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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 791 (KLR)

Kilonzo v Ndenge & 2 others (Environment & Land Case 31 of 2019) [2024] KEELC 791 (KLR)

Environment and Land Court
14 February 2024
TMT. Murigi
2,320 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to remove a law firm from a land case, confirming that merely drafting a disputed document doesn't disqualify an advocate.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (T. Murigi, J) determined a Notice of Motion dated 3rd March 2023 by the Plaintiff, Janet Mwende Kilonzo, seeking the disqualification of the firm of Nzavi & Company Advocates, and particularly Maurice Muli Nzavi, from acting for the 2nd Defendant. The Plaintiff argued the firm was conflicted because it drew the sale agreement and the Memorandum and Articles of Association for Malama Fresh Growers Limited - documents at the heart of the dispute - had acted for the Plaintiff and 1st Defendant as joint purchasers, and that the advocate was a key witness she intended to call, which would embarrass the advocate, prejudice his client and jeopardize the integrity of the judicial process. The 2nd Defendant opposed, asserting his constitutional right to counsel of choice, denying any contentious prior representation or sharing of confidential information, and contending no prejudice had been shown. The court framed a single issue: whether the firm should be disqualified. Relying on William Audi Odode v John Yier on the right to representation of choice and Delphis Bank Ltd v Channan Singh Chatthe on the test of real mischief or real prejudice, and applying Guardian Bank Ltd v Sonal Holdings, the court held that mere drawing and attestation of disputed documents does not warrant disqualification, that the proviso to Rule 8 of the Advocates (Practice) Rules permits an advocate to give evidence on formal, non-contentious matters, and that no real mischief, prejudice or conflict of interest was demonstrated, the 2nd Defendant sharing no fiduciary relationship with the Plaintiff. The application was dismissed with costs to the 2nd Defendant.

Key legal issues

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01

Whether an advocate who drew documents that are the subject of litigation, and may be called as a witness, should be disqualified from acting for an opposing party

Holding

No - disqualification requires demonstration of real mischief or real prejudice, which the plaintiff failed to establish

Reasoning

The court applied the Court of Appeal test in Delphis Bank Ltd v Channan Singh Chatthe that an applicant must show real mischief or real prejudice will result. Following Guardian Bank Ltd v Sonal Holdings, mere drawing and attestation of deeds does not warrant disqualification; the court must examine the real issues in dispute. Since the drawing and attestation were not in dispute, and the proviso to Rule 8 permits the advocate to testify on non-contentious formal facts, there was no conflict of interest shown between the firm's role and the 2nd Defendant, with whom the plaintiff shares no fiduciary relationship.

p. 5

Legal principles established

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  • It is not the business of the courts to tell litigants which advocate should act; a party's right to counsel of choice prevails unless the interests of justice would not be served
  • The test for disqualifying an advocate is whether real mischief or real prejudice will in all human probability result
  • Mere drawing and attestation of deeds in dispute is insufficient to disqualify an advocate; a court must examine the essential core of the grounds and the real issues in dispute
  • Under the proviso to Rule 8 of the Advocates (Practice) Rules, an advocate may still give evidence on formal or non-contentious matters of fact

Court orders

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  1. 1.The Notice of Motion dated 3rd March 2023 is dismissed
  2. 2.Costs of the application to the 2nd Defendant
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and the Advocates (Practice) Rules

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, "Kilonzo v Ndenge & 2 others (Environment & Land Case 31 of 2019) [2024] KEELC 791 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/791/eng@2024-02-14

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