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Court of AppealDismissedCivil Appeal No. 38 of 2014· [2015] KECA 560 (KLR)

Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of their predecessors and/or successors in title, as the registered trustees of the Kenya Ports Authority Pension Scheme v Maurice M.Munyao & 148 others (suing on their own behalf and on behalf of the some members/beneficiaries of the Kenya Ports Authority Pension Scheme) [2015] KECA 560 (KLR)

Court of Appeal of Kenya
3 July 2015
1,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled that pension scheme members failed to prove a conflict of interest, so the trustees' lawyers can keep representing them in the appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (Makhandia, Ouko and M'inoti, JJ.A.) on a motion dated 6th March 2015 brought by members/beneficiaries of the Kenya Ports Authority Pension Scheme, principally under Rule 5(2)(b) of the Court of Appeal Rules, seeking an injunction to restrain the firm of Kaplan & Stratton Advocates from acting for the trustees in a pending appeal. The appeal challenges the Industrial Court (Makau J.) finding that a 2002 deed of amendment reducing pension benefits was fraudulent and illegal, and that pension arrears of over Kshs. 201 million were owed. The members argued that because the firm drew the trust deeds for all parties, it held confidential information and faced a conflict of interest, and that there was no board resolution appointing it. The court held there is no general bar to an advocate who acted for two or more parties in a transaction representing one of them in subsequent litigation; the test is whether real mischief or prejudice will in all human probability result, and the burden lies on the party seeking to bar the advocate. Drawing documents does not of itself import confidentiality. The members' averments were general and failed to demonstrate the prejudice or the nature of the confidential information. The court was satisfied the firm was regularly appointed under a KPA letter of 28th January 2015 pursuant to clauses 7(c) and 10 of the 2002 deed. The court also observed that courts cannot choose advocates for parties. The motion was dismissed with costs. The underlying appeal remains pending; the decision below was not disturbed.

Key legal issues

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01

Conflict of interest and disqualification of an advocate from acting

Holding

The application to restrain the firm failed because the members made only general averments and did not demonstrate the prejudice, mischief or the nature of the confidential information allegedly passed to the firm.

Reasoning

The court applied the test from the cited authorities that the party seeking to bar an advocate must prove real mischief, prejudice or conflict of interest on the facts of each case. Documents drawn by an advocate are normally shared among all parties and do not of themselves import confidentiality. The members' affidavit contained bare assertions without particulars of the confidential information or how it would be used to their detriment.

p. 3
02

Whether Rule 9 of the Advocates (Practice) Rules barred the firm from appearing

Holding

Rule 9 disqualifies an advocate who may be required as a witness, but on the facts the application was not brought under that rule and the court found no general bar under the rule to an advocate who acted for multiple parties appearing for one of them later.

Reasoning

The court quoted Rule 9 in full and reasoned that the rule addresses advocates who may be needed as witnesses. Counsel had stated from the bar that a Rule 9 application had been filed in the High Court to compel the firm's attendance as a witness, but the present application, though premised on Rule 5(2)(b), did not in the court's view deserve invocation of that rule.

p. 3
03

Whether the firm was regularly appointed by the board of trustees

Holding

The court was satisfied that the firm was regularly appointed to represent the trustees under a letter from KPA dated 28th January 2015, in accordance with clauses 7(c) and 10 of the 2002 deed of amendment.

Reasoning

The members argued there was no board resolution appointing the firm. The court was persuaded by a letter from KPA, the founder, dated 28 January 2015, that the appointment was regular and in accordance with the deed of amendment. Appointment of advocates is the function of the board of trustees and the founder, not of the members.

p. 3
04

Confidentiality of information imparted to an advocate

Holding

The court reaffirmed that an advocate is under an absolute obligation not to disclose confidential information reposed in him and cannot use it for the benefit of one party to the detriment of another.

Reasoning

The court stated the principle as a reiteration of professional obligation, but found it was not engaged on the facts because the members failed to identify any confidential information, and it was unlikely from the provisions of the deeds and rules that any confidential information would arise to be exchanged or passed to the firm.

p. 3

Legal principles established

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  • There is no general bar to an advocate who acted in a transaction for two or more parties representing one of them in subsequent litigation; the test is whether real mischief or prejudice will result.
  • The burden of proving real prejudice, mischief or conflict of interest lies on the party seeking to bar an advocate from acting.
  • The drawing of documents by an advocate does not of itself import confidentiality, since such documents would normally be exchanged and shared by all concerned parties.
  • Courts cannot choose advocates for parties before them.

Court orders

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  1. 1.Dismissal of the motion dated 6th March 2015 seeking to restrain Kaplan & Stratton Advocates from acting for the trustees
  2. 2.Costs of the application awarded to the trustees

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Advocates (Practice) RulesRule 9

Cases cited (5)

  • Delphis Bank Limited v Chatthe & 6 others
    (2005) IKLR 766
  • Re a Firm of Solicitors
    (1992) 1 AII ER 353
  • King Woolen Mills Ltd & Another v Kaplan & Stratton Advocates
    (1990 - 1994) EA 244
  • Uhuru Highway Development Ltd & others v Central Bank of Kenya & others
    (2002) 2 EA 654
  • Jopa Vilas LLC v Overseas Private Investment Corp & 2 others
    Civil Appeal No. 201 of 2011
On appeal from
Industrial Court at Mombasa
IND.C. No. 116 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (interlocutory application in a pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of their predecessors and/or successors in title, as the registered trustees of the Kenya Ports Authority Pension Scheme v Maurice M.Munyao & 148 others (suing on their own behalf and on behalf of the some members/beneficiaries of the Kenya Ports Authority Pension Scheme) [2015] KECA 560 (KLR)", Case Analysis (2015). Civil Appeal No. 38 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/560/eng@2015-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.