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ELCAllowedEnvironment & Land Petition 2 of 2019· [2023] KEELC 18105 (KLR)

Kirimi v Land Registrar Meru Central District & 2 others; Nkuubu & 17 others (Interested Parties)

Environment and Land Court
14 June 2023
CYC K Yano
1,117 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C K Yano, J) determines an objection raised by counsel for the petitioner against the continued appearance of Mr Gichunge, advocate for the 4th respondent in the main petition and 1st petitioner in the cross-petition. The objection was grounded on the fact that Mr Gichunge prepared and witnessed an agreement dated September 10, 2014 between Cicilia Kambura Mukindia (3rd interested party) and Maccu Motors Limited over parcels Ruiri/Rwarera/5089 and 5088, which are among the subject matter of the consolidated suits. Counsel for other parties supported the objection, invoking Articles 10 and 159 of the Constitution on the administration of justice. Mr Gichunge opposed, arguing the matter was part-heard, the objection was an afterthought, and the agreement did not concern the objectors. The court framed a single issue: whether a conflict of interest existed in Mr Gichunge acting while having prepared and witnessed the disputed agreement. Applying Rule 8 of the Advocates (Practice) Rules, 1966, which bars an advocate from appearing where he may be required as a witness, the court held that since a dispute had arisen over the properties, Mr Gichunge was likely to be called as a witness notwithstanding that the matter was part-heard. The objection was upheld and the 4th respondent/1st cross-petitioner was at liberty to instruct another advocate. No costs order was made.

Key legal issues

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01

Conflict of interest - advocate as potential witness

Holding

Rule 8 of the Advocates (Practice) Rules, 1966 bars an advocate from appearing where he may be required as a witness; the objection to Mr Gichunge's appearance was upheld

Reasoning

The court perused the agreement for sale dated September 10, 2014 between Cicilia Kambura Mukindia and Maccu Motors Limited over parcels Ruiri/Rwarera/5089 and 5088, which are subject matter of the suits. The agreement was witnessed by advocate Duncan Gichunge Muthuri. Since a dispute has arisen over those properties, the advocate is likely to be called as a witness on the transaction, and Rule 8 squarely applies despite the matter being part-heard.

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Nature of preliminary objections

Holding

Preliminary objections must be on points of law, not facts, and are upheld only in the clearest of cases

Reasoning

The court invoked the Mukisa Biscuits principles, noting that a preliminary objection, if upheld, can dispose of a matter by striking out or dismissal, and courts therefore uphold them only in the clearest of cases on a point of law. The court nonetheless proceeded to determine the objection on the Rule 8 conflict-of-interest point.

p. 3

Legal principles established

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  • An advocate who prepared and witnessed an agreement in dispute and is likely to be called as a witness may not continue to appear in the matter, notwithstanding that the matter is part-heard

Court orders

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  1. 1.The objection to Mr Gichunge's continued appearance is upheld
  2. 2.The 4th respondent and 1st petitioner in the cross-petition is at liberty to engage the services of another advocate other than Mr Gichunge in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10 and 159
  • Advocates (Practice) Rules, 1966Rule 8

Cases cited (1)

  • Mukisa Biscuits

    Principles governing preliminary objections - must be on a point of law, not facts, and upheld only in the clearest of cases

Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (implied; not expressly cited in the ruling)

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, "Kirimi v Land Registrar Meru Central District & 2 others; Nkuubu & 17 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18105/eng@2023-06-14

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