Sometimes Lawyers Can Be Utter Trash

I was watching the news with my parents (yes, I’m a millennial still living at home with my parents under the crushing weight of a HELB loan) and that feature on the athlete (#PoorMillionaire) who got conned of his money by his lawyer, prompting a snide “Lawyers are thieves. I hope I raised my son better than that” remark from my mum.

jake-meme

(This was me pretending not to listen to my mother working furiously on arranging my diary for the coming week. It was a Sunday night after all).

patience-ozokwor-in-code-of-silence
“Did you not hear me? I hope I raised my son better than that.”

Me:

giff

Yeah, yeah, yeah. Lawyers are thieves. Shakespeare said that he would like nothing more than to kill all the lawyers.

But on a serious note, look at this guy.

terer

He vied for MCA….with your money.

He became Speaker….with your money.

He goes to Israel for benchmarking….with your money.

He wants to be an MP…with your money.

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Now I ain’t saying he a…

gold_digger

An advocate is held to a higher standard. The Advocates Act (it’s a fairly lengthy document that gave me no joy in my Ethics class – there are worse things to do on a hot Thursday afternoon in Karen) has a longish list of dos and don’ts for advocates. One of them (although not in the statute) is the advocate’s fiduciary duty to the client. In simple terms, it means that because of his/her position as your adviser/counselor/lawyer, he/she owes you a higher duty of care, as was held in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. 

This extends to:

Competence and exercising due skill, care and diligence: Please try not to [redacted] up when instructed by your client.

Confidentiality: No snitching

Good faith: Doing things that are in the best interest of your client

Avoiding conflicts of interest

Duty not to make a secret profit, and because the unethical bone is strong, you have a duty to account for such secret profit if you actually made it: Don’t be greedy. The client is already paying you legal fees. Don’t piggyback on the client’s transaction.

What Terer allegedly (they remain allegations at this point) did is nothing in comparison with the case of John Kamau Kinyanjui. I mean, when the Court of Appeal in its dicta says: “We do not know if [the appellant] is still a practicing advocate, but our hope is that he is not.” Then you, my friend, have egregiously [redacted] up.

The facts

Mr. Kinyanjui was, by all accounts, the kind of lawyer who, ah, never mind, you’ll see it for yourself. He somehow got the brief to represent the families of wardens who died in a tragic road accident in 1994 in a “wholly questionable” manner (according to the Court of Appeal), namely, by instructing a freelance agent to secure the said clients for him based on a belief that Mr. Kinyanjui had exclusive authority from the Attorney General to negotiate compensation on behalf of the families of the deceased persons. He further went on to obtain limited grant of letters of administration for the purposes of filing suit for compensation on behalf of the families of the deceased and proceeded to file the suit.

He again somehow (this word “somehow” will appear quite often when we’re dealing with something I can’t personally explain, like whether UFOs exist) entered into a consent (settlement) with one DM Kinyanjui, a State Counsel at the State Law Office. The two Kinyanjuis had previously worked together at the State Law Office. They conspired on terms, leading to the disbursement of two cheques, one dated 7th June 1996 for Kshs.52,170,300/- and the other dated 18th June 1996 for Kshs.23,439,300/-.

Somehow, the police did their jobs (for once) and determined that both Kinyanjuis were up to no good, like crack dealers in the hood. They stopped the second cheque (the 23 million) cheque, but a huge chunk of the 52 million big ones, had vanished into thin air. To be fair to the advocate, he had made some payment to some of the family members of the deceased persons (but he had a jackpot with the bulk of the money).

At the trial before the Magistrate’s Court, Mr Kinyanjui admitted to transferring the money from account to account because the cops had gotten wind of his scheme and he was obviously preventing them from freezing his accounts (which contained other clients’ money – not just the warders). The trial court found him guilty and convicted him on eighteen of the twenty-three counts of theft by an agent contrary to section 283 (c) of the Penal Code.  The sentence was a fine of Kshs.50,000/- on each count. He was further ordered to make restitution to the Attorney General on the balance of the amount which he had received but not yet paid out to the said beneficiaries within fourteen days from the date of the delivery of the judgment. He appealed to the High Court. The prosecution also appealed because they felt that the sentence meted out was too lenient. The two appeals were consolidated and heard concurrently.

