WILLIAM ABERCROMBIE SHAW Vs. FREDERICK CHATER JACK

JUDGEMENT

(1.) The respondent in this appeal was until June 1926 an administrative officer of the Kenya Civil Service. He went to England on leave in March of that year. Shortly before his departure he arranged with the appellant, who was an advocate and solicitor practising in the Colony and having his office in Eldoret, for the investment of certain moneys during his absence. Somewhat intricate instructions were given by him to the appellant, which it is not necessary to consider in detail. The result, so far as this appeal is concerned, was that the appellant invested for him on 25 August 1926, a sum of ?2,200 upon the mortgage of a farm in the Trans Nzoia District, belonging to a Mrs. Driscoll, and comprising 1,174 acres.

(2.) The respondent returned to Kenya as a settler in October 1920, by which time the value of farm lands in this district wag depreciating greatly. He was unable to realise his security, and in March 1929, filed a suit against the mortgagor and brought the property to sale, when it fetched a little over ?1,800. This left a deficit, as shown by the final decree in the suit, of about ?660. The mortgagor was subsequently adjudicated a bankrupt, and the respondent, being unable to recover anything from her estate, sued the appellant in the Supreme Court of Kenya, seeking to hold him responsible for the deficit on the ground of professional negligence. He also claimed an additional sum by way of damages, but this claim has been abandoned.

(3.) A considerable body of evidence was adduced at the trial, both oral and documentary, with the result that the suit was dismissed, the trial Judge holding that negligence had not been established, and that the security was adequate at the date it was taken. The respondent appealed to H. M's. Court of Appeal for Eastern Africa the learned Judges of which reversed the decree of the Supreme Court and entered judgment for the respondent for 13,230'30 shs., being the amount claimed as the deficit under the mortgage decree, with interest at the rate of 6 per cent, from the date of that decree. The judgment of the Court of appeal was delivered by Sheridan, J., his colleagues, Pickering, C. J. and Thomas, J., concurring. The conclusion at which they arrived was that it was the duty of the appellant to have had a professional valuation of the farm made before he advanced the money, that he had not done so, and that he was consequently guilty of negligence. They seem to have thought that it necessarily followed that he was bound to make good the respondent's loss, which they assessed at the sum above stated.