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Court of AppealDismissedCivil Appeal No. 250 of 2017· [2019] KECA 504 (KLR)

Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates v Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates [2019] KECA 504 (KLR)

Court of Appeal
19 July 2019
William OukoW. OukoWKW. KaranjaHOHannah Okwengu
3,130 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 confirmed that enforcing an advocate's professional undertaking belongs in the High Court, even when the underlying deal involves land.

What this practically means

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Executive summary

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The appellant, an advocate, appealed against a ruling of the High Court (R. Ngetich, J.) declining to transfer the respondent advocate's originating summons to the Environment and Land Court and declining to recuse herself. The underlying dispute arose from a professional undertaking given by the appellant to release completion documents, including a title deed, over property Ngong/Ngong/47331 within 30 days of receiving the purchase price. The undertaking was not honoured, and the respondent sued seeking enforcement of the undertaking and indemnity for interest claims of Kshs 800,000 suffered by his client. The appellant contended that because the undertaking arose from a land transaction, the ELC had exclusive jurisdiction under Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act, relying on the Lillian S decision on jurisdiction. The Court of Appeal, applying its own decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, held that the correct enquiry is the dominant issue in the dispute. A professional undertaking is a separate contract between advocates creating an independent cause of action anchored in professional relationship and etiquette; the dominant issue here was the honouring of the undertaking, which had nothing to do with the environment, use and occupation of, or title to land. The High Court therefore had jurisdiction. On recusal, applying the objective test of reasonable apprehension of bias from Attorney-General v Anyang Nyongo, the Court found that an adverse ruling on an application does not give rise to a reasonable apprehension of bias in a reasonable, fair-minded and informed member of the public, particularly where the litigant is an advocate. The appeal was dismissed with costs.

Key legal issues

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01

Jurisdiction of the ELC versus the High Court over a dispute on enforcement of a professional undertaking arising from a land transaction

Holding

The High Court had jurisdiction; the dominant issue was enforcement of the professional undertaking, which relates to neither the environment nor the use and occupation of, or title to, land.

Reasoning

Applying its own earlier decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the Court held that the jurisdiction of the ELC over contracts relating to land is confined to contracts incidental to the use of land. A professional undertaking is a separate contract between advocates creating an independent cause of action anchored on professional relationship and etiquette. The dominant issue before the trial court was the honouring of the undertaking, not the land transaction between the advocates' clients, which was not in issue.

p. 4
02

Recusal for alleged bias where the Judge had ruled against the applicant

Holding

There was no justification for recusal; the objective test of reasonable apprehension of bias was not met.

Reasoning

The appellant's apprehension arose solely because the trial Judge rejected his transfer application. Applying the objective test in Attorney-General v Anyang Nyongo, the Court held that a litigant's subjective perception is insufficient; the question is whether circumstances would give a reasonable, fair-minded and informed member of the public the impression that the Judge would not act impartially. Losing an interlocutory application does not create an appearance of bias.

p. 5

Legal principles established

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  • In construing whether the ELC has jurisdiction over a dispute, the consideration is the dominant issue in the dispute and whether it relates to the environment and the use and occupation of, and title to, land
  • A professional undertaking is a separate contract between advocates creating an independent cause of action, distinct from the underlying transaction of their clients; the High Court, not the ELC, has jurisdiction over its enforcement
  • The test for judicial bias is the objective test of reasonable apprehension of bias from the perspective of a reasonable, fair-minded and informed member of the public; a mere adverse ruling cannot found recusal

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(1), 162(2)(a), 162(2)(b), 162(3)
  • Constitution of Kenya, 2010Article 165(3)
  • Constitution of Kenya, 2010Article 50(1)
  • Environment and Land Court ActPreamble; section 2; section 13(1), 13(2)(a), 13(2)(d), 13(2)(e)
  • Land Actsection 150

Cases cited (5)

  • The Owners of Motor Vessel "Lillian S" vs Caltex Oil Kenya Limited
    (1989) KLR 1653 (C.A)
  • Equip Agencies Limited vs Credit Bank Limited
    Nairobi HCCC No. 773 of 2004; [2008] 2 EA 115 (HCK)
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others
    [2017] eKLR
  • Waruhiu K?owade & Ng?ang?a Advocates v Mutune Investment Limited
    [2016] eKLR
  • Attorney-General v. Anyang? Nyong?o & Others
    [2007] 1 E.A. 12
On appeal from
High Court of Kenya at Nairobi, Commercial & Tax Division
H.C. Civil Suit No. 171 of 2017 (O.S)
Jurisdiction invoked
Section 3(1) and (2) of the Court of Appeal Act / Article 164 of the Constitution (first appeal to the Court of Appeal); the judgment does not expressly state the provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates v Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates [2019] KECA 504 (KLR)", Case Analysis (2019). Civil Appeal No. 250 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/504/eng@2019-07-19

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