Process of taking over a non-litigious matter from a former advocate. Action against purchaser and his advocate and against former advocate

Proyecto de Trabajo , 2021 , 25 Páginas , Calificación: A

Derecho - Otros

The following question is answered in the course of this paper:

Mr. Kawigula, a fisherman on Migingo Island, instructed his Advocate, Peter Machachari who had acted on his behalf in an earlier matter to represent him in a land transaction where Mr. Kawigula was the vendor and was disposing of his property to raise funds for school fees for his children. Time was therefore of essence in the transaction. ...

Advise the client on the following:
a) Process of taking over the conduct of the matter from Advocate Peter Machachari
b) The action he may take against the purchaser and her Advocate Kimbelembele who issued the professional undertaking
c) The action he may take against his former Advocate Peter Machachari

TABLE OF CONTENTS

QUESTION

ACKNOWLEDGEMENT

LIST OF STATUTES/RULES/CODES

LIST OF CASES

TABLE OF CONTENTS

ANSWER TO QUESTION 2(a)

ANSWER TO QUESTION 2(b)

ANSWER TO QUESTION 2(c)

BIBLIOGRAPHY

QUESTION

Mr. Kawigula, a fisherman on Migingo Island, instructed his Advocate, Peter Machachari who had acted on his behalf in an earlier matter to represent him in a land transaction where Mr. Kawigula was the vendor and was disposing of his property to raise funds for school fees for his children. Time was therefore of essence in the transaction.

Mr. Kawigula had, prior to engaging Advocate Peter Machachari, identified a purchaser, Ms. Tayari, who was to be represented by Advocate Kimbelembele. Advocate Peter Machachari prepared the requisite Agreement for Sale which incorporated an unequivocal declaration by the purchaser’s Advocate to provide an undertaking to release the funds within 14 days of registration. Advocate Kimbelembele being satisfied with the terms of the agreement of sale caused his client to peruse the same and executed it. The purchase price was agreed at Kshs. 6,000,000/=. Advocate Kimbelembele returned the agreement to Advocate Peter Machachari together with 10% of the purchase price which was Kshs. 600,000/= to hold as stakeholder and that the professional undertaking would follow once the purchaser had put Advocate Kimbelembele in funds. The Agreement of Sale was dated 1st October, 2014.

Mr. Kawigula being ordinarily resident of the Island, nominated his agent who was mandated to follow up the transaction on his behalf with Advocate Peter Machachari. Advocate Peter Machachari released the completion documents upon receiving an unequivocal professional undertaking as follows:

“ We hereby give our unequivocal professional undertaking to pay to you the balance of the purchase price of Kshs. 5,400,000/= within fourteen (14) days on successful registration of the Transfer in favour of the purchaser. Kindly therefore forward to us the following completion documents to facilitate registration process”

A penalty clause invoking 20% p.a. charge on interest was part of the Agreement of Sale should the purchaser default. The Law Society of Kenya terms and conditions of sale (1989 Edition) were to apply.

Advocate Peter Machachari made requisite follow up with the purchaser’s Advocate on the progress of registration of the transfer but no response to the various correspondence was received necessitating Advocate Peter Machachari to conduct a search on 05/03/2015 to determine the status of the title. The Vendor’s agent was kept fully appraised via email on all the developments. The search revealed that Advocate Kimbelembele registered the transfer against the title on 10th January, 2015 but failed to honour the terms of the professional undertaking. Further the purchaser had taken possession having forwarded the balance of the purchase price to her Advocate, Kimbelembele.

Advocate Peter Machachari advised his client on the status on the matter and requested him to attend his chambers for purposes of advising him and seeking further instructions. Mr. Kawigula declined as he claimed his Advocate has failed to ensure that the transaction was finalized within the stipulated 90 days of the Agreement of Sale. He is dissatisfied by the representation accorded by Advocate Peter Machachari and wants the transaction rescinded. Mr. Kawigula approaches you to take over the conduct of the matter to rescind the transaction.

Advise the client on the following:

a) Process of taking over the conduct of the matter from Advocate Peter Machachari (5 marks)
b) The action he may take against the purchaser and her Advocate Kimbelembele who issued the professional undertaking ( 10 marks)
c) The action he may take against his former Advocate Peter Machachari (5 marks)

ACKNOWLEDGEMENT

We are grateful to the Almighty God for the excellent health and well-being necessary to complete this work.

We wish to express our sincere thanks to the Kenya School of Law for providing us with all the necessary facilities for the project work.

Our profound thanks and gratitude goes to our lecturers, Ms Anna Konuche and Dr Omondi Owino. We are incredibly thankful and indebted to both of them for sharing their expertise and sincere valuable guidance and encouragement to develop the project. We appreciate their tutelage in our class, assistance and advice as it has served a vital role in aiding the completion of this work.

We place on record our sincere gratitude to each other for the valued effort and input that aided the completion of this project.

LIST OF STATUTES/RULES/CODES

Advocate (Practice) Rules 1966.

Advocates (Professional Indemnity) Regulations 2004.

Advocates Act, Cap. 16 Laws of Kenya.

