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ELCAllowedCivil Suit 77 of 2017· [2023] KEELC 19339 (KLR)

Katama & another v Chivatsi & 6 others

Environment and Land Court
31 August 2023
MOMAO Odeny
1,344 words in judgment
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The bottom line

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A Malindi court barred a law firm from acting against former clients whose confidential documents it still held, disqualifying it from the case.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, J of the Environment and Land Court at Malindi determined a Notice of Motion dated September 19, 2022 by the Plaintiffs seeking the disqualification of the firm of Kanyi J & Company Advocates from representing the 3rd Defendant, Alfred Riko Mwalenga, in this dispute over Plot No Kilifi/Kinungu'na/319. The Plaintiffs deponed that the firm was instructed in 2017 to pursue a family dispute, was given access to all their documents, filed the Plaint dated April 5, 2017 and the initial pre-trial compliance documents, and that the Plaint expressly and adversely named the 3rd Defendant at paragraphs 9 and 10. The firm now acts for the 3rd Defendant, who prosecutes a counterclaim seeking the Plaintiffs' eviction, and still holds the Plaintiffs' original documents. The 3rd Defendant, through Ms Adoyo, argued that he was not a party when the pleadings were prepared, that the confidential information was shared with Ms Wangari (no longer with the firm), and that he has a constitutional right to counsel of his choice, which should only be interfered with upon sufficient evidence of conflict causing prejudice. The court held that the firm was in breach of both conflict of interest and client confidentiality; withdrawal of instructions from Ms Wangari does not permit the firm to use information acquired from the Plaintiffs to act for an opposing client. The right to counsel of choice was held flawed on these facts. The application was allowed with costs; the firm was disqualified and the 3rd Defendant given 30 days to engage new counsel.

Key legal issues

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Whether Kanyi J & Company Advocates should be disqualified from acting for the 3rd Defendant due to conflict of interest and breach of client confidentiality

Holding

The firm was disqualified; having acted for the Plaintiffs, drafted the Plaint adversely naming the 3rd Defendant, and retaining their confidential information, it could not act against them.

Reasoning

The court found it undisputed that the firm was instructed by the Plaintiffs in 2017, filed the Plaint dated April 5, 2017 and pre-trial documents, and that the Plaint expressly and adversely named the 3rd Defendant. The firm now represents the 3rd Defendant prosecuting a counterclaim for eviction using information acquired from the Plaintiffs. Withdrawal of instructions from Ms Wangari does not permit the firm to act for an opposing client. The right to counsel of choice yields where conflict of interest is demonstrated.

p. 3

Legal principles established

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  • A firm that drafted pleadings for a plaintiff and acquired confidential information cannot later act for a party adversely named in those pleadings who prosecutes a counterclaim against the former client; withdrawal of instructions does not cure the conflict.

Court orders

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  1. 1.The firm of Kanyi J & Company Advocates disqualified from acting for the 3rd Defendant
  2. 2.The 3rd Defendant granted 30 days to engage the services of another counsel or firm save for the firm of Kanyi J & Company Advocates
  3. 3.Costs of the application to the Applicant

Authorities

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Cases cited (5)

  • Murgor & Murgor Advocates v Kenya Pipeline Co. Ltd
    [2021] eKLR

    Conflict of interest in advocate representation

  • Rajab Barasa Olemuteke v Shaiwaz S Jiwa
    [2020] eKLR

    Conflict of interest in advocate representation

  • Uhuru Highway Development Ltd vs Central Bank of Kenya
    (2002) 2 E.A 654

    Principles governing disqualification of advocates for conflict of interest

  • British-American Investments Company (k) Limited vs Njomaitha Investments Limited & another
    (2014) eKLR

    Principles governing disqualification of advocates

  • National Bank of Kenya Limited vs Peter Kipkoech Korat
    (2005) eKLR

    Principles governing disqualification of advocates

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning Plot No Kilifi/Kinungu'na/319

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, "Katama & another v Chivatsi & 6 others", Case Analysis (2023). Civil Suit 77 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19339/eng@2023-08-31

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