Leonard Gichora Kiiu [Suing on behalf of the Estate of Kiiru Chomba (Deceased) & 3 others v Peter Gicharu Ngige & 12 others [2021] KEELC 2897 (KLR)
The bottom line
#A Kenyan court removed a law firm from a case because it had previously represented the other side, protecting confidential information.
What this practically means
#Executive summary
#Key legal issues
#Conflict of interest — whether prior representation of the applicants by the firm warrants its removal from acting for the 13th Respondent
Yes; the firm is barred from continuing to act for the 13th Respondent.
The court accepted that the firm had acted for the applicants/petitioners in earlier related matters forming the genesis of the petition, and that the petition seeks enforcement of rights arising from those earlier decisions. Given the confidential information held, the court found a real and present danger of prejudice to the applicants and applied the 'real mischief and real prejudice' test.
Right to counsel of choice in civil matters
Courts are reluctant to dictate which advocate may represent a client unless a real likelihood of prejudice is shown.
The court reviewed authorities including Delphis Bank and William Audi Odode establishing that litigants have an implicit right to representation by counsel of choice in civil matters, and that a court will only deprive a litigant of that right for a clear and valid reason — here, the demonstrated conflict of interest satisfied that threshold.
Legal principles established
#- A court will bar an advocate from acting due to conflict of interest only where real mischief and real prejudice will, in human probability, result (Rakusen test)
- An advocate who has acted for a party in related matters and holds confidential information may not act against that party without express consent, per Rule 9 of the Advocates (Practice) Rules and section 134(1) of the Evidence Act
Court orders
#- 1.The Notice of Motion dated 24th March, 2020 is allowed
- 2.M/s Ngigi Mbugua & Co. Advocates barred/recused from further representing the 13th Respondent in the petition
- 3.Each party to the application to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the petition; application brought under the Advocates (Practice) Rules, Rule 9, and the court's inherent powers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leonard Gichora Kiiu [Suing on behalf of the Estate of Kiiru Chomba (Deceased) & 3 others v Peter Gicharu Ngige & 12 others [2021] KEELC 2897 (KLR)", Case Analysis (2021). Petition (Eldoret) — Notice of Motion dated 24th March, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2897/eng@2021-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.