Jeremiah Arnold Opande Arodi & another (Suing through their Attorney) Nicodemus Atito Arodi v Washington Jakoyo Midiwo;Housing Finance Limited & another (Third Party) [2019] KEELC 4220 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to remove opposing lawyers, ruling that vague suspicion alone cannot disqualify an advocate from representing a client.
What this practically means
#Executive summary
#Key legal issues
#Whether continued representation by Owiti, Otieno & Ragot Advocates would prejudice the Defendant
The application failed; the Defendant did not show prima facie detriment or prejudice arising from the firm's prior role in negotiations or the witnessing of a power of attorney.
The firm acted for the Plaintiffs, not the Defendant, in the negotiations over the unexecuted Agreement of Acknowledgment of Debt; the Defendant had his own advocate. The witnessing of the power of attorney was neither a ground in the application nor a basis for disqualification. No sensitive or privileged information was disclosed beyond the documented material, and the advocate likely to be a witness was Mr. Owiti, not Mr. Otieno, which alone cannot bar the whole firm.
Burden of particularising privileged information to justify disqualification
The burden lay on the Defendant to avail the evidence or information to enable the court assess whether it suffices to bar the counsel or firm; unparticularised allegations cannot displace the right to counsel of choice.
Relying on Oriental Commercial Bank Limited vs Central Bank of Kenya, the court held that unless the alleged evidence or information is availed to the court, interference with representation is unwarranted. This reflects the principle in National Bank of Kenya Limited vs Peter Kipkoech Korat that the mere possibility that one advocate in a firm might be a witness does not disqualify the entire firm.
Legal principles established
#- A party seeking to disqualify an advocate from acting must particularise the evidence or privileged information the advocate holds that would prejudice the applicant; mere possibility or connection is insufficient.
- Absent such demonstration, the court will not interfere with a litigant's right to counsel of choice.
Court orders
#- 1.The Defendant's notice of motion dated 5th February 2019 and filed on 6th February 2019 is dismissed with costs.
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the suit; application by notice of motion dated 5th February 2019 for disqualification of the Plaintiffs' advocates
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Arnold Opande Arodi & another (Suing through their Attorney) Nicodemus Atito Arodi v Washington Jakoyo Midiwo;Housing Finance Limited & another (Third Party) [2019] KEELC 4220 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4220/eng@2019-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.