The following question is answered in the course of this paper:
Mr. Kawigula, a fisherman on Migingo Island, instructed his Advocate, Peter Machachari who had acted on his behalf in an earlier matter to represent him in a land transaction where Mr. Kawigula was the vendor and was disposing of his property to raise funds for school fees for his children. Time was therefore of essence in the transaction. ...
Advise the client on the following:
a) Process of taking over the conduct of the matter from Advocate Peter Machachari
b) The action he may take against the purchaser and her Advocate Kimbelembele who issued the professional undertaking
c) The action he may take against his former Advocate Peter Machachari
Table of Contents
QUESTION
ACKNOWLEDGEMENT
LIST OF STATUTES/RULES/CODES
LIST OF CASES
TABLE OF CONTENTS
ANSWER TO QUESTION 2(a)
ANSWER TO QUESTION 2(b)
ANSWER TO QUESTION 2(c)
BIBLIOGRAPHY
Objectives & Topics
This project work addresses legal and ethical issues arising from a failed conveyancing transaction where a vendor's advocate failed to ensure the timely receipt of the balance of the purchase price, despite a professional undertaking. The work aims to advise the client on the procedural steps for changing legal representation, seeking enforcement of a professional undertaking against the purchaser's advocate, and pursuing claims for professional negligence and misconduct against his former advocate.
- Legal procedures for the discharge and change of an advocate in non-litigious matters.
- Enforceability of professional undertakings given by advocates in land transactions.
- Professional misconduct and disciplinary mechanisms within the Law Society of Kenya.
- Liability for breach of contract and professional negligence in legal practice.
- Consumer protection rights of clients under the Constitution of Kenya 2010.
Excerpt from the Book
1. Introduction
A client has a right to change their advocate at any time. This has been recognised in the case of Small Wonders Limited v Honourable Attorney General in which the High Court pronounced itself on the issue of change of advocates in the following manner: …the lawyer-client relationship is a product of a contract for legal services and Courts cannot be asked to compel clients to stay in contractual relationships against their will. If for whatever reason a client considers that his/her Advocates should no longer offer him representation, he/she is free to discharge the Advocates and find a replacement.
The process of changing an advocate is, however, guided by professional standards and a standardised procedure. As correctly observed by the Environment and Land Court in the case of Stephen Mwangi Kimote v Murata Sacco Society, chaos would reign if there was no orderliness in the procedure of changing an advocate.
Our client, Mr Kawigula, has a right to change the advocate who has been acting for him in the conveyancing transaction. The process of taking over the conduct of the matter from Advocate Peter Machachari is explained in detail below.
Summary of Chapters
ANSWER TO QUESTION 2(a): This chapter outlines the legal prerequisites and standardized procedures required for a client to terminate their relationship with an advocate and appoint a successor, emphasizing the duty of the former advocate to cooperate and account for all funds and documents.
ANSWER TO QUESTION 2(b): This section explores the legal remedies available against a purchaser's advocate who fails to honor a professional undertaking, including enforcement actions via the High Court, disciplinary proceedings before the Law Society of Kenya, and potential criminal charges for fraud.
ANSWER TO QUESTION 2(c): This chapter analyzes the advocate's liability for professional negligence and breach of contract, evaluating the client's rights under the Constitution of Kenya 2010 and the standards of conduct expected of a practitioner rendering legal services.
Keywords
Professional Undertaking, Legal Ethics, Professional Misconduct, Conveyancing, Advocate-Client Relationship, Professional Negligence, Breach of Contract, Law Society of Kenya, Disciplinary Tribunal, Consumer Protection, Legal Practice, Solicitor, Vendor, Purchaser, Litigation.
Frequently Asked Questions
What is the fundamental issue discussed in this work?
The work addresses a case involving a failed land transaction where a professional undertaking was breached, leading to financial loss for the vendor and questions regarding the standards of professional conduct of the advocates involved.
What are the central themes covered?
The core themes include professional responsibility, the sanctity of undertakings in legal practice, client rights to change legal representation, and the liability of advocates for professional negligence.
What is the primary objective of the case study?
The primary goal is to provide comprehensive legal advice to an aggrieved client regarding his options for changing his legal counsel and initiating disciplinary or enforcement actions against both his former advocate and the counterparty's advocate.
Which scientific or legal methods are employed in this analysis?
The analysis employs legal research methodology, utilizing statutory provisions, codes of conduct (SOPPEC), and case law precedents from Kenyan courts to evaluate liability and procedural requirements.
What topics are addressed in the main body sections?
The main body examines the legal process for changing an advocate, the enforcement mechanisms for professional undertakings, and the elements required to establish professional negligence and misconduct.
Which keywords characterize this work?
Key terms include Professional Undertaking, Professional Misconduct, Professional Negligence, Conveyancing, and Advocate-Client Relationship.
Why is the "professional undertaking" considered so critical?
It is treated as a binding promise by an officer of the court. Failure to honor it constitutes prima facie evidence of professional misconduct and triggers the court's punitive and disciplinary powers.
What implications does the Constitution of Kenya 2010 have for this client?
Article 46 protects consumer rights, ensuring that clients receive legal services of reasonable quality. The client can argue his rights were violated due to the advocate's failure to adhere to these minimum standards.
- Arbeit zitieren
- Leonard Mwakuni (Autor:in), 2021, Process of taking over a non-litigious matter from a former advocate. Action against purchaser and his advocate and against former advocate, München, GRIN Verlag, https://www.grin.com/document/1245773
