ADVOCATES CONFLICT OF INTEREST CASE LAWS

 ADVOCATES & CONFLICT OF INTEREST CASE LAWS

1.     Charles Gitonga Kariuki v Akuisi Farmers Co. Ltd[1]

The firm of Karanja Mbugua & Company advocates had acted for the plaintiff in a claim seeking to recover a debt of Kshs. 3 million from the defendant. The defendant’s counsel raised a preliminary objection challenging the appointment of the plaintiff’s advocates firm submitting that they had acted for the defendant in several other cases. He submitted that the defendants were apprehensive that the plaintiff’s counsel would use information acquired from the defendant to their disadvantage.

The court held that it is not enough for the applicant to allege that opposing counsel acted for the defendant in several matters because the simple fact that the advocate acted for a litigant does not lead per se to a conflict of interest. The court dismissed the preliminary objection on the ground that the applicant had not tendered evidence that showed that the plaintiff’s counsel had been intimately involved in the defendant’s affairs in respect of the matters in dispute in this case.

 

2.     Uhuru Highway Development Limited & 3 others v Central Bank of Kenya & 4 others[2]

The proceedings in this suit were brought in relation to another matter pending in the high court. The appellants sought the disqualification of the firm of Oraro & Company advocates and George Oraro Esquire as advocates for the first and second defendants. The high court had dismissed this application prompting the plaintiffs to appeal in the Court of Appeal.

The facts in question were that Mr. George Oraro had acted for the first defendant, the Central Bank between August 1993 and December 1993 and the first and second plaintiffs. In this regard counsel had prepared a charge that related to property owned by the first plaintiff in favor of the first defendant. The plaintiff’s contentions were that the advocate had acted for both parties in preparation of the charge and thus he may not act for one against the other as the said charge was the subject matter of the suit pending at the High Court.

            The court examined the evidence tendered and concluded that the firm of Oraro & Rachier indeed acted for the 1st plaintiff in relation to the charge. The court held that since counsel had played a role in bringing the 1st and 2nd plaintiffs to agree to sign the charge, he may consciously or unconsciously or even inadvertently use the confidential information acquired during the preparation of the charge which would prejudice the other party. The court allowed the appeal and proceeded to disqualify the defendants’ counsel.

 

3.     Simba Hills Farm Limited V Sultan Hasham Lalji & 5 Others[3]

The plaintiff made an application seeking the disqualification of Mr. Birech who was on record for the 4th, 5th and 6th defendants. The plaintiff submitted that the advocate had acted for it since its incorporation and had confidential information about the transactions in question hence, he was likely to be called as a witness.

The court agreed with the plaintiff having examined the tendered evidence. The evidence showed that counsel had filed a suit on behalf of the plaintiff over the same subject matter in this suit in June 1994 and had also acted for the plaintiff in a sale transaction involving the subject land. The court, while disqualifying Mr. Birech, stated that an advocate should never enter into the arena by acting as a witness in a matter where he has acted for either party.

 

4.     National Bank of Kenya Limited v Peter Kipkoech Korat & Another[4]

The plaintiff had sued the defendants claiming a sum of Kshs. 2,590,499.85 with interest for an unpaid loan. The defendants then make a preliminary objection seeking the suit to be struck off on account of conflict of interest between the plaintiff’s advocate and the defendant. The grounds for the application were that the plaintiff’s advocate would be called as a witness as they had acted for both the bank and the defendants which was prohibited by Rule 9 of the Advocates Practice Rules.[5] A.M Nyairo, from the firm of Nyairo & Company (advocates for the plaintiff) had witnessed the execution of the two deeds of guarantee.

The court dismissed the preliminary objection holding that although Mr. A.M Nyairo may be called as a witness, he was just one of the advocates in the firm hence, it would not require the disqualification of the whole firm. Further, it was Mr. Kuloba and not Mr. Nyairo handling this matter.

 

5.     Francis Mugo & 22 others v James Bress Mutheee & 3 others[6]

The defendants had filed an application seeking the disqualification of the firm of Mukite Musangi & Co. Advocates and in particular Mr. Andrew Mukite Musangi from acting for the plaintiffs. They argued that they intended to call Mr. Mukite as their witness as he drew and witnessed a certain lease between the first plaintiff and some of the other parties which was relevant to this suit.

