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ELCDismissedNot stated in the extract (Murang'a ELC suit instituted 5th November 2014)· [2015] KEELC 735 (KLR)

Paul Nduati Mwangi v Stephen Ngotho Mwangi & 9 Others [2015] KEELC 735 (KLR)

Environment and Land Court
6 March 2015
LWL N Waithaka
3,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to remove a plaintiff's lawyer over a conflict claim because the objecting party showed no real prejudice or need for the lawyer as a witness.

What this practically means

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Executive summary

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This is a ruling on a notice of preliminary objection dated 19th January 2011 in a land suit filed on 5th November 2014 by a self-described bona fide purchaser claiming a one-fifth share of Plot No.1 Kahuro Market (Loc.8/Kandegenye/284/1), registered in the name of Mwangi Gikungu (deceased), whose beneficiaries received equal shares in Muranga PM's Succession Cause No.116 of 2007. The defendants objected that the plaintiff's advocate, having acted for both the plaintiff and the 1st and 2nd defendants in the impugned sale agreements, was in conflict of interest, held confidential information, and was a potential witness to the agreements, contrary to Section 2 of the Advocates Act and Rule 9 of the Advocates (Practice) Rules. The court, applying the principles in Tom Kusienya v Kenya Railways Corporation and Dorothy Seyanoi Moschioni v Andrew Stuart, restated that an advocate is barred only where he would be required to give evidence and where real mischief or real prejudice will in all human probability result, and that the right to counsel of choice in civil matters is implicit in Articles 48, 50(1) and 159(2)(a) and may be curtailed only exceptionally. Finding that the defendants had not listed the plaintiff's advocate as a witness nor demonstrated the prejudice they would suffer, Waithaka J dismissed the preliminary objection with costs in the cause. The main suit and the plaintiff's interlocutory injunction application remain to be heard; only the objection was determined in this ruling.

Key legal issues

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01

Whether the plaintiff's advocate should be disqualified for conflict of interest and for being a potential witness

Holding

The preliminary objection was dismissed because the defendants neither listed the advocate as a witness nor demonstrated real prejudice

Reasoning

The court adopted the test in Delphis Bank and related authorities that disqualification is warranted only where real mischief or real prejudice will in all human probability result. Although the advocate acted for both sides in the impugned sale agreements, the defendants did not list him among their witnesses nor show the nature of prejudice. The right to counsel of choice, implicit in Articles 48, 50(1) and 159(2)(a), may be removed only in exceptional circumstances.

p. 5

Legal principles established

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  • An advocate may only be barred from acting under Rule 9 if he or she would be required to give evidence in the matter, and disqualification requires a showing of real mischief or real prejudice
  • The right to legal representation by counsel of one's choice in civil matters is implicit in the constitutional provisions on access to justice and may be taken away only in exceptional circumstances

Court orders

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  1. 1.The notice of preliminary objection dated 19th January 2011 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Advocates ActSection 2
  • Advocates (Practice) RulesRule 9
  • Constitution of Kenya 2010Articles 48, 50(1), 50(2)(g), 159(2)(a)
  • Former Constitution of Kenya (referred to within quoted authorities)Sections 70(a), 77(1)(d)

Cases cited (8)

  • Akber vs. Fidahussein & Co. and others
    (1971) E.A 167
  • Tom Kusienya & Others v Kenya Railways Corporation & others
    [2013] eKLR
  • Delphis Bank Limited vs. Channan Singh Chatthe and 6 Others
    null
  • King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd) and Galot Industries Ltd –vs- Kaplan and Stratton Advocates
    null
  • Supasave Retail Ltd vs. Coward Chance (a firm) and Others; David Lee & Co (Lincoln) Ltd vs. Coward Chance (a firm) and Others
    (1991) 1 ALL ER
  • Rakusen vs. Ellis Munday and Clarke
    (1912) 1 Ch. 831 (1911-1913) ALL ER Rep 813
  • William Audi Odode & Another-vs- John Yier & Another
    Court of Appeal Civil Application No. NAI 360 of 2004 (KSM33/04)
  • Dorothy Seyanoi Moschioni v. Andrew Stuart & another
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; preliminary objection on professional conduct under Section 2 of the Advocates Act and Rule 9 of the Advocates (Practice) Rules

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, "Paul Nduati Mwangi v Stephen Ngotho Mwangi & 9 Others [2015] KEELC 735 (KLR)", Case Analysis (2015). Not stated in the extract (Murang'a ELC suit instituted 5th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/735/eng@2015-03-06

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