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ELCDismissedCase No 213 of 2017· [2019] KEELC 3793 (KLR)

Christopher Mokaya Misiani v Jane Onyangi & another [2019] KEELC 3793 (KLR)

Environment and Land Court
5 April 2019
JMJ. M. Mutungi
1,355 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 refused to disqualify a law firm from a land case because the party claiming a conflict proved no actual lawyer-client relationship.

What this practically means

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Executive summary

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The 1st defendant, Jane Onyangi, by notice of motion dated 7th March 2018 sought the disqualification of Mr. J. O. Soire and the firm of J. O. Soire & Co. Advocates from acting for the plaintiff, Christopher Mokaya Misiani, in a land suit over parcel Central Kitutu/Mwamosioma/1289. She contended that at the commencement of the suit in 2007 she had instructed the firm, through her nephew Samson Nyamweya, and disclosed confidential information regarding her rights, interests, and the history of conveyance of the suit land, before withdrawing instructions; continued representation would prejudice her to the plaintiff's advantage. She also sought a stay of the firm's representation and striking out of pleadings drawn by the firm. The advocate denied in a replying affidavit that he was ever retained by the defendants, and in submissions argued that no tangible evidence of retainer was produced. The defendants filed no submissions. The court, applying the decision in Charles Gitonga Kariuki v Akuisi Farmers Company Ltd and the Court of Appeal's decision in Uhuru Highway Development Ltd v Central Bank of Kenya, held that a party seeking an advocate's disqualification must establish an advocate-client relationship from which confidential information was acquired and could be used to the applicant's detriment. The 1st defendant produced no evidence of payment of fees or documents drawn by the firm demonstrating a retainer. The application dated 7th March 2018 was dismissed with costs to the plaintiff on 5th April 2019.

Key legal issues

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Whether the firm of J. O. Soire & Co. Advocates should be disqualified from acting for the plaintiff on the ground of prior representation of the 1st defendant

Holding

Disqualification refused; no advocate-client relationship or confidential information was proved.

Reasoning

The court applied the principle that a party seeking disqualification of an advocate must demonstrate an advocate-client relationship from which confidential information was acquired and could be used to the applicant's detriment. Apart from bare allegations by the 1st defendant supported by her nephew, no evidence of payment of fees, drawings of pleadings or documents, or any act of retainer was produced. The firm denied ever being instructed by the defendants. Mere allegation of former instructions is insufficient; the burden of proving the conflict rests on the applicant.

p. 2

Legal principles established

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  • An advocate may only be barred from acting where a conflict of interest is demonstrated on a proper basis by the party seeking disqualification
  • The applicant seeking disqualification of an advocate must establish the advocate-client relationship capable of transmitting confidential information

Court orders

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  1. 1.The defendants' application dated 7th March 2018 dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 51 Rule 1
  • LSK (Code of Ethics and Conduct for Advocates) 2015Rule 6

Cases cited (2)

  • Charles Gitonga Kariuki -vs- Akuisi Farmers Company Ltd
    [2007] eKLR
  • Uhuru Highway Development Ltd -vs- Central Bank of Kenya
    [2002] 2 E.A 654
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules; Rule 6 of the LSK (Code of Ethics and Conduct for Advocates) 2015

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, "Christopher Mokaya Misiani v Jane Onyangi & another [2019] KEELC 3793 (KLR)", Case Analysis (2019). Case No 213 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3793/eng@2019-04-05

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