The court allowed this application and disqualified Mr. Mukite. It acknowledged that advocates are officers of the court who owe allegiance to a cause that is higher than serving the interests of their client and that is the cause of justice and truth. In this regard, an advocate cannot act for a client in a matter where they are likely to be called as a witness.

 

6.     King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd) & another v M/s Kaplan & Straton Advocates[7]

The first appellant had received a loan from the Standard Merchant Bank Ltd (the London Bank) through the East Africa Acceptances Ltd (the Acceptances Ltd). The loan was guaranteed by the Acceptances Ltd. Initially, the respondent was retained to act for the London Bank and the Acceptances during the negotiations and preparation of the loan agreement and security documents. The 1st appellant then requested the respondents to act for them in clearing the loan and security documents as well as advising them accordingly. On the other hand, the respondents were also acting for the 2nd appellant in connection with the purchase of properties, one of which was being offered to the Acceptances as security for the loan lent to the 1st appellants. In essence the respondents acted for both the borrowers (the appellants) and the lenders (London bank and the Acceptances Ltd). The respondents prepared the loan agreement, the guarantee, the debenture and the legal charge on behalf of the London Bank, the Acceptances and the appellants as well as furnishing the requisite legal opinions.

In 1989 disputes arose between the appellants and the acceptances resulting in a claim filed by the appellants in the High Court. The respondents appeared for the London Bank and the Acceptances prompting the appellants to file an application for an injunction to restrain the respondents from acting for the former. This application was dismissed prompting an appeal at the Court of Appeal. The main issue for determination was; whether an advocate who acts for both the borrower and the lender in a transaction is disqualified from representing either of those parties in a subsequent litigation concerning the said transaction.

The court stated that a retainer creates a contractual relationship between the advocate and the client irrespective of whether two or more clients are involved. That is to say that the relationship is not tripartite. Each client has a separate retainer relationship with the common advocate. For example like in the instant case, Mr. Keith for the respondents having accepted to act for the appellants, the borrowers, and the lenders, in putting together the loan transaction, he has a duty to the borrower and should not subsequently act for the lenders to enforce repayment of the loan because he had obtained relevant knowledge of the borrower’s financial position when acting for him in connection with the original loan transaction. In these circumstances, he would take unfair advantage prejudicial to the borrowers if he so acts for the lenders because of apparent conflict of interest.

The court further held that the fiduciary relationship created by the retainer between client and advocate demands that the knowledge acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without that client’s consent even after the conclusion of the matter for which the retainer was created. The information or knowledge so acquired and which is confidential by reason of the fiduciary relationship between the opponent client and the common advocates will place the other client or clients at a disadvantage occasioning prejudice if that knowledge or information is used against them by the common advocate in a subsequent litigation arising from the original transaction or subject matter for which he acted for the clients as their common advocate. As such the conflict of interest is apparent and the common advocate should not act for one of his client or clients against the other client or clients in a subsequent litigation arising from the original transaction or the subject matter.

The court concluded that real prejudice or mischief was anticipated in the respondents were to be allowed to act for the defendants in the main suit. There was a high likelihood that they could use confidential information acquired from the appellants during preparation of the loan agreement and the security documents against the appellants in the main suit. The court granted the injunction barring the respondents from acting for the defendants (the London Bank and the Acceptances) in the main suit.

 

7.     Jackson K. Kivinda v United Insurance Co. Ltd[8]

An application to set aside a consent judgment on grounds of conflict of interest based on the allegation that the plaintiff’s advocate also acted for the defendant’s advocates. The plaintiff’s advocates opposed the application alleging that he firm of Kinyanjui Njuguna & Co. came on record on 20th March, 2003 and not on 13th March, 2003. By the time they came on record, the parties had already reached a consent, which was recorded on 20th March, 2003. The claim failed because court records showed that the plaintiff’s advocate came on record after judgment had already been recorded.

1.1.4    An Application for Disqualification of Opposing Counsel

            Where an advocate continues to act in a matter where there in a conflict of interest, the affected party can make an application for the disqualification of opposing counsel using a notice of motion with a supporting affidavit.[9] (See the sample below)

 

 

 

 

 

 

 

 

 

 

 

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO. 56   OF 2021

JAGJIT SINGH LIDDAR........................................... PLAINTIFF/APPLICANT

-VERSUS-

JASDIP SINGH NANDHRA...........................……….DEFENDANT/RESPONDENT

CERTIFICATE OF URGENCY

I, MARK ALICIA an Advocate of the High Court of Kenya practicing as such in the firm of Markicia & Company Advocates LLP of Post Office Box Number 14885-00100 Nairobi within the Republic of Kenya having the Conduct of this Application for and on behalf of the Plaintiff/Applicant herein do hereby certify that this application is of utmost urgency and deserving to be placed before the Duty Judge on vacation for immediate consideration on reasons:

1.     THAT the parties herein executed Joint venture Agreement (JVA) dated 1st January 2011 drafted by Otieno Okeyo & Company Advocates for the design, construction, development and supervision to completion of 12 ultra- modern dwelling units which was to be erected on the property known as L.R 4857/85 in Kileleshwa.

