Faraj v Suleiman (Environment and Land Case E006 of 2025) [2026] KEELC 4216 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Interpretation of Rule 9 of the Advocates (Practice) Rules - whether it imposes a complete bar on an advocate acting where he may be a witness
Rule 9 is not a complete prohibition; the word 'may' is permissive and a narrow interpretation would open the floodgates to abuse
The court found three features of the rule decisive: the use of 'may' rather than 'shall', the requirement that the advocate 'has reason to believe' he may be required as a witness, and the provision for circumstances arising 'while appearing in any matter, it becomes apparent'. Each case must be decided on its own merits. Applications made casually by the opposing camp should not be handled casually by the court, and the court must guard against tactical misuse of the rule to derail proceedings or deprive a party of counsel of choice.
The burden and test for disqualification of an advocate
The applicant must establish circumstances justifying reasonable apprehension of bias, prove actual conflict of interest with sufficient evidence, and demonstrate real mischief and real prejudice; mere suspicion is insufficient
Drawing on Sunrise Properties, Rakusen v Ellis Munday and Clarke, and the New York advocate-witness jurisprudence (Murray v Metropolitan Life Ins. Co. and Uribe Bros. Corp.), the court synthesised the test: the movant bears the burden of showing specifically how prejudice will occur and that its likelihood is substantial, and the court must strictly scrutinise such motions because they are prone to opportunistic and tactical abuse.
Whether the defendant satisfied the test on the facts
The application failed: no advocate-client relationship existed between the applicant and Mr Oddiaga, and the applicant failed to demonstrate that Oddiaga would actually be called as a witness
The court found the application speculative and premature: Oddiaga's name did not appear on any list of witnesses, no letter requesting his evidence was exhibited, and the trial was still a long way off. The applicant was found to be on a fishing expedition seeking to derail the proceedings and deprive the plaintiff of an advocate of his choice, contrary to the constitutional right to legal representation.
Legal principles established
#- The word 'may' in Rule 9 of the Advocates (Practice) Rules is not a complete prohibition on an advocate acting for a client; a narrow interpretation would open the floodgates to abuse by opportunistic litigants
- A party seeking to disqualify an advocate must show real mischief and real prejudice which will in all human probability result if the advocate is allowed to act
- Every party has the right to counsel of choice and the right to legal representation in civil matters, implicit in Articles 48, 50(1) and 159(2)(a) of the Constitution, should only be taken away in exceptional circumstances
- An application for disqualification of an advocate made before pre-trial is premature and without basis
Court orders
#- 1.The application is dismissed
- 2.The defendant shall pay the costs of the application
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act in respect of land title numbers Mombasa/Block XVI/1525 and 1526
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faraj v Suleiman (Environment and Land Case E006 of 2025) [2026] KEELC 4216 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4216/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.