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ELCDismissedMilimani ELCA (appeal from Milimani CMELC No. E029 of 2024)· [2026] KEELC 1996 (KLR)

Fatuma Ali Abdala & Nasidai Management Company Limited v Kimani (Environment and Land Appeal E246 of 2025) [2026] KEELC 1996 (KLR)

Environment and Land Court
14 April 2026
EWE. K. Wabwoto
2,331 words in judgment
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The bottom line

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Kenya's Environment and Land Court upheld barring a law firm from a landlord-tenant case because it had acted for both sides in the lease.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Milimani from a Ruling of Senior Principal Magistrate Hon. M.A. Otindo delivered on 7th November 2025 in CMELC No. E029 of 2024. The Magistrate had allowed the Respondent's application under Article 50(1) of the Constitution, Section 3A of the Civil Procedure Act and Rule 9 of the Advocates (Practice) Rules, barring the firm of KRK Advocates LLP from acting for the Appellants (Defendants) in a landlord-tenant suit concerning a lease dated 13th June 2022 over House No. 5 on L.R. No. 3734/1444. It was undisputed that the firm prepared, stamped and facilitated execution of the lease, that Mr. Benson Kuria witnessed the tenant's execution, and that the tenant paid the legal fees; the firm also collected rent for the landlord. The Appellants argued that no retainer existed with the tenant, that disqualification impermissibly interfered with the constitutional right to counsel of choice, and that no confidential information or actual prejudice was shown, relying on Albert Chaurembo Mumba and William Audi Ododa. The Respondent filed no submissions in the appeal. The ELC, per E. K. Wabwoto, J., framed a single issue: whether the Magistrate erred in barring the firm. The court held the conduct created at least an implied retainer with the tenant, that the firm's members were prima facie material witnesses on the lease's intention and execution, engaging Rule 9, and that actual misuse of confidential information need not be proved - a real likelihood of conflict suffices. The right to counsel of choice was held not absolute. The court found no error, misdirection or perverse decision and dismissed the appeal, upholding the Ruling with a 14-day variation for appointing alternative counsel, and directed each party to bear its own costs of the appeal.

Key legal issues

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01

Whether the firm of KRK Advocates LLP should be barred from acting for the Defendants on account of conflict of interest

Holding

The Magistrate did not err; the firm's drafting, stamping, witnessing, facilitation and receipt of fees from the tenant created an implied retainer and placed it in conflict and as potential witness under Rule 9.

Reasoning

The lease bore the firm's stamp, Mr. Benson Kuria witnessed the tenant's execution, and the tenant paid the legal fees. This conduct objectively demonstrated the firm positioned itself as the common advocate for the transaction, creating at least an implied retainer with the Respondent. The suit arises directly from the lease the firm prepared, so its members hold knowledge beyond the public document and are material witnesses, engaging Rule 9 and the joint-retainer principles in TSB Bank and King Woollen Mills.

p. 3
02

Whether disqualification unjustifiably interfered with the Appellants' right to counsel of choice

Holding

No; the right is not absolute and the Magistrate properly balanced both parties' Article 50 rights, and the Appellants could appoint other competent counsel.

Reasoning

Article 50(2)(g) protects representation of choice, but that right yields to the overriding interests of justice, the opposing party's fair hearing rights, and the integrity of the judicial process. Disqualification merely required the Appellants to appoint alternative counsel and did not deprive them of representation; hence the balance struck by the Magistrate was correct.

p. 4

Legal principles established

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  • An advocate-client relationship may be express or implied from conduct, including facilitation of a transaction and receipt of fees.
  • Rule 9 of the Advocates (Practice) Rules is engaged wherever an advocate may be required as a witness in the matter in which he appears.
  • The right to legal representation of choice under Article 50(2)(g) is not absolute and is subject to the fair hearing rights of the other party and the integrity of the judicial process.
  • Actual misuse of confidential information or actual prejudice need not be proved at the disqualification stage; a real likelihood of conflict or prejudice suffices.

Court orders

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  1. 1.The Appeal is hereby dismissed.
  2. 2.The Ruling and Orders of Hon. M.A. Otindo, SPM, delivered on 7th November 2025 in CMELC No. E029 of 2024 are upheld, save that the same are varied only to the extent that the Appellants shall, within 14 days from the date of this Judgment appoint another counsel failing which the suit shall proceed as if they are unrepresented.
  3. 3.Each party shall bear its own costs of this appeal.
On appeal from
Senior Principal Magistrate's Court, Milimani
CMELC No. E029 of 2024
Jurisdiction invoked
First appeal from the Magistrates' Court (appeal against Ruling in CMELC No. E029 of 2024)

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, "Fatuma Ali Abdala & Nasidai Management Company Limited v Kimani (Environment and Land Appeal E246 of 2025) [2026] KEELC 1996 (KLR)", Case Analysis (2026). Milimani ELCA (appeal from Milimani CMELC No. E029 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1996/eng@2026-04-14

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