Avin Galot (legal representative of the Estate of Mohan Galot, Deceased) v Ganeshlal Pusharam Galot & 8 others

disqualified from representing or appearing for the 4 th, 5th, 6th, 7th, 8th and 9th Defendants, or any other party in this matter, in any manner whatsoever. The Applicant further seeks an order that the costs of the application be borne personally by Mr. Havi. 2. The dispute has a lengthy and convoluted history. The proceedings originated as Nairobi HCCC No. 2247 of 2007 and were subsequently consolidated with Civil Suit No. 49 of 2009. The matter was later transferred to the Environment and Land Court at Thika and registered as ELC Civil Case No. E002 of 2026. The substantive dispute concerns L.R. No. 7022/7. The Plaintiff asserted ownership of the property whereas the Defendants contended that it was acquired and/or developed with funds contributed by the Defendant companies and is held in trust for them. 3. The original Plaintiff, Mohan Galot, died on 18.06.2025. The material before the Court shows that a Grant of Probate was issued to Avin Galot in respect of his estate. Avin Galot has prosecuted the present application as the legal representative of the deceased's estate. B. THE APPLICANT'S CASE 4. The application was supported by the affidavit of Avin Galot sworn on 16.06.2026. The Applicant's case was that Mr. Nelson Havi previously acted for the late Mohan Galot in these very proceedings and, in the course of that representation, received THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 2

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confidential and privileged information concerning the Plaintiff's case. 5. The Applicant relied upon the documents annexed to the Supporting Affidavit. The material shows that in 2013 Havi & Company Advocates were instructed to act for the late Mohan Galot in the litigation. Thereafter, Mr. Havi personally participated in the conduct of the matter. 6. Of particular significance is an email dated 22.04.2014 in which Mr. Havi forwarded to Mohan Galot a draft application for his consideration and comments. The Notice of Motion was drawn and filed by Havi & Company Advocates for the Plaintiff, and the accompanying certificate of urgency was signed by Mr. Havi, who stated that he had the conduct of the matter on behalf of the Plaintiff. 7. The record further contains correspondence by Havi & Company Advocates concerning the progress of the proceedings as well as written submissions dated 02.03.2015 filed on behalf of the Plaintiff. Those submissions dealt expressly with the Defendants' assertion that the suit property had been acquired through contributions made by them and was consequently held in trust for them. 8. The Applicant contended that following the death of Mohan Galot, Mr. Havi took up representation of the 4th to 9th Defendants, whose interests were adverse to the estate. It was contended that THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 3

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his continued participation created a conflict of interest and a real risk that information obtained during the previous retainer may be used, consciously or inadvertently, to the prejudice of the estate. C. THE RESPONDENTS' CASE 9. The application was opposed through the Replying Affidavit of Narendra Galot sworn on 24.07.2026 and the written submissions filed on behalf of the 4th to 9th Defendants. 10. Narendra Galot described himself as a management shareholder of Manchester Outfitters Limited, the 8th Defendant, and stated that he was authorised to swear the affidavit on behalf of the 7 th, 8th and 9th Defendants. 11. The Respondents' position was that previous representation could not, without more, disqualify an advocate from subsequently acting against a former client. They contended that the Applicant had not identified the particular confidential information allegedly acquired by Mr. Havi or demonstrated how such information has been or was likely to be used against the estate. 12. The Respondents further contended that the central question in the substantive suit was whether L.R. No. 7022/7 was acquired and developed with funds contributed by the Defendant companies and whether the property was held in trust for them. They argued that no real mischief or prejudice had been THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 4

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demonstrated and that the Defendants ought not, without sufficient cause, be deprived of their chosen counsel. D. ISSUES FOR DETERMINATION 13. Having considered the application, the affidavits, annexures, submissions and authorities cited, the Court is of the view that the following issues arise for determination: a. Whether an advocate-client relationship existed between the late Mohan Galot and Mr. Nelson Havi; b. Whether the previous retainer establishes possession of confidential information relevant to the dispute; c. Whether Mr. Havi's continued representation of the 4th to 9th Defendants gives rise to a real likelihood of mischief or prejudice to the Plaintiff; d. Who should bear the costs of the application. E. APPLICABLE LEGAL PRINCIPLES 14. Section 134(1) of the Evidence Act protects communications made to an advocate in the course and for the purpose of professional employment, together with the contents of documents with which the advocate became acquainted and advice given in the course of such employment. Significantly, section 134(2) provides that the protection continues after the advocate's employment has ceased. THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 5

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15. The Court also retains inherent jurisdiction under section 3A of the Civil Procedure Act to make such orders as may be necessary for the ends of justice and to preserve the integrity of its proceedings. 16. The governing principles were recently restated by the Court of Appeal in Imperial Bank Limited (In Receivership) & another v Popat & 18 others [2025] KECA 1013 (KLR). The Court emphasized that the mere fact that an advocate previously acted for a party does not automatically justify disqualification. An applicant must demonstrate specific previous instructions and circumstances from which it can properly be concluded that confidential information obtained during the previous retainer is connected with the issues presently before the Court and may be used, deliberately or inadvertently, to the former client's disadvantage. F. ANALYSIS AND DETERMINATION Whether there was a previous advocate-client relationship 17. On the first issue, there is little room for controversy. The material before the Court establishes considerably more than a casual or unrelated previous engagement. 18. The late Mohan Galot instructed Havi & Company Advocates in these proceedings. Mr. Havi personally certified in January 2014 that he had conduct of the matter on behalf of the Plaintiff. He THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 6

