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ELRCDismissedNot stated in the judgment as provided· [2025] KEELRC 1442 (KLR)

Mudanya v Ericsson Kenya Limited (Cause E794 of 2023) [2025] KEELRC 1442 (KLR)

Employment and Labour Relations Court
15 May 2025
CBC. N. Baari
2,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to bar an employee's chosen law firm, confirming that disqualifying opposing counsel requires solid proof of conflict or witness risk.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (C. N. Baari, J) delivered on 15th May 2025 on the Respondent's notice of motion dated 5th February 2025. The Respondent, an employer facing a claim of unfair termination by its former employee (the Claimant), sought to bar the law firm of Henia Anzala & Associates from acting for the Claimant and to have all documents filed by that firm expunged from the record. The Respondent argued that the firm had been intricately involved in the disciplinary proceedings leading to the termination and were therefore potential witnesses, creating real prejudice if they continued to act. The Claimant opposed the motion, relying on his constitutional right under Articles 48, 50(1) and 159(2)(a) to counsel of his choice, and pointing out that witness statements had been filed by both parties without any advocate from the firm listed as a witness, and that Rule 8 of the Advocates (Practice) Rules targets situations where an advocate may actually be required as a witness, protecting client confidentiality rather than giving an opponent a veto. The court framed a single issue: whether the firm should be barred. It found no conflict of interest, no demonstrated likelihood of any advocate being called as a witness, and no evidence that any such testimony would be relevant. Applying the reasoning in re Estate of Michael John Kiplimo Sang, the court held the Respondent had not met the threshold and dismissed the motion, with costs in the cause.

Key legal issues

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01

Whether the Claimant's advocates should be disqualified for having acted in the underlying disciplinary proceedings and being potential witnesses

Holding

No disqualification; the applicant failed to show conflict of interest, likelihood of the advocates being called as witnesses, or any prejudice

Reasoning

The court noted the firm never acted for both parties, so no conflict of interest arose. Nothing in the firm's participation in the disciplinary hearing showed any advocate would be called as a witness. Witness statements were already filed by both parties and none was from the firm. Rule 8 protects the client's confidentiality, not the opponent's preference, and barring the firm would infringe the Claimant's constitutional right to representation of choice.

p. 4

Legal principles established

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  • Rule 8 of the Advocates (Practice) Rules exists to protect the advocate's client against breach of confidentiality, not to give the opposing litigant a veto over who represents their opponent
  • A party seeking to disqualify an advocate must show the advocate will be required as a witness and that the testimony is relevant and necessary to the suit
  • The right to legal representation of one's choice, grounded in Articles 48, 50(1) and 159(2)(a) of the Constitution, can only be taken away in exceptional circumstances

Court orders

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  1. 1.The Respondent/Applicant's Motion dated 5th February, 2025 is dismissed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over an employment claim; application under Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Section 81(1) of the Advocates Act and Rule 8 of the Advocates (Practice) Rules

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, "Mudanya v Ericsson Kenya Limited (Cause E794 of 2023) [2025] KEELRC 1442 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1442/eng@2025-05-15

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