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ELCDismissedNot stated in the judgment· [2018] KEELC 1625 (KLR)

John Karuga Wahinya v Violet Wanja Gatei [2018] KEELC 1625 (KLR)

Environment and Land Court (High Court of Kenya, at Nairobi)
19 July 2018
1,678 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a bid to force payment of Kshs.8.4 million because the settlement offers relied on were 'without prejudice' and inadmissible in court.

What this practically means

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Executive summary

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This is a ruling by E.O. Obaga, J, delivered at Nairobi on 19th July 2018, on a Notice of Motion dated 10th June 2016 by the plaintiff/applicant in a suit seeking a refund of purchase price for an aborted property transaction. Justice Muchelule had on 29th September 2010 entered summary judgment for the applicant against the respondent for Kshs.5,000,000/- with interest. Justice Mutungi on 23rd July 2015 declined the applicant's review application but allowed the respondent's application for stay and private sale of property, directing the advocates to agree on the decretal amount and, failing agreement, the Deputy Registrar to ascertain it. The advocates could not agree: the applicant's counsel claimed Kshs.11,274,595/-, the respondent's advocate offered Kshs.8,474,546/- and later Kshs.8,722,546/-. The applicant moved the court to compel payment of the sum held and an undertaking on the balance. The respondent's counsel, relying on three affidavits, argued he could not be made to pay his client's debt and that an undertaking is freely given. The court dismissed the application. It held that the offers were made on a without prejudice basis and were inadmissible; privilege extended to the letter of 1st April 2016 as part of a series of privileged communications, applying Padlock v Forrester and Oliver v Nautilus SS Co.; reference to such letters in submissions did not waive privilege; and the correct course on failure to agree was ascertainment by the Deputy Registrar. The application was dismissed with costs to the respondent.

Key legal issues

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01

Admissibility of without prejudice correspondence

Holding

The correspondence exchanged between the advocates was without prejudice and inadmissible; the applicant could not rely on it to establish an admission or a sum held by the respondent's advocate.

Reasoning

The court found the offer of Kshs.8,474,546/- was made without prejudice and never accepted, so it could not be given in evidence. The letter of 1st April 2016 offering Kshs.8,722,546/-, though not marked without prejudice, was in furtherance of privileged communications and thus also attracted the privilege under Padlock v Forrester and Oliver v Nautilus SS Co.

p. 2
02

Whether a court can compel an advocate to give a professional undertaking

Holding

The court accepted that a professional undertaking is freely given and cannot be imposed on an advocate by court order.

Reasoning

The respondent's counsel deponed that he could not be made to pay his client's debt under the guise of enforcing a professional undertaking. The applicant's own counsel conceded that an undertaking is freely given and thus cannot be ordered. On that basis the relief seeking an undertaking could not be granted.

p. 2
03

The correct route for ascertaining the amount due under Justice Mutungi's orders of 23rd July 2015

Holding

On failure of the advocates to agree, the amount due was to be ascertained by the Deputy Registrar; the applicant's failure to resort to that route delayed realization of the decree.

Reasoning

Justice Mutungi's orders required the advocates to agree on the amount and, failing agreement, the Deputy Registrar to ascertain it. Instead the applicant suspended negotiations and preferred an appeal against the review ruling. The application before the court was therefore a misconceived substitute for the prescribed mechanism, and no judgment on admission could be entered.

p. 2

Legal principles established

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  • Without prejudice privilege attaches to a series of related communications, so even letters not so marked may be privileged if in furtherance of privileged exchanges
  • Referring to without prejudice letters in submissions does not amount to a waiver of the privilege
  • Where parties fail to agree on the decretal amount, the court's direction that the Deputy Registrar ascertain the amount due must be followed; a party cannot instead move the court by notice of motion for judgment on the basis of inadmissible correspondence

Court orders

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  1. 1.The applicant's Notice of Motion dated 10th June 2016 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Cases cited (3)

  • Padlock Vs Forrester
    (1842) 3 Man & G 903
  • Oliver Vs Nautilus SS Co.
    (1903)
  • Ongata Rongai Total Felling Station Ltd Vs Industrial and Commercial Development Corporation
    (2009) eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court in a first-instance civil suit (ruling on a Notice of Motion); no specific constitutional or statutory provision invoked in the judgment.

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, "John Karuga Wahinya v Violet Wanja Gatei [2018] KEELC 1625 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1625/eng@2018-07-19

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