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forwarded a draft application to the Plaintiff for review and comments; his firm drew and filed the application and thereafter corresponded with the Plaintiff regarding the litigation. 19. Most significantly, Havi & Company Advocates filed substantive written submissions on 02.03.2015 on behalf of the Plaintiff. The Court is accordingly satisfied that Mr. Havi personally acted for the late Mohan Galot in this very litigation. Whether relevant confidential information may properly be inferred 20. The more substantial objection raised by the Respondents is that the Applicant has not disclosed the particular confidential information allegedly acquired by Mr. Havi. 21. That objection must be considered against the particular facts of this case. In the case of Imperial Bank Limited (In Receivership) & another v Popat & 18 others [2025] KECA 1013 (KLR) the Court of Appeal cautioned courts against acting upon generalized assertions of previous representation. In that case the previous engagements had not been sufficiently connected to the issues in the pending litigation. The present circumstances are materially different. 22. Here, the nature and extent of the former retainer are demonstrated by the documents themselves. More importantly, the Plaintiff's written submissions filed by Havi & Company Advocates in 2015 addressed the allegation that the Defendants THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 7

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contributed towards the acquisition of the suit property and that a trust existed in their favour. The submissions challenged the evidence of such contribution and the existence of the alleged trust. 23. The present position advanced by the Defendants is substantially the converse. The application dated 29.01.2026 filed on behalf of Manchester Outfitters Limited and London Distillers (K) Limited asserts, inter alia, that L.R. No. 7022/7 was acquired with funds contributed by the companies and as held in trust for the companies which contributed towards its purchase. 24. The connection between the former retainer and the present controversy is therefore neither remote nor speculative. It concerns the same litigation, the same property and substantially the same trust and contribution question. 25. In those circumstances, the Court is entitled to infer that confidential instructions which may be relevant to that dispute passed between advocate and client. Requiring the estate to disclose the substance of those communications as the price of protecting them would, in the circumstances of this case, substantially undermine the privilege itself. 26. The Court finds persuasive the reasoning in Alweny v Opande [2026] KEELC 857 (KLR), where the Environment and Land Court recognised that, depending on the nature of the established former retainer, receipt of relevant confidential information may THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 8

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properly be inferred without requiring disclosure of the very communications sought to be protected. Whether real mischief or prejudice has been established 27. It is not necessary for the Applicant to demonstrate that confidential information has already been deployed against the estate. The protective jurisdiction of the Court is concerned with preventing the mischief before it occurs. 28. Mr. Havi formerly acted for the Plaintiff in relation to a controversy over the Defendants' asserted financial contribution towards the acquisition of the suit property and the alleged trust arising therefrom. He now acts for Defendants advancing that very contention against the Plaintiff's estate. 29. The Court is satisfied that the circumstances create a real and not merely theoretical risk that information acquired during the former retainer may influence the conduct of the present defence, whether deliberately, unconsciously or inadvertently. That is the kind of mischief contemplated by the law. 30. The Court has considered the Defendants' interest in retaining counsel of their choice. That is an important incident of access to justice and fair hearing. It is, however, not an entitlement which overrides the continuing obligation to preserve advocate-client confidentiality or the Court's duty to protect the integrity and fairness of its proceedings. THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 9

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31. In the circumstances of this case, the balance lies in favour of protecting the former client's confidential relationship and the proper administration of justice. The Applicant has therefore established a sufficient basis for the personal disqualification of Mr. Havi. G. COSTS 32. The Applicant seeks an order that the costs of the application be borne personally by Mr. Havi. 33. A personal order for costs against counsel is exceptional. The fact that circumstances warrant prospective disqualification does not, without more, establish misconduct or bad faith sufficient to justify personally condemning counsel in costs. 34. The Court has made no finding that Mr. Havi deliberately used confidential information or acted in bad faith. The prayer that he should personally bear the costs shall therefore be declined. 35. The application has, nevertheless, substantially succeeded. There is no sufficient reason to depart from the ordinary principle that costs should follow the event. The Applicant shall accordingly have the costs of the application as against the 4 th to 9th Defendants. H. DISPOSAL ORDERS 36. As a consequence, the Plaintiff's Notice of Motion dated 16.06.2026 shall be allowed in part upon the following terms: THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 10

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a. Mr. Nelson Havi, Advocate, is hereby barred and disqualified from acting, appearing, advising or otherwise participating as counsel for the 4th, 5th, 6th, 7th, 8th and 9th Defendants, or for any other party adverse to the Plaintiff, in ELC Civil Case No. E002 of 2026. b. The 4th to 9th Defendants shall, if necessary, appoint an advocate of their choice within twenty-one (21) days from the date of this Ruling. c. The Applicant shall have the costs of the Notice of Motion dated 16.06.2026, to be borne by the 4th, 5th, 6th, 7th, 8th and 9th Defendants. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 1 ST DAY OF OCTOBER 2026 Y. M. ANGIMA JUDGE In the presence of: Ms Awiti for Plaintiff Ms. Mwanzia for 2nd Defendant Mr. Okul holding brief for Kenyatta for 3rd Defendant Mr Ogwen holding brief for Mr Kaka for Defendants Mr Ashioya holding brief for Havi for 4-7 Defendants Court Assistant: Hinga THIKA ELCC CASE NO. E0O2 OF 2026 (RULING) Page 11

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