Kipchilat v Boit (Suing as the personal representative of the Late Samwel Kiplel Arap Boit) (Environment & Land Case E003 of 2023) [2024] KEELC 5654 (KLR)
The bottom line
#A Kenyan court refused to disqualify a law firm from a land case, ruling that suspicion of conflict is not enough—you must prove real prejudice.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate who attested execution of a lease should be barred from representing the defendant
No - attestation of execution does not make the advocate a material or necessary witness where execution is not genuinely in contention
The lease was drawn by the Commissioner of Lands/Cabinet Secretary, not the firm, which only attested the defendant's signature. No fraud or vitiating factor was pleaded against the advocate, and the plaintiff did not allege the signature was not genuine. At most the advocate could testify that the defendant signed before him, which is not sufficient to curtail the constitutional right to counsel of choice.
Whether real mischief and prejudice would result if the firm continued acting
No specific prejudice was identified; a conflict of interest was not demonstrated
The plaintiff asserted prejudice without specifying it. The advocate deponed he had never acted for the plaintiff, and the plaintiff did not counter that allegation, so no conflict of interest could arise. Citing British-American Investments, the party asserting conflict must prove it with sufficient evidence; mere fear of prejudice cannot disqualify counsel.
Whether the entire firm should be barred when only one advocate attested the document
No - the firm has multiple advocates and another advocate took over conduct of the matter
Following National Bank of Kenya v Korat and British-American Investments, disqualification of the whole firm for one advocate's witnessing role would impose unnecessary hardship. Once the issue was raised, Mr. Mengich took over conduct of the matter, eliminating any risk of the attesting advocate acting and testifying.
Legal principles established
#- A party seeking to disqualify an advocate must demonstrate real mischief and prejudice; mere suspicion or apprehension of a possible conflict of interest is insufficient
- Where one advocate in a multi-member firm merely witnessed a document, the whole firm should not be disqualified if another advocate conducts the matter
Court orders
#- 1.The plaintiff's Notice of Motion dated and filed on 9th May 2023 is dismissed
- 2.Costs to the defendant
- Jurisdiction invoked
- Rule 8 of the Advocates (Practise) Rules, 1966; Article 50(2)(g) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Veronica Akoth Holtz v VDH Developments Limited & Another[2026] KEELC 6046 (KLR)29 Sept 2026followed
- In re Late Ahmed Swaleh Bin Swaleh (Deceased) (Succession Appeal 42 of 2017) [2025] KEKC 9 (KLR)[2025] KEKC 9 (KLR)18 Feb 2025
- In re Late Ahmed Swaleh Bin Swaleh (Deceased) (Succession Appeal 42 of 2017) [2025] KEKC 9 (KLR)[2025] KEKC 9 (KLR)18 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kipchilat v Boit (Suing as the personal representative of the Late Samwel Kiplel Arap Boit) (Environment & Land Case E003 of 2023) [2024] KEELC 5654 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5654/eng@2024-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.