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ELCDismissedNot stated in the judgment as provided (ELC suit, Nakuru)· [2020] KEELC 373 (KLR)

Emerg Investments Ltd v Kenya Farmers Association Limited [2020] KEELC 373 (KLR)

Environment and Land Court
10 December 2020
2,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that removing a litigant's chosen lawyers requires proof of real prejudice, not just allegations of conflict of interest.

What this practically means

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Executive summary

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The defendant in a land sale dispute sought to strike out the suit and to bar the firm of M/s Sheth & Wathigo Advocates from acting for the plaintiff, first by a Notice of Preliminary Objection dated 29th January 2020 and then by a Notice of Motion dated 12th March 2020 under Rule 8 of the Advocates' (Practice) Rules. The defendant alleged a conflict of interest: that the firm had acted for it in the sale agreement giving rise to the suit, were potential witnesses listed by the defendant, and were privy to confidential client information which they had used and continued to use against the defendant. The plaintiff, through an affidavit of its Managing Director Nalinkumar Meghji Shah, maintained that it was represented by Sheth & Wathigo in the transaction while the defendant was represented by Kale Maina & Bundotich Advocates, and that it had confidence in its advocates. Both matters were canvassed by written submissions; only the plaintiff filed submissions. Applying the Mukisa Biscuit test, the court held the preliminary objection was not a pure point of law since it required evidence on the alleged confidential information, and dismissed it with costs. On the application, the court found no evidence that the firm acted for the defendant in the sale agreement dated 21st December 2011, no details substantiating misuse of confidential information, and held that testimony on the existence and terms of the agreement falls under the proviso to Rule 8 as formal or non-contentious matters. Relying on Delphis Bank v Chatthe, the court held the defendant failed to show real mischief or real prejudice, and vindicated the plaintiff's constitutional right to counsel of choice under Articles 48, 51(1) and 159(2)(d). Both the preliminary objection and the application were dismissed with costs to the plaintiff.

Key legal issues

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01

Validity of the preliminary objection

Holding

The objection was invalid as it was not a pure point of law and required evidence to ascertain the confidential information alleged.

Reasoning

The court applied the Mukisa Biscuit test, holding that the objection required the court to receive evidence about the nature of the confidential client information and whether injustice would be occasioned. An objection that must be propped up by evidence is not a preliminary objection on a pure point of law. The defendant also filed no submissions in support, which alone justified dismissal.

p. 2
02

Whether the plaintiff's advocates should be disqualified under Rule 8 of the Advocates' (Practice) Rules

Holding

No disqualification; the defendant failed to demonstrate real mischief or real prejudice, and the right to counsel of choice prevails.

Reasoning

The court found that the firm did not act for the defendant in the 2011 sale agreement, that no details of the alleged misuse of confidential information were availed, and that testimony on the existence and terms of the agreement would be on formal or non-contentious matters under the proviso to Rule 8. The plaintiff's constitutional right to representation of choice under Articles 48, 51(1) and 159(2)(d) must be respected absent demonstrated prejudice.

p. 3

Legal principles established

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  • A valid preliminary objection must be on a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where any fact has to be ascertained or where the exercise of judicial discretion is sought.
  • An advocate may not appear in a matter in which he may be required as a witness, save for formal or non-contentious matters of fact, per Rule 8 of the Advocates' (Practice) Rules.
  • The test for disqualifying an advocate from acting for a litigant is whether real mischief or real prejudice will in all human probability result; each case turns on its own facts.
  • A litigant's right to be represented by an advocate of its choice is a constitutional edict that cannot be lightly side-stepped.

Court orders

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  1. 1.Dismissal of the Notice of Preliminary Objection dated 29th January 2020 with costs to the plaintiff
  2. 2.Dismissal of the Notice of Motion dated 12th March 2020 with costs to the plaintiff
  3. 3.Both the application and the Notice of Preliminary Objection dismissed with costs to the plaintiff

Authorities

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Legislation

  • Advocates' (Practice) RulesRule 8
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 51(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Tom Kusienya & Others v Kenya Railways Corporation & others
    [2013] eKLR
  • British-American Investments Company (K) Limited v Njomaitha Investments Limited & another
    [2014] eKLR
  • Delphis Bank Ltd v Channan Singh Chatthe & 6 others
    [2005] eKLR
Jurisdiction invoked
Original civil jurisdiction over the suit; application brought under Rule 8 of the Advocates' (Practice) Rules; constitutional provisions cited include Articles 48, 51(1) and 159(2)(d) of the Constitution

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, "Emerg Investments Ltd v Kenya Farmers Association Limited [2020] KEELC 373 (KLR)", Case Analysis (2020). Not stated in the judgment as provided (ELC suit, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/373/eng@2020-12-10

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