Civil Procedure Rules 2010.

Constitution of Kenya 2010.

Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct 2016.

Law Society of Kenya Digest of Professional Conduct and Etiquette.

Law Society of Kenya Terms and Conditions of Sale (1989 edn).

Penal Code, Cap. 63 Laws of Kenya.

LIST OF CASES

Booth Extrusions (Formerly) Booth Manufacturing Africa Limited v Dumbeyia Nelson Muturi Harun t/a Nelson Harun & Company Advocates [2014] eKLR (Environment and Land Court).

Booth Extrusions Limited (Formerly Booth Manufacturing Africa Limited) v Dumbeyia Nelson Muturi Harun t/a Nelson Harun & Company Advocates [2017] eKLR (Court of Appeal).

Equip Agencies Limited v Credit Bank Limited [2008] 2 EA 115 (HCK).

Ex Parte Kimaiyo Arap Sego Misc. Appl. No. 1266 of 2007.

George Pariken Ole Narok & another v Cabinet Secretary, Ministry of Industry, Trade & Co-Operatives & another; Kenya Farmers Association Ltd (Interested Party) [2021] eKLR.

Kenya Commercial Bank v Adala (1983) KLR 467.

Muthaura Mugambi Ayugi & Njonjo, Advocates v Jane Nyamboke Njage [2011] eKLR.

Naphatali Paul Radier v David Njogu Gachanja D. Njogu & Company Advocates [2006] eKLR.

National Bank of Kenya Ltd v E. Muriu Kamau & Njoroge Nani Mungai T/A Muriu Mungai & Company Advocates HCCC 539 of 2004.

Small Wonders Limited v Honourable Attorney General [2019] eKLR.

Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR.

Waruhiu K’Owade & Ng’ang’a Advocates v Mutune Investments Ltd (2016) eKLR.

ANSWER TO QUESTION 2(a)

1. Introduction

A client has a right to change their advocate at any time. This has been recognised in the case of Small Wonders Limited v Honourable Attorney General ¹ in which the High Court pronounced itself on the issue of change of advocates in the following manner:

…the lawyer-client relationship is a product of a contract for legal services and Courts cannot be asked to compel clients to stay in contractual relationships against their will. If for whatever reason a client considers that his/her Advocates should no longer offer him representation, he/she is free to discharge the Advocates and find a replacement.²

The process of changing an advocate is, however, guided by professional standards and a standardised procedure. As correctly observed by the Environment and Land Court in the case of Stephen Mwangi Kimote v Murata Sacco Society,³ chaos would reign if there was no orderliness in the procedure of changing an advocate.

Our client, Mr Kawigula, has a right to change the advocate who has been acting for him in the conveyancing transaction. The process of taking over the conduct of the matter from Advocate Peter Machachari is explained in detail below.

2. Pre-requisites in the process of changing an advocate

The professional standards for changing an advocate are encompassed in the Advocate (Practice) Rules,⁴ specifically, Rule 6 requires that a succeeding advocate acquire consent from the previous advocate. Furthermore, a succeeding advocate can only act for the client if he or she has reason to believe that the previous advocate has refused to act for the client or if the client has withdrawn instructions upon proper notice to the previous advocate. Applying Rule 6 of the Advocates (Practice) Rules to the scenario of our client, as succeeding advocates we should first obtain the consent of the previous Advocate Peter Machachari. Again, Mr Kawigula should withdraw all instructions upon proper notice to the previous Advocate Peter Machachari.

The Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct 2016 (SOPPEC) provide further guidance on this in clause 60 which provides that an advocate is under an obligation upon the discharge or withdrawal from acting in a matter to (a) Deliver to the client all the documents and property belonging to the client, subject to the right of lien over unpaid fees; (b) Provide the client with all the material information about a case so that they may proceed with the matter; (c) Provide an account of all the funds of the client; and (d) Cooperate with the advocates who succeed them in taking over the matter. It follows that Advocate Peter Machachari should deliver to our client, Mr Kawigula, all the documents concerning the transaction after payment of all fees. Machachari should also provide Mr Kawigula with all material information about the transaction, an account of all the funds of our client, and cooperate with us as we take over the transaction.

Clause 61 of the SOPPEC provides that the succeeding advocate must ensure that instructions have been withdrawn by the client and that the client has settled accounts with the previous advocate before proceeding with the matter. The succeeding advocate can depart from this obligation, only if it would be prejudicial to the client to delay in taking up the matter. In the case scenario of our client, we firmly believe that it would not cause any delays in taking over the transaction, so our client should withdraw all the instructions from Machachari and settle accounts with him before we can take over the transaction.

3. Process of change of advocate in non-litigious matters

In the case scenario at hand, it is a change of an advocate in a non-litigious matter, that is, a conveyancing transaction. The process of change of advocate in non-litigious matters is governed by the Advocate (Practice) Rules, Rule 6 that requires that the client withdraw instructions from the advocate in writing or the succeeding advocate to obtain consent from the previous advocate, as discussed above.