 

2.     THAT a dispute arose over the subject JVA between the Parties as a result of breach committed by the Defendant/Respondents herein.

 

 

3.     THAT the Defendant/Respondent herein subsequently engaged the firm on Otieno Okeyo & Company Advocates to represent it in the dispute.

 

4.     THAT the Firm of Otieno Okeyo & Company Advocates engaged by the Defendant/Respondent is privy to all the facts surrounding the JVA and therefore an apparent conflict of interest is eminent.

 

 

5.     THAT it is therefore in the interest of justice that this certificate be placed before the Duty Judge on vacation, be heard on a priority basis and allowed.

 

DATED at NAIROBI on this 10th day of October 2021

MARKICIA AND COMPANY ADVOCATES LLP

ADVOCATES FOR THE PLAINTIFF/APPLICANT

 

 

DRAWN & FILED BY:

Markicia & Company Advocates LLP

2nd Floor, Condo Apartments, off Nairobi-Arusha Highway

P.O BOX 21577 01100 Kajiado,

Tel: +254726266545/254792487311,

Email: Markicia.company@hotmail.com

 

 

TO BE SERVED UPON:

JASDIP SINGH NANDHRA

P.O. BOX 38638

NAIROBI

Email: jasdipsingh@gmail.com

 

 

 

 

 

 

 

 

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO. 56 OF 2021

JAGJIT SINGH LIDDAR........................................... PLAINTIFF/APPLICANT

-VERSUS-

JASDIP SINGH NANDHRA...........................……….DEFENDANT/RESPONDENT

NOTICE OF MOTION

Under sections 3A & 3B of the Civil Procedure Act Cap 21 Laws of Kenya; and Rule 9 of the Advocates (Practice) Rules

TAKE NOTICE that this Honorable Court shall be moved on the      day of                        2021 at 9:00 o’clock in the forenoon or soon thereafter so that Counsel for the Plaintiff/Applicant may be heard on application for

ORDERS:

  1. THAT this application be placed before the Judge on duty on vacation, certified urgent, heard on a priority basis and service be dispensed with in the first instance;

 

  1. THAT the firm of Otieno Okeyo & Company Advocates be barred from acting for the Defendant/Respondent or any other party herein in this matter.

 

  1. THAT all pleadings filed through M/S Otieno Okeyo & Company Advocates filed on behalf of any party herein be struck out; and

 

  1. THAT the costs of this application are the cause.

WHICH APPLICATION is based on the following GROUNDS:

  1. THAT the parties herein executed Joint venture Agreement (JVA) dated 1st January 2011 drafted by M/S Otieno Okeyo & Company Advocates for the design, construction, development and supervision to completion of 12 ultra- modern dwelling units which was to be erected on the property known as L.R 4857/85 in Kileleshwa;

 

  1. THAT a dispute arose over the subject JVA between the Parties as a result of breach committed by the Defendant/Respondents herein, and the matter was subsequently filed in this honorable court;

 

  1. THAT the Defendant/Respondent herein subsequently engaged the firm on Otieno Okeyo & Company Advocates to represent it in the dispute;

 

  1. THAT the Firm of Otieno Okeyo & Company Advocates engaged by the Defendant/Respondent is privy to all the facts surrounding the JVA and therefore an apparent conflict of interest is eminent;

 

  1. THAT the representation by M/S Otieno Okeyo & Company Advocates will be prejudicial to the Plaintiff/Applicant’s right to a fair and honest trial;

 

  1. THAT M/S Otieno Okeyo is likely to be called as a potential witness to give evidence by either party in this matter;

 

  1. THAT it is contrary to rules of Practice, professional ethics and conduct for the Firm of M/S Otieno Okeyo & Company Advocates to remain on record and its pleadings be accepted in this matter;

 

  1. THAT it is therefore, in the circumstances only fair and just to have the firm removed from record and all pleadings and/or proceedings filed by it struck out; and

 

  1. THAT unless the orders sought herein are granted, the Plaintiff/Applicant’s right to fair trial as provided for under Article 50(1) of the Constitution of Kenya, 2010 risks being abrogated.

