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ELCDismissedNot stated in extract (ruling on 1st defendant's notice of motion dated 14/1/2019)

Standard Chartered Kenya Nominees Limited v Samwel Njeru Muthi & 3 others [2020] KEELC 2830 (KLR)

Environment and Land Court
5 May 2020
2,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (B M Eboso J) determined a notice of motion dated 14/1/2019 by the 1st defendant seeking the disqualification of Mr George Odinga Oraro, Senior Counsel, and the entire firm of Oraro & Company Advocates from acting for the plaintiff, and the striking out of all documents filed by that firm. The application was premised on the allegation that the suit rested on a provisional conveyance/indenture dated 13/6/1997 prepared by the defunct firm of Oraro & Rachier Advocates, in which Mr Oraro was a partner, and that he would therefore be required to testify as to the authenticity of that instrument. The plaintiff opposed, asserting the right to counsel of choice and noting no confidential information or prior retainer was alleged. The court framed three questions: disqualification of Mr Oraro, disqualification of the firm, and striking out of pleadings. Applying rule 9 of the Advocates (Practice) Rules and the 'real mischief and real prejudice' test from Delphis Bank Limited v Channan Singh Chathe, the court held the claim that Mr Oraro would be a witness was purely speculative, as no list of witnesses included him, and the applicant established no prior retainer, privileged information, or prejudice. All three prayers failed. The notice of motion was dismissed with costs to the 1st defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether Mr George Odinga Oraro, Senior Counsel, should be disqualified from acting for the plaintiff in this matter
  2. 2.Whether the firm of Oraro & Company Advocates should be barred from acting for the plaintiff in this suit
  3. 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

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01

Whether an advocate should be disqualified where he may be a witness on the authenticity of a document he drew

Holding

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.

Reasoning

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.

p. 3
02

Whether the entire firm of Oraro & Company Advocates should be disqualified

Holding

No: the applicant did not show prior retainer, possession of privileged information, or real mischief/real prejudice.

Reasoning

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.

p. 1
03

Whether pleadings filed by the firm should be struck out

Holding

Striking out refused; no legal or jurisprudential basis was laid, and it followed from the failed disqualification.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The 1st defendant's notice of motion dated 14/1/2019 is dismissed for lack of merit
  2. 2.The 1st defendant shall bear the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 3

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

p. 3

Order striking out all documents/pleadings filed by Oraro & Company Advocates

No legal or jurisprudential basis laid; flowed from the failed disqualification claim

p. 3

Costs

The 1st defendant shall bear costs of the application.

Quotable passages

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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.
p. 3Disposition and costs
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
p. 2Test for disqualification of an advocate
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.
p. 3Right to counsel of choice
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.
p. 3Speculative witness claim

Issues in the judgment

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minor

Inconsistent spelling of the same authority: 'Channgu Singh Cathe' in submissions versus 'Channan Singh Chathe' in the quoted passage

minor

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

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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, "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.