Description

CIVIL APPEAL NO 48 OF 1994-1

BETWEEN

KENYA REINSURANCE  . APPELLANT

1. E. M/S V. E.

( Appeal from the judgment. and  of the High Court  at Nairobi (Mr. Justice a . W. Mwera) given on 16th day of July, 1991

H.C.C.C. NO. 4060 OF 1967

Although the memorandum of appeal contains nine grounds of appeal, this appeal raises primal* i I y four main points which are

1. Can professional undertaking given by an advocate be subject to watering down on account of a dispute between the advocate’s client and the party to whom t. he undertaking is given?

Does it fall ta the advocate to take up, on behalf of his client, defenses which could be open to the client in a claim for enforcement of an undertaking?

If a cheque is sent for redemption of charge which cheque is not accepted, does payment of interest under the charge cease?

iv . Can a court allow a counter—claim made by the advocate on behalf of his client when the client. is not even party to the suit?

The backgrcjumcl t.r-‘ this appeal is e. imp I e. By a letter cla.t.er.!

April, 1986 the respondent advocate sought to fr•orn t hž appellant corporation the. outstanding ba lance of loan under a charge on plot L. R. No.  “‘736 ( the property ) tr.’

enable him to prepare the discharge n f charge ancl transfer of the property from his client. Harjit Singh Mat.haru to his other client

Much iri Gathungut . •This letter af Z£.’ncl April, 1986 was replied to by the appe l•lant stating that the appellant s advocates will respond thereto . The appellant sc wrote to the respondent cm 26th June , 199?, . By another letter of the sarae clate , in which the appellant corporation enclosed a copyof a letter fram Harö it. Singh Hatharu and in which Mat.haru had set out what he thought he owed the appellant. corporation. the ar-•gellant c.orvcration nevetheless , reiterated in that letter to its advocates M/ s. CJraro & Rachier what in its view Matharu owed it, as follows:

The redemption : eanaunt.=as •at• -30th- June , 19B B is I’,shs .  Thereafter interest cjf Kshs. 1.50.50 . accrued daily and premiums of Kshs. 201 .00 and Kshs. 111/ = for Mortgage Yrot,eat.ion Assurance ancl Houseowners Insurance policies respectively accrue monthly in advance – Please also note that the following are a Isa payable as part of the  redemption moneys: