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ELRCPartially AllowedNot stated in judgment (Claimant's Notice of Motion dated 25th September 2024)· [2025] KEELRC 268 (KLR)

Code for Africa v Mugure (Cause E757 of 2023) [2025] KEELRC 268 (KLR)

Employment and Labour Relations Court
6 February 2025
LNLinnet Ndolo
1,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court barred an advocate from acting against his former client because he had handled the company's confidential legal work.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually on 6th February 2025 by Linnet Ndolo, Judge, determines a Notice of Motion dated 25th September 2024 by which the Claimant sought to bar Calvin Otieno, Advocate and all advocates of M/S COL Advocates LLP from acting for the Respondent. The Claimant, through an affidavit of its Chief Operating Officer Jessica Manim, argued that Otieno had previously acted for it in several employment matters and a debt collection claim (Small Claims Comm. No E6269 of 2022: Code for Africa v Collins Nasibwa), that the Respondent - a former Human Resource Manager - had been the liaison between the Claimant and Otieno, and that Otieno held confidential and privileged information creating a real risk of misuse. Otieno admitted the past instructions but denied any nexus with the present dispute, asserted the Respondent's right to counsel of her choice, and contended that no disclosure of confidential information was demonstrated. The court applied Rule 6 paragraph 96 of the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct and the decision in SBI International Holdings (Kenya) v Amos Hadar [2015] eKLR on confidentiality in employment. Satisfied that Otieno had access to the Claimant's confidential information and that the Respondent's senior role created a proximate relationship with him, the court found a conflict of interest established and barred Otieno and COL Advocates LLP from representing the Respondent. The court declined to consider the argument that Otieno was a potential witness, as it was not pleaded. Costs of the application were made costs in the cause.

Key legal issues

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01

Conflict of interest disqualifying counsel from acting

Holding

Calvin Otieno, Advocate and M/S COL Advocates LLP are barred from representing the Respondent.

Reasoning

The court applied Rule 6 paragraph 96 of the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, which identifies conflict where representation is materially limited by responsibilities to a former client or where there is a risk of using information from a former client to that client's disadvantage. Otieno admitted having acted for the Claimant, including in a Small Claims Court matter, and in three employment matters. The Respondent, formerly the Claimant's Human Resource Manager, was the liaison between the Claimant and Otieno, giving rise to access to confidential information. The court was satisfied a conflict of interest was made out.

p. 4

Legal principles established

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  • An advocate who has acted for a party and had access to its confidential information is conflicted where the former client's liaison was the opposing party and confidential information may be used against the former client.

Court orders

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  1. 1.Barring Calvin Otieno, Advocate and all other Advocates practicing in the name and style of M/S COL Advocates LLP, from representing the Respondent in this matter
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Law Society of Kenya Code of Standards of Professional Practice and Ethical ConductRule 6, paragraph 96

Cases cited (1)

  • SBI International Holdings (Kenya) v Amos Hadar
    [2015] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court over conduct of counsel before it (not expressly cited in the ruling)

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, "Code for Africa v Mugure (Cause E757 of 2023) [2025] KEELRC 268 (KLR)", Case Analysis (2025). Not stated in judgment (Claimant's Notice of Motion dated 25th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/268/eng@2025-02-06

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