Ndemo v Ondoro & 4 others (Environment & Land Case E004 of 2022) [2024] KEELC 6850 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether proof of a prior retainer is sufficient to disqualify an advocate from acting for an opposing party
No. A retainer alone does not establish conflict of interest; the moving party must show information held by the advocate that would prejudice the party seeking disqualification, and must show that it has suffered or will suffer prejudice.
Relying on Kings Woolen Ltd v Kaplan & Stratton and British-American Investments Co. (K) Ltd v Njomaitha Investments Ltd, the court held that mere suspicion, apprehension of a possible conflict or fear of prejudice cannot be a basis to stop an advocate from acting. The 2nd Defendant did not demonstrate how he stands to suffer from the conflict occasioned to the 5th Defendant, if at all, and the 5th Defendant herself raised no concern.
Whether the 2nd Defendant has standing to invoke a conflict of interest belonging to the 5th Defendant
The court found the 5th Defendant raised no concern of conflict of interest and the 2nd Defendant cannot speak for her; however, it acknowledged a nexus between the 5th Defendant's interests and the 2nd Defendant's, and held it fair that the firm hand over the client.
The court accepted Ms Ochwal's point from British-American Investments that the party asserting conflict must provide sufficient evidence. But the court then departed from a strict standing analysis, finding that confidential information obtained from the 5th Defendant would be 'lethal' to the 2nd Defendant's case given the nexus of interests, and directed that the firm donate the client to another firm.
Whether the disqualification application is a tactical manoeuvre to deprive the opponent of counsel of choice
The court set out a checklist interrogating whether such applications are made to derail proceedings, defeat justice, deprive an opponent of an advocate of choice, settle personal scores, or abuse Rule 9.
The court held that the right to an advocate of one's choice is a litigant's most valued constitutional right, citing Delphis Bank Ltd v Channan Singh Chatthe, and that following Rakusen v Ellis Munday & Clarke the court must be satisfied that real mischief and real prejudice will in all human probability result if the advocate is allowed to act.
Legal principles established
#- A litigant has a constitutional right to choose his or her own Advocate, and courts will not interfere unless the interests of justice so require
- Establishment of a prior retainer alone does not amount to a disqualifying conflict of interest; the party seeking disqualification must demonstrate real mischief or prejudice
- Rule 9 of the Advocates (Practice) Rules is not absolute; each application to disqualify an advocate must be decided on its own merits and peculiar facts
Court orders
#- 1.The court expressed the view that the firm of M/s Bosire Gichana & Co. Advocates should cease acting for the Plaintiff and hand over the 5th Defendant as a client to a different firm of Advocates ('it is only fair that the firm of M/s Bosire Gichana & Co. Advocates graciously donates her client to a difierent firm of Advocates')
- Jurisdiction invoked
- Inherent jurisdiction of the court over conduct of counsel appearing before it, invoking Rule 9 of the Advocates (Practice) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndemo v Ondoro & 4 others (Environment & Land Case E004 of 2022) [2024] KEELC 6850 (KLR)", Case Analysis (2024). Not stated in the judgment (Nyamira ELC matter; relates to Nyamira ELC Case No. 60 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6850/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.