Veronica Akoth Holtz v VDH Developments Limited & Another

application dated the same date. The application is made under Section 6 of the Arbitration Act, 1995, and Rule 2 of the Arbitration Rules 1997. 3. In opposing the application, the plaintiff filed a Replying Affidavit sworn on 1st May 2026. 4. Thereafter, the Plaintiff filed a Notice of Motion application under certificate of urgency dated 5 th May 2026. The Motion is brought under Rule 8 of the Advocates (Practice) Rules, and Article 50 of the Constitution. 5. In opposition to the Plaintiff’s application, the Defendants filed a Replying Affidavit sworn on 29 th May 2026 by the 2nd Defendant. 6. By consensus of the parties, the two applications were canvassed by way of written submissions. The parties, through their respective advocates highlighted their submissions on 30 th July 2026. 7. This ruling is in respect to the Defendants’ application dated 30 th April 2026 and the Plaintiff’s Application dated 5th May 2026. Defendants’ Application dated 30th April 2026 8. The Defendants in their application sought the following orders: a. This Honourable Court be pleased to stay all further proceedings herein and refer the dispute to arbitration pursuant to Clause 19 of the Agreement for Sale dated 13th May 2025. b. The costs of this Application be granted to the Applicants. 9. The application was premised upon the grounds set out therein and supported by the affidavit sworn by FREDERIK VANDERHOEVEN, the 2nd Defendant and the director of the 1 st Defendant on 30th April 2026. In summary, he deposed that, the dispute arose from an agreement for sale dated 13th May 2025 between the 1st Defendant and the Plaintiff over the purchase of a Villa Apartment Number 14 in the development known as One Ocean and in the Block known as “Pieds Dans L’eau’ situated on parcel number Kwale/Msambweni ‘A’/3837 (“the suit property”). That Clause 19.1 of the Agreement for sale provided that all claims and disputes arising therefrom were to be referred to arbitration and the Plaintiff’s suit having arisen out and in connection with the agreement for sale, ought to be referred to arbitration. He argued that Clause 19.1 was a valid and enforceable arbitration agreement between the parties emanating from the duly executed agreement for sale. 10. The 2nd Defendant further deposed that, the defendants had not taken any steps in the proceedings other than filing a Conditional Memorandum of Appeal under protest solely for purposes of 2|Page ELC NO. E022 OF 2026

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invoking section 6 of the Arbitration Act,1995 as they intend to file and ventilate their substantive defence against the Plaintiff’s claim before the arbitral tribunal. 11. He therefore urged the court to, in the interest of justice, refer the dispute to arbitration. He did not foresee any prejudice likely to be occasioned to the Plaintiff if the orders sought were granted. 12. He surmised that allowing the matter to proceed before the Court would be akin to rewriting the contract and would contravene Article 159 of the Constitution of Kenya. Plaintiff’s response to the Defendants’ application. 13. In opposing the application, the Plaintiff filed a Replying Affidavit sworn on 1 st May 2026 by Veronica Akoth Holtz, the Plaintiff. She deposed that the alleged arbitration agreement at Clause 19 was null and void ab initio, inoperative and incapable of being performed as there was no valid contract entered between the parties and that the purported contract was tainted with statutory illegality, fraud and non-compliance with the law. She stated that the alleged sale agreement dated 13th May 2025 did not exist as the Plaintiff cancelled and withdrew the offer on 10th May 2025, 3 days before the 1st Defendant executed the agreement and as such there was no offer capable of being accepted on 13th May 2025. She surmised that an arbitration clause draws its powers from a contract and where the main contract is void ab initio the arbitration clause ceases to exist. 14. She argued that even if the agreement was to be presumed to be in existence, the same was illegal, null and void ab initio for contravening Sections 43(1) and 58 (1) of the Sectional Properties Act, 2020.She deposed that the dispute was beyond contractual breach and included criminality, fraud and statutory illegality thus falling under the jurisdiction of the Court. 15. She averred that the 2nd Defendant was not a party to the sale agreement and referring the matter to arbitration would subject a non-signatory to the arbitral proceedings or would result in splitting the suit. She therefore prayed that the application be dismissed with costs. Submissions to the Defendant’s Application 16. The Defendants filed their submissions dated 27 th July 2026 in support of the application. They identified three issues for determination to wit; (i) Whether a dispute has arisen between the parties 3|Page ELC NO. E022 OF 2026

