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ELCAllowedNot stated in extract· [2015] KEELC 366 (KLR)

Benard S. Rotich v James Kimosbei Tuwei & 3 others [2015] KEELC 366 (KLR)

Environment and Land Court
20 May 2015
OAOmbwayo Antony
471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court barred a law firm from acting in a land dispute because it had previously worked for a party connected to the same property.

What this practically means

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Executive summary

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The applicant, Bernard S. Rotich (plaintiff), moved the court by notice of motion dated 19/4/2010 seeking the disqualification of Mr. Birech and the firm of Birech, Ruto & Company Advocates from acting for the 1st, 2nd and 3rd defendants on grounds of conflict of interest. The dispute in the main suit concerns ownership of Plot No. 76 Simba Hills Farm, L.R. No.8304. In his supporting affidavit, the applicant deponed that Mr. Birech had previously acted for the 4th defendant in the transactions for the purchase and acquisition of Simba Hills Farm, and that a judgment by Lady Justice Gacheche had upheld that fact. He expressed apprehension that confidential information obtained in that earlier representation could be deployed against him. The application was unopposed; counsel for the 1st, 2nd and 3rd defendants was served but did not appear. Mr. Korir, for the applicant, submitted that the firm had handled a series of transactions involving the parties and held information obtained in confidence. The court found the application merited, holding that information in Mr. Birech's possession was likely to prejudice the applicant given his prior representation, and that counsel should not act in a matter in which he previously acted for a party in a land transaction, as that amounts to a conflict of interest. The court allowed the application in terms of prayer 1 and awarded costs to the plaintiff/applicant.

Key legal issues

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01

Disqualification of an advocate for conflict of interest

Holding

Mr. Birech and the firm of Birech, Ruto & Company are disqualified from acting for the 1st, 2nd and 3rd defendants.

Reasoning

The court found that the advocate had previously acted for the 4th defendant in transactions involving the disputed property, Simba Hills Farm L.R. No.8304. A prior High Court decision (Gacheche J) had upheld that he acted for the 4th defendant. The confidential information obtained in that representation is likely to be prejudicial to the applicant if used in the present dispute, and continued representation would amount to a conflict of interest.

p. 2

Legal principles established

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  • An advocate who acted for a party in a land transaction should not act against that party or in the same matter, as it amounts to a conflict of interest.

Court orders

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  1. 1.The application dated 19/4/2010 is allowed in terms of prayer 1, disqualifying Mr. Birech and the firm of Birech, Ruto & Company from acting for the 1st, 2nd and 3rd defendants
  2. 2.Costs of the application to the plaintiff/applicant

Authorities

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Cases cited (1)

  • Suit before Hon. Lady Justice Gacheche (unidentified prior suit upholding that Mr. Birech acted for the 4th defendant)
Jurisdiction invoked
Inherent jurisdiction of the court to regulate conduct of advocates appearing before it (not expressly cited in the extract)

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, "Benard S. Rotich v James Kimosbei Tuwei & 3 others [2015] KEELC 366 (KLR)", Case Analysis (2015). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/366/eng@2015-05-20

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