Douglas Msamali Agoi v Jane Mwanjeh Manasseh & 7 others [2017] KEELC 319 (KLR)
The bottom line
#The High Court in Kakamega disqualified a law firm from acting for defendants because it had drafted and witnessed the very documents at the heart of the dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether drawing, witnessing and advising on the sale agreement and charge instrument that form the substratum of the suit disqualifies the advocate from acting for the defendants
Yes. The advocate drew and witnessed the sale agreement and charge instrument and commissioned the spousal consent affidavit, making him a potential witness on contentious issues and placing him in a position of conflict of interest.
The court found the undisputed facts established that the advocate acted in a series of transactions directly touching the suit property, was privy to confidential information, and would be a potential witness. Applying Rule 9 of the Advocates (Practice) Rules and the authorities, the court held that continued representation would create a likelihood of real mischief or prejudice to the plaintiff, and that restraint was in the interest of justice.
The applicable test for disqualifying an advocate from acting
The test is whether real mischief or real prejudice will in all human probability result; each case must turn on its own facts, and there is no general rule barring an advocate from acting merely because he drew an instrument in litigation.
The court canvassed the authorities, including Delphis Bank v Channan Singh Chatthe, which held there is no general rule that an advocate cannot act after drawing an instrument, and Murigu Wanyoike v Dyno Holdings, that each case turns on its own facts. On the facts before it, the court found the prejudice threshold satisfied.
Legal principles established
#- An advocate who is a potential witness on contentious issues in a suit cannot continue to act as advocate for a party in the same suit; where real mischief or real prejudice will in all human probability result, the advocate should be restrained from acting
Court orders
#- 1.That the firm of Abok Odhiambo & Company Advocates cease appearing or continuing to appear for the 1st, 2nd, 3rd and 4th Defendants and/or any other party in this suit
- 2.That the firm of Abok Odhiambo & Company Advocates be restrained whether by themselves, their partners, servants or agents from representing the 1st, 2nd, 3rd and 4th defendants and or any other party in this action
- 3.That the costs of this application be in the cause
- Jurisdiction invoked
- Inherent jurisdiction of the High Court; application brought under rule 9 of the Advocates (Practice) Rules and Sections 134 and 136 of the Evidence Act, Cap 80
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Douglas Msamali Agoi v Jane Mwanjeh Manasseh & 7 others [2017] KEELC 319 (KLR)", Case Analysis (2017). Kakamega High Court Civil Suit (plaint dated 15th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/319/eng@2017-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.