Later, John Nyarangi Rasugu died and the plaint was duly amended to substitute him with his legal representative.
The court proceeded with the trial at one point ex parte. In brief:-
a)
The Plaint was filed in 1996
b)
The Defence was filed in 1997
c)
Issues agreed on 16.5.97
d)
Plaintiff dies and is substituted 23.10.98
e)
Hearing of cases:-
(i)
Adjourned Amin J defendant absent 14.7.00
(ii)
15.7.99 – Defendant had no witnesses adjourned Amin, J.
(iii)
24.11.99 and 25.11.99 – Defendant – Flavia Rodrigues advocate in court. Unaware Defendant has died – adjourned
(iv)
7.4.00 consent before Deputy Registrar Mr. Bhatt, for the amendment of the Plaint.
(v)
13 and 14.11.03 Visram J.
aa) 13.11.03 case not reached
bb) 14.11.03 hearing at 3.00 p.m.
cc) Representative of Defendant arrives at 3.25 p.m.
dd) 14.12.00 at 9.00 Defendant is absent. Plaintiff closes his case.
ee) Submissions set for 22.1.01
gg) On 7.2.01 finally judge (C.A.)
Orders:- written submissions to be filed.
hh) 14.3.01 judgment read by Visram CA defendants advocate holding brief present.
(vi)
Bill of costs 27.03.01 adjourned granted by the deputy registrar to 4.5.01
(vii)
4.5.01 – Defendants advocate absent
(viii)
Application of 26.6.01 filed for review and setting aside judgment.
aa) Application adjourned to
12.7.01
30.7.01
19.9.01
(ix)
Defendants amends the Notice of Motion on 12.11.01
Dates
26.11.01
20.11.01
4.12.01
11.12.01
20.12.01
A ruling on the application of 26.6.01 to stay the proceeding, review and or set aside the judgment was delivered and stated the
principles in the case of:
Naji Ahmed Sheikh t/a Hasa Hauliers & Highway Carriers Ltd. Mombasa, 46/86 unreported;
Gachuhi J.A. Apaloo J.A. as he then was and Masime Ag J.A. as he then was.
That said:-
“The mistake of advocate should not be visited upon the innocent client. However, this principle cannot be employed generally
to defeat or delay the cause of justice.”
Visram judge (as he then was) also found that:-
“The history of this case was carefully outlined…this court proceeded to bear this suit ex parte due to the … non
attendance. The record and the deposition…indicates that the applicant and its advocates had little interest in this case.”
The Defendant only began to be active in this case when auctioneers came to execute the courts judgment. The judge also stated that:-
“It may be that its advocates put them in the predicament they are now in. If that is so I think that it would be unfair to
saddle the respondent for no fault of hers. THE APPLICANT MAY HAVE RECOURSE AGAINST THE ADVOCATE (Emphasis my own)
On those grounds the Plaintiff in this case at once sued Flavia Rodrigues t/a Flavia Rodrigues & Co. Advocates in negligence.
By now the Plaintiff was embarrassed as their client Car and General (Automotive) Ltd. was auctioned. The decretal amount of General
Damages 600,000/= Special Damages of 261,000/=. Totaling Ksh. 861,000/= was paid together with interest.
I have always stated in the past that an advocate who takes over a file or case from another advocate, it is advisable to attend
the court registry pay the archives fees and read the file. If this had been done by M/s Gichuki Kigara for the original Plaintiff
in HCCC 2531/96 Rasugu v Car and General Case (supra) he would have discovered that M/s Flavia Rodrigues & Co. Advocates had not filed their requisite papers.
If the current advocate for the Plaintiff in this case had likewise taken time to read the two files – one finalized and this
current one he too would have noted the anomaly.
In HCCC 431/2001 the Defendant Flavia Rodrigues represented herself and filed her own defence denying the allegations. I must bring out the point that where there is a suit against
an advocate, he or she should not defend themselves but as far as possible get a new advocate not only to defend them but to file
the defence. If perchance the defendant attended court it would have been difficult to be in the witness box then conduct her trial.
The parties did not enter into agreed issues for determination by the court. I can only frame the issue to be:-
“Did the Plaintiff have a right to sue the advocate and claim under subrogation for the negligence as incurred or given by the
advocate?”
The Plaintiff relied on the particulars of negligence as per his plaint stating inter alia that the defendant was negligent because
a)
She failed to attend court
b)
She failed to file written submission
c)
She failed to call evidence and witness
d)
She failed to advice adequately on the chances of success of the suit.
The case law:-
Bolam v Friern Hospital Management (1957) 2 All ER 118
Whereby the Plaintiff underwent electro-convulsive therapy treatment at the Defendant’s hospital on August 23, 1954. He sustained
injuries and sued the hospital for being negligent in his treatment.
It was held that there were two schools of thoughts as to the medical treatment. It was therefore not negligent for a doctor to follow
the treatment. Failure to warn the patient of the danger of the treatment is not itself negligence.
The advocate for the Plaintiff brought my attention to the passage in the said authority that dealt with the meaning of “negligence.”
“In the ordinary case which does not involve any special skill, negligence in law means this:-
Some failure to do some act which a reasonable man in the circumstances would do; and if that failure or doing of that act results
in injury then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally
said that you judge that by the action of the man in the street. He is the ordinary man,…
But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence
or not is not the test of the man on the top of a clapher omnibus, because he has not got his special skills. The test is the standard
of the ordinary skilled man exercising and professing to have that special skill.”
I must point out that this case law concerns medical practitioner. In this particular case we are dealing with an advocate of the
High Court of Kenya. What is the position concerning an advocate?
