Justice Agnes Nzei.
Justice Agnes Nzei was midway through delivering a judgment in a heated employment dispute on December 6, 2024, when she said that the defendant, Mombasa law firm Kadima & Company Advocates, had not given any evidence in the case.
The law firm, headed by seasoned lawyer Francis Kadima, is fighting off a Sh32 million claim by another Mombasa-based lawyer, John Makokha Afwokoh Saisi, who was struck off the roll of advocates 14 times between 2001 and 2007, after embezzling funds from multiple clients.
What started as an attempt by Mr Kadima to offer Mr Saisi a fresh start after being struck off the roll of advocates for gross misconduct has now snowballed into a relatively unusual employment dispute, on account of circumstances surrounding it.
In the case, Mr Saisi has sued Mr Kadima, claiming that he is owed monthly allowances (Sh4.59 million), leave allowance (Sh2.15 million), severance (Sh1.61 million) and a commission (Sh23.9 million) from a land sale in which Kadima & Company Advocates represented a seller.
In addition to the Sh32 million claims, Mr Saisi wants the court to award damages and wants the amount determined at the judge’s discretion.
In his court filings, Mr Kadima says he bent over backwards to help Mr Saisi by representing him at the Advocates Disciplinary Committee for free, paying for his air travel to and from Nairobi during the hearings and giving him a job after being banned from practicing law.
Professional indemnity
Mr Kadima adds that he took out a professional indemnity to shield the Law Society of Kenya (LSK) from claims in the event that Mr Saisi engaged in any misconduct after being disbarred, and paid Sh600,000 to cater for the disgraced lawyer’s Master’s degree at Salford University in England.
Mr Saisi maintains that he is owed over Sh32 million, and wants the court to order Mr Kadima to pay the sum.
On December 6, after Justice Nzei said there was no evidence filed by the defendant, Mr Kadima’s lawyer immediately got up and pointed out that his client had given evidence to the court by filing several documents to oppose Mr Saisi’s claim.
After going through the court file, Justice Nzei realised that there were several documents filed by the defence, and which she had not considered in the judgment which was already partially read.
In a rare move, Justice Nzei was forced to back down, abandon the partially read judgment and adjourn for three days.
On December 9, when the judge was to read the amended judgment, Mr Kadima had already filed an application for her disqualification from the case.
The application for disqualification now gets priority and has opened the lid on a unique case that could become a precedent-setter in legal circles.
Mr Kadima argued that the judge, in missing Kadima & Company Advocates’ filings, may already have a pre-determined decision, hence the law firm may not get a fair hearing as guaranteed by the Constitution.
“The mistake of the honourable judge on December 6, 2024, cannot be categorized as a slip but a grave issue that goes to the root of the matter and demonstrates the court’s bias. The said grave issue was not discovered by the honourable judge, and neither was it pointed out by the claimant/respondent but was brought to the attention of the court by my advocate,” Mr Kadima says in court papers.
He adds that the fact that Justice Nzei could not remember his testimony, hence cannot gauge his credibility as a witness. Mr Kadima says an attempt to remember his testimony will be similar to reconstructing the court file while holding a bias for Mr Saisi.
Despite resigning from the law firm in 2017, Mr Saisi says he only made the move after the workplace became unconducive.
Pay commissions
Mr Saisi explains Mr Kadima partnered with another law firm in Nairobi without notice, and that the arrangement would affect his job.
He further says there was an oral agreement to pay him commissions from specific files, and that Mr Kadima refused to honour the deal.
“The claimant (Mr Saisi) further claims that the respondent created an unconducive atmosphere at the workplace solely to drive the claimant out of employment and the promises he had privately orally agreed with him,” Mr Saisi claims in his court papers.
Mr Kadima in response argues that his friend-turned-foe has made huge financial claims before the court without attaching any evidence to support the same, or explaining how the sums totalling at least Sh32 million were arrived at.
Mr Kadima adds that Mr Saisi has not shown any evidence of protesting the alleged delay of his monthly pay, or of not proceeding on leave for the 10 years he worked at Kadima & Company Advocates.
In his evidence bundle, Mr Kadima has filed documents indicating that Mr Saisi was paid and that the monthly allowances shot from Sh60,000 in 2010 to Sh205,900 in 2016.
