Crossley Holdings Ltd v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 3 others; Richard Ochieng Ogendo & another (Interested Parties) [2021] KEELC 3913 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether Orengo SC and his firm should be barred from acting for the Petitioner
Application refused - no advocate-client relationship with the respondents and no established conflict or breach of trust
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.
Whether the deponent Buggar Singh should be cross-examined
Application refused - no inconsistency shown, application was late and would delay the petition
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.
Whether the application was procedurally properly invoked
Jurisdictional objection was a procedural technicality not going to the root of the dispute
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.
Legal principles established
#- 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
#- 1.The application dated 30/11/2020 is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction; court held Civil Procedure Rules apply to fill lacuna in the Mutunga Rules governing the petition
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.