Noor Mohamed Farah v Gladys Njeri & another [2018] KEELC 2992 (KLR)
The bottom line
#Kenya's Environment and Land Court disqualified a law firm from a land case because it drafted the disputed lease and could become a witness.
What this practically means
#Executive summary
#Key legal issues
#Swearing of affidavits by an advocate on record
A replying affidavit sworn by the plaintiff's advocate on facts, without disclosing authority, is unprocedural and was expunged from the record.
The court held that advocates should not jump into the arena of conflict by becoming parties to the dispute. If an advocate-deponent were put to task on the averments, he would be placed in an embarrassing position. The court aligned itself with Stephen Bernard Oduor v Afro Freight Forwarders, where an affidavit sworn by an advocate who failed to reveal his authority was held incompetent and struck out. Accordingly, the replying affidavit of Evans Ogeto Miyienda was expunged.
Disqualification of an advocate as a potential witness
Miyienda & Co Advocates, having drawn the contested lease agreement dated 13th June 2008 which is listed by the defendant and against which fraud and forgery are pleaded, are potential witnesses and were disqualified from continuing to act.
The court relied on Rule 9 of the Advocates (Practice) Rules and authority holding that an advocate is barred from acting where he may be required to give evidence. However, it acknowledged that it is not every instance of drafting an instrument that disqualifies an advocate; the test from Delphis Bank v Channan Singh Chatthe is whether real mischief or real prejudice will in all human probability result. Here, the contested lease agreement was drawn by the plaintiff's advocates and the counter-claim pleads fraud and forgery of the lease, making evidence from its drafter likely.
Striking out of pleadings filed by the disqualified firm
The court declined to strike out the pleadings outright, treating that as equivalent to striking out the suit, and instead allowed the plaintiff 30 days to appoint new counsel.
The court balanced the disqualification principle against the interest of justice. Allowing the application as prayed would effectively terminate the plaintiff's suit. Rather than adopt that drastic outcome, the court gave the plaintiff a second chance to engage another advocate within 30 days, since the former firm might be required to give evidence. This preserves access to justice while removing the conflict of interest.
Legal principles established
#- An advocate should not swear affidavits on facts on behalf of a client without disclosing authority; a replying affidavit sworn by an advocate on record who does not disclose his source of authority is unprocedural and liable to be expunged
- Under Rule 9 of the Advocates (Practice) Rules, an advocate may not appear in a matter in which he has reason to believe he may be required as a witness; an advocate who drafted an instrument in dispute in the suit is a potential witness and should not continue to act
Court orders
#- 1.The replying affidavit sworn on 28th March 2018 by Evans Ogeto Miyienda is expunged from the court record
- 2.Miyienda & Co Advocates are disqualified from continuing to act for the plaintiff; the plaintiff is to engage the services of another counsel within 30 days from the date of the ruling
- Jurisdiction invoked
- Original civil jurisdiction (interlocutory application under Order 51 of the Civil Procedure Rules); specific enabling provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Noor Mohamed Farah v Gladys Njeri & another [2018] KEELC 2992 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2992/eng@2018-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.