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ELCDismissedNot stated in the judgment· [2018] KEELC 801 (KLR)

Kabuki Women Group Suing through its official Cecilia Nalianya (Chairlady) & 2 others v Elizabeth Weya Mwaura [2018] KEELC 801 (KLR)

Environment and Land Court
17 October 2018
MOM.A ODENY
477 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to disqualify a law firm because the two Kabuki entities were legally distinct and no real conflict of interest was proven.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M.A Odeny J) determined a notice of motion dated 17th April 2018 in which the plaintiff, Kabuki Women Group, sought the disqualification of the firm of M/S Nyairo & Company Advocates from acting for the defendants, together with costs. The plaintiff contended that the firm had previously acted for it in respect of the suit land, that correspondence and documents prepared by the firm would form part of its evidence, and that continued representation of the defendants would create a conflict of interest and breach advocate/client confidentiality, giving rise to a reasonable apprehension of bias. Counsel for the respondent opposed the application, submitting that the firm had acted for Kabuki Company Limited, a distinct entity from the plaintiff Kabuki Women Group, the latter having been registered with the Ministry of Labour, Social Security and Services only on 27th April 2016. The court agreed that the two entities were distinct and that the plaintiff had failed to establish any conflict of interest, or that a member of the firm would be required as a witness in respect of any alleged transaction. It further found that no prejudice would be occasioned to the plaintiff if the firm continued to act for the defendants. The application was accordingly dismissed with costs to the defendant on 17th October 2018.

Key legal issues

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01

Conflict of interest justifying disqualification of an advocate

Holding

Disqualification was refused because the plaintiff did not establish conflict of interest or likely prejudice

Reasoning

The court found that the firm acted for Kabuki Company Limited, a distinct entity from the plaintiff Kabuki Women Group registered in 2016. Without proof that confidential information was shared or that a member of the firm would be a necessary witness, mere apprehension of bias was insufficient to disqualify the firm from acting for the defendants.

p. 1
02

Whether prejudice would be occasioned to the plaintiff

Holding

No prejudice would be occasioned if the firm continued acting for the defendants

Reasoning

The court assessed the practical effect of continued representation and found none. Where no prejudice is demonstrated and the entities are distinct, an application to disqualify counsel fails and may attract costs against the unsuccessful applicant.

p. 1

Legal principles established

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  • A party seeking disqualification of an advocate must establish actual conflict of interest or prejudice, not mere apprehension
  • Distinct legal entities cannot be conflated for purposes of alleging conflict of interest

Court orders

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  1. 1.The application dated 17th April 2018 is dismissed
  2. 2.Costs of the application awarded to the defendant
Jurisdiction invoked
Inherent jurisdiction of the court to control the conduct of advocates appearing before it

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, "Kabuki Women Group Suing through its official Cecilia Nalianya (Chairlady) & 2 others v Elizabeth Weya Mwaura [2018] KEELC 801 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/801/eng@2018-10-17

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