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(ii) Whether there exists a valid arbitration agreement between the parties as to how; and (iii) Whether this Honourable Court lacks jurisdiction to determine the instant dispute by virtue of the arbitration clause and agreement between the parties. 17. On the issue of whether a dispute had arisen, they submitted that both parties conceded there was a dispute. 18. On the issue of whether there existed a valid arbitration agreement between the parties, they submitted that Clause 19.1 of the Agreement for Sale unequivocally provides that any dispute arising out of or in connection with the agreement was to be referred to arbitration. Counsel argued that an arbitration clause constitutes a separate and binding agreement as per section 17 (1)(a) of the Arbitration Act and that even where a party alleges that the contract is void, that does not extinguish the arbitration agreement. 19. She submitted that Article 159(2)(c) of the Constitution of Kenya mandates Court to promote alternative forms of dispute resolution including arbitration. She urged the court to give effect to the parties’ freely chosen mechanism of dispute resolution. 20. She noted that there was a binding agreement between the parties and that the issue of the Plaintiff revoking the offer before acceptance was a disputed question of fact and law that automatically invoked the arbitration clause. That this factual contest cannot be resolved on affidavit evidence at an interlocutory stage as it requires the leading of evidence and full determination on merits. Counsel contended that the Plaintiff cannot approbate and reprobate by relying on the terms of the agreement for a refund whilst simultaneously contending that no agreement ever existed. She argued that the question of contract formation was one for the arbitral tribunal and not for this court. 21. Whilst relying on the doctrine of separability under section 17 of the Arbitration Act, the Defendants’ counsel submitted that even if the main contract was found to be invalid, the arbitration clause survives as an independent agreement and that the question of formation of the contract was amenable to the determination of the arbitral tribunal. She relied on the case of Kenya Airports Parking Services Limited & Another v Municipal Council of Mombasa [2010] Eklr where the court found that allegations of invalidity of a contract made by a party does not invalidate the arbitration clause in an agreement. 4|Page ELC NO. E022 OF 2026

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22. Counsel submitted that the Plaintiff’s case was a civil dispute concerning her rights under a commercial agreement wherein she sought refund of monies paid. She argued that the allegation that certain provisions of law were contravened did not transform the suit to a criminal matter incapable of arbitration. Counsel surmised that the case of Gerick Kenya Limited v Honda Motorcycle Kenya Limited [2019] KEHC 12372 (KLR) relied on by the plaintiff was in support of this his position, the court having upheld the jurisdiction of arbitral tribunal and held that the dispute was a personal monetary claim in persona and not affecting rights in rem and that the allegations of fraud were not so complex as to warrant removal from arbitration. 23. Counsel set out to distinguish each and every authority referred to by the plaintiff. 24. The Plaintiff submissions to the Defendants’ application were dated 14 th July 2026. Three issues were set out to wit; (i) Whether a valid contract and arbitration agreement were ever formed between the parties. (ii) Whether the dispute is non-arbitrable due to statutory criminality, public policy and illegalities under the Sectional Properties Act, 2020. (iii) Whether the dispute is ineligible for arbitration because it affects rights in rem and involves a non- signatory. 25. The Plaintiff submitted that there was no consensus ad idem between the parties, contending that the offer had been revoked on 10th May 2025 prior to its acceptance by the Defendants on 13 th May 2025. Consequently, the Plaintiff argued that no binding agreement came into existence between the parties and as such the arbitration clause was inoperative. Counsel relied on the case of Columbia Developers (K) Limited v Rogham Investment Limited [2025] KEHC 15534(KLR) where the court held that it is a condition precedent to stay of proceedings that there be a dispute capable of being referred to arbitration. He cited Section 6(1)(a) of the Arbitration Act,1995 and urged the to refused to refer a matter to arbitration where the agreement is null and void, inoperative or incapable of being performed. 26. It was further submitted, that even if the contract had been executed, the agreement was void for contravening the Sectional Property Act. The Plaintiff submitted that the transaction was tainted by a criminal offence under section 57(1) of the Sectional Property Act and referring the matter to 5|Page ELC NO. E022 OF 2026

