LEGAL AID: Can I sue my lawyer for negligence?

Lawyers are also bound by the laws of the land and can be taken to task to account for their misdeeds. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • Lawyers are expected to have a higher calling to observe a strict code of professional conduct while dealing with clients
  • A breach of this code of conduct, to which most swear an oath to keep when being admitted to the bar, amounts to professional misconduct

Question

Hello,

I am writing to ask if I can seek any action in court against a lawyer who was meant to file our succession case in court.

My Dad passed away last year and we gave her the relevant documents and she had prepared them last year around November. When we try to get her she says the date has been moved. I did some reading and it says she should have had an announcement in the Kenyan Gazette which she still has not done. 

Additionally, last year my Dad has Mumias Sugar shares and now they are under receivership which means we will not be able to sell those shares because of her negligence.

Is there anything I can do to seek for damages from the lawyer (she represents my mum)? 

Please advise.

Answer

Dear Reader.

Your state of distress raises two important issues: one, is the need to share information which describes the process of land succession: and two, the professional threshold of a practicing advocate. In both situations, you and others with similar challenges have a right to knowledge.

The law of succession is invited when a person dies and has property which require sharing or transfer. This law envisages two scenarios: testate succession, which is the transfer of deceased property as directed by her or his WILL OR TESTAMENT.

Ordinarily, the testator (being a person who has written a will) appoints another, known as an executor to manage and eventually distribute the property upon death. Although the executor derives authority from the will, the court must affirm authenticity of the said will.

Intestate succession, which is the most common scenario is caused when a person dies WITHOUT A WILL. At such moments the rules of intestacy take effect through a court process. The rules consider that immediate family, comprising of spouse and children be granted the property as first preference. In the event that immediate family is dead or non-existent for one reason or another, then relatives such as parents, brothers, sisters, cousins, nephews and nieces are considered to accede the property. Should, the situation arise that none of the aforementioned persons are not traceable, then the property is devolved to the state.

Intestate succession process commences with completing appropriate Probate and Administration (P&A 80,5,11, 12, 38 & 57) forms and attaching thereto certified copy of the deceased’s death certificate; applicant’s identity card; a letter from the area chief listing  all the beneficiaries; identity cards of all sureties; proof of ownership of the property of the deceased e.g. Title deeds, logbooks etc.

The documents are then filed in court and appropriate fees paid including gazettement fees.  Afterwards, the succession notice is published in the Kenya Gazette and if no objection arise within 30 days, grant of letters of administration is issued six months after gazettement.

Without being prejudicial to the advocate, the import for professional conduct is not debatable. As a professional society, lawyers are expected to have a higher calling to observe a strict code of professional conduct while dealing with clients. Besides, like other citizens, lawyers are also bound by the laws of the land and can be taken to task to account for their misdeeds.

Therefore, a breach of this code of conduct, to which most swear an oath to keep when being admitted to the bar, amounts to professional misconduct. In this context an aggrieved person is entitled to redress.

The redress is tripartite: first would be to lodge a complaint with the Law Society of Kenya, in particular the Advocates Complaints Commission or the Disciplinary Tribunal: second, where one thinks that the Law Society of Kenya would not guarantee fairness, a direct filing of a suit in a court of law laying down the alleged transgression: and third, is where both the lawyer and the aggrieved person seek intervention by another party within the alternative dispute resolution approaches.