Hellen Ncurubi Kiramana v Prof Kiama Wangai T/A Kiama Wangai & Co Advocates

3. The Complaint was referred to the Advocates Disciplinary Tribunal (ADT) as Disciplinary Cause No. 270 of 2022, which on 29th September 2023 ordered as follows: “ The matter be and is hereby marked as settled, any further claim to be filed on a separate charge.” 4. 5. Subsequent to delivery of the Disciplinary Tribunal’s decision, the Applicant, on 14th March 2024, filed the instant Originating Summons seeking payment of interest allegedly due from August 2016 to January 2020. The Respondent opposed the application through, among others, the present Preliminary Objections on the following grounds: i. That this Honourable Court has no jurisdiction to entertain this suit by dint of Sections 57 and 60(4)(e) of the Advocates Act. ii. That the issues raised are statute-barred by virtue of Section 4(1) and 4(3) of the Limitation of Actions Act. iii. That the issues raised herein are res judicata, having been determined in Disciplinary Cause No. 270 of 2022: Hellan Ncurubi Kirimana v Prof. Kiama Wangai t/a Prof. Kiama Wangai & Co. Advocates. iv. That the Originating Summons dated 14th March 2024 offends the doctrine of exhaustion, as enunciated in Supreme Court Petition (Application) No. 4 of 2021: United Millers Limited v Kenya Bureau of Standards & 5 Others. v. That this Honourable Court lacks pecuniary jurisdiction to hear and determine this matter in view of the express provisions of Section 7(1) of the Magistrates’ Courts Act, 2015. The Objection was canvassed by way of written submissions. The Applicant, in opposition to the application, filed her submissions dated 17th January 2025. The Respondent, in support of the Objection, filed two sets of submissions, one dated 15th November 2024 and the other dated 21st January 2025. Analysis and Determination 6. I have carefully considered the two Preliminary Objections by the Respondent, the parties’ rival submissions, and the authorities cited. From the pleadings and arguments presented, the two main issues that arise for determination are: i. Whether the Preliminary Objections raise pure points of law; ii. Whether this Court has jurisdiction to entertain the Applicant’s Originating Summons. Whether the Preliminary Objections raise pure points of law 7. The parameters of a valid preliminary objection are settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court observed as follows: “ ...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration....A preliminary objection is in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16492/eng@2025-10-09 2

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nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.” 8. In Oraro v Mbaja [2005] KEHC 3182 (KLR) Ojwang J, [as he then was], cited with approval the position in Mukisa Biscuit -vs- West End Distributors (supra) and stated as follows on the operation of Preliminary Objections: “ I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.” 9. Again, in Majon v Masibo & 8 others [2025] KEHC 3497 (KLR), the Court (Mrima J) adopted the decision in Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, and stated that a Court in determining a Preliminary Objection can look at the pleadings and other relevant documents, but it must abide by the principle that it must raise pure points of law. The Court stated that: “ In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion.” 10. In the present case, the Respondent’s objections turn on whether the claim is time-barred, res judicata, or falls within the jurisdiction of the Advocates Disciplinary Tribunal. These issues evidently depend on evidence of facts, such as when the alleged cause of action arose, whether payment was made, the terms of settlement before the Tribunal, and whether the Applicant’s present claim is distinct from what was previously before that body. 11. The resolution of these questions would obviously require reference to factual documents, including fee agreements, the Disciplinary Cause record, and correspondence; matters that go beyond the scope of a “pure point of law.” 12. In the premises, the Court therefore finds that the Respondent’s Preliminary Objections, though couched as points of law, are intertwined with disputed facts and do not therefore meet the threshold of a proper preliminary objection as set out in Mukisa Biscuit (supra). 13. Having found that the objections raised in the Respondent’s Preliminary Objections do not therefore meet the threshold of a proper preliminary objection, I do not therefore find it appropriate at this stage to proceed and examine the other issues raised by the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16492/eng@2025-10-09 3

