The Appellant herein was sued by the Respondent seeking;-
(a) Kshs. 2,511,762.51
(b) Kshs. 1,730,504.30
(c) General Damages with interest at 14% p.a from date of judgment
(d) Kshs. 152,794/=being costs payable in Kisii CMCC No 220 of 2015
(e) Taxed costs in Kisii CMCC No 220 of 2015
(f) Taxed costs in Kisii H. C. C. A No 83 of 2019
g) Interest on a, b, d, e and f at 14% per annum from date of filing suit until payment in full
(h) Interest on c and g at 14% per annum from date of judgment until payment in full
(i) Aggravated damages with interest t 14% from date of judgment until payment in full
(j) Costs of the suit.
The Trial Magistrate considered the claim and allowed it in the following terms:-
(a) Kshs. 2,511,762.51
(b) General damages in the sum of Kshs. 200,000/=
(c) Taxed costs in Kisii CMCC No 220 of 2015
(d) Interest on a, b and cat 14% per annum
(e) Costs of the suit.
This claim arose out of an Advocate/ Client relationship where the Respondent had instructed the Appellant Advocate to sue Nyansiongo Tea Factory and claim Kshs.2,511,762.51 being balance of monies due to the Respondent for works done for the said Tea Factory.
That when the Appellant filed plaint dated 20th May 2015 in Kisii CMCC No 220 of 2015 he failed to exercise due diligence as per particulars in the plaint and the suit was dismissed for being vague and did not indicate what the plaintiff was still to perform and the balance of what the Plaintiff claimed was unclear or deliberately omitted and not captured in the pleading or reliefs sought.
When the Respondent appealed against the Trial Court’s judgment the High Court upheld the decision of the Trial Court and dismissed the appeal with costs.
The Appellant was aggrieved by the judgment of the trial court and brought the appeal herein vide the Memorandum of Appeal dated 6th March 2024 on the following grounds: -
- THAT the Learned Trial Magistrate erred in not holding that the Respondent had failed to disclose full and/ or adequate instructions to the Appellant
- THAT the Learned Trial Magistrate erred in law and fact in not holding that the Respondent’s suit was incompetent for non-joinder of necessary parties
- THAT the Learned Trial Magistrate erred in law and fact in making a decision against the weight of the evidence on record.
- THAT the Learned Trial Magistrate erred in law and fact in not holding that the Respondent had failed to prove its case on a balance of probabilities.
Reasons Wherefore the Appellant prayed that;
- That the judgment and decree of the trial magistrate be set aside and/ or varied and be substituted with an order dismissing the Respondent’s suit.
- That costs of the appeal be provided.
- That the court be pleased to make any other orders as may be just and expedient in the circumstances.
This appeal was canvassed by way of written submissions.
The Appellants counsel in submissions dated 29th November 2024 submitted that the Respondent did not pay sufficient filing fees and that is why the suit did not specifically plead special damages. The Appellant argued that he intended to amend the plaint to include special damages but before pretrial the Respondent appointed the firm of Aboki Begi & Company Associates to represent him in the circumstances he didn’t have the capacity and/or instructions to amend the plaint or represent the Respondent after being served with notice of change of Advocate.
The Appellant submitted that it was the obligation of the subsequent firm of Advocate to seek for the amendments of Plaint and correct any error of law and facts. The Appellant contended that he was denied content of the matter and he didn’t act in bad faith or negligently as alleged by the Respondent. That while handling the matter he acted with due care and consideration.
The Appellant further submitted that allegations by the Respondent that he acted negligently does not hold any water as the Respondent read the content of the Plaint and swore verifying affidavit as to correctness of the content of the Plaint. It was further argued that the Appellant was not instructed to plead special damages and the learned trial magistrate ought to have found that the Respondent had failed to give full and / or adequate instructions to the Appellant.
On the ground of non-joinder of necessary parties the Appellant submitted that the firms of Aboki Begi & Company Associates and the firm of C. A. Okenya & Company Advocates should have been enjoined as defendants for purposes of ascertaining liability if any. In the circumstances it was submitted that the Respondent suit was bad in law and incurably defective for mis-joinder or non- joinder as it cannot be established whether the said law firms were given full and adequate instructions especially to amend and plead special damages.
The Appellant argued further that the Respondent filed the suit in bad faith by excluding the other law firms knowing that the question in controversy could not be adequately dealt without the other two firms of Advocates. The Appellant cited the holdings in Apex International Ltd and Anglo Leasing and Finance International Ltd vs Kenya Anti-Corruption Commission 2012 EKLR where the Court quoted Mukhter J of the Supreme Court of Nigeria in Goodwill and Trust Investment Ltd vs. Will and Bush Ltd (2011) LCN /B820 (SC) as follows:-
“It is trite law that to be competent and have jurisdiction over a matter, proper parties must be identified before the action can succeed, the parties to it must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the court the court lacks jurisdiction to hear the suit, and, “where the court purports to exercise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.”
He also relied on the authority in Zephir Holdings Ltd and Mimosa Plantation Ltd and 12 Others 2014 EKLR to support the position that before an action can succeed the parties must be shown to proper parties.
On whether the trial magistrate made a decision against the weight of the evidence on record the Appellant submitted that he was no longer on record by the time the matter reached the hearing stage and therefore he didn’t have any instructions or authority to amend the Plaint and include special damages as he intended too as from the very beginning.