 

 

 

AND WHICH APPLICATION is FURTHER SUPPORTED by the annexed Affidavit of JAGJIT SINGH LIDDAR duly sworn together with other reasons to be adduced at the hearing of this application.

 

DATED at NAIROBI on this 10th day of October 2021

MARKICIA AND COMPANY ADVOCATES LLP

ADVOCATES FOR THE PLAINTIFF/APPLICANT

 

 

DRAWN & FILED BY:

Markicia & Company Advocates LLP

2nd Floor, Condo Apartments, off Nairobi-Arusha Highway

P.O BOX 21577 01100 Kajiado,

Tel: +254726266545/254792487311,

Email: Markicia.company@hotmail.com

 

 

TO BE SERVED UPON:

JASDIP SINGH NANDHRA

P.O. BOX 38638

NAIROBI

Email: jasdipsingh@gmail.com

 

 

 

 

 

 “If any party served does not appear at the time and place aforementioned, such order will be made and proceedings taken as the court may think just and expedient”

 

 

 

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO. 56   OF 2021

JAGJIT SINGH LIDDAR........................................... PLAINTIFF/APPLICANT

-VERSUS-

JASDIP SINGH NANDHRA...........................……….DEFENDANT/RESPONDENT

SUPPORTING AFFIDAVIT

I, JAGJIT SINGH LIDDAR of Postal Office Box Number 13456-00100 Nairobi, within the Republic of Kenya, do hereby make oath and solemnly state as follows:

 

  1. THAT I am the Plaintiff/Applicant herein thus fully conversant with the facts of the instant application hence competent to swear this affidavit.

 

  1. THAT the Defendant/Respondents and I executed a JVA for the design, construction, development and supervision to completion of 16 ultra-modern dwelling units which was to be erected on the Property known us L.R 4857/85 in Kileleshwa.

(Attached herewith and marked as “JSL-1” is a copy of the said JVA).

 

  1. THAT subsequent thereto, a dispute arose over the subject JVA as a result of the clear breach of the terms of the agreement by the Defendant/Respondents herein.

 

  1. THAT pursuant to the terms of the Joint Venture Agreement, the dispute was referred to litigation by this honorable court for determination.

 

  1. THAT vide an email dated 28th February 2020 and sent to my Advocates on record at 13:19 pm, M/S Otieno Okeyo indicated that they had been engaged by the Respondent to act for him with regards to the dispute that had arisen over the subject Joint Venture Agreement, which agreement M/S Otieno Okeyo & Company Advocates had drafted for and on behalf all the Parties from the onset and even the implementation stage of the JVA thereof.

 

(Attached herewith and marked as JSL-2 is a copy of the said email dated 28th February 2020).

 

  1.  THAT upon being informed by my Advocates on record that the Defendant/Respondent had engaged the services of M/S Otieno Okeyo & Company Advocates to act for it in respect of the dispute of the subject JVA, I informed my Advocates that M/S Otieno Okeyo & Company Advocates had represented all the parties at the inception and implementation of the said JVA.

 

  1. THAT vide a letter dated 13th March 2020, my Advocates wrote to M/S Otieno Okeyo & Company Advocates to cease acting for the Defendant/Respondent in the matter due to the apparent conflict of interest manifested in the circumstances.

(Annexed hereto and marked as JSL-3 is a copy of the said letter by my Advocate).

 

  1. THAT despite the letter being sent to M/S Otieno Okeyo & Company Advocates advising that it to stop acting for the Defendant/Respondent herein, it has failed to withdraw its instructions in the matter while there is a clear apparent conflict of interest on its part.

 

  1. THAT I have been advised by my advocates on record, which advice I verily believe to be true that the representation by M/S Otieno Okeyo & Company Advocates of any party herein prejudices the tenets of the right to a fair and honest trial.

 

  1.  THAT I am further informed that M/S Otieno Okeyo & Company Advocates is likely to be called as a potential witness to give evidence by either party in this matter.

 

 

  1. THAT in the circumstances, it is only fair and just to have the firm of M/S Otieno Okeyo & Company Advocates removed from record and all proceedings filed by it be struck out.