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14. Except for the Respondent’s objection to the jurisdiction of this court, which I shall shortly address, all the other issues raised by the Respondent are, in my view, matters to be canvassed at the substantive hearing of the Applicant’s Originating Summons filed herein. See Omondi -vs- National Bank of Kenya Ltd & Others (Supra), where the Court stated that: ‘…..What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts…” Whether the Court has jurisdiction 15. It is trite law that jurisdiction fiows from either a Statute or the Constitution, and no court assumes jurisdiction on its own. In the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR, the Court held that; “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 16. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR stated as follows: “ A Court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 17. The Respondent contended that the Advocates Disciplinary Tribunal has, by virtue of Sections 57 and 60(4)(e) of the Advocates Act, exclusive jurisdiction to determine disputes between advocates and clients, including those involving interest and accounting. 18. The Respondent submitted that the Advocates Disciplinary Tribunal is the specialized statutory body vested with jurisdiction to hear and determine all complaints arising from the professional (mis)conduct of advocates, including issues of accounting and interest payable to clients. The Tribunal, it was argued, is fully empowered under Section 60(4)(e) to order an advocate to pay compensation or reimbursement up to Kshs. 5,000,000 to an aggrieved client. 19. Consequently, the Respondent therefore argued that the Applicant’s recourse lies with that Tribunal, not this Court, and that the filing of the present Originating Summons offends the principle of jurisdiction and the doctrine of exhaustion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16492/eng@2025-10-09 4

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20. With respect, this submission by the Respondent overstates the jurisdiction of the Tribunal. The Tribunal is primarily a disciplinary body established to hear complaints of professional misconduct. Its powers under Section 60(4)(e) to order reimbursement or compensation are merely ancillary to its disciplinary jurisdiction. the Tribunal is not a civil court with general jurisdiction to adjudicate contractual disputes between advocates and clients, particularly where no allegation of professional misconduct is raised. 21. The relevant portions of Section 60 (1) of the Advocates Act provide as follows: - 22. “ (1) A complaint against an advocate of professional misconduct, which expression includes disgraceful or dishonourable conduct incompatible with the status of an advocate, may be made to the Tribunal by any person. (4) After hearing the complaint and the advocate to whom the same relates, if he wishes to be heard, and considering the evidence adduced, the Tribunal may order that the complaint be dismissed or, if of the opinion that a case of professional misconduct on the part of the advocate has been made out, the Tribunal may order— (a) that such advocate be admonished; or (b) that such advocate be suspended from practice for a specified period not exceeding five years; or (c) that the name of such advocate be struck off the Roll; or(d)that such advocate do pay a fine not exceeding one million shillings; or (e) that such advocate pays to the aggrieved person compensation or reimbursement not exceeding five million shillings, or such combination of the above orders as the Tribunal thinks fit.” In Republic v Disciplinary Tribunal of the Law Society of Kenya & 2 others Exparte John Wacira Wambugu [2015] eKLR - Miscellaneous Application 445 of 2013, Odunga J (as he then was) dealt with the concurrency of proceedings before the Tribunal and Court, and expressed itself as follows: “ In my view the applicant’s view that the Respondent’s jurisdiction could only arise after the succession cause had been determined is with due respect misconceived. There are complaints which can properly arise during the course of litigation which may properly form the subject of disciplinary proceedings before the Respondent. One such complaint could be the failure to answer correspondences. Such a complaint does not have to await the determination of a particular case before the same can be entertained by the Respondent. Therefore as long as the Respondent does not purport to usurp the powers reserved for the Succession Court, I do not see how its entertainment of a complaint arising from the manner an advocate is handling a succession cause can be said to fall outside its jurisdiction. In other words the mere fact that a matter is the subject of court proceedings does not ipso facto deprive the Respondent of the jurisdiction to entertain a complaint arising therefrom as long as such a complaint is properly one that it is empowered to entertain.” 23. In the present case, the Applicant’s Originating Summons seeks computation and payment of contractual interest arising from a settlement or payment arrangement. No allegation of professional https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16492/eng@2025-10-09 5