The SOPPEC provides for the advocates’ remuneration during the change of advocates. The SOPPEC under clause 3 provides for the right of lien that an advocate has subject to any unpaid fees as the client changes to another advocate. The case of Booth Extrusions (Formerly) Booth Manufacturing Africa Limited v Dumbeyia Nelson Muturi Harun t/a Nelson Harun & Company Advocates ⁵ provided further guidance on the issue of lien within an advocate-client relationship. In this case, the High Court was considering orders for the delivery of a title deed from the defendant, the advocates who had been acting for the plaintiff in a conveyancing transaction that was disrupted through the plaintiff’s instructions. The plaintiff has earlier on delivered the title deed to the defendant for the conveyancing transaction and therefore upon failure to complete paying the advocate’s costs, the advocate maintained possession over the title deed in the exercise of their right of lien. The plaintiff had, later on, pledged to transfer the title deed to the defendant in case they failed to meet the advocate’s costs. The Court in considering the advocate’s right of lien pronounced itself that an advocate has a general lien and the right to retain all the papers, money and chattel property of the client which they came into possession of during their service as an advocate for the client. The Court went on to find that:

The lien is general and not restricted to costs owing in respect to the property to which the client is claiming possession. It is simply a retaining lien premised upon the advocate having actual physical possession of the property the subject of the lien.⁶

This case emphasises that Mr Kawigula must pay all the advocate’s costs of the previous advocate before we can take over the transaction.

Upon examination of the legal framework, it is necessary for the client, in this case, Mr Kawigula per the Advocate (Practice) Rules, Rule 6 to withdraw instructions from Advocate Machachari. Since this is not a litigious matter, this can be done in writing through an official letter as provided below. This letter in line with SOPPEC clauses 60 and 61 will notify Advocate Machachari of the intention to change an advocate and withdraw instructions from him. Further, the letter will require Advocate Machachari to deliver all the documents and material information regarding the conveyancing transaction.

Mr Kawigula must clear any pending costs with Advocate Machachari otherwise, the advocate has the right to retain the documents of Mr Kawigula.

4. Conclusion

The termination letter ( Annexure 1 ) shall be characterised by the following:

(a) Clarity and brevity

The letter should be straightforward on the termination of the advocate-client relationship. There must be a brief explanation on the reason for terminating the relationship such as professional misconduct caused by Advocate Machachari’s action of laxity in following up the conveyancing transaction, thereby placing Mr Kawigula at risk of losing his land with no consideration (balance of the purchase price).

(b) Firmness

Mr Kawigula should be firm in his termination letter communicating his resolution to terminate the relationship. This is important to avoid uncertainty which might allow room for negotiation. Mr Kawigula must declare his decision to seek representation from a different advocate.

(c) Civil tone

Despite Advocate Machachari not safeguarding his interests in the transaction, it is in his best interests to remain calm in the letter. Mr Kawigula should maintain a civil tone as opposed to feelings of spite or anger. Mr Kawigula can later file a complaint with the Advocates Complaints Commission and the Law Society of Kenya for disciplinary action against Mr Machachari for professional misconduct.

(d) Acknowledgement for responsibility to settle applicable legal fees

It is important to note that, Mr Kawigula is obligated to settle legal costs owed to Mr Machachari at the point of terminating the relationship. This is necessary as Mr Machachari has a right to the lien of the registration documents and conveyancing file over unpaid bills. Therefore, Mr Kawigula needs to settle his payable fees before dispatching the letter and attach the receipts on the payment made. In case there are pending legal fees, Mr Kawigula is expected to acknowledge the same in the termination letter and declare his intention to have the same settled.

(e) Request for a copy of the transaction file

There is a need for the transaction file to enable us to understand the gist of the matter and pick up the same from the previous advocate. Therefore, Mr Kawigula is expected to request the file from the advocate in the termination letter.

(f) Contact details of the succeeding advocate

Mr Machachari needs the contact details of the succeeding advocate. This is important for service purposes as representation will have changed. In as much as we, the succeeding advocates shall be serving the purchaser’s advocates a notice of change of advocates, Mr Machachari must have the succeeding advocates’ contact details for service. Therefore, Mr Kawigula should include our contacts details in the letter as the succeeding advocates.

[...]

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¹ [2019] eKLR. See also George Pariken Ole Narok & another v Cabinet Secretary, Ministry of Industry, Trade & Co-Operatives & another; Kenya Farmers Association Ltd (Interested Party) [2021] eKLR.

² Small Wonders Limited case (n 1) [18].

³ [2018] eKLR.

⁴ 1966.

⁵ [2014] eKLR. This decision was confirmed by the Court of Appeal in Booth Extrusions Limited (Formerly Booth Manufacturing Africa Limited) v Dumbeyia Nelson Muturi Harun t/a Nelson Harun & Company Advocates [2017] eKLR.

⁶ Booth Extrusions Limited case 2014 (n 5) [18].

• Calificación: A
• Autor: Leonard Mwakuni (Autor)
• Año de publicación: 2021
• Páginas: 25
• No. de catálogo: V1245773
• ISBN (PDF): 9783346693877
• Idioma: Inglés
• Etiqueta: process, action