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ELCAllowedNot stated in the judgment as provided· [2014] KEELC 136 (KLR)

Murigu Wanyoike v Dyno Holdings Limited [2014] KEELC 136 (KLR)

Environment and Land Court
22 October 2014
MSMunyao Sila
3,849 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a law firm to stop acting for its client because the firm had drafted the disputed land sale agreement and could become a witness.

What this practically means

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Executive summary

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The plaintiff, who sued seeking cancellation of transfers of two land parcels allegedly effected by fraud, applied by notice of motion dated 27 November 2013 for the removal of the law firm of M/s Mohamed Madhani & Company Advocates from acting for the defendant, on the ground that the firm drew the disputed sale agreement of 20 July 2008 and the subsequent transfer documents, making it a potential witness. A prior preliminary objection on the same issue had been dismissed on 7 November 2013 on the basis that factual matters fell outside a preliminary objection, with leave to file an application. The defendant opposed, arguing res judicata, that Rule 9 of the Advocates (Practice) Rules applies only to an individual advocate, that the firm is large and departmentalised with no risk of prejudice, and that the defendant has a constitutional right to counsel of choice. The court held the application was not res judicata since the merits of disqualification were never previously decided. On the merits, applying Rule 9 purposefully, the court found the firm central to the litigation: clause 9 of the disputed agreement named it as advocates for both parties, and it conducted the conveyance. The court declined to follow the National Bank of Kenya decision limiting Rule 9 to individuals, agreeing instead with Mwendwa v M'Mwendwa. Holding the firm's continued presence prejudicial to a fair trial, the court allowed the application, ordered the firm to cease acting forthwith, gave the defendant 30 days to appoint new advocates, and awarded costs of the application to the plaintiff.

Key legal issues

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01

Res judicata

Holding

The application is not res judicata because the preliminary objection ruling only directed the plaintiff to file an application and never decided the merits of disqualification.

Reasoning

The court distinguished between a procedural direction and a substantive determination. In the preliminary objection ruling the judge held only that the issue involved factual matters outside the ambit of a preliminary objection and directed that an application be filed. Since res judicata applies only where the matter has been decided before, and the question of disqualification was never decided, the objection failed.

p. 3
02

Whether Rule 9 of the Advocates (Practice) Rules applies to a law firm and not merely an individual advocate

Holding

Rule 9 can apply to a law firm in appropriate circumstances; the word 'advocate' must be given a purposeful interpretation having regard to the mischief of the rule.

Reasoning

The court declined a literal reading confining Rule 9 to individuals. The mischief is to prevent counsel whose actions are central to the litigation from becoming too close to it. Since it is difficult to separate a law firm from its advocates, and departmentalisation does not remove the risk of undue influence or the perception of it, the rule may cover the whole firm.

p. 5
03

Whether the law firm should be disqualified on the facts

Holding

The firm, having drawn the disputed sale agreement under clause 9 of which it acted for both vendor and purchaser, and having conducted the conveyance now alleged to be fraudulent, is a potential witness and its continued presence is prejudicial to a fair trial.

Reasoning

Clause 9 of the agreement named Mohamed Madhani & Company as advocates for both vendor and purchaser. The plaintiff disputes the agreement as a forgery, so the firm's position is central to the issues. The likelihood of a member being called as a witness exists until the suit is finalised. Costs of instructing new counsel are secondary to doing justice, and justice must be seen to be done.

p. 5

Legal principles established

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  • Rule 9 of the Advocates (Practice) Rules can in appropriate circumstances be interpreted as covering a law firm rather than a particular advocate
  • Each application to disqualify an advocate must turn on its own facts, testing whether real mischief or real prejudice will result
  • The test under Rule 9 is whether the advocate may be called as a witness, not whether he shall be called

Court orders

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  1. 1.The law firm of M/s Mohamed Madhani & Company Advocates to cease acting for the defendant forthwith
  2. 2.The defendant at liberty to appoint another advocate within the next 30 days; failing which the defendant shall be deemed to be acting in person
  3. 3.Costs of the application to the plaintiff

Authorities

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Legislation

  • Advocates (Practice) RulesRule 9

Cases cited (6)

  • Mwendwa v M'Mwendwa
    (2003) eKLR
  • Ogier v Jeffreys
    (Guernsey Law Reports, 2009-10 GLR 88)
  • King Woolen Mills vs Kaplan & Stratton
    (1993) LLR 2170
  • Uhuru Highway Development Ltd & Others vs Central Bank Kenya Ltd & Others (2)
    (2002) 2 EA 654
  • Delphis Bank Ltd vs Channan Singh Chatthe & 6 Others
    (2005) e KLR
  • National Bank of Kenya Ltd vs Peter Kipkoech Korat & Another
    (2005) eKLR
Jurisdiction invoked
Original civil suit before the Environment and Land Court (advocate disqualification application in pending suit); no specific constitutional/statutory jurisdictional provision stated

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Murigu Wanyoike v Dyno Holdings Limited [2014] KEELC 136 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/136/eng@2014-10-22

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