Jacinta Wanjiru Mwengwa v Samwel Theuri & 3 others [2018] KEELC 60 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a lawyer can keep acting against a former client unless the former client himself objects.
What this practically means
#Executive summary
#Key legal issues
#Whether Rule 9 of the Advocates (Practice) Rules barred counsel from acting for the plaintiff
No. Rule 9 applies only where the advocate is or may be required as a witness; counsel was not listed as a witness and the documents she drew are the client's evidence, not hers.
The court construed Rule 9 alongside Section 134 of the Evidence Act, distinguishing between being compellable as a witness and actually being a witness. Mrs. Mukira was not listed as a witness by any party and was unlikely to testify; the statement and affidavit recorded in the earlier suit were the 1st defendant's own documents and evidence despite being drawn by her firm. Each case must be assessed on its own circumstances, so no automatic disqualification followed.
Whether the applicant had locus standi to seek the disqualification
No. The complaint, if any, belonged to the 1st defendant, the former client; he had filed no complaint and there was no common defence between him and the applicant capable of being prejudiced.
The court held that conflict-of-interest complaints protect the former client. Since the 1st defendant did not object to counsel now acting against him, and the applicant and 1st defendant took different positions with no shared defence, the applicant stood to suffer no prejudice. Barring exceptional circumstances, another litigant cannot raise the complaint on the former client's behalf.
Legal principles established
#- Being a compellable witness under Section 134 of the Evidence Act is not the same as being, or being likely to be, a witness for purposes of Rule 9 of the Advocates (Practice) Rules; stripping of privilege does not automatically disqualify an advocate.
- Only the former client, if aggrieved, may complain of a conflict where counsel previously acted for him in a related suit; another litigant has no locus absent exceptional circumstances.
- Documents drawn by counsel for a client, such as statements and affidavits, remain the client's documents and evidence, not the advocate's.
Court orders
#- 1.The application dated 7 December 2017 is dismissed
- 2.Costs of the application to the respondent/plaintiff
- Jurisdiction invoked
- Environment and Land Court original jurisdiction over the suit; application under Rule 9 of the Advocates (Practice) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacinta Wanjiru Mwengwa v Samwel Theuri & 3 others [2018] KEELC 60 (KLR)", Case Analysis (2018). Nakuru ELC (filed 4 March 2016); consolidated with Nakuru CMCC No. 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/60/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.