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ELCDismissedNot stated in the judgment as provided· [2015] KEELC 293 (KLR)

Kenya Commercial Bank Ltd v Mukeshkumar Kantilal Patel & another [2015] KEELC 293 (KLR)

Environment and Land Court
24 July 2015
2,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 2nd defendant, Simon Muteshi Shigali, applied by notice dated 20th July 2013 for an order that the law firm of M/s Nyachoti & Company Advocates cease acting for the plaintiff bank in a suit concerning land parcel Sotik Township/667. The application rested on the grounds that the firm had prepared several documents at the core of the dispute, including a sale agreement dated 23/08/2011 and a transfer of lease dated 29/05/2012 relating to the plaintiff's sale to one Charles Langat, and that the firm might therefore be required to appear as witnesses, contrary to the rule that an advocate cannot be both attorney and witness. No reply was filed. Munyao Sila J examined Rule 9 of the Advocates Practising Rules and held that the bar applies only where the advocate may be required as a witness, and even then not 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 called. The court followed Delphis Bank vs Chatthe, holding there is no general rule that an advocate who drew an instrument cannot act in litigation over it, and distinguished Uhuru Highway vs Central Bank and Murigu Wanyoike vs Dyno Holdings, where counsel had acted for both parties or the agreement was hotly disputed. Finding no confidential information, conflict of interest, or prejudice, the court dismissed the application with no orders as to costs.

Key legal issues

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01

Application of Rule 9 of the Advocates Practising Rules

Holding

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.

Reasoning

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.

p. 2
02

Whether drawing a document in issue automatically disqualifies counsel

Holding

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.

Reasoning

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.

p. 3
03

Absence of conflict of interest or confidential information

Holding

No confidential information or conflict of interest was alleged; the firm had always acted for the plaintiff and never for the applicant.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 20th July 2013 seeking to disqualify M/s Nyachoti & Company Advocates from acting for the plaintiff is dismissed
  2. 2.No orders as to costs, each party to bear their own costs of the application

Authorities

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Legislation

  • Advocates Practising RulesRule 9

Cases cited (3)

  • Delphis Bank vs Chatthe
    (2005) eKLR
  • Uhuru Highway vs Central Bank
    (2002) 2 EA 654
  • Murigu Wanyoike vs Dyno Holdings Limited
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel Sotik Township/667 (not expressly cited in the judgment)

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, "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.