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arbitration would violate public policy principle. He gave refence to the case of Kenya AntiCorruption Commission v Nedermar Technologies BV Limited [2017] KECA 1 (KLR) where the court found that an arbitration agreement in respect of criminal matters, public interest matters and matter that goes against public policy is not enforceable. Reference too was made to Gerick Kenya Limited v Honda Motorcycle Kenya Limited [2019] KEHC 12372 (KLR) where non arbitrable disputes were said to include disputes relating to rights and liabilities which give rise to or arise out of criminal offences. 27. The Plaintiff submitted that the 2nd Defendant was not a party to the alleged Sale Agreement and as such could not be compelled to arbitrate. On this counsel cited Rosslyn Suites Limited v Bowman v Bowman Associates [2025] KEHC 13436 (KLR) Plaintiff’s Application dated 5th May 2026 28. The Plaintiff’s application sought the following orders: a) Spent b) That the firm of DALY INAMDAR ADVOCATES LLP, its partners, associates, and/or employees be disqualified, barred, and/or injuncted from acting, entering further appearance, drafting pleadings, or continuing to represent the Defendants/Respondents in this suit. c) That the Conditional Memorandum of Appearance dated 30/04/2026 filed by Daly Inamdar Advocates LLP on behalf of the Defendants/Respondents be struck out/or expunged from the Court Record. d) That the Defendants/Respondents be granted leave of 14 days to appoint an independent firm of advocates to represent them in the suit. e) The costs of the Application be provided for. 29. The application was premised upon the grounds set out therein and supported by the affidavit sworn by VERONICA AKOTH HOLTZ, the Plaintiff, on 5 th May 2026. She deposed that, the dispute in the suit related to the execution, validity, legality and terms of the agreement dated 13 th May 2025 between herself and the 1st Defendant. That the said sale agreement was drawn by the law firm of Daly Inamdar Advocates LLP (“the firm”) and attested by a partner in the law firm one Ubhi Harpreet Kaur. She notes that the law firm acted as the common advocate for her and the 6|Page ELC NO. E022 OF 2026

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defendant and offered her legal advice including commissioning her affidavits and advising her on the process of opening an NCBA Dollar Bank account. 30. She paid a sum of USD 8,134.50 directly to the firm as legal fees towards the facilitation of the sale agreement and that as a result, a fiduciary relationship was established between her and the firm and it would be prejudicial to her if the said firm was allowed to continue acting for the Defendants as they were privy to confidential communications acquired from her during the transaction. She deposed that she had listed the firm and the partner who oversaw the execution of the agreement in her list of witnesses as compellable witnesses whom she intent to call in support of her case. The Plaintiff thus sought to have the said law firm immediately disqualified from representing the Defendants. Defendants’ response to the Plaintiff’s Application 31. The Defendants’ opposed the application vide Replying Affidavit sworn by FREDERIK VANDERHOEVEN on 29th May 2026. He deposed that he is a director of the 1 st Defendant hence competent to swear the affidavit on behalf of the 1 st Defendant. According to him, the firm of Daly Inamdar Advocates LLP acted solely as advocates for the Vendor, the 1 st Defendant, in the conveyancing transaction leading to the subject sale agreement dated 13 th May 2025 and that the Plaintiff opted to proceed with the transaction unrepresented. He explained the sum of USD 8.134.50 that was paid by the Plaintiff to the firm as cost of preparation of the agreement and incidental documents as well as costs for the stamping and registration of the instrument of transfer as per Clause 13.1 of the sale agreement and noted that there was no retainer agreement between the firm and the Plaintiff and as such no advocate-client relationship was established between the Plaintiff and the firm. 32. He denied the allegations that firm advised the Plaintiff and noted that any communication made to the Plaintiff was purely in tandem with the facilitation and completion of the conveyancing transaction. It was his contention that the partner who witnessed the execution of the agreement practiced in the conveyancing department of the firm while the suit was being handled by the litigation department and as such there was no conflict of interest. He deposed that the Plaintiff had not established the confidential information allegedly disclosed to the firm which could prejudice her and as such no real prejudice or conflict of interest had been demonstrated thereof. 7|Page ELC NO. E022 OF 2026

