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ELCPartially AllowedELC (Kwale) No. 63 of 2021 (formerly Civil suit HCCC No. 315 of 2008)· [2024] KEELC 4521 (KLR)

Aniket Property & Investments Limited v Mwakibibo & 9 others (As Trustees of the Ahfat Trust) (Environment & Land Case 134 of 2012) [2024] KEELC 4521 (KLR)

Environment and Land Court
20 March 2024
13,200 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~53 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed parties can summon rival lawyers as witnesses, but removing an opposing party's advocate requires proof of real conflict or prejudice.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (Naikuni J) on a Notice of Motion dated 27th July 2023 by the 1st Defendant, Hamadi Mwakibibo, in a part-heard land suit over Kwale/Diani Beach Block/203 (formerly HCCC No. 315 of 2008). Through his advocate Mr. Kounah, the 1st Defendant sought witness summons to compel Mr. Stephen Oddiaga and Mr. Sanjeev Khagram (advocates formerly involved in the conveyancing and litigation) to testify, and an order barring Mr. Khagram's firm, A.B. Patel & Patel, from continuing to act for the Plaintiff on grounds of conflict of interest. The Plaintiff opposed, arguing the application was unauthorised, mischievous and late; Mr. Oddiaga also opposed, noting he was not a listed witness and the procedure was improper. The court framed three issues: merit, entitlement to orders and costs. It held that the court may summon necessary witnesses, but advocate-client confidentiality under Section 134 of the Evidence Act protects the client, not the advocate. Summons were issued only against Mr. Oddiaga, whom the court found to have participated in the disputed transactions; summoning both advocates would amount to an unnecessary trial within a trial. The prayer to disqualify Mr. Khagram failed, as no real mischief or prejudice was demonstrated, Mr. Khagram never acted for the 1st Defendant, and a litigant has a constitutional right to counsel of choice. The application was allowed only in respect of the second prayer, with a direction that Mr. Oddiaga be served with documents seven days before testifying, and no orders as to costs.

Key legal issues

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01

Whether witness summons should issue against the two advocates who handled the disputed transactions

Holding

Summons issued only against Mr. Oddiaga; summoning Mr. Khagram would amount to a trial within a trial and is unnecessary

Reasoning

The court accepted the advocates were seized of material facts about the suit property transactions and the joint interest earning account of Kshs. 13,500,000, but held only one advocate's evidence was sufficient. Mr. Oddiaga, no longer on record and having participated in the transactions in Civil Suit No. 315 of 2008, was the appropriate witness; both testifying would overcomplicate proceedings.

p. 19
02

Whether Mr. Khagram should be barred from acting for the Plaintiff on grounds of conflict of interest

Holding

Prayer refused; no cogent reasons, factual foundation or grounds demonstrated

Reasoning

Applying the test from Delphis Bank and related authorities, the court held that a litigant has a constitutional right to an advocate of choice under Article 50(2)(g) and (h), and disqualification requires proof of real mischief or real prejudice. Mr. Khagram never acted for the 1st Defendant, so no conflict of interest arose; the burden of proving grounds for disqualification was not discharged.

p. 23
03

Scope of advocate-client confidentiality under Section 134 of the Evidence Act

Holding

The prohibition protects the client; an advocate enjoys only a privilege of non-disclosure which he may still invoke

Reasoning

The court read Section 134 of the Evidence Act as prohibiting disclosure of client communications only, protected for the client's benefit and not absolute, as its proviso permits disclosure in cases of illegal purpose or fraud. Summoned advocates retain the right not to divulge confidential client information even while giving evidence.

p. 18

Legal principles established

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  • Removal of an advocate from representing a client is an extraordinary remedy; the party seeking it bears the burden of proving real mischief or real prejudice
  • Advocate-client confidentiality under Section 134 of the Evidence Act protects the client, not the advocate, and is not absolute
  • The court may summon any person as a necessary witness, on application by a party or on its own motion, even after certification for hearing

Court orders

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  1. 1.The Notice of Motion dated 27th July, 2023 is found to partially have merit and allowed in respect of the 2nd prayer
  2. 2.Witness summons issued compelling the attendance of Mr. Stephen Oddiaga T/A Stephen Oddiaga & Company Advocates for examination and cross-examination
  3. 3.The court declines to summon Mr. Khagram nor to direct that he ceases from acting for the Plaintiff as its Advocates
  4. 4.The 1st Defendant/Applicant to serve Mr. Oddiaga Advocate with all relevant documents intended to be relied on during his testimony at least seven (7) days before he appears in Court
  5. 5.Recommendation for expeditious running of proceedings; Defence hearing to proceed on 2nd and 3rd April 2024 as scheduled
  6. 6.No orders as to costs
Jurisdiction invoked
Article 159(b) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 16 Rule 1 of the Civil Procedure Rules, 2010

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, "Aniket Property & Investments Limited v Mwakibibo & 9 others (As Trustees of the Ahfat Trust) (Environment & Land Case 134 of 2012) [2024] KEELC 4521 (KLR)", Case Analysis (2024). ELC (Kwale) No. 63 of 2021 (formerly Civil suit HCCC No. 315 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4521/eng@2024-03-20

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