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Case Brief · caselaw.co.ke
ELCDismissedNakuru ELC (filed 4 March 2016); consolidated with Nakuru CMCC No. 2 of 2016· [2018] KEELC 60 (KLR)

Jacinta Wanjiru Mwengwa v Samwel Theuri & 3 others [2018] KEELC 60 (KLR)

Environment and Land Court
28 June 2018
2,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 2nd defendant, Loise Wangare Ratemo, applied by motion dated 7 December 2017 under Rule 9 of the Advocates (Practice) Rules for the disqualification of the law firm of M/s Elizabeth Wangari & Company Advocates from acting for the plaintiff, Jecinta Wanjiru. The suit concerns land parcel Miti Mingi/Mbaruk Block 5/633 (Kianjoya), which the plaintiff alleges the 1st defendant, Samuel Theuri, fraudulently transferred to himself after she deposited her title as security for a loan, and then sold to the 2nd defendant. The 2nd defendant had earlier sued the 1st defendant and the plaintiff in Nakuru CMCC No. 2 of 2016, in which the same firm represented both defendants, and during which the 1st defendant allegedly admitted fraud in a statement and affidavit drawn by that firm. The applicant argued that counsel was a potential witness under Section 134 of the Evidence Act and that it was unconscionable for her to use information from the former client as a springboard against him. Mrs. Mukira opposed, contending she had no fiduciary relationship with the 1st defendant, was not a potential witness, and that the application was a late attempt to derail the hearing. The court, Munyao Sila J, held that Rule 9 disqualifies an advocate only where he is or may be a witness; stripping of privilege under Section 134 does not automatically disqualify counsel. Counsel was not listed as a witness, and the documents remained the 1st defendant's evidence. Further, only the aggrieved former client could complain, and there was no common defence capable of prejudice. The application was dismissed with costs on 28 June 2018.

Key legal issues

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01

Whether Rule 9 of the Advocates (Practice) Rules barred counsel from acting for the plaintiff

Holding

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.

Reasoning

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.

p. 3
02

Whether the applicant had locus standi to seek the disqualification

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 7 December 2017 is dismissed
  2. 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

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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 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.