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He finally argued that the Defendants would be prejudiced and their rights to fair hearing violated if the application was allowed. Submissions to the Plaintiff’s Application 33. The Plaintiff filed their submissions in support of the application dated 14 th July 2026. It was submitted that the firm negotiated and drafted the agreement which was disputed and that since the validity of the agreement was disputed, the Plaintiff had listed the firm as compellable witnesses. 34. The Plaintiff relied on section 8 of the Advocates (Practice) Rules in seeking to have the firm statutorily disqualified from representing the Defendants. 35. It was submitted that there were issues regarding the execution timelines wherein it was pleaded that she withdrew from the transaction on 10/05/2025 whereas the Defendants signed the agreement on 13/05/2025. To wit, the Plaintiff argued that the partner who witnessed the execution by the Defendant was a compellable witness. 36. The Plaintiff submitted that the existence of an advocate–client relationship is not contingent upon the execution of a formal retainer agreement. They submitted that the payment of USD 8,134.50 to the firm coupled with the firm’s advice on the execution of the Affidavit of Names gave rise to a fiduciary duty and advocate-client relationship. 37. They disputed the applicability of the Chinese wall concept and argued that the firm may use confidential information relayed to them during the preparation of the agreement. 38. The Defendants’ filed their submissions dated 27 th July 2026. They submitted that per Section 2 of the Advocates Act, there was no advocate-client relationship between the firm and the Plaintiff. They argued that there was no retainer agreement, no legal opinion or advice to the Plaintiff independent of the 1st Defendant’s interests and that the agreement expressly provided that they acted for the Vendor while the Purchaser’s Advocates clause was deliberately left blank. 39. They submitted that the payment of the conveyancing costs did not establish a retainer. They asserted that Clause 13.1 of the Agreement provided that the Purchaser was to bear the said legal cost which was a standard conveyancing practice. 8|Page ELC NO. E022 OF 2026

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40. Additionally, it was submitted that a party’s constitutional right to counsel of choice as per Article 50(2)(h) of the Constitution of Kenya should not be interfered with unless there were exceptional circumstances. 41. It was their submissions that the Plaintiff had failed to demonstrate that there existed any confidential information that could be used against her if the firm continued to represent the Defendants. 42. The Defendants further submitted that the subject sale agreement was prepared by the firm's Conveyancing Department, whereas the present matter was being handled by its Litigation Department and by a different advocate altogether. On that basis, they contended that no conflict of interest had been established. 43. They submitted that the application was an afterthought and urged the Court to dismiss the same. They argued that allowing the application would set a dangerous precedent by enabling parties to arbitrarily deprive their opponents of counsel of their choice. 44. On 30th July 2026, learned counsel for the respective parties appeared before this Court and highlighted their written submissions. Upon hearing the parties, the Court reserved the matter for ruling. Issues, Analysis and Determination 45. I have carefully read and considered the Defendants’ application dated 30 th April 2026, Plaintiff’s application dated 5th May 2026, the affidavits in response to the applications, the written and oral submissions, the authorities cited and the relevant legal provisions. 46. The Court frames the following issues for determination: a) Whether the matter ought to be stayed and referred to arbitration. b) Whether the firm of Daly Inamdar Advocates LLP, its partners, associates, and or employees ought to be disqualified from representing the Defendants. Issue a) Whether the matter ought to be stayed and referred to arbitration. 47. At the outset, this Court must determine whether the matter ought to be referred to arbitration, the issue being one that directly touches on the Court's jurisdiction. Jurisdiction is a preliminary issue which must be resolved before the Court can embark on the determination of any other 9|Page ELC NO. E022 OF 2026

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issues in dispute. It is trite that jurisdiction is everything and, without it, a court has no power to take any further step in a matter. As was stated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where a court finds that it lacks jurisdiction, it must down its tools. It is for that reason that the Court must first determine the Defendant’s Chamber Summons Application dated 30th April 2026 on whether these proceedings ought to be stayed and the dispute referred to arbitration. 48. The issue of stay of proceedings and referral of disputes to arbitration is provided for under Section 6 of the Arbitration Act, which states as follows: 6. Stay of legal proceedings (1)A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds— (a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or (b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration. (2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined. (3) If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings. 49. The Defendants herein contend that the suit ought to be referred to arbitration pursuant to Clause 19.1 of the Sale Agreement dated 13th May 2025 between the parties. They submitted that there existed a valid arbitration agreement between the parties and that an arbitration clause constitutes a separate and binding agreement. They argued that the question of formation of the contract was capable of being determined by an arbitral tribunal. 10 | P a g e ELC NO. E022 OF 2026