I presume that the Defendant herein holds a practicing certificate under the Advocates Act Cap. 16
“Advocate” means any person whose name is duly entered upon the Roll of Advocates or upon the Roll of Advocates having the rank of Senior Counsel
and, for the purposes of Part IX, includes any person mentioned in section 10”
Section 9
“Subject to this Act, no person shall be qualified to act as an advocate unless—
(a) he has been admitted as an advocate; and
(b) his name is for the time being on the Roll; and
(c) he has in force a practising certificate; and
(d) he has in force an annual license
And for the purpose of this Act a practising certificate shall be deemed not to be in force at any time while he is suspended by
virtue of section 27 or by an order under section 60 (4).”
In England, the legal profession is under two types of lawyer. The solicitor and the barrister.
The solicitor owes a duty to his client in all kinds of business which involve and gives legal advice. His qualification is similar
to the qualification under the Kenya laws of section 9 of Advocates Act Cap. 16
Under the Solicitor’s Act the solicitors are subjected to the powers and control on disciplinary matters, by the Law Society.
“The professional services provided by a solicitor in connection with any matter in which he or his firm had been instructed
by a client were in any respect not of the quality that could reasonably have been expected of him as a solution.”
The Barrister on the other hand is the lawyer who argues cases in court on brief prepared by solicitors.
According to:- Charles-Worth and Percy on Negligence By R.F.Percy M.A. (Oxon) 8th Edn 1990
A barrister is immuned from action in negligence.
Fell v Brown (1791) 1 Peake 131 where an action was brought against a barrister for unskillfuly and negligently settling and signing a bill filed
by the Plaintiff in the Court of Chancery.
It was held by Lord Kenyon that the action could not be maintained.
“The basis of establishing immunity from suit in tort is due to:-
i)
The absence of any contractual obligation towards a client
ii)
The difficult nature of work so undertaken in public policy
This briefly under public policy
“If a party desires to retain the power of directing counsel how the suit shall be conducted, he must agree with some counsel
wiling to so bind himself. A counsel is not subject to an action for calling or not calling a particular witness or for putting or
omitting to put a particular question or for honestly taking a view of the case which may turn out to be quite erroneous. If he were so liable, counsel would perform their duties under the permit of an action by very disappointed and angry clients.” (Emphasis my own)
The duty of a barrister extends to the court and public at large.
The duty of a solicitor is that it arises under contract by virtue of his retainer. The solicitor has a duty of care to his client.
Under tort a duty of care lies to his client and including to a third party. The solicitor has a duty of care in contentious matter.
A few illustrations given by serving is as follows:-
Take instructions
Ascertain the relevant facts. If there is no cause of action, to so advice.
There is an implied authority to settle actions but any compromise must be reached with the clients express authority.
“a solicitor has held liable for proceeding under a wrong section of a statute, deliberately allowing time to run out; failing
to ascertain a clients current address, so that the client was not informed of the hearing…that the client desired to defence.
Non-contentious matter
A solicitor has been held liable in negligence for:-
Not explaining to his client the documents which he is being asked to execute,
Not making usual searches,
Failing to search the registers,
Forwarding the whole of the purchase money to the vendors solicitors in exchange of the letters understanding to forward the executed
title documents within a reasonable time.
It is thus clear that a barrister has special immunity to be sued for negligence but a solicitor has no such special immunity to
be sued in negligence unless he acts as an advocate for purpose of advice such as pleas and appears in court as an advocate.
See Rondel v Worsley (1969) 1 AC 191
In Kenya where the two professions are fused, that is the work of a barrister and a solicitor is done by one person then the lawyer
is referred to as an advocate. The immunity of that advocate now requires to be addressed.
“Is an advocate of the High Court of Kenya immuned from legal proceeding?”
I am guided by the case law of Rondel v Worsely (supra) and the case law of Saif Ali v Sydney Mitchel & Co. Advocates (1980) AC 198 at page 206 para F at (6).
Where a solicitor acts as an advocate, namely goes to court and negligently makes a mistake he is immuned from being sued.
Where the advocate acts as a solicitor he is bound to be sued as outlined above.
The public policy that was established in 1791 in the case of Fell v Brown (1791) 1 Peake 131 and followed in the Rondel v Worsely case (supra) is a policy that assists the Barrister to conduct this cases without fear. There are five persons to be looked at as far
as immunity is concerned. This is the party, the witnesses, the jury, the judge and the Barrister.
To some extent even the press has immunity and cannot be sued for reporting a court case correctly whilst it may amount to libel.
The newspaper/press have a duty to inform the public what goes on in the courts of law and therefore their immunity.
In the case of Sommasudaran v Merchior & Co. CA(1988) WLR at p. 1394. It held a barrister was immuned from acting where a solicitor so acts as an advocate the immunity extends to that solicitor and
he may not be sued.
In this special role of an advocate Flavia Rodrigues was alleged to be negligent and indeed was for failing to do:-
“everything reasonable expected of an advocate to protect the Plaintiffs’ and its…interest in the suit…”
The acts of the advocate for failing to call a witness is in itself negligent. The advocate is immuned from being sued on this. The
advocate filed the wrong applications in court. In the capacity as an advocate and in the role of a barrister the said advocate is
immuned from being sued.
I would hereby hold that as the advocate was acting as a solictor/advocate or a barrister with the immunity on her must be upheld
to allow the advocate to represent and to prosecute cases without fear of being sued. This is a public policy.
I dismiss this suit with no order as to costs as the defendant failed to attend court.
Dated this 8th day of July 2003 at Nairobi.
M. ANG’AWA
JUDGE
Nyaencha, Waichari & Co. Advocates for the Plaintiff – present
Flavia Rodrigues & Co. Advocates for the Defendant – absent
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