Jacinta Muthoni Kamau & 4 others v Kimanyi Mutui [2018] KEELC 11 (KLR)
The bottom line
#A Mombasa court refused to disqualify a lawyer from acting against her former clients because the applicants had no document proving she had ever represented them.
What this practically means
#Executive summary
#Key legal issues
#Existence of a prior advocate/client relationship as ground for disqualification
No advocate/client relationship was established; the application fails
The court reviewed the Applicants' documents supporting the Originating Summons and found nothing confirming that the Advocate had previously acted for them. The letter relied on showed she acted for the registered owners of the property, not for the Applicants. Without proof of instructions, her continued appearance for the Defendant could not be faulted.
Relevance of the Strathmore Research Centre authority
The authority relied on was distinguishable because no instructions were proved
The court considered the holding in Strathmore Research Centre & Consulting Centre v Gacari Nairioi but found it inapplicable, since unlike that scenario the Applicants here exhibited no document showing they ever instructed the Advocate. The case was therefore not followed on the facts before the court.
Advocate as material witness
The submission that the Advocate was a material witness could not stand on the evidence
The Applicants asserted that the Advocate on record for the Defendant was a material witness whose continued presence embarrassed and prejudiced their case. The court, however, found no evidential basis for that assertion and was not convinced her presence would embarrass or prejudice the Applicants' case.
Legal principles established
#- To disqualify an advocate from acting for an opposing party on the ground of prior representation, the applicant must exhibit documentary proof of instructions establishing an advocate/client relationship
- Mere assertion that an advocate is a material witness, without evidential support, does not justify striking out pleadings filed by that advocate
Court orders
#- 1.The Notice of Motion dated 16th February, 2016 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Sections 3, 3A and 6 of the Civil Procedure Act (Cap 21) and Order 40 Rules 1, 2, 3 & 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacinta Muthoni Kamau & 4 others v Kimanyi Mutui [2018] KEELC 11 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 16th February, 2016 in a suit by Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/11/eng@2018-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.