 

  1. THAT unless the orders sought herein are granted and the instant application allowed, my right to a fair and honest trial shall be abrogated without any legal justifications in law.

 

  1. THAT I swear this affidavit in support of this application and pray that the same be allowed as prayed.

 

  1. THAT what is deposed to herein above is true to the best of my knowledge, information and belief save for sources whereof have been duly disclosed.

SWORN at NAIROBI by the said           ]

JAGJIT SINGH LIDDAR                      ]

 

On this ____ day of ______________ 2021

BEFORE ME                                       ]

                                                               ]    ________________________________

                                                               ]                  DEPONENT

                                                               ]

                                                               ]

COMMISSIONER FOR OATHS      ]

 

DRAWN & FILED BY:

Markicia & Company Advocates LLP

2nd Floor, Condo Apartments, off Nairobi-Arusha Highway

P.O BOX 21577 01100 Kajiado,

Tel: +254726266545/254792487311,

Email: Markicia.company@hotmail.com

 

 

TO BE SERVED UPON:

JASDIP SINGH NANDHRA

P.O. BOX 38638

NAIROBI

Email: jasdipsingh@gmail.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDICIAL OFFICERS & CONFLICT OF INTEREST CASE LAW

 

1.     Philip Tunoi v Judicial Service Commission and another[10]

The applicants had made a formal application by notice of motion seeking the recusal of the presiding judges; the Hon. Mr. Justice G. B. M. Kariuki, and the Hon. Mr. Justice Milton Asike Makhandia from hearing an appeal. The appeal in question concerned a petition that had been dismissed in the High Court relating to the retirement age of the applicants as Court of Appeal judges.

The applicants sought the recusal of Hon. Mr. Justice G. B. M. Kariuki on the basis that he had previously been convicted of contempt of court in the Court of Appeal by a bench that included the first appellant. Secondly, the Hon. Mr. Justice Milton Asike Makhandia regularly frequented Karen Country Club in the company of the attorney general who is a member of the JSC (the 1st respondent) and had regularly discussed this matter with the AG.

The court acknowledged the test for recusal that, ‘in considering the possibility of bias, it is not the mind of the judge that is considered but the impression given to reasonable people.’ The court went ahead to determine whether bias was discernible from the material before the Court in the eyes of a right thinking or reasonable person or fair-minded and informed person or observer. It held that the decision in question on the retirement of judges would not be personal to the 1st applicant. Further, a fair minded and informed observer would not think that the presiding judge would, 22 years after the conviction in the People case, be biased against the 1st applicant when the facts reveal that the issue for determination in the appeal rests squarely on the interpretation of the law and the Constitution as regards retirement age of all judges of the Superior Courts who were appointed prior to the date of promulgation. The application for recusal was thus dismissed.

 

 

2.     Kenya Hotel Proprietors Limited v The Attorney General & 4 others[11]

The petitioner made an informal application seeking the recusal of the Hon. J.L. Onguto. The application was premised on the grounds that the learned judge had earlier expressed doubts as to the court’s remit to entertain the application and the petition in its entirety.

The court stated that that an application for the recusal of a judicial officer must be grounded on proper and appropriate factual foundation. This application was made solely on the basis of informal inquiries and observations made by the court as to jurisdiction. The petitioner’s case was that the presiding judge made inquiries that suggested that he was convinced there was no jurisdiction. There were no court records to this end and the other parties present opted not to state their recollection of the events. The court held that the petitioner was entitled to the benefit of the doubt and the learned judge proceeded to disqualify himself from the proceedings.

 

3.     Kamlesh Pattni and another v Republic[12]

The applicants sought orders in the High Court to prohibit a chief magistrate from hearing or continuing to hear Criminal Cases No.s 4053/94, 1474/97, 392/99 and 741/99. The chief magistrate had made statements that the 1st applicant was a man who had stuffed himself full of public resources and a pilferer and looter. The Court of Appeal held that the chief magistrate was biased and should withdraw from the case as there was a real danger of bias.

 

4.     Trust Bank Ltd v Midco International (K) Ltd. & 4 others[13]

Justice N RO Ombija had entered judgment on admission against the applicant for a sum of Kshs. 165, 398,567. The applicant made an application for recusal when the plaintiff/decree holder was executing the decree. The application was premised on the grounds that the honorable judge had personally acted for the plaintiff when he was in private practice.

