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ELCDismissedNot stated in the judgment· [2026] KEELC 3264 (KLR)

Faraj v Mzee (Environment and Land Case E007 of 2025) [2026] KEELC 3264 (KLR)

Environment and Land Court
29 May 2026
AOAntony O. Ombwayo
1,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court refused to disqualify a plaintiff's chosen lawyer, holding opponents cannot dictate who represents you.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Antony O. Ombwayo J) on the Defendant's Notice of Motion dated 28th July 2025, seeking the removal or disqualification of the firm of M/s Stephen Oddiaga & Company Advocates from representing the Plaintiff in a suit concerning plot number Mombasa/Block XVI/24. The Defendant deponed that the firm drew instruments for the transfer of the suit land and was involved in the procurement of title number Mombasa/Block XVI/1531 emanating from it, so that the advocate would be a necessary witness, contrary to Rule 9 of the Advocates (Practice) Rules. The Plaintiff replied that she had a right to counsel of her choice, did not intend to call the advocate as a witness, and could prove her claim by documents. The court framed one principal issue: whether the firm should be disqualified. Applying the Delphis Bank Ltd v Channan Singh Chatthe decision, the court reaffirmed the constitutional right to an advocate of one's choice, noting it may be curtailed only where conflict of interest endangers confidentiality or the advocate would double up as a witness, and that there is otherwise no general disqualification rule. Holding that there was no conflict of interest since the Plaintiff chose and consented to the counsel, and that the Defendant could not direct how the Plaintiff proved her claim, the court dismissed the application with costs to the Plaintiff.

Key legal issues

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01

Whether an advocate who drew documents in a transaction should be disqualified from representing a party in litigation concerning that transaction

Holding

Disqualification was refused: no conflict of interest exists because the Plaintiff chose and consented to the counsel, and the Defendant cannot direct how the Plaintiff proves her claim

Reasoning

The court applied the Delphis Bank test, which protects the constitutional right to an advocate of choice and permits curtailment only where conflict of interest or the advocate-witness scenario endangers confidentiality or justice. Here the Plaintiff confirmed she neither called nor intended to call the advocate as a witness and could prove her claim through documents already filed. Since the Plaintiff consented to the representation and no impropriety was demonstrated, the Defendant's application failed.

Legal principles established

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  • The right to an advocate of one's choice may only be curtailed where there is a conflict of interest endangering confidentiality or where the advocate would double up as a witness; there is no general rule disqualifying an advocate

Court orders

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  1. 1.The application dated 28th July, 2025 is dismissed with costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (plot number Mombasa/Block XVI/24); no specific provision cited

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, "Faraj v Mzee (Environment and Land Case E007 of 2025) [2026] KEELC 3264 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3264/eng@2026-05-29

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