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ELCDismissedE&L Case No. 21 of 2017· [2017] KEELC 3632 (KLR)

Serve In Love Africa (Sila) Trust v David Kipsang Kipyego & 7 others [2017] KEELC 3632 (KLR)

Environment and Land Court
7 February 2017
AOA. Ombwayo
2,743 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 refused to remove a lawyer from a land dispute, confirming that disqualifying a party's chosen advocate requires proof of real prejudice, not just a past connection.

What this practically means

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Executive summary

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The plaintiff, Serve In Love Africa (SILA) Trust, by application dated 26.1.2017 sought to disqualify the firm of Bundotich Korir & Co. Advocates from representing the defendants. It was contended that the firm drew and witnessed the sale agreement dated 19.1.2017 which is the subject of the suit, that the advocate acted for persons who had ceased to be trustees of the Trust on 5.5.2015, and that he is therefore a potential witness and potential defendant involved in the alleged fraudulent or illegal sale. Mr. Jonah K. Korir, in a replying affidavit, maintained that the dispute turns on who the legitimate and bona fide trustees are and that, to his knowledge, the defendants are recognized trustees. The court, A. Ombwayo J, reviewed Rule 9 of the Advocates (Practice Rules) and the authorities, including Tom Kusienya v Kenya Railways, Delphis Bank v Chatthe, the English Rakusen and Supasave line of cases, and Dorothy Seyanoi Moschioni, distilling the 'real mischief and real prejudice' test. The court also discussed conflict of interest and fiduciary duties, and affirmed that the right to representation of choice in civil matters, implicit in Articles 48, 50(1) and 159(2)(a) of the Constitution, may be curtailed only in exceptional circumstances. Holding that it was not demonstrated that the advocate would be a material witness on the trusteeship issue or that real prejudice would result, the court dismissed the application with costs on 7 February 2017.

Key legal issues

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01

Whether the advocate who drew and witnessed the impugned sale agreement should be disqualified from acting for the defendants

Holding

The application was dismissed; disqualification was not merited because it was not shown the advocate would be a material witness on the true trusteeship, nor that real prejudice would result.

Reasoning

The court adopted Rule 9 of the Advocates (Practice Rules) and the 'real mischief and real prejudice' test from Rakusen v Ellis Munday & Clarke as applied in Delphis Bank and Supasave Retail. Mere participation in drafting the agreement does not justify disqualification. The replying affidavit did not admit that the advocate would testify on a material contested issue, and the right to counsel of choice, implicit in Articles 48, 50(1) and 159(2)(a), yields only in exceptional circumstances.

p. 5

Legal principles established

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  • An advocate may only be barred from acting under Rule 9 of the Advocates (Practice Rules) if he would be required to give evidence material to contested issues, and disqualification is only justified where real mischief and real prejudice will result
  • The right to legal representation of choice in civil matters is implicit in the constitutional right of access to justice and may only be taken away in exceptional circumstances

Court orders

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  1. 1.The application dated 26.1.2017 is dismissed with costs

Authorities

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Legislation

  • Advocates ActRule 9 of the Advocates (Practice Rules)
  • Constitution of Kenya 2010Articles 48, 50(1), 50(2)(g), 159(2)(a)
  • Former Constitution of KenyaSections 70(a), 77(1)(d)

Cases cited (8)

  • Tom Kusienya & Others v Kenya Railways Corporation & others
    [2013] eKLR
  • Delphis Bank Limited vs. Channan Singh Chatthe and 6 Others
  • King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd)
  • Galot Industries Ltd vs. Kaplan and Stratton Advocates
  • 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
Environment and Land Court jurisdiction (first-instance application in an E&L suit); Articles 48, 50(1) and 159(2)(a) of the Constitution considered on the right to legal representation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Serve In Love Africa (Sila) Trust v David Kipsang Kipyego & 7 others [2017] KEELC 3632 (KLR)", Case Analysis (2017). E&L Case No. 21 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3632/eng@2017-02-07

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