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ELCDismissedBungoma ELC (application arising from suit; ruling also applies to Bungoma ELC Cases No. 47 of 2018 and No. 52 of 2018)· [2020] KEELC 2452 (KLR)

Shaiwaz Sadrudin Jiwa v Abdlillahi Abdrihaman [2020] KEELC 2452 (KLR)

Environment and Land Court
27 May 2020
1,709 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 lawyer from acting, ruling that vague conflict-of-interest claims without concrete evidence of prejudice cannot strip a party of their chosen advocate.

What this practically means

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Executive summary

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The plaintiff, Shaiwaz Sadrudin Jiwa, moved the Environment and Land Court at Bungoma by Notice of Motion dated 1st November 2019 seeking an order restraining counsel for the defendant, Mr Simiyu Makokha, from representing the defendant on grounds of conflict of interest. The plaintiff alleged that the counsel had previously acted for him in various suits, including Bungoma ELC Case No. 216 of 2014, and held confidential information about the suit properties. Counsel opposed the application in a replying affidavit, denying any advocate-client relationship concerning the suit property, asserting the plaintiff had been removed from the pleadings in Case No. 216 of 2014 before he took over, and invoking the defendant's right to counsel of choice. The court distinguished King Woollen Mills, finding no suggestion that Makokha had acted for both parties in the same transaction; communications and a bank transfer relied on by the plaintiff related to Malakisi properties other than the subject of the suit. Applying Rakusen v Ellis Munday & Clarke as followed in Delphis Bank v Chatthe, the court held that real mischief and real prejudice must be shown, and under Re - A Firm of Solicitors general allegations of confidential information without particularity are insufficient. Section 109 of the Evidence Act placed the burden on the plaintiff, who failed to discharge it. The Notice of Motion was dismissed with costs, and, as agreed by the parties, the ruling also applies to Bungoma ELC Cases No. 47 of 2018 and No. 52 of 2018.

Key legal issues

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01

Whether former representation of the plaintiff by the defendant's counsel established a disqualifying conflict of interest

Holding

No disqualifying conflict was established; any prior dealings concerned unrelated properties, and the plaintiff was removed from the pleadings in Bungoma ELC Case No. 216 of 2014

Reasoning

The annexed pleadings showed the plaintiff had been removed from the record in Case No. 216 of 2014 before counsel took over. Documents evidencing communication with Mr Makokha related to properties in Malakisi, none of which were the subject of this case. There was thus no former retainer over the same transaction and no breach of confidentiality possible.

p. 2
02

The test for disqualifying an advocate from acting

Holding

The test is whether real mischief and real prejudice will in all human probability result if the advocate is allowed to act, and general allegations of confidential information are insufficient without particularity

Reasoning

The court adopted Cozens-Hardy MR's test in Rakusen v Ellis Munday & Clarke as followed in Delphis Bank Ltd v Chatthe, and Re - A Firm of Solicitors on particularity of confidential information. The plaintiff made only general allegations and offered no particulars of the confidential information allegedly passed to Mr Makokha relevant to this dispute.

p. 2
03

Burden of proof on an application to disqualify counsel

Holding

Under Section 109 of the Evidence Act the burden lay on the plaintiff to prove prejudice if counsel continued acting, and he failed to discharge it

Reasoning

The court held that a party alleging conflict of interest is obliged to place cogent evidence before the court. Beyond general allegations and a barely legible bank transfer and email concerning other properties, the plaintiff adduced no evidence of confidential information acquired by virtue of any retainer relevant to this dispute.

p. 2

Legal principles established

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  • A party alleging conflict of interest bears the burden of proving it with cogent, particularised evidence; mere allegation and conjecture are insufficient to disqualify an advocate.
  • A party has a constitutional right to counsel of choice, which should not be interfered with absent sufficient grounds.

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 1st November 2019 is dismissed
  2. 2.Costs of the application awarded to the defendant
  3. 3.The ruling to apply also to Bungoma ELC Cases No. 47 of 2018 and No. 52 of 2018 as agreed by the parties on 18th February 2020

Authorities

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Legislation

  • Evidence ActSection 109

Cases cited (5)

  • KING WOOLEN MILLS LTD .V. KAPLAN & STRATON ADVOCATES
    C.A Civil Appeal No 55 of 1993 (1993 eKLR)
  • RE – A FIRM OF SOLICITORS
    [1955] All E.R 482
  • RAKUSEN .V. ELLIS MUNDAY & CLARKE
    [1912] Ch 831
  • DELPHIS BANK LTD .V. CHATTHE & OTHERS
    2005 1 KLR 776
  • WILLIAM AUDI ODODE & ANOTHER .V. JOHN YIER & ANOTHER
    C.A Civil Application No 360 of 2004 (Nbi)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property dispute

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, "Shaiwaz Sadrudin Jiwa v Abdlillahi Abdrihaman [2020] KEELC 2452 (KLR)", Case Analysis (2020). Bungoma ELC (application arising from suit; ruling also applies to Bungoma ELC Cases No. 47 of 2018 and No. 52 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2452/eng@2020-05-27

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