Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 68 of 1998

CHARLES NGARE KEBUCHI vs T. M. ONGALO t/a T. M. ONGALO & ANOTHER [1998] KECA 186 (KLR)

Court of Appeal
11 December 1998
JGJ. E. GicheruRKR. O. KwachEOE. Owuor
1,755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that advocates who follow written client instructions are protected, and damages cannot be claimed in advocate-client account summons.

What this practically means

#

Executive summary

#
The appellant, Charles Ngare Kebuchi, took out an Originating Summons under Order 52 rule 4 of the Civil Procedure Rules against his advocate, T. M. Ongalo, seeking a cash account of Kshs 1.5m received on the sale of two plots, payment of that sum into court, general and exemplary damages, interest and costs. He alleged the advocate paid the sale proceeds to Lenana Properties Limited without his express authority. Ole Keiwua J dismissed the suit, holding on the basis of the plaintiff's letter of 6th April 1993 (copied to the defendant) that the advocate had dealt with the proceeds in accordance with his instructions. The Court of Appeal dismissed the appeal. First, the court raised, of its own motion, that the reliefs available under Order 52 rule 4 are confined to five specified reliefs, and damages cannot be claimed on such a summons, consistent with Order 36 and the court's earlier decision in Kenya Commercial Bank Limited v James Osebe. On the main ground, the court held that the letter of 6th April 1993 explicitly directed that the proceeds be paid to LPL for the proposed road and ancillary works, and it was copied to the defendant who held the funds; counsel could not explain why it was copied to him if he was not to act on it. The Kshs 300,000 deposit had also been released under Special Condition No. 3 on the plaintiff's instructions. The advocate therefore acted in strict compliance with his client's instructions and was not liable to deliver a cash account. The appeal was dismissed with costs to the defendant.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendant advocate dealt with the sale proceeds in accordance with the plaintiff's instructions, such that he was liable to deliver a cash account under Order 52 rule 4 of the Civil Procedure Rules
  2. 2.Whether reliefs such as general and exemplary damages are available on an Originating Summons under Order 52 rule 4 of the Civil Procedure Rules

Key legal issues

#
01

Whether the advocate was authorised to pay the sale proceeds to Lenana Properties Limited

Holding

The letter of 6th April 1993, addressed to LPL and copied to the defendant, authorised the payment; the advocate complied with his client's instructions and was not liable.

Reasoning

The plaintiff's letter explicitly directed that proceeds of plots G, E and C be utilised by LPL for the proposed road and ancillary works, and it was copied to the defendant holding the funds. Counsel could not explain why the letter was copied to the defendant if he was not to give effect to it. The deposit of Kshs 300,000 was also released under Special Condition No. 3 on the plaintiff's own instructions, so he could not demand an account for it.

p. 4
02

Availability of damages on an Originating Summons under Order 52 rule 4

Holding

Damages, general or exemplary, cannot be claimed on an Originating Summons under Order 52 rule 4; only the five specified reliefs are permissible.

Reasoning

Order 52 rule 4 confines the reliefs to delivery of a cash account, payment or delivery up of money or securities, delivery of a list of money or securities, payment into court, and delivery up of papers and documents. A plaintiff cannot augment these. This is consistent with Order 36 and the court's prior decision in Kenya Commercial Bank Limited v James Osebe that damages cannot be awarded on an originating summons.

p. 3

Legal principles established

#
  • Only the five reliefs specified in Order 52 rule 4 of the Civil Procedure Rules are available on an advocate-client Originating Summons, and a plaintiff cannot augment them with any other relief.
  • A judge has no power to award damages on an originating summons under Order 36 of the Civil Procedure Rules.
  • An advocate who pays out client funds in strict compliance with written instructions copied to him is not liable to deliver a cash account under Order 52 rule 4.

Court orders

#
  1. 1.Appeal dismissed with costs to the defendant

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

JG
majority
RK
majority
EO
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 300 of 1997 (O.S)
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (Civil Appeal No. 68 of 1998)

Relief refused

#

The appellant's appeal against the dismissal of his claim for a cash account and payment of Kshs 1.5m

The defendant dealt with the money in strict compliance with the plaintiff's instructions in his letter of 6th April 1993 copied to the defendant

p. 4

General and exemplary damages

Damages cannot properly be claimed on a summons under Order 52 rule 4; that part of the claim ought to have been struck out

p. 3

Costs

Appeal dismissed with costs to the defendant

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.

Those are the only reliefs available and permissible under Order 52 rule 4 and a plaintiff cannot augment them by adding any other relief not specified thereunder.
p. 3Scope of reliefs under Order 52 rule 4
Damages, general or otherwise, cannot properly be claimed on a summons under Order 52 rule 4.
p. 3Damages not recoverable on originating summons
We are satisfied that the defendant dealt with the money in strict compliance with the instructions of the plaintiff, as his client, and was not liable to deliver any cash account to him under the provisions of Order 52 rule 4 of the Civil Procedure Rules.
p. 4Advocate acting on client instructions
Accordingly this appeal fails and is dismissed with costs to the defendant.
p. 4Final orders

Issues in the judgment

#
minor

The judgment states the Judge dismissed 'the motion' although the suit was commenced by Originating Summons; the reference appears to be to the Originating Summons.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "CHARLES NGARE KEBUCHI vs T. M. ONGALO t/a T. M. ONGALO & ANOTHER [1998] KECA 186 (KLR)", Case Analysis (1998). Civil Appeal No. 68 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/186/eng@1998-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.