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ELCDismissedNotice of Motion dated 30/11/2020 in the Petition and Cross Petition· [2021] KEELC 3913 (KLR)

Crossley Holdings Ltd v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 3 others; Richard Ochieng Ogendo & another (Interested Parties) [2021] KEELC 3913 (KLR)

Environment and Land Court
24 March 2021
10,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop lawyer James Orengo from representing a petitioner, confirming parties keep their constitutional right to the advocate of their choice.

What this practically means

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Executive summary

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The Agriculture and Food Authority moved the Environment and Land Court at Kisumu seeking to bar Senior Counsel Hon. James Aggrey Bob Orengo and the firm of J. A. B. Orengo Advocates from acting for the Petitioner in the Petition and Cross-Petition, and for leave to cross-examine the Petitioner's deponent, Mr. Buggar Singh, on affidavits sworn 26th August 2020 and 19th October 2020. The applicant alleged Orengo, as former Minister for Lands, received confidential government documents (including a classified Cabinet Memorandum) now deployed by the Petitioner, creating a conflict of interest and breach of trust contrary to the Advocates (Practice) Rules, the Official Secrets Act, the Leadership and Integrity Act and Chapter Six of the Constitution. The 3rd Respondent objected that the application invoked no jurisdiction-conferring provisions, while the 5th Respondent supported the application. The Petitioner countered that mere former ministerial office created no advocate-client relationship and that barring him would infringe the constitutional right to counsel of choice. The court held the jurisdictional objection was a procedural technicality, as the Civil Procedure Rules fill lacunae in the Mutunga Rules. On the merits, it found no advocate-client relationship between Orengo and the respondents, no likelihood of him being called as a witness, and no demonstration of real mischief or prejudice; barring him would deny the Petitioner its right to counsel of choice. On cross-examination, applying GGR v HPS, the applicant failed to show inconsistency in the affidavits; the application was also late given prior consent directions for written submissions. The application was dismissed with costs on 24th March 2021.

Key legal issues

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01

Whether Orengo SC and his firm should be barred from acting for the Petitioner

Holding

Application refused - no advocate-client relationship with the respondents and no established conflict or breach of trust

Reasoning

The court found Orengo was a Cabinet Secretary, not an advocate for the Government, so no fiduciary advocate-client relationship arose. He had not sworn any affidavit in the petition so was unlikely to be a witness. The respondents failed to demonstrate real mischief or prejudice, and barring him would infringe the Petitioner's constitutional right to counsel of choice.

p. 10
02

Whether the deponent Buggar Singh should be cross-examined

Holding

Application refused - no inconsistency shown, application was late and would delay the petition

Reasoning

Applying GGR v HPS, cross-examination requires special circumstances such as fraud, mala fides or conflicting affidavits. None was demonstrated. Directions by consent for written submissions had already been given, and the parties could instead file further affidavits or argue the point in submissions, as failure to disclose source renders an affidavit worthless.

p. 10
03

Whether the application was procedurally properly invoked

Holding

Jurisdictional objection was a procedural technicality not going to the root of the dispute

Reasoning

Mr Sala argued the orders sought rested on provisions not conferring jurisdiction and that the constitutional petition rules exclusively apply. The court held the Mutunga Rules are silent on cross-examination of a deponent and the Civil Procedure Rules as the parent civil procedure regime fill the lacuna, so the objection failed.

p. 7

Legal principles established

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  • Where the Mutunga Rules are silent, the Civil Procedure Rules apply as the parent rules in civil matters
  • The right to be represented by an advocate of one's choice in civil matters can only be taken away in exceptional cases with justifiable grounds
  • Conflict of interest in disqualification applications requires demonstration of real mischief and real prejudice
  • Cross-examination of a deponent under Order 19 Rule 2 is discretionary and requires special circumstances and adequate material

Court orders

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  1. 1.The application dated 30/11/2020 is dismissed with costs

Authorities

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Legislation

  • Advocates (Practice) RulesRule 8 / Rule 9
  • Civil Procedure RulesOrder 19 rules 2, 3(1); Order 51 rule 1; Order 1 rule 2
  • Civil Procedure ActSections 1A, 1B, 3A, 65(e)
  • Constitution of Kenya, 2010Articles 35, 48, 50(2)(g), 50(1), 159(2)(a), Chapter Six, Article 260
  • Official Secrets Actnull
  • Public Officers Ethics Actnull
  • Advocates ActSection 81
  • Law Society of Kenya ActSection 7
  • Leadership and Integrity ActSections 7(1), 11, 22
  • Evidence ActSection 147
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules)null

Cases cited (21)

  • King Woolen Mills Ltd vs Kaplan and Stratton Advocates
    Court of Appeal Civil Appeal No. 55 of 1993
  • Francis Mugo & 22 others vs James Bress Muthee & 3 others
    [2005] eKLR
  • Shalimar Limited & 2 others vs Sadrudin Kurji & Another
    [2015] eKLR
  • G.G.R vs H.P.S
    [2012] eKLR
  • Rose Jebor Kipngok vs Kiplaga Kotut
    (2020) eKLR
  • Suleian Mwamlole Warrakah & 2 Others vs Mwamlole Tchappu Mbwana & 4 Others
    Sup. Petition No. 12 of 2018 [2018] eKLR
  • Daniel Kimani vs Francis Mwangi Kimani & Another
    Civil Application 3 of 2014 [2015] eKLR
  • Doshi Ironmongers Limited & Another vs Haco Industries Kenya Limited & Another
    [2006] eKLR
  • Soy Developers Limited vs Kenagri Products Limited & 3 others
    [2017] eKLR
  • Mansukhalal Jesang Maru vs Frank Wafula
    [2020] eKLR
  • R vs Constituency Development Fund Board & Another Ex-parte Robert Itaramwa Ochale & 5 Others
    [2012] eKLR
  • Kenya Deposit Insurance Corporation vs Hassan Ahmed Abdul Hafedi Zubeidi & 5 others
    [2017] eKLR
  • Re A Firm of Solicitors
    (1992) 1 All ER 353, (1992) 2 QB 959
  • Tom Kusienya & Others v Kenya Railways Corporation & others
    [2013] eKLR
  • Delphis Bank Limited vs Channan Singh Chatthe and 6 Others
    null
  • Galot Industries Ltd vs Kaplan and Stratton Advocates
    null
  • Supasave Retail Ltd vs Coward Chance (a firm); David Lee & Co (Lincoln) Ltd vs Coward Chance (a firm)
    (1991) 1 All ER
  • Rakusen vs Ellis Munday and Clarke
    (1912) 1 Ch. 831
  • William Audi Odode & Another vs John Yier & Another
    Civil Application No. NAI 360 of 2004 (KSM 33/04)
  • Dorothy Seyanoi Moschioni v Andrew Stuart & another
    (2014) eKLR
  • Serve in Love Africa (Sila) Trust v David Kipsang Kipyego & 7 others
    [2017] eKLR
Jurisdiction invoked
Inherent jurisdiction; court held Civil Procedure Rules apply to fill lacuna in the Mutunga Rules governing the petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Crossley Holdings Ltd v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 3 others; Richard Ochieng Ogendo & another (Interested Parties) [2021] KEELC 3913 (KLR)", Case Analysis (2021). Notice of Motion dated 30/11/2020 in the Petition and Cross Petition. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3913/eng@2021-03-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.