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ELCDismissedNot stated in judgment· [2019] KEELC 328 (KLR)

Angela Musimba & 7 others v Fred Rabongo & 8 others [2019] KEELC 328 (KLR)

Environment and Land Court (High Court of Kenya)
14 November 2019
EOE. O. Obaga
1,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (E. O. Obaga, J) determines a Notice of Motion dated 30th October 2019 in which the Plaintiffs, purchasers of maisonettes on LR No. 3734/1045, sought the disqualification of Messrs. Ogola Okello & Co. Advocates LLP from acting for the 1st to 6th Defendants and the expungement of all pleadings filed by that firm. The application was anchored on Rule 9 of the Advocates (Practice) Rules, which bars an advocate from appearing in a matter in which he may be required as a witness. The Applicants contended that the 3rd Respondent, an advocate who acted for the 4th Respondent developer in the sale, had assured them that LR No. 3734/1046 would be amalgamated with LR No. 3734/1045, a condition of the Certificate of Occupation, only to later reveal amalgamation was impossible; they intended to call or cross-examine him. The Respondents opposed, arguing lack of jurisdiction, that the firm was not a party, that the firm was distinct from the sole proprietorship that handled the transactions, and that no confidential information or prejudice was shown. The court deferred the jurisdictional question and framed the sole issue as whether grounds for disqualification existed. Relying on Delphis Bank and the Giuffre decision, it held that prejudice must be demonstrated; as the 3rd Respondent was already a Defendant who could be cross-examined, and no breach of confidentiality or conflict of interest was shown (Amina N Raso being distinguished), the application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether Rule 9 of the Advocates (Practice) Rules bars the firm from acting where the 3rd Respondent may be cross-examined

Holding

It does not; the 3rd Respondent is already a Defendant and cannot be called as the Applicants' witness; cross-examination as a Defendant suffices and no other lawyer from the firm will be a witness

Reasoning

The court applied Rule 9, which prohibits an advocate appearing in a matter in which he may be required as a witness. Because the 3rd Respondent, the only person who handled the transaction, is already a party/Defendant, the Applicants cannot call him as their own witness; any questioning will be by cross-examination. No prejudice or breach of confidentiality was alleged, so no ground for disqualification existed.

p. 2
02

Whether the firm should be disqualified and its documents expunged for conflict of interest

Holding

No; no conflict, mischief or prejudice was demonstrated, and Amina N Raso was distinguished because conflict there was clearly established

Reasoning

The court weighed the constitutional right to representation of choice against the advocate-witness rule and confidentiality concerns. Finding no allegation of breach of confidentiality and no likelihood of prejudicial testimony, it concluded the application lacked merit and dismissed it with costs.

p. 2

Legal principles established

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  • To disqualify an attorney based on the advocate-witness rule, a party must demonstrate that the testimony is likely to be prejudicial
  • A litigant's right to an advocate of his choice may only be displaced where there is a conflict of interest endangering confidentiality or where the advocate would double up as a witness
  • Mere suspicion of conflict of interest is not enough to disqualify a firm of advocates; prejudice or mischief must be shown

Court orders

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  1. 1.The Applicants' Notice of Motion dated 30th October 2019 is dismissed
  2. 2.Costs of the application awarded to the Respondents
Jurisdiction invoked
Inherent jurisdiction of the High Court/Environment and Land Court over suits and applications before it (not expressly stated); jurisdiction objection expressly deferred

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, "Angela Musimba & 7 others v Fred Rabongo & 8 others [2019] KEELC 328 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/328/eng@2019-11-14

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