The Appellant prayed that the suit be dismissed with costs.
The Respondents submissions dated 6th February 2025 are to the effect that the Appellant was liable in contract and tort by filing a suit on behalf of the Respondent that had no prayer seeking judgment for special damages and that as a qualified Advocate he failed to exercise reasonable care skills and diligence by filing pleadings that did not resonate with law of pleadings.
That since the pleadings were wanting the trial magistrate that dealt with the primary suit and the subsequent Appeal were dismissed. The Respondent submitted that it made payments to the Appellant to prosecute the suit in Kisii CMCC No. 220 of 2015 and it is not true that he didn’t pay filing fees. In regard to the ground that the suit was defective for mis-joinder and non -joinder the Respondent submitted that was a red herring and an effort to obfuscate issues. It was submitted that the plaint in Kisii CMCC No. 220 of 2015 was drawn by the Appellant that is the document that the Respondents suit in Kisii CMCC No. 322 of 2021 is founded. The Respondent submitted that Order 1 Rule 3 of the Civil Procedures Rules gives the Plaintiff the prerogative to file suit against the person it alleges wronged it. That since the Respondent didn’t have a plausible cause of action against the other two firms of the Advocates the Appellants’ grounds should be rejected. It was submitted that of the Appellant felt that the other two firms of the Advocate were liable they ought to have taken out third party proceedings against the other two firms of the Advocates.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-
- Whether the Learned Trial Magistrate made a decision against the weight of the evidence on record and whether the Respondent proved its case on a balance of probabilities.
- Whether the Learned Trial Magistrate erred in not holding that the Respondent had failed to disclose full and/ or adequate instructions to the Appellant
- Whether the Learned Trial Magistrate erred in law and fact in not holding that the Respondent’s suit was incompetent for non-joinder of necessary parties
On whether the Learned Trial Magistrate erred in not holding that the Respondent had failed to disclose full and/ or adequate instructions to the Appellant
It is not in dispute that the Respondent instructed the Appellant to file a suit on its behalf against Nyasingo Tea Factory and indeed the said suit was filed in Kisii CMCC No. 220 of 2015 which was however dismissed for reasons that the claim was vague and didn’t indicated what the Respondent wanted to be performed by Nyasingo Tea Factory. An Appeal arising out of the same decision in Kisii Civil Appeal No. 83 of 2019 was also dismissed for reasons that the Respondent failed properly to plead its case. The Respondent attributed dismissal of his claims against Nyasiongo Tea Factory to the professional negligent by the Appellant. The claim by the Respondent was very specific that is the balance of the contractual amount owed to it by Nyasiongo Tea Factory and the claim by the Appellant that they didn’t have proper instructions as the Respondent didn’t pay sufficient filing fees cannot be sustained because there is evidence of payment of legal fees by the Respondent beyond the 70,000/= that would have been required to file a suit for Kshs. 2,511,762.51. There is nothing in the pleadings, exhibits and the submissions to show that the Appellant intended to amend the claim upon the Respondent making further payments. There is no indication the Appellant informed the Respondent that they didn’t specifically plead the special damages because of lack of filing fees. Having failed to rebut the fact that the Respondent paid over 400 hundred thousand shillings being legal fees in the case herein this court finds that the Appellant had proper instructions to offer legal services to the Respondent and which services he failed and/or neglected to offer and thereby exposed the Respondent to liability resultant from the dismissal of the suit in the trial court and on appeal.
The suit in Kisii CMCC No. 220 of 2015 was filed on 21.5.2015 and it was not until 26.4.2017 and 19.2.2019 when the Respondent changed Advocates long after the pleadings had closed and before the Respondent showed any signs of the intention to amend the plaint in question.
In consideration of the first and second grounds this court finds that the Respondent proved its case to the required standards and that the trial magistrate properly found that the Appellant was negligent in the discharge of his professional duties and therefore liable to indemnify the Respondent for the loss suffered.
In regard to whether the Respondent’s suit was defective for mis-joinder and/or non-joinder
In the context of the Civil Procedure Rules misjoinder refers to the inclusion of parties who are not properly part of the suit, while non-joinder refers to the absence of necessary parties, and neither of these grounds, by themselves, will cause a suit to be dismissed.
Order 1 Rule 3 of the Civil Procedure Rues provides as follows:-
“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.”
In the case of Consolata Kihara & 21 Others v The Director of Kenya Trypanosomiasis Research Institute Nairobi [2003] KLR 582, it was held that issues of joinder and misjoinder of parties are not of significance where no miscarriage of justice or any form of injustice is alleged as a result of the choosing of parties to the litigation. In William Kiprono Towett and 1597 Others vs Farmland Aviatio Ltd and 2 others 2016 EKLR the court of Appeal held: -
“Most critically Order 1 Rule 9 of the Civil Procedure Rules 2010 makes it abundantly clear that misjoinder or non-joinder of parties cannot be ground to defeat a suit.
In consideration of Order 1 Rules 3, 9 and 10 of the Civil Procedure Rules and in consideration of the above authorities as well as the submissions by the parties this court finds that if the Appellant felt that the two firms of the Advocate that took over from him were liable they were at liberty to bring third party proceedings against the said Advocates. Failure to join a party cannot render a suit defective.
Based on the above reasons it is my finding that the Appellant’s appeal lacks merit and the same is dismissed with costs to the Respondent.
Delivered dated and signed at Migori this 20th day of March, 2025