Geoffrey Omariba Bosire v Mary Nyaboke Maina & another [2018] KEELC 4201 (KLR)
The bottom line
#The Kisii Environment and Land Court refused to lift an order letting the defendant use trees on disputed land, but disqualified the defendants' lawyer for a conflict of interest.
What this practically means
#Executive summary
#Key legal issues
#Whether to vary or set aside the order of 31st July 2017 on the trees
Prayer declined; the order was properly made after an inquiry and the 29th June 2016 status quo order was intended only to preserve the suit property pending determination
The court had directed the local chief to investigate who planted the trees, and her report confirmed they were planted by the 1st defendant's husband, entitling her to utilise them. The status quo order of 29th June 2016 merely barred sale or transfer of the property until the suit was determined and was not contravened by the trees order.
Whether Anyona Mbunde advocate should be disqualified from acting for the defendants
Disqualification granted; the advocate had drawn and filed the plaint in the earlier identical suit (ELC No. 456 of 2014) on behalf of the same plaintiff, placing him in a position of conflict
The plaint in the earlier suit, drawn by Anyona Mbunde & Co. Advocates, was virtually word for word similar to the plaint in the present suit, showing he must have received instructions and confidential information from the plaintiff. Representing the defendants against his former client in the same subject matter would be a conflict of interest and professional misconduct.
Whether the present suit is res judicata given the earlier suit ELC No. 456 of 2014
Res judicata plea rejected as farfetched because the earlier suit was withdrawn without determination on merits
The court suo moto retrieved the file of HC ELC No. 456 of 2014 and established that the identical suit between the same parties was withdrawn on 21st March 2017 on the plaintiff's application, with no order as to costs. For res judicata to apply the earlier suit must have been finally determined or dismissed; a withdrawal leaves the issues undetermined on merits. However, filing the present suit while the earlier one was pending was an abuse of process under Section 6 of the Civil Procedure Act.
Legal principles established
#- An advocate who has acted for a party may not act against that former client in the same subject matter, as client-advocate information is confidential and acting otherwise amounts to professional misconduct
- The doctrine of res judicata does not apply where the earlier suit was withdrawn rather than determined on merits or dismissed
Court orders
#- 1.Prayer for stay and/or setting aside of the order of 31st July 2017 allowing the 1st defendant to utilise the trees on parcel 1483 disallowed
- 2.Anyona Mbunde advocate disqualified from continuing to act for and represent the defendants in the present suit
- 3.Each party to meet their own costs of the application
- Jurisdiction invoked
- Inherent powers under Sections 3 and 3A of the Civil Procedure Act, Cap 21, and Order 40 Rules 1 and 2 and Order 50 Rule 1 of the Civil Procedure Rules (interlocutory application in an ELC suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Omariba Bosire v Mary Nyaboke Maina & another [2018] KEELC 4201 (KLR)", Case Analysis (2018). Case No 116 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4201/eng@2018-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.