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ELCDismissedNot stated in the ruling· [2025] KEELC 3881 (KLR)

Njagi v Gatua (Being sued in her capacity and as an Administrator of the Estate of Gatua Kamuyi - Deceased) & 2 others (Environment & Land Case E013 of 2024) [2025] KEELC 3881 (KLR)

Environment and Land Court
15 May 2025
2,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kerugoya, delivered by J. M. Mutungi, ELC Judge, on 15th May 2025, determines a notice of motion dated 24th September 2024 in which the Plaintiff/Applicant sought the disqualification of the firm of Rugaita & Company Advocates from acting for the 1st and 3rd Defendants/Respondents. The Applicant alleged that the firm had represented her in 2013 in High Court Succession Miscellaneous Application No. 75 of 2013 concerning her late father's estate, and in related litigation, during which it acquired confidential and privileged information about her interests in land disputes. She contended that the firm's current representation of the 1st and 3rd Defendants, whose interests are directly adverse to hers, created a conflict of interest and a risk of prejudice, invoking Rule 96 of the LSK Code of Standards of Professional Practice and Ethical Conduct and King Woolen Mills Ltd v Kaplan & Straton Advocates. The Respondents, relying on British American Investment Co (K) Ltd v Njomaitha Investments Ltd, argued that the burden lay on the Applicant to prove actual conflict and prejudice, that mere suspicion is insufficient, and that the application sought to deprive them of their constitutional right to counsel of choice. The court framed two issues: whether the firm was conflicted, and whether the Applicant demonstrated prejudice such that the Respondents' right to counsel should yield. Applying Delphis Bank Ltd v Channan Singh Chatthe, the court held that the Applicant produced no evidence of confidential information acquired or of likely real prejudice. The application was dismissed with costs to the 1st and 3rd Defendants.

Key legal issues

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01

Whether Rugaita & Company Advocates is conflicted having previously acted for the Applicant

Holding

No conflict established; the Applicant provided no evidence that confidential information relevant to the present suit was acquired or would be used against her

Reasoning

The court accepted the firm previously acted for the Applicant in a succession matter, but held the key question is whether knowledge gained is relevant and capable of prejudicing her. Rule 96 of the LSK Code was cited, but the Applicant offered no concrete evidence of confidential information or risk of its misuse. Reliance was placed on British American Investment Co (K) Ltd v Njomaitha Investments Ltd on burden of proof.

p. 4
02

Whether the Respondents' right to counsel of choice outweighs the Applicant's concerns

Holding

Yes; the constitutional right to representation of choice under Article 50(2)(g) is not to be interfered with absent substantiated evidence of breach of confidentiality and real prejudice

Reasoning

The court adopted the Delphis Bank v Channan Singh Chatthe test: disqualification is a drastic interference with a constitutional right and requires proof of real mischief or real prejudice that will in all human probability result. Since the Applicant proved neither confidential information nor prejudice, the firm's continued representation of the 1st and 3rd Defendants could not be stopped.

p. 5

Legal principles established

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  • The burden of proof lies with the party alleging conflict of interest, who must furnish sufficient evidence of prejudice; mere suspicion or apprehension is insufficient to disqualify an advocate
  • The right to legal representation of one's choice under Article 50(2)(g) can only be limited where conflict of interest and real prejudice are proven

Court orders

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  1. 1.The Notice of Motion dated 24th September 2024 is dismissed with costs to the 1st and 3rd Defendants

Authorities

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Legislation

  • LSK Code of Standards of Professional Practice and Ethical ConductRule 96
  • Constitution of Kenya, 2010Article 50(2)(g)

Cases cited (3)

  • King Woolen Mills Ltd v Kaplan & Straton Advocates
    [1993] eKLR
  • British American Investment Co (K) Ltd v Njomaitha Investments Ltd & Anor
    [2014] eKLR
  • Delphis Bank Limited v Channan Singh Chatthe & 6 Others
    (2005) 1 KLR 766
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over interlocutory application in a suit before it

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, "Njagi v Gatua (Being sued in her capacity and as an Administrator of the Estate of Gatua Kamuyi - Deceased) & 2 others (Environment & Land Case E013 of 2024) [2025] KEELC 3881 (KLR)", Case Analysis (2025). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3881/eng@2025-05-15

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