keelc-2023-19339

Applicant’s Case And Submissions 2. The application is premised on the supporting adavit of Davison Dzombo Katama sworn on September 19, 2022 the 2nd plainti who deponed that the family of Dzombo Katama Chivatsi instructed the rm of M/S Kanyi J & Company Advocates in 2017 to follow up a family dispute about their late father’s Plot No Kili/Kinungu’na/319. 3. He further deponed that they gave the Advocate access to all their documents and are therefore privy to the family dispute involving the 1st, 2nd, and 4th Defendant of whom they are related. He also stated that the rm of M/S Kanyi J & Company Advocates are now representing the 3rd Defendant in the matter against the Plainti. 4. Mr George Dzombo deponed that their relationship with one Mrs Wangari of the rm of Kanyi J deteriorated because she never came to court and they came to discover that she was meeting the 1st and 4th Defendants without informing them and they instructed the rm of Munyithya, Mutugi, Umara & Muzna advocates to represent them in this matter. 5. It was the Applicant’s case that the rm of M/S Kanyi J & Company is still in possession of their le and only gave him copies of the documents and has not forwarded the original documents to his advocates. 6. The Applicant further deponed that the rm of Kanyi J has led another suit on behalf of the 3rd Defendant thus a clear issue of conict of interest which is a breach of the advocate-client relationship if they continue to represent to the 3rd Defendant. 7. Counsel submitted that the record shows that the rm of Kanyi J Advocates on 8/4/2017 led the primary pleadings including the Plaint dated 5/4/2017 and the initial pre-trial compliance documents on Record for the Plaintis. That the Plaint expressly & adversely named, the later joined, the 3rd defendant Alfred Riko Mwalenga at paragraphs 9 and 10. 8. Counsel also stated that this has not been controverted by the Replying Adavit of Adoyo Julian from the rm of Kanyi J, that Ms Wangeci who was in the rm as the relationship was severed. 9. Counsel submitted that there is breach of client condentiality as the 3rd Defendant is now represented by the Plaintis’ former advocates Kanyi, J Advocates and is now prosecuting a counterclaim seeking eviction of the Plaintis and vacant possession of the suit property, which is a clear conict of interest as the very rm that helped the Plaintis craft their suit and prepare the primary pleadings, is now aiding a party adversely mentioned in these pleadings and now a party to prosecute a claim against the Plaintis. 10. Counsel relied on the cases of Murgor & Murgor Advocates v Kenya Pipeline Co. Ltd [2021] eKLR and Rajab Barasa Olemuteke v Shaiwaz S Jiwa [2020] eKLR on the issue of conict of interest and urged the court to allow the application as prayed. 3Rd Defendant’s Submissions 11. Counsel reiterated the contents of the Replying Adavit and stated that the rm entered appearance for the 3rd Respondent after he was enjoined through a court order and during preparation of the initial pleadings, the 3rd Respondent was not a party in these proceedings hence there was no conict of interest 12. Ms Adoyo further stated that it is not in dispute that Miss Wangari then an associate in the rm was personally in conduct of this matter on behalf of the Applicants herein, but the Applicants later on https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19339/eng@2023-08-31 2

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withdrew their instructions from Ms Wangari and appointed their current advocate on record to take over and proceed with the matter. 13. Counsel also argued that it is also not in dispute that an advocate –client relationship existed between Ms Wangari and the Applicants then before they withdrew their instructions and that they are not privy to the condential information shared between the Applicant and Ms Wangari . 14. Ms Adoyo submitted that the 3rd Respondent has a constitutional right to be represented by the rm of his choice and can only be interfered with if there is sucient evidence to demonstrate the existence of conict of interest that would cause prejudice to the Applicants. 15. Counsel cited the cases of Uhuru Highway Development Ltd-vs-Central Bank Of Kenya (2002) 2E.A 654 at page 661,British –American Investments Company (k) Limited =vs=Njomaitha Investments Limited & another (2014) eKLR, National Bank of Kenya Limited =vs=Peter Kipkoech Korat (2005) eKLR and urged the court to dismiss the application with costs. Analysis And Determination 16. The issue for determination is whether the rm of Kanyi J &company Advocates should be disqualied from acting for the 3rd Defendant on account of conict of interest. 17. It is not in dispute that the Firm of Kanyi J & Company Advocates was instructed by the Plainti to pursue this case on their behalf which culminated in ling of a Plaint dated April 5, 2017 as per the court records 18. The rm went ahead and completed the pretrial procedures and led the initial pre-trial compliance documents on Record for the Plaintis and that the plaint expressly & adversely named, the later joined, the 3rd Defendant Alfred Riko Mwalenga at paragraphs 9 and 10. 19. The Applicant further claimed that the Firm of Kanyi J Advocates has not released his original document as he was only supplied with copies. 20. The reasoning of counsel for the 3rd Defendant on the issue of conict of interest and client condentiality is in agreement that the rm of Kanyi J & company Advocates is actually in breach and a culprit of both limbs. The argument that the Applicant had withdrawn instructions from Ms Wangari who was in the conduct of the case within the rm, gives the rm a go ahead to act for an opposing client where the rm has used the same information acquired from the plainti to le a counterclaim reeks of conict of interest. 21. Further argument on the client’s constitutional right to counsel of his choice is also awed. If you look at the record and nd that Kanyi J led the Plaint and later in the le you nd that the same Kanyi J is acting for the 3rd Defendant, it sends a bad signal on Advocates practice. 22. I will not belabor much of the issue of conict of interest and condentiality as this case is an example of an advocate throwing care to the wind, abandoning what was taught at the law school on advocate – client relationships. Such kind of behavior can lead to disciplinary action. 23. The upshot is the application is allowed with costs to the Applicant and the rm of Kanyi J & company Advocates are therefore disqualied from acting for the 3rd defendant. The 3rd Defendant is hereby granted 30 days to engage the services of another counsel or rm save for the rm of Kanyi J & Company Advocates. DATED, SIGNED AND DELIVERED AT MALINDI THIS 31STDAY OF AUGUST, 2023. M.A. ODENY https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19339/eng@2023-08-31 3

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19339/eng@2023-08-31 4

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