Victor Karani Mkunzo v Changawa Shadrack Mwaro & 4 others [2019] KEELC 4084 (KLR)
The bottom line
#A Malindi land court struck down an objection to a lawyer representing a client, confirming that drafting a sale agreement does not disqualify the lawyer from later representing that client in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's objection to the 3rd Defendant's representation is a valid preliminary objection on a point of law
It is not; it is misconceived and incapable of disposing of the suit, and it rests on unproven speculation that the law firm may be called as a witness
Applying the Mukisa Biscuits definition as endorsed by the Supreme Court, a preliminary objection must be a pure point of law capable of disposing of the suit, on the assumption that all facts pleaded by the other side are correct. Here the Plaintiff raised, without any proof, the mere possibility that the law firm might be required as a witness. Such an objection depends on facts to be ascertained and cannot dispose of the suit, so it fails the test.
Whether Rule 8 of the Advocates Practice Rules bars the firm from acting for the 3rd Defendant
No; the rule is not mandatory and does not absolutely bar an advocate who acted in a conveyancing matter from representing a party in court, and there was no basis to predict that any advocate from the firm would be required as a witness
The court examined the text of Rule 8, which disqualifies an advocate only where he has reason to believe he may be required as a witness, and contains a proviso for formal or non-contentious matters. The rule is discretionary in effect, not an absolute bar. At this stage there was no evidence that any advocate of the firm had or would have reason to believe he would be a witness, so the objection failed on the merits as well.
Legal principles established
#- A preliminary objection may only be raised on a pure point of law whose outcome may dispose of the suit, on facts that are not contested; it cannot be raised where facts must be ascertained or judicial discretion exercised
- Rule 8 of the Advocates Practice Rules is not couched in mandatory terms and does not absolutely bar an advocate who acted in a conveyancing matter from representing a party in court
Court orders
#- 1.The Notice of Preliminary Objection dated 15th March 2018 is struck out
- 2.No order as to costs
- Jurisdiction invoked
- Original civil jurisdiction over the land dispute (Plot No. Kilifi/Roka/104); no specific constitutional or statutory provision invoked for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victor Karani Mkunzo v Changawa Shadrack Mwaro & 4 others [2019] KEELC 4084 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4084/eng@2019-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.