Kenya Commercial Bank Ltd v Mukeshkumar Kantilal Patel & another [2015] KEELC 293 (KLR)
The bottom line
#A Kenyan court ruled that a lawyer who drafted documents in a land dispute can still represent the bank, because no conflict or prejudice was shown.
What this practically means
#Executive summary
#Key legal issues
#Application of Rule 9 of the Advocates Practising Rules
An advocate may be prevented from appearing where he may be required as a witness, but the bar is not absolute; evidence confined to formal or non-contentious matters of fact does not disqualify the advocate.
Rule 9 disqualifies an advocate only where he may be required as a witness, and even then the proviso allows appearance where the evidence concerns formal or non-contentious matters of fact. The plaintiff's witness list did not include the firm or its personnel, and counsel for the applicant conceded Mr. Nyachoti would not be a witness. The agreement between the plaintiff and Mr. Langat was not in issue, so any evidence by the firm would at most be formal.
Whether drawing a document in issue automatically disqualifies counsel
No general rule exists barring an advocate who drew an instrument from acting in litigation where the instrument is in issue; the decision in Delphis Bank vs Chatthe was followed.
The court addressed the 'widely preconceived notion' that a draftsman of a disposition can never act in litigation over the instrument. Following Delphis Bank vs Chatthe, mere drafting is not confidential since documents are exchanged between parties. Uhuru Highway vs Central Bank and Murigu Wanyoike vs Dyno Holdings were distinguished because there counsel had acted for both parties or the agreement was hotly disputed as a forgery.
Absence of conflict of interest or confidential information
No confidential information or conflict of interest was alleged; the firm had always acted for the plaintiff and never for the applicant.
The applicant never had contact with Mr. Nyachoti or his firm over the matter; no confidential information from the applicant was alleged, and no conflict of interest existed since the firm had always been advocate for KCB, the plaintiff, and had never acted for the applicant in this or any other transaction. Continued participation would cause no prejudice or embarrassment to the trial.
Legal principles established
#- The mere fact that an advocate drew an agreement in his capacity as counsel for a party does not disqualify him from acting for that same party; disqualification depends on whether the document's content is in issue and whether prejudice or conflict would arise.
- Each disqualification application must be assessed on its own facts; the key test is whether continued participation of counsel would cause prejudice or embarrass the trial.
Court orders
#- 1.The application dated 20th July 2013 seeking to disqualify M/s Nyachoti & Company Advocates from acting for the plaintiff is dismissed
- 2.No orders as to costs, each party to bear their own costs of the application
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcel Sotik Township/667 (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Ltd v Mukeshkumar Kantilal Patel & another [2015] KEELC 293 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/293/eng@2015-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.