The High Court Appeal (case reported as Kamau John Kinyanjui v Republic [2004] eKLR)

Mr. Kinyanjui’s grounds of appeal were that he did not steal, he was merely exercising his right of lien over unpaid fees.  He also claimed that the complainants (the families of the victims) did not have valid letters of administration to sue, and therefore they could not have instructed him as their lawyer.

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The High Court bench of Kubo J and Kimaru Ag J (as he then was) agreed with the prosecution, namely, that this guy was the fraud to end all frauds.

He was guilty of soliciting for clients:

“From the onset the appellant’s intentions are manifest. It did not matter that the appellant was engaged in unprofessional conduct in the first place by soliciting for clients, contrary to the advocates’ professional ethics.”

The two Kinyanjuis had conspired in the scam

“DM Kinyanjui did not therefore negotiate a settlement with the appellant. He endorsed the appellant’s proposals. The said purported negotiations took place without the knowledge of the senior legal officers at the State Law Office…It is instructive to note that there was no evidence that correspondence was exchanged as between the appellant, the Attorney General’s office and the Ministry of Home Affairs indicating that there were ongoing negotiations as between the appellant and the said offices concerning the issues related to out of Court negotiations leading to settlement. From our re-evaluation of the evidence on record, it is clearly evident that DM Kinyanjui was a vital cog in the scheme hatched by the appellant to get money from the Ministry of Home Affairs in the guise that the appellant was pursuing compensation on behalf of the families of the deceased persons.”

He had no intention whatsoever to pay out the money

“The appellant had no intention of paying the said amount to the deceased persons’ families. That the appellant had the intention to convert the said amount without reference to the beneficiaries of the deceased persons’ estate is without doubt…As earlier stated in this judgment, the appellant put in place a scheme whereby he would purport to act on behalf of the estates of the deceased persons but in reality he never ever intended that the estates of the deceased persons were ever to benefit from the compensation paid.”

He abused his professional capacity

“It is the finding of this Court that the appellant did abuse his professional capacity to dupe ignorant and in some instances illiterate relatives of the deceased persons into providing him with a vehicle for achieving his aim of fraudulently obtaining money from the Ministry of Home Affairs.”

Sounds familiar?

The court found that his defence was utter trash

“It is our considered view that the appellant’s defence has no merit. The appellant cannot seek to hide behind legal rules where it is clearly proved that he was engaged in a criminal enterprise. The appellant in this case did not act as an advocate. He used the fact that he is an advocate as a cloak to put in place a scheme to defraud the estates of the deceased persons of what was rightly due to them.”

"Should we dismiss this appeal or nah?"

“Should we dismiss this appeal or nah?”

And because his defence was trash and his actions were even trashier, the court bumped up his sentence. It set aside the twelve months default imprisonment and substituted it with “…4 (four) years imprisonment on each of the counts of which he was convicted, the said sentences to run concurrently.” The fine was also upheld.

 

The High Court constitutional petition (case reported as Kamau John Kinyanjui v Attorney General [2005] eKLR)

Mr. Kinyanjui, took this L as expected (basically, he refused to take the L).

Take this L you will
Take this L you will

He filed a constitutional petition through an originating summons citing Sections 3, 60, 70, 72, 77 and 84 of the now repealed Constitution, seeking determination of some questions, namely whether the office of the DPP had any mandate to carry out the prosecution of the appeal, and whether his rights to a fair trial were violated. His argument was that the two judges (Kubo J and Kimaru Ag J (as he then was)) had acted without due process in bumping up his sentence which “violated the fundamental constitutional rights of the applicant”, because the matter “had received negative publicity by the press ……. depicted me as a heinous crook – which negatively impacted and influenced the court in the said appeal and revision thereby approaching the hearing and judgment with a predetermined mind.”

