Emerg Investments Ltd v Kenya Farmers Association Limited [2020] KEELC 373 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the preliminary objection
The objection was invalid as it was not a pure point of law and required evidence to ascertain the confidential information alleged.
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.
Whether the plaintiff's advocates should be disqualified under Rule 8 of the Advocates' (Practice) Rules
No disqualification; the defendant failed to demonstrate real mischief or real prejudice, and the right to counsel of choice prevails.
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.
Legal principles established
#- 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
#- 1.Dismissal of the Notice of Preliminary Objection dated 29th January 2020 with costs to the plaintiff
- 2.Dismissal of the Notice of Motion dated 12th March 2020 with costs to the plaintiff
- 3.Both the application and the Notice of Preliminary Objection dismissed with costs to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.