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ELRCAllowedNot stated in the judgment (Employment and Labour Relations Court matter)· [2020] KEELRC 1132 (KLR)

Rajab Barasa Olemuteke v Shaiwaz S. Jiwa [2020] KEELRC 1132 (KLR)

Employment and Labour Relations Court
13 May 2020
MNMathews N. Nduma
946 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court barred an advocate from acting in a case because he still represented the other side and held their confidential documents.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Employment and Labour Relations Court by notice of motion dated 12th April 2019 seeking to restrain the Claimant's advocate, Mr. Simiyu Makokha, from representing the Claimant on grounds of conflict of interest. The Applicant asserted that Mr. Makokha had always acted for him in respect of properties in Malakisi Township, Bungoma County, and had confidential information including custody of title deeds; annexures SS1(a) to (g) were exhibited. Mr. Makokha replied that he never represented the Respondent in Bungoma Land & Environment Case No. 216 of 2014, never shared an advocate/client relationship with him, and that the Claimant had a constitutional right to counsel of choice. Examining the annexures, the court found an email of 17th May 2018 showing the Respondent entrusted Mr. Makokha with safe custody of his title deeds, and evidence that Mr. Makokha received Kshs. 50,000 from Malakisi Muslim High School on the Respondent's behalf. It held that a prima facie existing advocate/client relationship persisted, un-rebutted, and that a reasonable person would anticipate a danger of confidential information being used for the Claimant's benefit, applying the test in King Woolen Mills and Galot Industries vs Kaplan and Stratton adopting Rukusens vs Ellismundas and Clerke. The court granted the injunction, with costs against Mr. Makokha Advocate. The ruling was delivered electronically under COVID-19 directions, invoking Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure Act.

Key legal issues

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01

Existence and persistence of an advocate/client relationship

Holding

A prima facie advocate/client relationship existed between the Respondent and Mr. Makokha personally, and had not been severed; counsel remained custodian of the Respondent's title deeds and had received funds on his behalf

Reasoning

The court examined annexes SSI(a) to (g), including an email of 17th May 2018 showing the Respondent entrusted Mr. Makokha with safe custody of his title deeds and a receipt of Kshs. 50,000 from Malakisi Muslim High School on the Respondent's behalf. Mr. Makokha produced no tangible evidence of severing the relationship, including ceasing to be custodian of the Respondent's legal documents. The relationship was therefore existing, not merely former.

p. 1
02

Conflict of interest and risk of misuse of confidential information

Holding

A reasonable person with knowledge of the facts would anticipate a danger that confidential information held by Mr. Makokha would be used for the Claimant's benefit; the application to restrain him was therefore merited

Reasoning

Applying the test in King Woolen Mills Limited and Galot Industries vs M/S Kaplan and Stratton Advocates, adopting Rukusens vs Ellismundas and Clerke, the court held that where a reasonable man would anticipate danger of confidential information being used for the new client, counsel must be stopped. Mr. Makokha's constitutional-right-to-counsel-of-choice argument did not displace this, as the relationship remained live and he was custodian of the Respondent's important legal documents.

p. 2

Legal principles established

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  • A firm of solicitors may not act for an existing client against a former client where a reasonable man with knowledge of the facts would anticipate a danger that confidential information gained while acting for the former client would be used against him

Court orders

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  1. 1.Mr. Makokha Advocate injuncted/restrained from acting for the Claimant in this suit against the Respondent
  2. 2.Costs of the application granted against Mr. Makokha Advocate

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • King Woolen Mills Limited and Galot Industries vs M/S Kaplan and Stratton Advocates
    Court of Appeal at Nairobi Civil Appeal No. 55 of 1993
  • Rukusens vs Ellismundas and Clerke
    cited at page 354 in King Woolen Mills
Jurisdiction invoked
Inherent jurisdiction of the court over conduct of counsel appearing before it; Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure Act invoked for electronic delivery of the ruling

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rajab Barasa Olemuteke v Shaiwaz S. Jiwa [2020] KEELRC 1132 (KLR)", Case Analysis (2020). Not stated in the judgment (Employment and Labour Relations Court matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1132/eng@2020-05-13

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