Yeah, I’m reading that part just like you are. Like this.

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Nyamu and Emukule JJ expounded on the principles of the jurisdiction of the High Court under section 84 of the repealed Constitution. Ibrahim J (as he then was) dissented. However, we’ll not go to the merits of constitutional interpretation because this particular post is dedicated to the trashiness of Mr. Kinyanjui and not the finer nuances of Maharaj v Attorney-General of Trinidad and Tobago (No 2) Privy Council [1979] AC 385.

Anyway, the three-judge bench of Nyamu J (as he then was), Emukule J and Ibrahim J (as he then was) agreed that the application was trash and promptly dismissed it.

trashcan-dont-pollute

 

The Court of Appeal (case reported as Kamau John Kinyanjui v Republic [2010] eKLR )

Again, Mr Kinyanjui refused to take an L. He appealed to the highest court in the land (at the time). He might be what Ringera J (as he then was) described as vexaious and frivolous in Mpaka Road Development Co. Ltd v Abdul Gafur Kana T/A Anil Kapuri Pan Coffee House [2001] eKLR .

The grounds of appeal were that there was no complainant. According to Mr. Kinyanjui, the families of the deceased (who had no locus anyway because there were no letters of administration) were not proper complainants.

"We've aready been through this..."
“We’ve already been through this…”

The three judge bench of Omolo, O’kubasu & Onyango Otieno JJA respectfully disagreed (if it were me, I’d not take certain liberties with my language, which is why you’ll never see yours truly as a judge). They held that anyone can make a report to the police on a criminal matter and the Republic becomes the proper complainant. Mr. Kinyanjui’s grounds bordered on the farcical and the bench used this analogy to show how much this guy was stretching.

“But if a person be dead and another person, whether it be a relative, a neighbour, a friend or a total stranger goes and makes a report of a crime in respect of the estate to the police, the Attorney-General, or any other authority is the person reporting the alleged crime to be told by the person to  whom the report is being made:-

 “Before I can take action on your complaint, may I see, the letters of administration which you have obtained from a competent court?  If you have not obtained letters of administration, go and obtain them first before you can report the alleged crime against the estate.” 

No sensible system of criminal justice can operate in that fashion.  The fallacy in the appellant’s argument lies in the fact that he is confusing the purpose of a criminal prosecution with the purpose of claim in civil litigation where the claimant gets the estate of a deceased person with rights pertaining thereto vested in himself or herself to distribute the assets or liabilities of the estate in accordance with the law.”

However, they too, reached a point of exasperation with the antics of Mr. Kinyanjui and told him where to go.

“The appellant contended here that as there were no competent complainants or persons to whom he could account to for the Kshs.52,170,700/-  ….  This contention is as strange as it is farcical.  Right from the beginning, the appellant knew he was acting on behalf of dead people.  But someone must have instructed him to act for the dead people.  He did not demand from those who had instructed him that they show to him their letters of administration or that they obtain such letters.  If the people on behalf of whom he acted had no capacity to receive the money in the first place, why did the appellant himself receive it?…. He was receiving the money as a lawyer on behalf of his clients.  For him to now turn around and claim that he did not know who those clients were and therefore, could not pay out the money is ridiculous and mischievous.  He removed the money from the clients’ account and hid it in a place only known to himself.  No law entitles a lawyer to do that; if there was such a law, it would only encourage what Kenyans now constantly refer to as “impunity”. 

 In our considered view, there is no law which empowers an advocate to remove money which does not belong to him from his clients’ account and hide such money in an account known only to the lawyer.  That, with respect to the appellant, is stealing the money and as the money was received for and on behalf of the client, the theft is described as theft by an agent.”

Bottom line: This guy was trash and deserved everything that he got.

If I were Terer…

0jfrugb

Martin Maitha

Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.

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About Martin Maitha 16 Articles
Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.