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Court of AppealPartially AllowedCivil Appeal No. 162 of 1999

The administrators of the estate of Maurice Ombogo (Deceased) v Standadr CHartered Bank Kenya Ltd & another [2000] KECA 204 (KLR)

Court of Appeal of Kenya
31 July 2000
3,418 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a deceased advocate's bank accounts fall under the Law of Succession Act, not the Law Society of Kenya's control.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal by the administrators of the estate of Maxwell Maurice Ombogo, a deceased advocate, against a High Court ruling of 26 February 1998 (Hayanga J) in interpleader proceedings brought by Standard Chartered Bank. The High Court had held that Legal Notice No. 279 of 1995, promulgated by the Law Society of Kenya under section 27 of the Law Society of Kenya Act, entitled the LSK Chairman to appoint two advocates to manage and wind up the deceased's law firm and to operate his 'clients' and 'office' bank accounts. The Court of Appeal held that the Law of Succession Act, a consolidating statute, governs the administration of the estates of deceased persons including deceased advocates, and that 'free property' under the Act extends beyond personal estate to property held in trust, including money in a deceased advocate's client account. The LSK had no statutory power to freeze or administer the accounts, and the Legal Notice, in purporting to establish a parallel administration regime without express authorisation in a parent statute, conflicted with the Law of Succession Act and was void to that extent. The court found it unnecessary to decide whether the Notice was retrospective or merely procedural. The ruling and order of the High Court were set aside and substituted with an order that the two accounts be managed and operated as directed in the final grant of letters of administration or as the succession court directs. The LSK was ordered to pay the costs of the appeal and of the interpleader in both courts.

Questions the Court framed

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

  1. 1.Whether the Law Society of Kenya, under Legal Notice No. 279 of 1995, was legally entitled to appoint administrators to manage and wind up the law firm of a deceased advocate and to control his client and office bank accounts
  2. 2.Whether money held in a deceased advocate's 'clients' and 'office' accounts forms part of his free property under the Law of Succession Act
  3. 3.Whether Legal Notice No. 279 of 1995 was inconsistent with, and void to the extent of conflict with, the Law of Succession Act
  4. 4.Whether Legal Notice No. 279 of 1995 operated retrospectively and whether it was merely procedural

Key legal issues

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01

Whether client and office accounts of a deceased advocate are part of his free property under the Law of Succession Act

Holding

They are: 'free property' extends beyond personal estate to all property whose disposal would have required the deceased's authority, including trust money in client accounts.

Reasoning

The court read the definition of 'free property' in light of the Act's preamble as a consolidating statute and Jowitt's Dictionary's definition of 'estate' as including trust property. Section 58 (administrators of continuing trusts) and section 46 (protection of free property) show the Act covers trust property. Client account money could only be disposed of by the advocate, so it falls within free property and within the Act.

p. 4
02

Whether Legal Notice No. 279 of 1995 was inconsistent with the Law of Succession Act

Holding

It was inconsistent and void to the extent that it created a parallel administration regime for law firms of deceased advocates without express provision in the parent Act.

Reasoning

The Law of Succession Act is a consolidating statute governing administration of estates of deceased persons, including deceased advocates' firms. Section 46 empowers only specified officers to protect a deceased's estate; LSK is not among them. Section 27(k) of the Law Society Act must be read ejusdem generis with preceding paragraphs, and section 4(e) was being overstretched. The proper remedy for LSK was legislative amendment.

p. 4
03

Whether Legal Notice No. 279 of 1995 operated retrospectively and was merely procedural

Holding

The court declined to decide these questions as academic, having found the Notice inconsistent with the Law of Succession Act.

Reasoning

Having concluded the Notice conflicted with the Law of Succession Act, the court held it unnecessary to determine retrospectivity or procedural character. The arguments of counsel on Carson v Carson and Patel v R were therefore not resolved.

p. 4

Legal principles established

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  • Money held in a deceased advocate's client account forms part of his free property under the Law of Succession Act and is subject to that Act's administration regime.
  • Subsidiary legislation that establishes a parallel regime for administration of a deceased person's estate, without express authorisation in the parent statute, conflicts with the Law of Succession Act and is void to the extent of the conflict.
  • The Advocates Act and the Law Society of Kenya Act regulate the conduct of practising advocates and do not extend to the legal practice after the practitioner's death.

Court orders

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  1. 1.Appeal of the administrators of the estate of Maxwell Maurice Ombogo allowed
  2. 2.Ruling and order of the superior court (Hayanga J) given on 26th February 1998 set aside
  3. 3.Substituted order that the deceased's two accounts at Standard Chartered Bank, Kenyatta Avenue branch (accounts Nos. 014-42-255 327 and 014042 025 5327-00) be managed and operated as directed in the final grant of letters of administration or as the court seised of the application for grant of letters of administration shall direct
  4. 4.The appellant to have the costs of the appeal paid by the Law Society of Kenya, which shall also pay the costs of the interpleader both in the Court of Appeal and in the High Court

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 520 of 1997
Jurisdiction invoked
First appeal from the High Court under the Civil Procedure Rules; interpleader proceedings under Order 33 rule 1 of the Civil Procedure Rules

Relief refused

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LSK's claim to administer the deceased's law firm and bank accounts through its nominees under Legal Notice No. 279 of 1995

The Legal Notice conflicted with the Law of Succession Act and LSK had no statutory power to protect or administer the deceased's estate

p. 4

Costs

The appellant shall have the costs of the appeal to be paid by the LSK which shall also pay the costs of the interpleader both here and in the court below.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It then follows that the late Ombogo's two bank accounts were part of his free property and, therefore, subject to the provisions of the Law of Succession Act.
p. 4Client account money as free property of a deceased advocate
the legal notice is in conflict with the Law of Succession Act, to the extent that it seeks to establish a parallel law and procedure to that in the Law of Succession Act, for the management and administration of law firms of deceased advocates without express legal provisions in that regard in the parent Act.
p. 4Conflict between subsidiary legislation and the Law of Succession Act
we allow the appellant's appeal, set aside the ruling and order of the superior court given on 26th February, 1998, and substitute therefor an order that the deceased's two accounts at Standard Chartered Bank, Kenyatta Avenue branch, being accounts Nos. 014-42-255 327 and 014042 025 5327-00 be managed and operated as shall be directed in the final grant of letters of administration or as the court seised of the application for grant of letters of administration of the estate of the late Maxwell Maurice Ombogo, shall direct.
p. 4Final orders and disposition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "The administrators of the estate of Maurice Ombogo (Deceased) v Standadr CHartered Bank Kenya Ltd & another [2000] KECA 204 (KLR)", Case Analysis (2000). Civil Appeal No. 162 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/204/eng@2000-07-31

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