Abdi Fatah Ali Hassan & 8 others v We Tilley (muthaiga) Limited

Associates Advocates, previously represented the Applicant, its directors, and associated companies in HCCOMM No. 522 of 2015. The Applicant contends that this prior representation gives rise to a conflict of interest in the present proceedings. 3. The application is opposed through the Replying Affidavit sworn by Mansur M. Issa, Counsel for the Respondents, on 5th November 2025. Counsel maintains that in HCCOMM No. 522 of 2015 (Imperial Bank Ltd (IR) V WE Tilley (Muthaiga) Limited & 13 others), Issa & Company Advocates represented Value Pak Foods Limited, while the Applicant was represented by LJA Associates LLP. The cause of action in that earlier matter was one of alleged fraud against Imperial Bank, whereas the present suit concerns payment for fish supplied to the Applicant. 4. Counsel emphasizes that the two suits are distinct, that Value Pak Foods Limited is a separate legal entity from the Applicant despite common directorships, and that no confidential information relevant to the present claim could have been obtained. 5. It is further argued that the application is an afterthought. The present suit was filed in December 2016, while Issa & Company Advocates remained on record in HCCOMM No. 522 of 2015 until March 2020. At no point during that period did the Applicant raise objection. Counsel stresses that the Applicant has not identified any confidential or privileged information allegedly shared with Issa & Company Advocates, nor demonstrated prejudice. 6. He reiterates that litigants enjoy a constitutional right under Article 50 of the Constitution to be represented by counsel of their choice, and that disqualification of an advocate is a drastic remedy reserved for extraordinary circumstances, which are absent here. Analysis and Determination 7. I have considered the application, affidavits, written submissions and the authorities cited. Both parties rely on the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, 2016 which sets out the threshold for conflict of interest in an advocate – client relationship. Paragraph 93 defines a conflicting interest in the following terms: “ A conflicting interest is an interest which gives rise to substantial risk that the Advocate’s representation of the client will be materially and adversely affected by the Advocate’s own interests or by the Advocate’s duties to another current client, former client or a third person.” 8. Paragraph 96 provides for the situations in which such conflict of interest may arise. The instances are only indicative and include circumstances where the interests of one client are directly adverse to those of another, where representation of one client is materially limited by responsibilities held to another client or third party and where confidential information obtained from a client may be used to that client’s disadvantage. 9. The central issue for determination in this instance is whether the Applicant has discharged the burden of proving the existence of a conflict of interest within the meaning contemplated by the Code of Standards of Professional Practice and Ethical Conduct. 10. To do so, the Applicant must demonstrate, with precision and particularity, that Issa & Company Advocates are in possession of confidential or privileged information belonging to the Applicant, obtained in the course of a prior representation, and that such information is directly relevant to the issues in the present proceedings where the Respondents’ interests are adverse. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/455/eng@2026-01-23 2

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11. Alternatively, the Applicant must establish that Issa & Company Advocates owe a continuing professional duty or responsibility to the Applicant which materially limits their ability to act for the Respondents. Absent such evidence, the mere fact of prior representation of related entities or common directorships cannot, in itself, amount to conflict of interest. 12. This fact was reiterated in Charles Gitonga Kariuki V Akuisi Farmers Co Ltd, [2007] KEНС 1059 (КLR), where the Court held as follows: “ 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 court to reach a conclusion that indeed there was a possibility that a conflict of interest would arise were the advocate is allowed to act for the opposing party against such a litigant.” 13. I have carefully examined the Plaint filed in HCCCOMM No. 522 of 2015. The record shows that the Applicant in the present proceedings was sued as the 1st Defendant in that matter and was duly represented by LJA Associates Advocates, who filed a Statement of Defence on its behalf dated 15th February 2016. In contrast, the firm of Issa & Company Advocates entered appearance for the 3rd to 7th Defendants, as evidenced by the Notice of Appointment of Advocates dated 21st December 2015 and the Defence subsequently filed. 14. It is therefore factually and legally inaccurate to assert that Issa & Company Advocates represented the Applicant in HCCCOMM No. 522 of 2015. The mere fact that some of the Defendants in HCCCOMM No. 522 of 2015, particularly the 7th Defendant, shared directors or shareholders with the Applicant does not, without more, establish a conflict of interest. 15. Corporate law is settled on this point and the principle laid down in Salomon V Salomon & Co Ltd, [1897] AC 22 affirms that once incorporated, a company acquires a distinct legal personality separate from its members, directors, or affiliated entities. 16. The existence of common directorships or ownership does not collapse this corporate veil nor render companies legally indistinguishable. Accordingly, the fact of related ownership structures cannot, in itself, be relied upon to presume that confidential information belonging to the Applicant was accessible to Issa & Company Advocates through their representation of Value Pak Foods Limited or any other related entity. 17. Moreover, I have carefully considered the subject matter of the dispute in HCCCOMM No. 522 of 2015 alongside the present proceedings, and I am persuaded by the Respondents’ position that the two suits are wholly unrelated. The record confirms that the earlier case was premised on allegations of fraud and conspiracy to defraud Imperial Bank (now in liquidation). In contrast, the present suit arises from the supply and delivery of fish to the Applicant, for which payment is sought. 18. This distinction in subject matter goes to the very foundation of whether a conflict of interest can be said to exist. The issues of fraud, conspiracy, and banking transactions in HCCCOMM No. 522 of 2015 are entirely divorced from the contractual obligations that are at the heart of the present claim. Consequently, the work undertaken by Issa & Company Advocates on behalf of the 7th Defendant in the earlier matter could not, in any meaningful way, have touched upon or overlapped with the issues now before this Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/455/eng@2026-01-23 3

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19. Even then, and guided by the authorities already cited, the burden of proof rests squarely upon the Applicant to demonstrate, with clarity and specificity, the precise nature of any confidential or privileged information that Issa & Company Advocates, acting for a separate legal entity in HCCCOMM No. 522 of 2015, may have acquired, and to show how such information could reasonably prejudice the Applicant in the present proceedings. That burden has not been discharged. The Applicant has made broad assertions without identifying any particular information or evidentiary basis to support the claim of conflict. 20. The mere existence of an injunction issued against the Applicant in HCCCOMM No. 522 of 2015 does not, in itself, establish conflict of interest. While the Applicant argues that the injunction has a bearing on the present proceedings, it must be emphasized that the order was granted in the context of a wholly different cause of action, founded on allegations of fraud and conspiracy against Imperial Bank. The factual matrix underpinning that injunction is distinct from the contractual dispute now before this Court concerning the supply and delivery of fish. 21. The same fate befalls the arguments advanced by the Applicant in respect of the counterclaim raised in the present suit, particularly the allegations concerning loan facilities allegedly taken by the Respondents. The Applicant has not demonstrated with clarity how these allegations bear any nexus to the issues canvassed in HCCCOMM No. 522 of 2015 or to the question of conflict of interest now before this Court. 22. As has already been established, the earlier proceedings were premised on allegations of fraud and conspiracy against Imperial Bank, while the present matter is a commercial dispute arising from the supply and delivery of fish. The introduction of loan facilities into the counterclaim does not alter this fundamental distinction. Disposition 23. Accordingly, the application dated 14th October 2025 is dismissed with costs to the Respondents. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JANUARY 2026. F. MUGAMBI JUDGE Delivered in presence of: Mr Mbatai for the plaintiffs Mr Orwenyo for the defendant Court Assistant: Lillian https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/455/eng@2026-01-23 4

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