Kiptogom Arap Lagat & another v Rael Jepkorir Lagat & 3 others [2018] KEELC 1867 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Conflict of interest under Rule 9 of the Advocates (Practice) Rules
The application failed because the defendants did not show Mr. Tarus would be a witness or that the plaintiffs' agreement was challenged; no conflict or mischief was demonstrated
The court construed Rule 9 as barring an advocate only where he would be required as a witness. Mr. Tarus was not on the list of witnesses, the sale agreement he executed between the plaintiffs was not challenged by any party, and the applicants did not show on whose behalf he would testify. No conflict of interest or breach of advocate-client confidentiality arose, and the advocate had never acted for the defendants.
Right to representation by counsel of choice
The right to an advocate of one's choice is a valued constitutional right which should only be deprived for clear and valid reason
Following O'Kubasu JA in William Audi Odode, the court held that although the Constitution does not expressly guarantee representation in civil matters, it is implicit in the protection of the law, and a litigant may only be deprived of counsel of choice upon a clear and valid reason. None was shown here.
Elements of fiduciary duty and conflict of interest
Conflict of interest arises where incompatible interests or duties are served, breaching fiduciary duty comprising loyalty, confidentiality, disclosure and not preferring other interests
The court set out the doctrinal framework: conflict arises where an advocate serves incompatible interests or duties, breaching the fiduciary duty owed to clients. The four elements are loyalty, confidentiality, disclosure of relevant information, and not putting one's own or others' interests before the client's. The defendants established none of these elements.
Legal principles established
#- An advocate may only be barred from acting under Rule 9 if he or she would be required to give evidence in the matter, whether orally or by affidavit
- The test for disqualification is whether real mischief or real prejudice will in all human probability result
- It is not trite law that an advocate should be disqualified merely for having witnessed an agreement
Court orders
#- 1.The defendants' application dated 31.7.2017 seeking to disqualify M/s Tarus & Company Advocates is dismissed
- 2.Costs of the application awarded to the plaintiffs
- Jurisdiction invoked
- Advocates (Practice) Rules, Rule 9; inherent jurisdiction over conflict of interest in legal representation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiptogom Arap Lagat & another v Rael Jepkorir Lagat & 3 others [2018] KEELC 1867 (KLR)", Case Analysis (2018). Application dated 31.7.2017 (suit over Land Parcel No. Nandi/Mutwot/383). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1867/eng@2018-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.