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ELCAllowedNot stated in the extract (Murang'a ELC; Notice of Motion dated 1st February 2024)· [2024] KEELC 5616 (KLR)

Ngimu Farm Limited v Kariuki & 5 others (Environment and Land Case 28 of 2022) [2024] KEELC 5616 (KLR)

Environment and Land Court
25 July 2024
LGL. Gacheru
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court kicked a law firm off a case because it had previously acted for the other side, creating a conflict of interest.

What this practically means

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Executive summary

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The Plaintiff/Applicant, through Peter Kamande Mungai, moved the Environment and Land Court at Murang'a by Notice of Motion dated 1st February 2024 seeking the disqualification of the Law Firm of G.M. Muhoro & Co. Advocates from acting for the 1st Defendant, on grounds that the Firm had acted for the Plaintiff between 1995 and 2003, held confidential financial and land-transaction information, and would face a conflict of interest and potential witness role in a suit concerning parcels of land formerly owned by the Plaintiff and now registered in the Defendants' names. The Defendants opposed, contending that Mungai lacked locus standi as he was neither a member nor a Director of the Plaintiff and that his election as Director lacked quorum; the Firm itself denied any conflict of interest. The Court framed two issues: Mungai's authority to institute the suit, and entitlement to the orders sought. On the first, the Court found that a list of Directors dated 6th June 2022 annexed to the Plaint named Mungai as a Director and that the Defendants had not challenged its authenticity, declining to interrogate the circumstances of his election at that stage. On the second, applying Rule 8 of the Advocates (Practice) Rules and the King Woolen Mills and Delphis Bank line of authority, the Court held that the Firm's prior and continued retainer by the Plaintiff placed it in a position of conflict if allowed to act for the Defendants, given the real risk of mischief and prejudice. The application was allowed entirely, with costs to abide the cause. Judgment was delivered virtually by L. Gacheru J on 25th July 2024.

Key legal issues

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01

Authority of Peter Kamande Mungai to file the suit

Holding

Mungai proved he is a Director of the Plaintiff and therefore has locus standi

Reasoning

The Defendants claimed Mungai was neither a member nor Director but a busybody, and that his election lacked quorum. The Court perused the pleadings and a list of Directors dated 6th June 2022 annexed to the Plaint listing Mungai as a Director, which the Defendants did not challenge as inauthentic, and declined to interrogate the circumstances of his election at that stage.

p. 5
02

Whether G.M. Muhoro & Co. Advocates should be disqualified from acting for the 1st Defendant

Holding

Yes; a conflict of interest exists given the Firm's prior retainer by the Plaintiff

Reasoning

The Firm admitted acting for the Plaintiff from 1995 to 2003 and being reappointed. The suit concerns parcels of land formerly the Plaintiff's and now registered in the Defendants' names, matters on which the Firm holds confidential information and may be a witness. Allowing it to act for the Defendants would create a real risk of mischief and prejudice.

p. 5

Legal principles established

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  • An advocate who has acted for a party cannot later act for that party's adversary where real mischief or real prejudice will in all probability result
  • Locus standi signifies a right to be heard and requires sufficiency of interest

Court orders

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  1. 1.The Law Firm of G.M. Muhoro & Co. Advocates, including all practicing Advocates with them, disqualified and directed to withdraw and cease acting for the 1st Defendant in this matter
  2. 2.Costs to abide the cause
  3. 3.The 1st Defendant's Preliminary Objection dated 15th December 2022 was determined together with the application (its disposition not separately stated)
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rules 1 and 3 of the Civil Procedure Rules; Order 8 of the Advocates (Practice) Rules 1966

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, "Ngimu Farm Limited v Kariuki & 5 others (Environment and Land Case 28 of 2022) [2024] KEELC 5616 (KLR)", Case Analysis (2024). Not stated in the extract (Murang'a ELC; Notice of Motion dated 1st February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5616/eng@2024-07-25

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