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ELCDismissedNot stated in the extract· [2014] KEELC 207 (KLR)

George Kamau Kimani & Four others v County Government of Trans-Nzoia & another [2014] KEELC 207 (KLR)

Environment and Land Court
29 September 2014
EOE. Obaga
853 words in judgment
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The bottom line

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A Kenyan court refused to remove a lawyer from a land eviction case because the party objecting had no real evidence the lawyer would need to testify as a witness.

What this practically means

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Executive summary

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This was a ruling on a point raised during the hearing of a preliminary objection by the County Government of Trans-Nzoia against the plaintiffs' notice of motion dated 10/6/2014. The plaintiffs' advocate objected to the participation of Professor Sifuna, the County Government's advocate, contending that the plaintiffs were likely to call him as a witness regarding the undertaking signed on 9/6/2014, under which the five plaintiffs agreed to vacate the houses they occupied by 11/6/2014 in exchange for a halt to their eviction. The plaintiffs invoked Rule 9 of the Advocates Rules, which provides that an advocate should not act for a party in a matter where he is likely to be called as a witness. The court traced the history: the plaintiffs' earlier suit (ELC No. 66 of 2013) and motion had been dismissed on 4/6/2014 after the County Government's opposition was sustained; the County Government then began evicting the plaintiffs, leading to the undertaking brokered by their then advocate, Mr Kiarie. Professor Sifuna denied any role in the drafting of the undertaking, saying he merely acted for the County Government and that the undertaking spoke for itself. The court found that although Mr Kiarie testified that Professor Sifuna was invited to the meeting where the undertaking was written, there was nothing showing Sifuna had any role in it, and Mr Kiarie attributed any duress to the County Secretary, not to Sifuna. The undertaking being clear, Sifuna would add nothing as a witness. The application was accordingly dismissed with costs to the County Government of Trans-Nzoia.

Key legal issues

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01

Whether an advocate is debarred from acting where a party may call him as a witness

Holding

The objection failed because there was no evidence that Professor Sifuna played any part in the undertaking that would require him to testify; the written undertaking speaks for itself.

Reasoning

The court examined the circumstances of the 9/6/2014 undertaking. Mr Kiarie, who had been cross-examined, said only that Professor Sifuna was invited to the meeting; he did not say Sifuna was instrumental in it or acted under duress from him. Rule 9 bars an advocate from acting where he is likely to be a witness, but the likelihood must be demonstrated. Since the undertaking was clear and needed no oral evidence from Sifuna, there was no basis for barring him.

p. 2

Legal principles established

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  • An advocate should not act for a party in a matter where he is likely to be called as a witness, but an objection under Rule 9 of the Advocates Rules must be supported by evidence showing a real likelihood that the advocate will be a witness; a mere invitation to a meeting is insufficient.

Court orders

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  1. 1.The application by the plaintiffs is dismissed
  2. 2.Costs to the County Government of Trans-Nzoia
Jurisdiction invoked
Inherent jurisdiction of the court over its own proceedings; Rule 9 of the Advocates Rules invoked by the plaintiffs

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, "George Kamau Kimani & Four others v County Government of Trans-Nzoia & another [2014] KEELC 207 (KLR)", Case Analysis (2014). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/207/eng@2014-09-29

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