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ELCAllowedNot stated in the judgment· [2019] KEELC 2830 (KLR)

G M G v SGM [2019] KEELC 2830 (KLR)

High Court of Kenya (court not expressly named in the judgment; Nairobi)
24 April 2019
KBK. BOR
726 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 disqualified an advocate from a case because he might have to testify as a witness in the same matter.

What this practically means

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Executive summary

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The Defendant filed a preliminary objection dated 22/5/2018 seeking to disqualify the firm of Ngure Mbugua & Co. Advocates from acting for the Plaintiffs. The objection rested on the fact that Mr. John Ngure Mbugua of the firm had previously testified in Kiambu Criminal Case No. 155 of 2017, which concerned the suit property in which the Defendant was charged, making him a potential witness in this suit; it was further urged that the firm had authored letters intended to be used as exhibits. The Plaintiffs replied that no compelling reason had been given for the advocate to cease acting and that he had no personal interest against the Defendant. The court considered Rule 9 of the Advocates (Practice Rules), which bars an advocate from appearing where the practitioner will be required to give evidence material to contested issues, and applied the Court of Appeal's decision in Delphis Bank Limited v Chatt & 6 Others [2005] 1 KLR, that the right to an advocate of one's choice is not absolute and may be limited where the advocate may be called as a witness or where there is a conflict of interest from a previous fiduciary relationship. The suit concerns unpaid consideration for L.R. Number 12825/xxx in the form of outstanding tax arrears of Kshs. 47,446,876/= to the Kenya Revenue Authority, with allegations of fraud. Mr. Mbugua did not deny testifying in the criminal case; his handwritten police statement was listed in the Defendant's documents, and correspondence between his firm and the Kenya Revenue Authority was listed among the Plaintiffs' documents. The court found a real possibility that he may be called to testify, held it improper and unethical for counsel to act and also testify, and allowed the objection. The advocate and his firm were disqualified from acting for the Plaintiffs, who remained free to instruct another firm; the pleadings already filed remain on record. No costs order was made.

Key legal issues

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01

Whether Mr. Ngure Mbugua is a potential witness in the suit such that his firm should be disqualified from acting for the Plaintiffs

Holding

Yes; the preliminary objection succeeds and the advocate and his firm are disqualified from acting for the Plaintiffs

Reasoning

The dispute concerns unpaid consideration for the suit property in the form of tax arrears and allegations of fraud. Mr. Mbugua testified in Kiambu Criminal Case No. 155 of 2017 concerning the same suit property in which the Defendant was charged; his handwritten police statement is listed in the Defendant's list of documents, and correspondence authored by his firm with the Kenya Revenue Authority is listed by the Plaintiffs. There is therefore a real possibility he may be called to testify, and it would be improper and unethical for him both to act and to testify.

p. 1
02

Whether the right to an advocate of one's choice is absolute

Holding

No; it may be limited where the advocate may be a witness in the case or where there is a conflict of interest arising from a previous advocate/client fiduciary relationship with the opposing client

Reasoning

Following Delphis Bank Limited v Chatt & 6 Others [2005] 1 KLR, the court applied the two established instances in which the right to representation of choice may be curtailed. The possibility that the advocate may be called as a witness was established on the documents, warranting disqualification notwithstanding the Plaintiffs' claim that the advocate had no personal interest in the matter.

p. 1

Legal principles established

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  • A litigant's right to legal representation by an advocate of his choice is not absolute and may be limited where the advocate may be called as a witness or where there is a conflict of interest between two clients out of a previous advocate/client fiduciary relationship with the opposing client
  • Rule 9 of the Advocates (Practice Rules) prevents an advocate from appearing in a case in which the practitioner will be required to give evidence material to the determination of contested issues

Court orders

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  1. 1.The preliminary objection dated 22/5/2018 is allowed
  2. 2.Mr. Ngure Mbugua and the firm of Ngure Mbugua & Co. Advocates are disqualified from acting for the Plaintiffs in this case
  3. 3.The Plaintiffs are at liberty to engage a different firm of advocates to act for them
  4. 4.The pleadings filed by Ngure Mbugua & Co. Advocates will remain on record

Authorities

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Legislation

  • Advocates (Practice Rules)Rule 9

Cases cited (1)

  • Delphis Bank Limited v Chatt & 6 Others
    [2005] 1 KLR
Jurisdiction invoked
Not expressly invoked in the judgment; the objection was determined under Rule 9 of the Advocates (Practice Rules) and the court's inherent powers

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, "G M G v SGM [2019] KEELC 2830 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2830/eng@2019-04-24

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