The court stated that the reasons for disqualification of judges must be cogent and sufficient. It further stated that parties should apply for disqualification where there is an apprehension of bias. This means that the bias need not be real or proved. The court held that it was the responsibility of the learned judge and the respondent who ought to have disclosed the past relationship to the applicant. The failure to do so meant that the applicant suffered a miscarriage of justice as it was denied an opportunity to raise the issue of disqualification. The court further held that a reasonable person looking at the circumstances could have the impression that there was a real danger of bias on the part of the judge due to his past relationship with the respondent. The previous ruling was set aside on these grounds.

 

5.     Stephen Njoroge Gichuha v Fred Nyagaka Ongarora & another[14]

This was an application for the disqualification of Hon. Waithaka J on the basis of conflict of interest. This was on the basis that one of the defendant’s witnesses, Dr. Julius Ogeto, is the judge’s husband and a brother in law to the 2nd defendant. The applicant argued that the existence of this filial relationship between the trial judge, the 2nd defendant and the said witness created a real possibility of real bias affecting the judge’s impartiality.

The court allowed the application holding that an independent and honorable judiciary must maintain and enforce a high standard of conduct so that the integrity and independence of the judiciary is preserved.

 

6.     Gladys Boss Shollei v Judicial Service Commission and another[15]

The first respondent had made a formal application seeking the recusal of Maraga C.J, P. Mwilu, DCJ, V.P. Ojwang and Njoki, SCJJ from hearing the petitioner’s appeal. If granted, only two judges would hear the petition in contravention to article 163(2) of the Constitution which requires the Supreme Court to be properly constituted of five judges.

The court denied the application as on the basis of the doctrine of necessity and the duty to sit. The court appreciated that the Supreme Court has a constitutional mandate that cannot be delegated to any other forum in the entire governance set-up. Hence, an application for recusal of a Supreme Court Judge cannot be determined in a similar manner as that of a judge of other courts due to the special consideration that must be given as to its quorum. On the duty to sit, Justice M.K. Ibrahim reiterated that every judge has a duty to sit in a matter which he should sit. This doctrine is a key component of constitutionalism. To this end the honorable judge held that judges of the Supreme Court had a duty to sit in this matter to affirm constitutionalism.

Justice Njoki Ndungu SCJ further held that a state organ (the 1st respondent) cannot claim prejudice or bias when an individual citizen is seeking to exercise their constitutional right to be heard. The learned judge further emphasized that the doctrine of necessity and the duty to sit entitle every party to be heard by a court before which he or she appears even though it is perceived conflicted, if there is no other court to which he or she can go. In essence, the application for recusal was dismissed by a unanimous decision of the court.

 

2.1.3    A Formal Application for the Recusal of a Judge

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

CIVIL SUIT NO. 47 OF 2021

MARTIN MUGURE………………........................................... PLAINTIFF/APPLICANT

-VERSUS-

NEWSPACE CREATIONS LTD...........................……….DEFENDANT/RESPONDENT

NOTICE OF MOTION

TAKE NOTICE that this Honorable Court shall be moved on the      day of                        2021 at 9:00 o’clock in the forenoon or soon thereafter so that Counsel for the Plaintiff/Applicant may be heard on application for

ORDERS:

 

  1. THAT the Hon. Waithera J. does disqualify herself from hearing this matter and the entire matter be referred to another court for hearing and determination.

 

  1. THAT all the proceedings and judgement of the Hon. Waithera J. be set aside ex debito justiciae.

 

WHICH APPLICATION is based on the following GROUNDS:

  1. THAT the applicant in the month of September 2021, discovered that the Hon. Waithera J. had personally acted for the respondents (Newspace Creations Ltd) when she was in private practice and practicing under the firm of Waithera & Company Advocates.

 

  1. THAT this private relationship between the honorable judge and the respondents creates a conflict of interest.

 

 

  1. THAT there is a real possibility of bias if the learned judge continues to preside over this matter.

 

  1. THAT it is therefore, in the circumstances only fair and just to have the honorable judge disqualify herself from hearing this matter and that all the proceedings and judgment of the honorable judge be set aside ex debito justiciae. 

 

  1. THAT unless the orders sought herein are granted, the Plaintiff/Applicant’s right to fair trial as provided for under Article 50(1) of the Constitution of Kenya, 2010 risks being abrogated.

 

AND WHICH APPLICATION is FURTHER SUPPORTED by the annexed Affidavit of MARTIN MUGURE duly sworn together with other reasons to be adduced at the hearing of this application.

