section 323 of the Penal Code. The facts of the charge must also support the charge.

Appeal allowed, conviction quashed and sentence set aside.

Cases

No case referred to.

Statutes

1. Penal Code (Cap 63) Section 323

2. Criminal Procedure Code (Cap 75) Section 26(1)(c)

Advocates

Mr Mulwa for Appellant

Saheb v Hassanally

High Court, at Nairobi February 28, 1980

Muli J

Civil Case No 1299 of 1977

Landlord and tenant – tenancy – termination of – notice of termination – grounds for termination – reliance on alternative grounds – legality of.

Landlord and tenant – tenancy – notice of termination of – service of notice - what constitutes proper notice.

The plaintiff (landlord) issued a notice to the defendant (tenant) under section 4(2) of the Landlord, Tenant (Shops, Hotels and Catering Establishments) Act (cap 301). The plaintiff brought the action on the basis of the notice on the grounds that the notice was invalid and that the grounds on the notice averred in the alternative were null and void.

Held:

1. The Landlord, Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) section 7 which provides grounds on which a landlord may seek to terminate the tenancy, does not prohibit reliance upon alternative grounds, however the landlord can only enforce one ground at a time.

2. Where a landlord relies on more than one ground in the alternative, upon the tenant complying or refusing to comply with the notice the landlord will be bound by the acceptance of any one ground or by refusal of all the grounds in the notice.

3. Service of a tenancy notice can be done using two methods; either by delivering to the tenant personally or to an adult member of his family or to a servant residing with him or employed in the premises or to an employee or by sending it by prepaid registered post to his last known address.

Plaintiff’s suit dismissed.

Cases

Woolf & another v Macharia [1971] EA 330

Texts

Simonds, V, et al (Eds) (1952-64) Halsbury’s Laws of England London: Butterworths 3rd Edn Vol VIII p 169

Statutes

1. Landlord and Tenant (Shop, Hotels and Catering Establishments) Act (cap 301) sections 4; 4(1),(2),(4),(6); 7; 10; Form A

2. Interpretation General Clauses Act (cap 2) section 72

Advocates

Mr Nowrojee for the Defendant

Mr Le Pelley for the Plaintiff