Anna Jebichi Simatwo v Attorney General & 3 others [2018] KEELC 2063 (KLR)
The bottom line
#A Kenyan court disqualified a law firm from acting against its former client, confirming that advocates cannot switch sides or misuse confidential information.
What this practically means
#Executive summary
#Key legal issues
#Whether M/S Chepkitway & Co. Advocates is in a position of conflict of interest by acting for the interested party against the plaintiff, its former client
Yes. The firm had acted for or on behalf of the plaintiff, prepared an affidavit purporting to withdraw the suit while the plaintiff was still represented by Onyinkwa & Co. Advocates, and was in possession of confidential correspondence ('HCM 5') which it sought to deploy against the plaintiff.
The court found from the annexed correspondence that representation was irregular: Onyinkwa & Co. Advocates were on record for the plaintiff, yet Chepkitway & Co. Advocates corresponded as if acting for the plaintiff and even posed as acting for the defendants, who are ordinarily represented by the Attorney General. In an adversarial system an advocate cannot act for both sides; where an advocate acted in a transaction now in dispute, the advocate's proper role is as a witness, not as counsel for one side against the former client. Using confidential information so acquired would be prejudicial to the plaintiff.
Whether the preliminary objection satisfies the test for a preliminary objection
The court, applying the Mukisa Biscuits principles, treated the objection as properly founded on a point of law (conflict of interest under Rule 8 of the Advocates (Practice) Rules 1966) and upheld it.
The court reiterated that preliminary objections must be on points of law, not facts, and are upheld only in the clearest of cases because they can dispose of a matter entirely. The conflict-of-interest ground was accepted as raising such a point; the court did not separately or expressly rule on the Order 9 Rule 9 ground or frame its determination as an abuse-of-process finding.
Legal principles established
#- A preliminary objection must be on a point of law, not facts, and courts uphold preliminary objections only in the clearest of cases
- An advocate cannot act for both parties in an adversarial system and may not use confidential information obtained from a former client against that client
Court orders
#- 1.The preliminary objection dated 22nd September 2017 is upheld
- 2.The interested party is at liberty to engage the services of another law firm other than Chepkitway & Co. Advocates
- 3.Costs in the cause
- Jurisdiction invoked
- Original jurisdiction over the suit and the preliminary objection dated 22nd September 2017; no constitutional or statutory jurisdictional provision is expressly invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anna Jebichi Simatwo v Attorney General & 3 others [2018] KEELC 2063 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2063/eng@2018-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.