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ELCPartially AllowedMalindi ELC (Notice of Motion dated 28th October 2016 in suit filed 25th August 2016)· [2017] KEELC 3249 (KLR)

Phoebe Nzale Kazungu & Another v Peter Mbugua Kimani & Others [2017] KEELC 3249 (KLR)

Environment and Land Court
7 April 2017
JOJ. Olola
2,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Malindi court barred a law firm from acting in a land case because its lawyer had previously handled the same land for the opposing side.

What this practically means

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Executive summary

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The Plaintiffs, who claim to have purchased portions of Plot No. 12 SR No. 2628 at Mtondia Mwenzang'ombe in Kilifi from the late Johnson Samuel Kenga in 1980, moved the court by Notice of Motion dated 28th October 2016 seeking to disqualify the firm of J.K. Mwarandu & Company Advocates from acting for the 2nd and 3rd Defendants, to strike out pleadings filed by that firm, and to compel release of files belonging to David Joseph Muramba. The grounds were that Mr. J.K. Mwarandu, previously of Hare Mwarandu & Company, had personally acted for the 1st Plaintiff in 1993 over the same land, authoring a demand letter to Johnson Samuel Kenga and registering a caveat, and was thus a potential witness and privy to confidential information. The Respondents admitted the prior retainer but denied possession of relevant confidential information and denied that the firm was the successor of the dissolved Hare Mwarandu & Company. The court framed two issues: the applicable principles and whether the test for disqualification was met. Applying Delphis Bank v Chatthe, Shalimar Ltd, Re-A Firm of Solicitors and Rukusen, the court held that the fiduciary duty of confidentiality survives dissolution of a firm and that Mr. Mwarandu's personal involvement created a real risk of misuse of information, particularly given the defence's reliance on lack of Land Control Board consent. The court granted the application only in terms of prayer 1, disqualifying the firm, refused striking out of pleadings and release of records, and awarded costs to the Plaintiffs.

Key legal issues

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01

Test for disqualifying an advocate from acting against a former client

Holding

The principle is the prevention of abuse of confidence reposed in the advocate by the former client; the court must be convinced that confidential information exists and is likely to be misused. Personal involvement of the advocate with the former client on the same subject matter satisfies this test.

Reasoning

Relying on Delphis Bank v Chatthe, Shalimar Ltd v Sadrudin Kurji, Re-A Firm of Solicitors and Rukusen v Ellis, Munday & Clerke, the court weighed the right to counsel of choice against confidentiality. Mr. Mwarandu personally authored a 1993 demand letter on behalf of the 1st Plaintiff over the same land and registered a caveat; dissolution of his former firm did not erase his knowledge. Acting for a son of the person he had earlier written against over the same subject matter would prejudice the 1st Plaintiff.

p. 3
02

Whether the respondents' defence (lack of Land Control Board consent) makes the 1993 demand letter relevant to the disqualification question

Holding

Yes; the defence's central contention is lack of Land Control Board consent, which was precisely the subject of the demand letter authored by Mr. Mwarandu for the 1st Plaintiff.

Reasoning

The court rejected the respondents' argument that the letter was not in issue, holding that submissions on this point were misleading. Since the 2nd and 3rd Defendants' defence challenges the plaintiffs' failure to obtain Land Control Board consent, information held by Mr. Mwarandu from his 1993 instructions remained relevant, supporting the inference that information may have reached the respondents from the 1st Plaintiff's former advocates.

p. 4

Legal principles established

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  • The fiduciary relationship created by the retainer obliges an advocate to treat knowledge acquired while acting for a client as confidential, and this duty survives the conclusion of the matter
  • There is no absolute rule that an advocate may not act in litigation against a former client where there is no breach of the duty of confidentiality; the court must be convinced there exists a confidence and the probability of its being abused

Court orders

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  1. 1.The firm of M/s J.K. Mwarandu & Company Advocates is barred/disqualified from representing or appearing for the 2nd and 3rd Defendants/Respondents in this matter and any related proceedings
  2. 2.Costs of the application awarded to the Plaintiffs
  3. 3.Prayers for striking out pleadings and release of files/records refused (application granted only in terms of prayer 1)

Authorities

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Legislation

  • Evidence ActSection 134

Cases cited (4)

  • Delphis Bank Limited -vs- Chatthe & 6 others
    (2005) I KLR 766
  • Shalimar Ltd & 2 others vs Sadrudin Kurji & Another
    (2015) eKLR
  • Rukusen vs Ellis, Munday & Clerke
    (1912) I Ch. 831
  • Re-A firm of Solicitors
    (1992) I All ER 353
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit; interlocutory application under the court's inherent powers

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, "Phoebe Nzale Kazungu & Another v Peter Mbugua Kimani & Others [2017] KEELC 3249 (KLR)", Case Analysis (2017). Malindi ELC (Notice of Motion dated 28th October 2016 in suit filed 25th August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3249/eng@2017-04-07

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