Patrick Simiyu Khaemba v Kenya Electricty Transmission & another [2021] KEELC 486 (KLR)
The bottom line
#A Kenyan court allowed a former advocate to join a land case as an interested party after fraud allegations were made against him, confirming he cannot be condemned unheard.
What this practically means
#Executive summary
#Key legal issues
#Joinder of a former advocate as an interested party
The former advocate was properly joined as an interested party having a direct, identifiable and proximate stake in proceedings where allegations of fraud and orders for personal payment of costs were sought against him.
The Respondent's application of 30/08/2021 alleged the applicant acted on a frolic of his own, committed fraud and should personally pay the 2nd Defendant's taxed costs. Having been removed from the record by a Notice of Change of Advocates, the advocate could not otherwise participate. Denying joinder would condemn him unheard contrary to natural justice and the constitutional right to fair hearing under Article 50.
Existence of procedure for interested parties in plaint suits
Although the phrase 'interested party' is not expressly used in the Civil Procedure Act and Rules, the procedure exists through Order 1 Rule 10 providing for addition of necessary parties.
The court rejected the Respondent's argument that no provision exists for interested parties in suits begun by plaint, finding Order 1 Rule 10 (as amended in 2020) clearly provides for addition of persons whose presence is necessary to effectually adjudicate all questions in the suit, and that the Mutunga Rules also govern interested parties.
Advocate-client confidentiality versus fair hearing
The Respondent could not resist joinder on grounds of advocate-client confidentiality since he denied the advocate-client relationship on oath and made allegations of crime and fraud, which fall within the proviso to Section 134 of the Evidence Act and amount to waiver.
Sections 134 and 136 of the Evidence Act govern privilege; the proviso permits disclosure of matters showing client crime or fraud. By denying instructions and alleging perjury and fraud against his former advocate, the Respondent put the advocate on the defensive and was deemed to have waived privilege. The right to fair hearing under Articles 25(c) and 50 outweighs the confidentiality objection.
Legal principles established
#- An intended interested party must move the court while proceedings are still alive; proceedings may be at any stage but must be pending
- A party wishing to join must meet the Muruatetu threshold of identifiable personal interest, prejudice on non-joinder, and a case not merely replicative of other parties
- Advocate-client privilege is not absolute and may be waived, including where the client makes allegations against the advocate that place him in a defensive position
- A person against whom allegations are made in pending judicial proceedings has an illimitable right to fair trial and fair hearing under Articles 25(c) and 50 and must not be condemned unheard
Court orders
#- 1.The firm of Sifuna & Sifuna Advocates is granted leave to be enjoined as an Interested Party in this suit, to participate in the Application dated 30/08/2021, any subsequent related applications, and all proceedings in relation to the taxation of costs
- 2.The Applicant to file and serve a Notice of Appointment as an Interested Party within three (3) days and a Replying Affidavit to the Application dated 30/08/2021 within seven (7) days
- 3.The Applicant to file and serve a Supplementary Affidavit together with submissions within five (5) days of service of the Replying Affidavit
- 4.The Respondent to file and serve written submissions within five (5) days of service of the Applicant's submissions
- 5.Each party's submissions should not exceed strictly four (4) pages of New Times Roman Font 12 of 1.5 Spacing
- 6.Costs of the Application shall be in the cause
- Jurisdiction invoked
- Order 1 Rule 10 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Simiyu Khaemba v Kenya Electricty Transmission & another [2021] KEELC 486 (KLR)", Case Analysis (2021). ELC Case of 2013 (Application dated 15/10/2021), Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/486/eng@2021-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.