Dean & another v Mombasa & another; Sbm Bank (K) Limited & 2 others (Interested Parties) (Environment & Land Case 45 of 2012) [2024] KEELC 4387 (KLR)
The bottom line
#A Mombasa court barred a lawyer from a land case he worked on, granted a temporary injunction protecting the disputed property, but allowed his law firm to keep acting.
What this practically means
#Executive summary
#Key legal issues
#Temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules
The applicant satisfied the Giella v Cassman Brown criteria: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience favouring preservation of the suit property pending trial
The court applied the established three-step test from Giella and Nguruman, noting that the property was at risk of alienation during the pendency of the suit and that damages would not adequately compensate. It relied on Mbuthia v Jimba Credit Corporation that interlocutory applications require no final findings of contested fact, and on the lower-risk-of-injustice principle in Amir Suleiman v Amboseli Resort. The court found the criteria met and allowed the injunction limb.
Disqualification of an advocate from representing a party on grounds of conflict of interest
Although the right to counsel of one's choice is sacrosanct and can only be taken away in exceptional circumstances, Mr. John Magiya could not continue acting for the Plaintiffs because he drew the impugned lease agreements during the pendency of the suit, may be a witness, and had violated his duty to the court as an officer of the court; the firm itself, however, was not barred and was to appoint another partner as lead counsel
The court reviewed Rule 9 of the Advocates (Practice) Rules, the LSK Code of Ethics Rules 82-86, and authorities including Delphis Bank v Channan Singh Chatthe, William Audi Odode v John Yier, Guardian Bank and Dorothy Seyanoi Moschioni. It found real prejudice to the integrity of the court and the profession in allowing Mr. Magiya to continue, holding the applicant had demonstrated real mischief. The remedy was tailored: Magiya personally barred, the firm to substitute another partner.
Costs of the application
Despite the general rule that costs follow the event under Section 27(1) of the Civil Procedure Act, the court exercised its discretion to order each party to bear its own costs
The court restated that costs follow the event citing Jasbir Rai Singh v Tarchalan Singh and Cecilia Karuru Ngayo v Barclays Bank, and Hussein Muhumed Sirat v Attorney General. Nonetheless, in the circumstances of this application it found it appropriate to depart from the general rule and to order each party to bear its own costs.
Legal principles established
#- An advocate may only be barred from acting for a litigant in exceptional circumstances where real mischief or real prejudice would result; here an advocate who acted in the conveyancing transaction now in dispute and who may be a witness cannot continue to lead the representation
- Costs are at the discretion of the court and, while costs follow the event, the court may direct each party to bear its own costs
Court orders
#- 1.The Notice of Motion application dated 15th January, 2024 was found to have merit and was allowed in its entirety
- 2.An order barring the participation of Mr. John Magiya as legal counsel for the Plaintiffs in his capacity as a partner in Nyameta, Mogaka & Magiya Company Advocates or as John Magiya & Co. Advocates
- 3.The firm of Nyameta, Mogaka & Magiya Company Advocates directed to appoint another lead counsel to represent the Plaintiffs in the matter
- 4.The matter to proceed for further hearing on 3rd June, 2024
- 5.All parties joined in the matter directed to fully comply with Orders 6, 7 and 11 of the Civil Procedure Rules, 2010 within 3 days before the set hearing dates
- 6.The Court to continue holding the original Certificate of title until further notice for purposes of preserving the suit property and sustaining the Doctrine of Lis Pendens
- 7.Each party to bear their own costs of the Notice of Motion application dated 15th January, 2024
- Jurisdiction invoked
- Articles 10(2), 25(c), 40 & 50(1) of the Constitution of Kenya, 2010; Sections 3, 13, 18 and 19 of the Environment and Land Court Act, 2011; Sections 1A, 1B and 3A and Orders 1, 8 & 40 of the Civil Procedure Act, Cap. 21; Rule 9 of the Advocates (Practice) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dean & another v Mombasa & another; Sbm Bank (K) Limited & 2 others (Interested Parties) (Environment & Land Case 45 of 2012) [2024] KEELC 4387 (KLR)", Case Analysis (2024). Notice of Motion application dated 15th January, 2024 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4387/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.