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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 2008 (KLR)

Doris Wangithi Maina & 2 others v Peris Wanjiru Maina & another [2018] KEELC 2008 (KLR)

High Court of Kenya (Environment and Land matter heard ex parte from a case concluded before B.N. Olao J.)
15 June 2018
SMS.N. Mukunya
1,353 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court removed a lawyer from a land case because he was personally involved, and reopened the case to settle who held the family land in trust.

What this practically means

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Executive summary

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This judgment, delivered by S.N. Mukunya J on 15th June 2018, determines a Notice of Motion filed on 17th October 2017 by the defendants after the case had been heard to conclusion before B.N. Olao J on 4th October 2017. The application sought to reopen the case for new emerging evidence and to compel the firm of Kirubi, Mwangi Ben & Co. Advocates to cease acting for the plaintiffs. It was alleged that Joseph Mwangi Ben, a partner in the firm and advocate on record, was a co-owner of 0.81 Ha of land parcel Kiine/Thingirichi/1242 together with the 1st defendant, and that the failure to have the 1st defendant enter appearance was a machination to defeat the defendants' claim. Mr. Ben replied, admitting his firm's conduct of the case, that he had bought 2 acres from the 1st defendant in 2005, and that he acted for the plaintiffs pro bono via Kituo Cha Sheria. Examining the file, the court traced the trust created over the suit properties in Karatina Succession Cause No. 10 of 1994, the dismissed Nyeri appeal, and a 2005 Muranga Originating Summons seeking dissolution of the trust in which counsel was named as beneficiary, with no court order effecting dissolution annexed. Holding that counsel was personally interested and would be in a compromised position, the court ordered him to step aside - though not the entire firm - and reopened the case to address the trust issue and allow the plaintiffs to appoint another advocate, giving the parties 30 days. No costs order was made.

Key legal issues

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01

Conflict of interest of counsel on record

Holding

Joseph Mwangi Ben is conflicted as he was both past/present advocate for the plaintiffs and a beneficiary of the dissolution of the trust central to the case; he must step aside.

Reasoning

The court found counsel participated when the trust was created and later benefited from its partial dissolution through a Muranga Originating Summons, while no order dissolving the trust was produced. Acting for the plaintiffs while personally interested would compromise the fair determination of whether the trust was validly determined. Only the individual advocate, not the whole firm, need cease acting.

p. 2
02

Reopening of a part-heard case for emerging evidence

Holding

The case was reopened to determine whether the trust over the suit properties was ever validly determined.

Reasoning

The history showed the trust was created in the Karatina Succession Cause; the Muranga Originating Summons seeking its dissolution was filed in the wrong forum, singled out counsel as beneficiary, and no court order effecting dissolution was annexed. These emerging issues justified reopening so the matter could be determined fairly and once and for all.

p. 2

Legal principles established

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  • An advocate whose personal interest is entangled with the subject matter of the litigation must step aside in the interest of justice
  • A court may reopen a concluded hearing where new emerging evidence raises issues central to the suit

Court orders

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  1. 1.That the case be reopened to address the determination or lack thereof of the trust issue raised on the suit properties
  2. 2.That the plaintiffs appoint another advocate (any other counsel in the firm) to take over conduct of the case if they so wish
  3. 3.That the parties have 30 days to comply with the above
Jurisdiction invoked
Original civil jurisdiction over land/trust dispute; inherent powers to reopen a part-heard case and regulate counsel's conduct in the interest of justice

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, "Doris Wangithi Maina & 2 others v Peris Wanjiru Maina & another [2018] KEELC 2008 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2008/eng@2018-06-15

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