Alweny v Opande (Environment and Land Appeal E020 of 2025) [2026] KEELC 857 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a law firm that drafted a property sale for both parties cannot later represent one against the other.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the lower court erred in dismissing the application to bar the firm of Olel, Onyango, Ingutiah Advocates LLP from acting for the Respondent in the primary suit
- 2.Whether the firm, having acted for both parties in the sale agreement and for the Appellant in the succession cause, was conflicted and could not act for the Respondent against the Appellant
- 3.Whether the advocates in the firm were potential witnesses in the primary suit and thus barred from appearing under Rule 8 of the Advocates (Practice) Rules
Key legal issues
#Disqualification of an advocate/firm for conflict of interest
The firm was conflicted and could not act for the Respondent against the Appellant; the lower court erred in finding no real mischief or prejudice.
The firm acted for both parties in the sale agreement (described as 'Parties' Advocates') and for the Appellant in the succession cause facilitating the sale. Confidentiality attaches to the instructions it received. Since the legality of the very agreement it drew is in dispute in the primary suit, the risk of the firm using the Appellant's confidential information against her was high. The Appellant did not need to disclose particulars of the instructions, as instructions are themselves confidential.
Advocates as potential witnesses
The advocates who prepared and witnessed the sale agreement are potential witnesses in the primary suit and barred under Rule 8 of the Advocates (Practice) Rules.
The dispute in the primary suit concerns the legality and enforceability of the agreement drawn and witnessed by the firm. Rule 8 provides that an advocate may not appear in a matter in which he may be required to give evidence. Standard 92 of the LSK Code likewise prohibits advising or representing both sides of a dispute absent adequate disclosure and consent. The firm thus breached both the witness rule and the conflict-of-interest standard.
Legal principles established
#- A firm of advocates that acted for both parties in a transaction cannot choose to act for one party against the other in a dispute over the legality and enforceability of that transaction, and need not disclose the particulars of confidential instructions received to establish conflict of interest.
- Where a firm acted for a party in the disputed transaction, confidential instructions may be inferred and the party is not required to particularise the confidential information received.
- An advocate who prepared and witnessed an agreement in dispute is a potential witness and may not appear in the matter under Rule 8 of the Advocates (Practice) Rules.
Court orders
#- 1.Appeal allowed
- 2.Ruling and orders of the lower court made on 12th February 2025 set aside
- 3.Substituted with an order barring the firm of Olel, Onyango, Ingutiah Advocates LLP from acting for the Respondent in Kisumu MCELC No. E089 of 2024
- 4.Appellant awarded half (1/2) the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu (CMCELC No. E089 of 2024)
- CMCELC No. E089 of 2024
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court under the Environment and Land Court Act (specific section not cited in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, I allow the appeal, and set aside the ruling and orders of the lower court made on 12th February 2025. I substitute the same with an order barring the firm of Olel, Onyango, Ingutiah Advocates LLP from acting for the Respondent in Kisumu MCELC No. E089 of 2024 (the primary suit).
Since the Respondent had appointed another firm of advocates to represent her in the primary suit in place of the firm of Olel, Onyango, Ingutiah Advocates LLP before the appeal was argued, I will award the Appellant half (1/2) the costs of the appeal.
I agree with the Appellant that there is a risk of the firm using the confidential information obtained from the Appellant against her while acting for the Respondent in the primary suit.
Issues in the judgment
#The judgment nowhere states the names of the parties or the case number of the present appeal; the record of appeal is described as scanty and the Appellant's defence in the primary suit was not on record.
The judgment notes that parties failed to inform the court of the change of representation in the primary suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alweny v Opande (Environment and Land Appeal E020 of 2025) [2026] KEELC 857 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/857/eng@2026-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.