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ELCDismissedNot stated in the judgment (application dated 16th February, 2016 in a suit by Originating Summons)· [2018] KEELC 11 (KLR)

Jacinta Muthoni Kamau & 4 others v Kimanyi Mutui [2018] KEELC 11 (KLR)

Environment and Land Court (implied by suit property dispute; judgment does not name the court)
19 June 2018
736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling determined a Notice of Motion dated 16th February 2016 brought by the Plaintiffs under Sections 3, 3A and 6 of the Civil Procedure Act and Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules. The Applicants sought an order striking out all pleadings, documents and affidavits filed by and in the name of Ngoiri Njoroge Advocate, counsel on record for the Defendant, on the ground that she had previously acted for the Plaintiffs and was a material witness, so that her continued appearance for the Defendant was said to be embarrassing, prejudicial and contrary to fairness and justice. The application was supported by the affidavit of the first Plaintiff, Jacinta Muthoni Kamau, and opposed by a replying affidavit of the Advocate sworn on 21st March 2017, in which she denied ever acting for the Applicants and asserted she had always acted for the registered owners of the suit property. The court reviewed the Applicants' supporting documents and found no document evidencing any instructions to the Advocate or an advocate/client relationship. It held the authority of Strathmore Research Centre & Consulting Centre v Gacari Nairioi (HCCC No. 484 of 2011), relied on by the Applicants, was not relevant to the facts. Not persuaded that the Advocate's presence would embarrass or prejudice the Applicants' case, the court dismissed the application with no orders as to costs. The ruling was signed by L. Komingoi J on 22nd May 2018 and delivered by A. Omollo J at Mombasa on 19th June 2018.

Key legal issues

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01

Existence of a prior advocate/client relationship as ground for disqualification

Holding

No advocate/client relationship was established; the application fails

Reasoning

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.

p. 2
02

Relevance of the Strathmore Research Centre authority

Holding

The authority relied on was distinguishable because no instructions were proved

Reasoning

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.

p. 2
03

Advocate as material witness

Holding

The submission that the Advocate was a material witness could not stand on the evidence

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 16th February, 2016 is dismissed
  2. 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

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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, "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.