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misconduct is pleaded. This is a civil claim of a contractual nature, properly falling within the jurisdiction of this Court. 24. Accordingly, this Court finds that it is properly seized of jurisdiction to hear and determine the matter. The objection grounded on Sections 57 and 60(4)(e) of the Advocates Act is therefore without merit, and is accordingly dismissed. 25. The other jurisdictional issue raised by the Respondent is pecuniary. The Respondent argued that the Court lacks pecuniary jurisdiction in view of Section 7(1) of the Magistrates’ Courts Act, 2015, which limits the civil jurisdiction of subordinate courts based on the value of the subject matter. 26. Citing Section 11 of the Civil Procedure Act, it was submitted that the Applicant’s claim, being for Kshs. 1,025,000 as interest, falls squarely within the pecuniary jurisdiction of the subordinate court, and that the High Court’s jurisdiction, though unlimited under Article 165(3)(a) of the Constitution, must be exercised in accordance with statutory provisions regulating the filing of civil claims in the hierarchy of courts. 27. This Court is of the view that while the amount in question is within the subordinate court’s limit, Article 165(3)(a) of the Constitution vests the High Court with unlimited original jurisdiction in civil matters. The Court is alive to the provisions of Section 11 of the Civil Procedure Act, which provides that suits be instituted in the lowest competent court; however, I am, I am of the view that that provision is a rule of convenience, not a jurisdictional bar. 28. In any event, the instant proceedings have been commenced pursuant to the provisions of Section 48 and 52 of the Advocates Act of Kenya, and Order 52 Rules 4 (1)(b), (2) & (5) of the Civil Procedure Rules, which empowers this Court to among others, order an advocate to deliver accounts and documents. Order 54 Rule 4 provides that: “ (1) (2) 29. Where the relationship of advocate and client exists or has existed the court may, on the application of the client or his legal personal representative, make an order for— a. The delivery by the advocate of a cash account; b. the payment or delivery up by the advocate of money or securities; c. the delivery to the applicant of a list of the money or securities which the advocate has in his possession or control on behalf of the applicant; d. the payment into or lodging in court of any such money or securities; e. the delivery up of papers and documents to which the client is entitled. Applications under this rule shall be by originating summons, supported by affidavit, and shall be served on the advocate.” It is trite law that the relationship between an advocate and a client is governed by the Advocates Act, Cap 16 of the Laws of Kenya, together with the subsidiary legislation promulgated thereunder. The Act and the Regulations made thereunder are a complete code and empower the High Court to, among others, order an advocate to deliver accounts and documents to a client. See BEHAN & OKERO, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16492/eng@2025-10-09 6

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ADVOCATES v NATIONAL BANK OF KENYA LIMITED [2011] KEHC 861 (KLR), where the Court stated that: “ The court is being asked to exercise its inherent powers in deciding this application. The Advocates Remuneration Order is a complete code providing the way taxation and execution thereof is to be done.” 30. In the premises, I am satisfied that this Court has the requisite jurisdiction to entertain and determine the Originating Summons filed herein. The issues raised in the Application fall squarely within the scope of the Advocates Act and Order 52 Rule 4 of the Civil Procedure Rules, both of which expressly confer authority upon the High Court to supervise and regulate the conduct of advocates in their dealings with clients, including the rendering of accounts. 31. In the result, both Preliminary Objections dated 18th June 2024 and 24th October 2024 are hereby dismissed with costs to the Applicant. 32. The suit shall proceed to hearing on its merits. 33. It is so ordered. SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS 9TH OCTOBER 2025 ADO MOSES JUDGE In the presence of: C/A – Moses …...………….….. for the Applicant .....………….…..... for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16492/eng@2025-10-09 7

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