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ELCPartially AllowedELC Case (Nairobi) – Suit Property L.R. No. 12979/4 Ruai· [2018] KEELC 3876 (KLR)

John Kangara Kamau & 84 others v Embakasi Development Programme & 3 others [2018] KEELC 3876 (KLR)

Environment and Land Court
20 February 2018
KBK. Bor
2,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court barred a lawyer from acting against his former client over the same land, ruling confidentiality outweighs the right to choose any advocate.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nairobi by K. Bor, J, decided two interlocutory applications arising from a suit in which the Plaintiff claims specific performance of an agreement for the sale and subdivision of L.R. No. 12979/4 at Ruai, Nairobi. The 3rd Defendant, Renton Company Limited, applied to strike out the suit or, alternatively, to bar the Plaintiff's advocate, Mr. Paul Muriithi Mwangi, from acting, on the ground that he had previously acted for the 3rd Defendant in several matters concerning the same property, and thus held confidential information subject to advocate-client privilege under Section 134 of the Evidence Act. The advocate did not deny the prior retainer but argued there was no nexus to the current dispute and that the Plaintiff's constitutional right to counsel of choice prevailed. Relying on the real mischief or real prejudice test, the court found a reasonable apprehension that information acquired in the prior representations could be disclosed to the Plaintiff, since the subject matter was the same suit property, and barred Mr. Mwangi from acting for the Plaintiff in this suit or related proceedings. However, the court declined to strike out the suit itself. The Plaintiff's application dated 11/4/2017 seeking particulars of the alleged confidential communications, with the defence to be struck out on default, was dismissed because the information sought was privileged. The 3rd Defendant was awarded costs of both applications. Judgment delivered 20 February 2018.

Key legal issues

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01

Whether the Plaintiff's advocate should be barred from acting due to prior representation of the 3rd Defendant

Holding

Yes – the advocate is barred from acting for the Plaintiff in this suit and related proceedings.

Reasoning

The advocate admitted acting for the 3rd Defendant in several matters all concerning the same suit property, L.R. No. 12979/4. The court found a reasonable apprehension that confidential information acquired in those prior retentions could be disclosed to the Plaintiff to the 3rd Defendant's detriment, satisfying the real mischief/prejudice test from Delphis Bank. The fiduciary duty of confidentiality under Kings Woolen Mills survives the retainer, outweighing the Plaintiff's right to counsel of choice.

p. 2
02

Whether particulars of the alleged confidential information could be compelled

Holding

No – the particulars sought are privileged under Section 134 of the Evidence Act.

Reasoning

The Plaintiff sought particulars identifying the confidential communications between the 3rd Defendant and its former advocate, their mode, dates and the prejudice alleged. Section 134 of the Evidence Act bars an advocate from disclosing client communications without express consent. The court agreed that the information sought is privileged and dismissed the application with costs.

p. 3

Legal principles established

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  • There is no general rule that an advocate cannot act for one party in a matter and then for the opposite party in subsequent litigation; the test is whether real mischief or real prejudice will result.
  • Once a retainer is established, an advocate should not act for conflicting clients, and the fiduciary duty of confidentiality survives completion of the matter.
  • The constitutional right to counsel of choice may yield where there is a conflict of interest endangering advocate-client confidentiality.

Court orders

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  1. 1.Bar Mr. Paul Mwangi Advocate from continuing to act for the Plaintiff in this suit or any other related proceedings in respect of L.R. No. 12979/4 situated within Ruai in the Nairobi City County
  2. 2.Decline to strike out the Plaintiff's suit
  3. 3.Award the 3rd Defendant the costs of the application dated 24/2/2017
  4. 4.Dismiss the Plaintiff's application dated 11/4/2017 with costs to the 3rd Defendant

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, "John Kangara Kamau & 84 others v Embakasi Development Programme & 3 others [2018] KEELC 3876 (KLR)", Case Analysis (2018). ELC Case (Nairobi) – Suit Property L.R. No. 12979/4 Ruai. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3876/eng@2018-02-20

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