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50. The Plaintiff, on the other hand, contends that the alleged arbitration agreement was null and void ab initio as there was no valid contract entered between the parties. She maintains that she had communicated her intentions to withdraw from the transaction before the 1st Defendant executed the agreement. 51. Section 17 of the Arbitration Act empowers an arbitral tribunal to decide on the existence and validity of an arbitration agreement. The section provides as follows: 17. Competence of arbitral tribunal to rule on its jurisdiction (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose—(a)an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and(b)a decision by the arbitral tribunal that the contract is null and void shall not itself invalidate the arbitration clause. 52. The Court of Appeal in Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] KECA 346 (KLR) rendered itself as follows on the provisions of Section 17 of the Arbitration Act; “The section (Section 17 of the Arbitration Act) gives an arbitral tribunal the power to rule on its own jurisdiction and also to deal with the subject matter of the arbitration. It is not the function of a national court to rule on the jurisdiction of an arbitral tribunal except by way of appeal under section 17(6) of the Arbitration Act as the Commercial Court in this matter purported to do… Under the doctrine of Kompetez/Kompetez a tribunal can rule on both the validity of the arbitral clause and the underlying contract. In the circumstances of the matter before us, once appointed it would for example be entitled to rule on who are the parties to the arbitration agreement and on the validity of the agreement to lease and whether it has jurisdiction over the other two respondents who contend that they are not parties to the agreement to lease. The Commercial Court has no business acting against an Act of Parliament and ruling on a matter it was not competent to rule on in law. Such a ruling is a nullity period.” (Emphasis added) 11 | P a g e ELC NO. E022 OF 2026

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53. The Court in Infocard Holdings Limited v Attorney General & 2 others [2014] KEHC 1984 (KLR) cited with approval the case of Kenya Airports Parking Services Ltd & Another v Municipal Council of Mombasa Civil case 434 of 2009 where Kimaru J observed thus: ‘’...it is this court’s view that where there exists an agreement with an arbitration clause, under the principle of separability of the arbitration clause, if a party to the agreement is of the opinion that the agreement is unlawful and therefore invalid, such view does not invalidate the arbitration clause in the agreement.” 54. The Learned Judge’s observations were based on decision by the Supreme Court of United States of America in the case of Buckeye Check Cashing Inc. v Cardegena et al 546 U.S. 440 (2006) that: “...the principle of separability of an arbitration clause in an agreement has thus been given judicial stamp of approval and is applicable even where one of the parties is challenging the validity or illegality of the agreement itself. As stated in the above U.S case, the issue as to the validity of the agreement is an issue that the arbitrator has jurisdiction to deal with.” 55. The Learned Judge, while applying the dicta in the Court of Appeal case of Anne Mumbi Hinga v Victoria Njoki Gathara [2009] KECA 466 (KLR) on the principle of non-intervention by court in arbitral process, held that: “It is clear from the above decision of the Court of Appeal, that this court cannot intervene and consider matters to do with the merit of the dispute between the plaintiffs and the defendant. That is an issue that is squarely within the province of the arbitrator. I decline the invitation by the defendant to consider issues regarding the validity of the agreement between the plaintiffs and the defendant. That issue shall be determined by the arbitrator.” 56. Similarly, in Infocard Holdings Limited v Attorney General, (supra), F. Gikonyo J, held thus: “…I should not dare delve into the merits of the agreement and the dispute generally lest I should be interfering with the jurisdiction of the arbitral tribunal. I have used the word ‘’interfere’’ to make the contrast with ‘’intervene’’; the former is prohibited while the latter is permitted in appropriate circumstances, and section 10 of the Arbitration Act is evident on this. Many a fine passage from the 12 | P a g e ELC NO. E022 OF 2026

