Standard Chartered Kenya Nominees Limited v Samwel Njeru Muthi & 3 others [2020] KEELC 2830 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to disqualify Oraro & Company Advocates, confirming parties keep their lawyer unless real prejudice is proven.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Mr George Odinga Oraro, Senior Counsel, should be disqualified from acting for the plaintiff in this matter
- 2.Whether the firm of Oraro & Company Advocates should be barred from acting for the plaintiff in this suit
- 3.Whether the pleadings and documents filed by the firm of Oraro & Company Advocates on behalf of the plaintiff should be struck out
Key legal issues
#Whether an advocate should be disqualified where he may be a witness on the authenticity of a document he drew
Disqualification refused: there was no evidence Oraro SC would be called as a witness; the contention was speculative, as no list of witnesses included him.
The court examined the record: the plaintiff's list of witnesses named only Fred Waswa, and no party had filed any list listing Mr Oraro. For him to be a witness, a party must call him. Rule 9 of the Advocates (Practice) Rules bars an advocate appearing in a matter where he may be required as a witness, but that premise was not established on the facts.
Whether the entire firm of Oraro & Company Advocates should be disqualified
No: the applicant did not show prior retainer, possession of privileged information, or real mischief/real prejudice.
The applicant did not contend the firm acted for him or held privileged communications within section 35 of the Advocates Act. The mere fact a partner might be called as a witness does not warrant disqualification; the constitutional right to counsel of choice prevails absent demonstration of real mischief and real prejudice.
Whether pleadings filed by the firm should be struck out
Striking out refused; no legal or jurisprudential basis was laid, and it followed from the failed disqualification.
The court found no authority supporting the draconian remedy of striking out pleadings as a consequence of a failed conflict application. Since the firm was properly on record, there was no basis to strike out its filings.
Legal principles established
#- A party seeking disqualification of an advocate or law firm must satisfy the court that real mischief and/or real prejudice will, in all human probability, result if the advocate is allowed to act.
- A party is entitled to an advocate of their choice, and that right can only be derogated from upon satisfaction of rule 9 and the real mischief/real prejudice criteria.
Court orders
#- 1.The 1st defendant's notice of motion dated 14/1/2019 is dismissed for lack of merit
- 2.The 1st defendant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (suit property dispute); no specific provision cited in the ruling
Relief refused
#Order disqualifying Mr George Odinga Oraro, Senior Counsel, from acting for the plaintiff
No evidence that he will be called as a witness; contention purely speculative
Order disqualifying the firm of Oraro & Company Advocates from acting for the plaintiff
Applicant failed to satisfy rule 9 of the Advocates (Practice) Rules and the real mischief/real prejudice criteria
Order striking out all documents/pleadings filed by Oraro & Company Advocates
No legal or jurisprudential basis laid; flowed from the failed disqualification claim
Costs
The 1st defendant shall bear costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The net result is that the 1st defendant's notice of motion dated 14/1/2019 is dismissed for lack of merit. The 1st defendant shall bear costs of the application.
a party seeking an order of disqualification against an advocate or law firm is required to satisfy the court that real mischief and/or real prejudice will, in all human probability, result if the advocate is allowed to act in the case
The plaintiffs are entitled to an advocate of their choice. That right can only be derogated upon satisfaction of the requirements of rule 9 of the Advocates (Practice) Rules and the jurisprudential criteria of real mischief and/or real prejudice.
The applicant's contention that Mr George Odinga Oraro, Senior Counsel, is a witness in this suit is at this point purely speculative and without basis.
Issues in the judgment
#Inconsistent spelling of the same authority: 'Channgu Singh Cathe' in submissions versus 'Channan Singh Chathe' in the quoted passage
Paragraph 14 states the court record does not bear any list of witnesses or witness statements filed by the plaintiff, although paragraph 14 itself records that the plaintiff filed a list of witnesses and witness statement dated 13/12/2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Standard Chartered Kenya Nominees Limited v Samwel Njeru Muthi & 3 others [2020] KEELC 2830 (KLR)", Case Analysis (2020). Not stated in extract (ruling on 1st defendant's notice of motion dated 14/1/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2830/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.