ADVOCATES CONFLICT OF INTEREST CASE LAWS WITH SAMPLE PLEADINGS
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:
- 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;
- THAT the firm of Otieno Okeyo & Company Advocates be barred from acting for the Defendant/Respondent or any other party herein in this matter.
- THAT all pleadings filed through M/S Otieno Okeyo & Company Advocates filed on behalf of any party herein be struck out; and
- THAT the costs of this application are the cause.
WHICH APPLICATION is based on the following GROUNDS:
- 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;
- 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;
- THAT the Defendant/Respondent herein subsequently engaged the firm on Otieno Okeyo & Company Advocates to represent it in the dispute;
- 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;
- 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;
- THAT M/S Otieno Okeyo is likely to be called as a potential witness to give evidence by either party in this matter;
- 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;
- 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
- 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:
- THAT I am the Plaintiff/Applicant herein thus fully conversant with the facts of the instant application hence competent to swear this affidavit.
- 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).
- 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.
- THAT pursuant to the terms of the Joint Venture Agreement, the dispute was referred to litigation by this honorable court for determination.
- 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).
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- THAT I swear this affidavit in support of this application and pray that the same be allowed as prayed.
- 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
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