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JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

JUDICIAL COIM M ITTEE OF THE PR IV Y COUNCIL

Before  SIMOND.S, LORD OAKSt-.Y, LORD Tuc RI R A.ND

1. L. M. D. DE SILVA

MAHARAJ KRISHAN BHANDARI, Appcll(lllt

THE AÈ:VOCATES CO M M ITTEE.

Privy Council Appeal No. 39 of 1 955

Advocate–Professional misconduct—Functions of Appeal Court-—.Standard of proof—Kenya Advocates Ordinance. 1949. section. s9 ( I ) (b). (9) (3) (i) (ii) (iii). 10 (3) and 1 5 ( I ) and (2).

This was an appeal from the decision of the Court of Appeal in Civil Appeal No. 29 of 1955, E.A.C.A ’60, dismissing the applicants appeal from the finding by the Supreme Court that he had been guilty of professional misconduct.

It was submttžed that as the Advocatcs Commit (cc was nol a Court cmpowcred to arrive at an y de(crmination or givc any judgment. but only to rcr,ort if a prima facic casc had becn made OGI, the Court of Appeal svas wrong in dcating With thc matter as if it “.vcrc a case of concurrent finding.s of fact by two towcr Courts. Alternativelv cvcn if thc principle or concurrent findings applica thcrc was in (his casc no cvidcncc to support a finding of conccalmcnt. It was rurthcr submiltcd Ihat thc Court of Appeal had laid down an crroneous standard of proof for such a casc as this.

field ( 1 . —(I) Allhougll tlilS casc (lid nol come litcrally within wc:l-known r LI ‘.e With rcgurd to the runctrons or an appcl ^t •.ltc Court whcre thcrc asc concurlcnt (indines of fact by subordinatc Courts, all thc for the I applicd With cqual or c ven force to cases wherc professional domestic tribunats are est.thlishcd ror invcsug•dlllte and f!nding the Tacts in cascs of allegcd rnisconduct hy membcrs of t hCl l• osvn profcssion. wor•ds • *prima facic casc•’ in section 9 (3) (iii) of thc Advocatcs ()rdin.mce did not ha thc cfTect of assimtlaling Ihc funcuon.s or the Advocatcs Commitlec to (host ot (..•anunitting Magistratcs or of in an y way relicving (hem of thc duty of detcrmining (he hte (s. and It was c!car thal thc Committee in fact so actcd.

(2) Thuc    amp!e cvi(lence to suppo,-l thc (Icciston of (he Suprcmc Court.

( À) regard 10 the onus of proof Ihc Court of Appcal had said : ‘ • We agrce that in csery allgg.žtion of professional misconduct :nvolving an c’,cmcnt of (leccit or moral turpitttk|c a high slanda rd of proof called for. and we cannot cnvisacc an y bodv of pro mcn st(ting ln judglncnt on a colleaguc Who he con(cnt to condemn a merc halanec (If  1 his scc:ncd to thcir Lordships an adc(lllZlte de.scription

01 1 lžc duc y of a t r thun.•l l suc h as thc Advocat’-•s Comnu(tec and (herc was no l’ iat Cil.hcr 1 Ile Cotnm:ttct-• or (he Sunrcme ( Oll!t applic(l

Appeal

No cascs.

8 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL-1