“The claimant (Mr Saisi) of his own admission at paragraph 2.11 of the statement of claim admits that he resigned of his own accord and goes further to attach his letter of resignation ‘appendix-4’. We submit by virtue of the admission, this relief cannot succeed.
In 2004 Mr Saisi was running Saisi & Company Advocates, when over a dozen clients filed complaints against him and the law firm for refusing to release their funds, some of which included court awards.
The complaint that nailed Mr Saisi involved his failure to remit Sh50,587 which was court-ordered compensation for a client.
By the time Mr Saisi filed a petition before the disciplinary committee for his return to the roll of advocates in 2010, a total of 23 cases had been filed by different clients whose funds had been embezzled.
Of those, 14 were still pending determination. Eventually, 13 cases resolved that Mr Saisi be struck off the roll of advocates.
In Mr Saisi’s 2010 petition seeking a return to the roll of advocates, Mr Kadima appeared as his advocate and also a friend willing to offer a lifeline.
The committee presiding over the petition had Beautah Siganga as chair, with Naomi Wagereka and David Majanja sitting as members.
Mr Kadima told the committee that there was a vacancy for Mr Saisi at Kadima & Company Advocates if the trio admitted him back to the roll of advocates.
At the time of the petition, Mr Saisi was Sh2.5 million in the red, the amount stemming from client dues and interest and penalties.
Mr Kadima offered to ensure that the amount was paid in full by November 2013.
The Advocates Complaints Commission, which was opposed to Mr Saisi’s restoration to the roll of advocates, called a meeting with all 23 individuals who had filed complaints against the disgraced lawyer.
Only seven attended the meeting, and all opposed the repayment plan.
A pastor appeared on Mr Saisi’s team and said that the lawyer was reformed, and had even quit alcohol.
The committee dismissed the petition but agreed to allow Mr Saisi to work at Kadima & Company Advocates, with limited roles that excluded court appearances.
Mr Saisi was also not allowed to draw, sign or stamp documents which can only be legally done by an advocate.
Mr Kadima took out a professional indemnity on Mr Saisi’s behalf. This meant that if Mr Saisi misbehaved and caused anyone loss, Mr Kadima would have to foot the bill.
Things did not go well at Kadima & Company Advocates, if the court filings now before Justice Nzei are to go by.
Mr Kadima argues in response to the employment case that Mr Saisi on some occasions drew, signed and stamped documents which by law can only be prepared by an advocate of good standing with the LSK.
Lose business
Mr Kadima says he reported some of those incidents to the police.
Mr Saisi allegedly diverted some clients to other law firms. The incidents with the documents and diversion of clients, Mr Kadima holds, led him to lose business.
Mr Saisi in his affidavit says he resigned after Mr Kadima became hostile, and secretly partnered up with another lawyer in a move that would render the former’s role in the firm redundant.
He claims that Mr Kadima talked ill of him to some clients and staff and that when the relationship was beyond repair, he resigned.
But Mr Kadima says that Mr Saisi resigned after violating the terms of the deal that allowed him to work at Kadima & Company Advocates.
Mr Saisi appeared in court on March 29, 2019, and told a judge that he was standing in for Mr Kadima in a succession case for the estate of Seif Abdalla Mohammed. The judge was unaware that Mr Saisi did not have a practising certificate and, hence was committing a criminal offence.
In that case, Mr Saisi helped procure authority for one of the parties to be an administrator of the multimillion-shilling estate at play.
The judge eventually revoked that authority after Mr Kadima returned to the court and revealed that Mr Saisi neither had the authority to represent anyone in court, nor instructions to appear on behalf of Kadima & Company Advocates.
“The respondent (Kadima & Company Advocates) states that the reason as to why the claimant left employment (resigned) was that on 24th March 2019 he masqueraded in court and applied for confirmation of grant in High Court Succession Cause No. 141 of 2016, estate of Seif Abdalla Mohammed and attempted to swindle the respondent his professional fees, a fact which came to the attention of the respondent and the claimant was afraid to be confronted and questioned on the same.
The LSK website showed, at the time of going to press, that Mr Saisi is still not licensed to practice law, an indication that he is yet to successfully petition the industry regulator and lobby for restoration to the roll of advocates.
