Shaiwaz Sadrudin Jiwa v Abdlillahi Abdrihaman [2020] KEELC 2452 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether former representation of the plaintiff by the defendant's counsel established a disqualifying conflict of interest
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
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.
The test for disqualifying an advocate from acting
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
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.
Burden of proof on an application to disqualify counsel
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
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.
Legal principles established
#- 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
#- 1.The plaintiff's Notice of Motion dated 1st November 2019 is dismissed
- 2.Costs of the application awarded to the defendant
- 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
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.