 

DATED at NAIROBI on this 20th day of September 2021

MARKICIA AND COMPANY ADVOCATES LLP

ADVOCATES FOR THE PLAINTIFF/APPLICANT

 

 

DRAWN & FILED BY:

Markicia & Company Advocates LLP

2nd Floor, Condo Apartments, off Nairobi-Arusha Highway

P.O BOX 21577 01100 Kajiado,

Tel: +254726266545/254792487311,

Email: Markicia.company@hotmail.com

 

 

TO BE SERVED UPON:

NEWSPACE CREATIONS LTD

P.O. BOX 139867-00100

NAIROBI

Email: info@newspacecreations.org

 

 

 

 

 

 “If any party served does not appear at the time and place aforementioned, such order will be made and proceedings taken as the court may think just and expedient”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

CIVIL SUIT NO. 47 OF 2021

MARTIN MUGURE………………........................................... PLAINTIFF/APPLICANT

-VERSUS-

NEWSPACE CREATIONS LTD...........................……….DEFENDANT/RESPONDENT

SUPPORTING AFFIDAVIT

I, MARTIN MUGURE of Postal Office Box Number 56977-00100 Nairobi, within the Republic of Kenya, do hereby make oath and solemnly state as follows:

 

  1. THAT I am the Plaintiff/Applicant herein thus fully conversant with the facts of the instant application hence competent to swear this affidavit.

 

  1. THAT the Defendant/Respondents and I executed a sale agreement for the sale of LR 246/1997 situated in Kajiado in 19th October 2019.

(Attached herewith and marked as “SA-1” is a copy of the said sale agreement).

 

  1. THAT subsequent thereto, a dispute arose over the subject sale agreement as a result of the clear breach of the terms of the agreement by the Defendant/Respondents herein.

 

  1. THAT pursuant to the terms of the Sale Agreement, the dispute was referred to litigation by this honorable court for determination.

 

  1. THAT in the month of September 2021, I discovered a correspondence between the respondents and the firm of Waithera & Company Advocates which shows that the respondents had retained the said firm as their advocates between 1998-2010.

 

(Attached herewith and marked as CR-2 is a copy of the said correspondence dated 28th February 2008).

 

  1.  THAT within that period, the honorable judge was in private practice and was the managing partner at the said firm between 2000 and 2008.

 

  1. THAT I have been advised by my advocates on record, which advice I verily believe to be true that the hearing and determination of this suit by the Hon. Waithera J prejudices the tenets of the right to a fair and honest trial.

 

  1.  THAT I am further informed that there is a real possibility of bias if the learned judge continues to preside over this matter.

 

 

  1. THAT in the circumstances, it is only fair and just to have the Hon. Waithera J recuse herself from hearing this matter.

 

  1. THAT unless the orders sought herein are granted and the instant application allowed, my right to a fair and honest trial shall be abrogated without any legal justifications in law.

 

  1. THAT I swear this affidavit in support of this application and pray that the same be allowed as prayed.

 

  1. THAT what is deposed to herein above is true to the best of my knowledge, information and belief save for sources whereof have been duly disclosed.

SWORN at NAIROBI by the said           ]

MARTIN MUGURE                                ]

 

On this ____ day of ______________ 2021

BEFORE ME                                       ]

                                                               ]    ________________________________

                                                               ]                  DEPONENT

                                                               ]

                                                               ]

COMMISSIONER FOR OATHS      ]

 

DRAWN & FILED BY:

Markicia & Company Advocates LLP

2nd Floor, Condo Apartments, off Nairobi-Arusha Highway

P.O BOX 21577 01100 Kajiado,

Tel: +254726266545/254792487311,

Email: Markicia.company@hotmail.com

 

 

TO BE SERVED UPON:

NEWSPACE CREATIONS LTD

P.O. BOX 139867-00100

NAIROBI

Email: info@newspacecreations.org

 

 

 

 

 



[1] (2007) eKLR

[2] (2003) eKLR

[3] (2006) eKLR

[4] (2005) eKLR

[5] Advocates (Practice) Rules 1966

[6] (2005) eKLR

[7] (1993) eKLR

[8] (2005) eKLR

[9] Order 51, Rule 1 of the Civil Procedure Rules 2010, Laws of Kenya

[10] (2016) eKLR

[11] (2016) eKLR

[12] (2001) eKLR

[13] (2004) eKLR

[14] (2014) eKLR

[15] (2018) eKLR


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