Prof. Paul Musili Wambua v John Katiku and 3 Others, civil suit no. 40 of 2015
On February 18, 2015, Professor Musili Wambua in Civil Suit No. 40 of 2015 moved to the High Court seeking orders to have the LSK Disciplinary Committee be barred from hearing a dispute in which his former partners at Wambua, Katiku and Musyoka advocates accused him of theft of the company funds and misrepresentation. He also sought temporary orders barring his former partners from transacting in any manner with the company funds pending hearing and determination of the substantive suit. Per the suit, to be determined by the court, was whether the Disciplinary Committee had jurisdiction over partnership disputes even where the partnership deed specified a particular mode of dispute resolution.
In dismissing Prof. Musili’s application, the court ruled that the Disciplinary Committee had jurisdiction over all matters touching on the ethical and professional conduct of its members (LSK). The court further opined that the LSK Act only provided recourse to the High Court where a party was dissatisfied by the decisions of the committee. In its obiter dicta, the court distinguished between an inter partes dispute, which an arbitration committee provided for by the partnership deed between Musili and the respondents had jurisdiction over and ethical and professional conduct against which the Disciplinary Committee had jurisdiction. The court ruled that the two processes could run concurrently.
Professor Musili Wambua had been a partner at Musyoka, Wambua and Katiku from March 4, 2009 to September 6, 2013 when he resigned via a public notice published in the Kenya Gazette.
Brief facts
In a letter dated, March 19 2015, John Katiku, a partner at Wambua Katiku and Musyoka Advocates, registered a complaint with the Disciplinary Tribunal challenging Prof. Musili’s alleged continued involvement in firm affairs. In a sworn affidavit, Katiku complained that Prof. Musili had continued to interfere with the affairs of the firm even after retiring as a partner one and a half years earlier. He further accused Prof. Musili of fraudulently and deceitfully obtaining a letterhead of the firm which he used to misrepresent himself to third parties as a partner, and to fraudulently obtain the firm’s bank account statements. This misrepresentation resulted in a loss of Sh6,003,082 of the firm’s monies which were deemed stolen by Prof. Musili.
Considered position
Disputing these facts, Prof. Musili approached the High Court with a suit of his own. Primarily, he argued that the Dispute Tribunal was not competent to hear Mr Katiku’s complaint since the firm’s partnership deed was very clear that any disputes arising in the course of the partnerships would be determined by a single independent arbitrator. He further deponed that he had entered the partnership against a background of a non-disclosure of all material facts by the respondent who, he argued, had numerous active disciplinary proceedings before the tribunal which he had failed to disclose to his fellow partners. According to Prof. Musili, the respondent had continuously run the firm as his personal venture with little or no accountability to his fellow partners. It is this application that the court threw out while directing that the disciplinary hearing instituted by Mr Katiku proceed.
Disciplinary proceedings duly commenced. The respondent, Prof. Musili, however, failed to enter appearance when the complaint came up for plea on March 2015. He would carry on with this absenteeism throughout the hearing forcing the tribunal to hear the matter on the information of the complainant’s affidavit. Among others, Prof. Musili was accused of a fraudulent transfer of up to Sh6,003,082 to Mutuku Holdings Limited – an entity he is suspected to own – as well as instigating correspondence with Kenindia Insurance which culminated in the payment of Sh2,691,000 to the firm’ client account which he would later withdraw. It is on these facts that the Tribunal found him culpable, and proceed to rule that he either refunds or accounts for the missing cash.
Unhappy, Prof. Musili, approached the High Court under a certificate of urgency seeking a review of the committee’s decision. He asked that the court grant him a writ of certiorari quashing the Disciplinary Tribunal’s decision and further, a prohibition order estopping the same tribunal from sentencing him for any of the alleged offences of theft. In his defence, he pointed out that the tribunal had convicted him even in the absence of audi alteram partem – his right to be heard. Though acknowledging the tribunal’s summons, he pointed out that he could reasonably not be able to honour them as he was engaged in two other forums, in the High Court and the Arbitration. This application was summarily dismissed by the court.
The effect of this determination was that the Tribunal’s judgment continued to be in force. Catastrophically, Prof. Musili is now obliged to appeal to the Registrar of the High Court for a special waiver of the LSK’s decision not to renew his license. Recent history, however, predicts this to be a near futile task. Even as Prof. Musili continues to suffer the consequences of his actions, left in limbo are his clients who run the risk of having cases held by Prof. Musili dismissed by the court as he is now disqualified as an advocate of the High Court of Kenya.
Contempt
While Prof. Musili may continue to protest his innocence, other inactions on his part state otherwise. In another controversial matter involving him, he is likely to be cited for contempt of court for disposing of shares in a company despite the existence of a court order. In “HCCC No. 259/08 Kinoiyo ltd v Paul Musili Wambua and others”, it is alleged that Prof. Musili was in the process of disposing off assets of company known as Cable Television Network Limited where he is a director, without the authority of other directors and shareholders, the plaintiffs in the suit.
The implication of is that Prof. Musili not only ceases to be an advocate of the High Court, he is also liable for over six million shillings in debt for stealing client’s money not to mention suffering a growing reputation as a wily character who has continuously engaged in fraudulent deals at the loss of his partners.
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