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The Advocate’s Mistake

It’s a tough question, but one that must be examined. LawAfrica’s Charles Kanjama studies the authorities and poses this question: In what circumstances should the Client suffer for his Advocate’s Mistakes?

One of the most common sights in our courtrooms is of a flustered advocate stammering through an apology for his blunder while pleading that such mistake should not be allowed to visit suffering on his client. Such advocate would undoubtedly rely on a long list of respectable and veritable authorities, dating way back to and even beyond the much-cited ratio of Harris J in Mbogo v Shah 1967. Harris J, when confronted with an application to set aside an ex parte judgment, had said in these memorable words:

“The court’s discretion to set aside a judgment obtained ex parte … is exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the course of justice.”

Yet recently in Trust Bank v Portway Stores 2001, Ringera J, has thrown down an already tottering edifice worked and reworked by decades-long jurisprudence. He asks,

“If the acts or omissions of other agents with actual or ostensible authority in other spheres of life are not without consequence on their principals, why should it be different in the legal profession?”

It is not a novel question. Its opposite was raised a decade earlier in Ahmed v Highway Carriers 1988 where Gachuhi J.A. commented:

“It is the law of agency that the principal should be bound by the acts of his agent. Yet in administering justice, why should the litigant suffer due to the mistakes and errors of his advocate?”

This same question of how far to go in excusing the litigant for the faults of his advocate has also been the painful subject of the recent controversies regarding “the unqualified advocate”.

In Murai v Wainaina 1979 the applicant sought an extension of time to file a notice of appeal. The delay had been occasioned by the advocate’s mistaken belief that he needed a formal order before lodging the notice. The court held that a forgivable blunder includes both an error of law as well as an error of fact. An error of law by itself can be sufficient reason to extend time. Madan JA was convinced that even a stubbornly held erroneous view was a pardonable mistake. Miller JA concurred, adding that in some circumstances there is a very thin line between mistake and negligence as such.

In Pithon Maina v Mugiria 1983 the court reiterated and approved the ratio in Shah v Mbogo. There had been an ex parte judgment in default of attendance by the defendant’s advocate at the hearing. The advocate sought indulgence for his absence, urging the court not to punish his client. The court did a remarkable analysis of the law and concluded that the respondent could be compensated by costs for the advocate’s dilatoriness. Kneller JA held that the appellant should not have been denied a hearing even if his conduct amounted to negligence.

The question of what is an excusable or genuine mistake by an advocate is one that has continued to trouble the court. In A.G v Theuri 1985 the court affirmed that extension of time would only be allowed on the basis of an advocate’s mistake if the same was genuine. In Bouchard International v Mwereria 1987 the defendant and his advocate failed to appear at the hearing of the suit. The same was heard ex parte and judgment entered. The defendant applied successfully for the same to be set aside and the plaintiff appealed. Apaloo JA dissented from the majority decision partly on the ground that to excuse the advocate’s negligence would obstruct and delay the course of justice. Platt and Masime JJA carried the majority decision where they effectively proposed forgiving even a deliberate omission of counsel if the merits of the case required it.

In Ahmed v Highway Carriers 1988 the defendant’s application to file a defence out of time was dismissed. He instituted a second application once default judgment was entered against him. The High Court declined to grant the application, mainly on the ground that the advocate’s tardiness was deliberate. On appeal, it was held that a litigant should not suffer for his advocate’s mistakes: “If the court should be inclined to punish the advocate, it should state so and choose the appropriate punishment without injuring the litigant’s rights.”

It seemed clear that the Court of Appeal would not brook injury to litigant’s rights arising from an advocate’s even deliberate mistake. The position could not last. In Mawji v Lalji 1993, Kwach JA came out strongly to tilt the scales in the continuing see-saw of litigant rights versus agency principles and the restless pendulum of advocate’s negligence versus obstruction of justice. In an application for extension of time to file a memorandum and record of appeal, the delay was explained to have been due to the appellant advocate’s mistaken view that a certified record of proceedings was required.

“All said and done,” Kwach forcefully commented, “the applicant finds himself in this position because of negligence, pure and simple, on the part of his advocate.” In distinguishing a genuine mistake from negligence, Kwach wholeheartedly approved and applied mutatis mutandis Lord Griffith’s ratio in Ketterman v Hansel Properties 1988. Lord Griffith had minced no words:

“Legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of lawyers to fall on their own heads rather than allowing an amendment at a very late stage in the proceedings.”

Kwach’s ‘error v/s negligence’ distinction, which went beyond the Shah v Mbogo ‘error v/s deliberate obstruction’ test, struck a resonant chord in the subsequent decisions in Kinuthia v Mwangi 1996 and Muniu v Giovanni 1998. In the former case, the bench held that pure and simple inaction by an advocate does not amount to a mistake such as to attract the positive exercise of discretion. In the latter case, the appellant sought to have a default judgment set aside; his advocate claimed the non-attendance occurred when by inadvertence the hearing date was not noted in her diary.

Mwera J had not been convinced that this was an adequate reason, posing the rhetorical question, “Should it go that since an advocate’s error or oversight should not be visited on his client and for that alone the judgment herein should be set aside? What of the indolent, reckless, indifferent or otherwise unjust acts of some lawyers to the detriment of one party?” On appeal, the bench reversed Mwera’s conclusion and held that the advocate’s error was excusable.