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foregoing cases and others remains implanted in the memory of the court, and by the familiarity of this subject, I think time has come when courts should be categorical and parties should be always ready to admit that courts will not determine the question of validity of an arbitration agreement for purposes of section 7 of the Act. By that approach, parties will spare courts the length submissions on a matter they ought not to call upon the court to determine in the first place. I too will not determine that issue.” 57. In light of Section 17 of the Arbitration Act and the foregoing authorities, the arbitral tribunal is clothed with jurisdiction to determine the existence and validity of the arbitration agreement and the subject sale agreement. One of the main prayers in the plaint is a declaration that no valid and enforceable sale agreement exists or ever existed between the Plaintiff and the 1st Defendant concerning Villa Apartment No. 14 on L.R. No. Kwale/Msambweni “A”/3837, a question that the Arbitral Tribunal will be setting out to answer at the end of day upon a full hearing of the case. 58. In other words, even if the court is well aware of the settled general principles governing the formation of a contract, setting out to evaluate those principles and make a determine on whether the sale agreement between the Plaintiff and the 1st Defendant was invalid or void ab initio would be tantamount to usurping the powers of the Arbitral Tribunal. This Court deems it fit to refer the matter to arbitration as contemplated in the subject sale agreement. Issue b) Whether the firm of Daly Inamdar Advocates LLP, its partners, associates, and or employees ought to be disqualified from representing the Defendants. 59. The Courts have various occasions held that the right to legal representation is a sacrosanct principle enshrined in the Constitution of Kenya. In Delphis Bank Ltd v Channan Singh Chatthe & 6 others [2005] KECA 297 (KLR), the Court of Appeal held that each case must be considered on its own facts and that there must be evidence demonstrating that “real mischief and real prejudice” would result before a party’s right to counsel of choice is interfered with. The Court further observed that the mere preparation of transaction documents does not, without more, establish the existence of confidential information. The Court observed thus: 13 | P a g e ELC NO. E022 OF 2026

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“As is clear from those authorities, each case must turn on its own facts to establish whether real mischief and real prejudice will result. In this case, we hardly have any facts to consider in arriving at such conclusion. We do not know whether Mr. Menezes was involved in negotiations for the loans in issue. We do not know whether he was acting for both the bank and the borrowers or just for one party and if so which. We do not know the nature of confidential or privileged information, if any, that may have been imparted on him by either party which may be prejudicial to the other. The mere fact that debentures, loan agreements, legal charges, or guarantees were drawn by the advocate may not of itself be a confidential matter between the parties because those documents would be exchanged and have common information to all parties. In sum, there is no evidence before us, as there should be, for consideration before the drastic decision of interfering with a party’s constitutional right to counsel of his choice is interfered with.” 60. The Court further posited as follows: “In the Uhuru Highway development case the court stated that the bar to the counsel appearing as a possible witness was not subjective. Mr. Menezes here does not believe he would be a useful witness, but that is not the point because the indication is that he would be summoned. We remain uneducated however on the nature of the evidence that he is required to tender before the superior court. If it is merely formal and non-contentious, then of course the proviso to the rule would bail him out. The only certainty is that Mr. Menezes would not be required, and we have not been told so, to testify as a witness before us in the pending application. On that consideration we find it unnecessary to issue orders barring him from participating in the application either as the advocate directly instructed to do so or as lead-counsel for such advocate.” 61. Equally in Imperial Bank Limited (In Receivership) & another v Popat & 18 others [2025] KECA 1013 (KLR) citing Charles Gitonga Kariuki v Akuisi Farmers Co. Ltd [2007] eKLR the Court held thus: “It is not enough for the applicant to allege that because an advocate acted for it in several matters, such an advocate was barred from acting against it in other matters. The fact that an advocate acted for a litigant does not, per se, lead to a situation of conflict of interest. The applicant was required to establish, and present to the court evidence that would persuade the 14 | P a g e ELC NO. E022 OF 2026

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court to reach a conclusion that indeed there was a possibility that a conflict of interest would arise were the advocate is (sic) allowed to act for the opposing party against such a litigant. In the present case, apart from stating that Mr. Karanja had acted for it in several matters, the defendant did not present to the court material upon which this court could make a determination that indeed there were grounds upon which this court could reach a determination that there exists a possibility of conflict of interest.” 62. The same principle was expressed in Guardian Bank Limited v Sonal Holdings (K) Limited & 2 others [2014] eKLR where the court opined thus: “What I need to state is that, in applications for disqualification of a legal counsel, a court of law is not to engage a cursory look at the argument that “these advocates participated in the drawing and attestation of the Deeds in dispute;” as that kind of approach may create false feelings and dilemmas; for it looks very powerful in appearance and quite attractive that those advocates should be disqualified from acting in the proceedings. It is even more intuitively convincing when the applicant says “I intend to call them as witnesses.” What the court is supposed to do is thrust the essential core of the grounds advanced for disqualification, look at the real issues in dispute, the facts of the case and place all that on the scale of the threshold of the law applicable…The real questions then become: Is the testimony of the advocate relevant, material or necessary to the issues in controversy, or is there other evidence which will serve the same purpose as the evidence by counsel. Eventually, each case must be decided on its own merits, to see if real mischief and real prejudice will result in the circumstances of the case. And in applying the test, if the argument on disqualification becomes feeble and inconsistent with causing real mischief and prejudice, then a disqualification of counsel will not be ordered.” 63. The import of the foregoing authorities is that the mere assertion that an advocate is in possession of confidential information is insufficient to warrant disqualification. The party seeking disqualification must demonstrate a real likelihood of mischief or prejudice arising from the said advocate’s continued representation. In determining that question, the Court must consider the nature of the prior engagement, the advocate’s role in the transaction, the information allegedly acquired and its relevance to the issues in dispute. 15 | P a g e ELC NO. E022 OF 2026

