Jackson Kiprotich Kibor v Kipruto Arap Lelei & 20 others [2017] KEELC 3283 (KLR)
The bottom line
#The Environment and Land Court refused to disqualify a lawyer from acting for Jackson Kibor, holding that removing a party's chosen lawyer requires proof of real prejudice, not just allegations.
What this practically means
#Executive summary
#Key legal issues
#Whether Katwa Kigen is a potential witness under Rule 9 of the Advocates (Practice) Rules by reason of having drawn and commissioned the contentious affidavit on the loss of the original certificates of lease
He is not a potential witness on contentious matters; he was merely Commissioner for Oaths and any evidence he could give would relate solely to formality, within the proviso to Rule 9
Rule 9 bars an advocate only where he may be required as a witness to give evidence, whether verbally, by declaration or affidavit, subject to the proviso for formal or non-contentious matters of fact in a matter in which he acts or appears. The applicants did not show the advocate would be called to give evidence on the contentious matters beyond administering the oath on facts known to the plaintiff. The advocate is not the deponent, so any testimony would be formal only. This followed Serve In Love Africa (SILA) Trust.
Whether the advocate previously acted for the defendants and holds privileged information, creating a conflict of interest that warrants his disqualification
No conflict of interest was established; no material evidence showed real prejudice, the relevant privileged information was not disclosed, and no retainer or fiduciary relationship with the defendants was demonstrated
Disqualification for conflict requires proof that real mischief or real prejudice will in all human probability result. The applicants did not identify the alleged privileged information or demonstrate any retainer, payment of fees, or instructions by the defendants. The 2005 family meeting was described as adversarial, indicating the advocate acted for the plaintiff, not the defendants. Mere prior action for a party does not disqualify unless the privileged information is identified and its utility gauged by the court.
Legal principles established
#- An advocate can only be barred from acting under Rule 9 of the Advocates (Practice) Rules if he or she would be required to give evidence in the matter, whether orally or by way of affidavit
- The right to be represented by an advocate of one's own choice cannot be taken away unless it is proved by evidence that the advocate's presence will prejudice the other party; there is no general rule that an advocate cannot act for one party and later the opposite party, the test being whether real mischief or real prejudice will in all human probability result
Court orders
#- 1.The applicants' application seeking to bar or disqualify advocate Katwa Kigen from representing the plaintiff is dismissed
- 2.No orders as to costs, the court noting this is a family dispute
- Jurisdiction invoked
- Original jurisdiction over the suit and an interlocutory application under Rule 9 of the Advocates (Practice) Rules; no constitutional or statutory provision invoked as basis of jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Kiprotich Kibor v Kipruto Arap Lelei & 20 others [2017] KEELC 3283 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3283/eng@2017-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.