In 1998, Lakha JA in Tononoka Steels v PTA Bank once again set the legal see-saw in turbulence. In his opinion, the proposition that an advocate’s negligence ought not to be excused was too wide. In any case he reasoned, “Mistakes… normally arise through negligence.” This was practically a rebuttal of Mawji v Lalji. Against the trend of his own ratio however, he cited his decision in Grindlays Bank v Barbour to aver, in support of Mawji v Lalji, that ignorance may not be equated to mistake.

In Mwangi v Kariuki 1999, Shah JA ruled that mere inaction by counsel should only support a refusal to exercise discretion if coupled with a litigant’s careless attitude. “Rules of procedure,” he considered, “are good servants but bad masters.” In a homily that would do well to be addressed to the entire Appeal Court bench, he noted, while referring to two 1962 English decisions, “I bear in mind that this is the last Court for any litigant in this Republic… and the tendency of the court ought to be to give a chance to the litigant to be heard on merits as far as possible. I am of course mindful of the fact that our rules of procedure have had their origin in England and the tendency in England is to move away from form to substance.”

The uncertainty surrounding advocate mistake cases stands out in three subsequent rulings of Shah JA. In Patel v Ndirangu 1999 he opined that the advocate should lodge the notice of appeal ex abundanti cautela, without having to seek further instructions. He however concluded that the failure to do so timeously was just mere inaction and not a mistake as per counsel’s bland averment. This view was upheld in Migwani Helpers v Hamidas Boutique 1999.

The delay in lodging the notice of appeal was two months in the former case and three months in the latter. In Gathoni v Kabugu 2000 the delay was almost five months. This time the Shah of Mwangi v Mwangi was back. “Should the litigant suffer for employing a counsel who is wanting in brightness?” he asked. “If no prejudice is suffered… a chance ought to be given to the litigant to have his final say in the highest court in the country.” Partly on the ground that “the parties are ordinary folk who have no knowledge of the intricacies of procedure or law,” Shah exercised his discretion to allow lodgement of the notice of appeal out of time.

In the last two years, the Appeal Court’s decisions have resulted in an ever more bewildering quagmire of law. In Niazsons v China Road 2000 and Musa v Ereri Co 2000 for example, one-year and eighteen-months delays respectively before lodging appeals were deemed adequately excused by advocates’ mistakes. In the former case the Appeal Court had, suo motu after full hearing, struck out the previous appeal for incompetence because no leave had been sought. In the latter case the appeal had three times been struck out because the parties had been misnamed in the consolidated appeal. In Osmond v Daima Bank 2001, the advocate’s mistake was the erroneous view that certified copies of proceedings were required. This mistake, which had resulted in the previous notice of appeal being struck out, was accepted as valid to extend time for filing a fresh notice of appeal. In Municipal Council of Thika v LG Workers Union 2001, service of the notice of appeal had been inadvertently overlooked during a change of the advocate on record. Lakha JA found that a 23-day delay in serving the notice of appeal was inordinately long and hence not excusable.

Having gone through our LawAfrica Law Reports databases, it appears that there are hundreds of such perplexing and evidently incongruous decisions, which cannot be explained away as based on widely disparate circumstances. In one moment, an advocate’s negligence or inaction is excused and a litigant indulged. In the very next moment, an inadvertent omission by an advocate is dismissed off-hand by the Court. In truth the whole charade has almost become a game of musical chairs with one never being too sure where the decision will fall when the music stops. The Appeal Court is in its element in using technical objections to strike out appeals, even suo motu after full hearing. Shortly thereafter, a differently constituted bench revives the appeal on the ground of excusable mistake by an advocate.

One cannot help sympathising with the advocate whose technical blunder attracts such a heavy sanction and with the client who is thereby deprived of a timeous remedy. Yet as Ringera J has commented recently in Trust Bank v Portway Stores, “[why should] the errors of a duly instructed advocate who is obviously the agent of the instructing party… not be visited on his principal?”

Cases cited in this analysis: Court citation LLR citation

1. Mbogo v Shah [1967] E.A. 116 (reported)
2. Murai v Wainaina [1978] LLR 2782 (CAK)
3. Pithon Maina v Mugiria [1982] LLR 49 (CAK)
4. A.G v Theuri [1985] LLR 240 (CAK)
5. Bouchard International v Mwereria [1985] LLR 1418 (CAK)
6. Ahmed v Highway Carriers [1986] LLR 258 (CAK)
7. Ketterman v Hansel Properties [1988] 1 All ER 38 (reported)
8. Mawji v Lalji [1992] LLR 2778 (CAK)
9. Kinuthia v Mwangi [1996] LLR 505 (CAK)
10. Grindlays Bank v Barbour [1995] LLR 447 (CAK)
11. Muniu v Giovanni [1997] LLR 613 (CAK)
12. Tononoka Steels v PTA Bank [1998] LLR 804 (CAK)
13. Mwangi v Kariuki [1999] LLR 2632 (CAK)
14. Patel v Ndirangu 1999] LLR 1057 (CAK)
15. Migwani Helpers v Hamidas Boutique [1999] LLR 1063 (CAK)
16. Gathoni v Kabugu [1999] LLR 949 (CAK)
17. Naizsons v China Road [2000] LLR 80 (CAK)
18. Musa v Ereri Co [1999] LLR 177 (CAK)
19. Osmond v Daima Bank [2001] LLR 3439 (CAK)
20. Mun. Council Thika v LG Workers Union [2001] LLR 3033 (CAK)
21. Trust Bank v Portway Stores [1997] LLR 1197 (CCK)