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64. In this case, although the Defendants’ advocates participated in the preparation and attestation of the impugned Sale Agreement and the Plaintiff has identified them as potential witnesses, these circumstances do not, without cogent evidence, establish that confidential information imparted on the Defendants’ advocates, if any, will be used to the Plaintiff’s prejudice. 65. There is no evidence before the Court identifying the confidential information allegedly imparted to the advocates, demonstrating its relevance to the dispute, or establishing that the advocates acting for the Defendants have access to or intend to use such information. 66. What was submitted is that the firm negotiated and drafted the agreement which was disputed. The agreement is a common document for both parties. It’s terms and conditions are in bold prints, open for the parties to see. There is no evidence of what, in the text of the agreement, is confidential. 67. Disqualification of an advocate is a limitation to a litigant’s right to counsel of choice and ought not be premised on mere suspicion or apprehension. The fact that an advocate participated in an underlying transaction does not, by itself, automatically disentitle the advocate or the firm from continuing to act. 68. Further, the mere possibility that an advocate may be called as a witness does not, of itself, warrant the disqualification of the entire firm. The Court must consider whether the proposed testimony is relevant, material and necessary to the determination of the dispute and whether any potential prejudice can otherwise be addressed without depriving the Defendants of their chosen representation. 69. In National Bank of Kenya Limited v Peter Kipkoech Korat & Another [2005] KEHC 518 (KLR), the Court while addressing a similar contention, held: “Granted, he may be called as a witness, but as well put by Mr. Kuloba, he is just one of the advocates in the firm and in my mind, though he can be called to give evidence in this suit, it would not require the disqualification of the whole firm of advocates.” 70. The similar view was expressed in the case of Kipchilat v Boit (Suing as the personal representative of the Late Samwel Kiplel Arap Boit) [2024] KEELC 5654 (KLR) where the Court held thus: “See also the Dorothy Seyanoi Moschioni Case (Supra), where the court reached the following conclusion: - “(23) In line with the above rendition, I do not think there was any possibility of real 16 | P a g e ELC NO. E022 OF 2026

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prejudice being occasioned to the Applicant by representation of the 1st Respondent by the said firm of advocates. And I so hold fully aware of the Applicant’s desire to call them as witnesses and I suppose only the advocate who witnessed and or drafted the agreement was to be the witness. The Rules even allow such advocate to testify on matters which are not contentious.” On the element of mischief and/or prejudice, the law is that each case must be considered as a with regard to the special circumstances and the facts of each case. It also trite that the court will only intervene to bar an advocate from representing a litigant if satisfied that real prejudice will be occasioned to the other party.” 71. In the present case, the Defendants contend that the conduct of the litigation has been handled by a different partner within the firm from the advocate who prepared and/or attested the impugned Sale Agreement and handled the conveyancing transaction. This distinction is material. The fact that one advocate within the firm may potentially be called to give evidence does not, without evidence of actual or real prejudice, necessarily render the entire firm incapable of acting for the Defendants. The Plaintiff has not established sufficient grounds for the disqualification of the entire firm merely on account of the potential involvement of one of its advocates as a witness. 72. The upshot of all these is that the defendants’ application dated 30th April 2026 is found merited and allowed in terms of prayer No. 1. The proceedings herein are consequently stayed to enable the parties refer the dispute for arbitration. 73. The Plaintiff’s Application dated 5th May 2026 is found to lack merit and is accordingly dismissed. Costs of the application to the defendants. Dated, Signed and Delivered virtually via Microsoft teams at Kwale this 29 th day of September 2026. HON. E.G NDERITU LJ ELC KWALE In the presence of: 17 | P a g e ELC NO. E022 OF 2026

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Mr Owour for the Plaintiffs Ms Mweni for Ms Kinyanyui for the Defendants Ms Halima C/A 18 | P a g e ELC NO. E022 OF 2026

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