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ELCDismissedNot stated in extract (ruling on 1st defendant's notice of motion dated 14/1/2019)· [2020] KEELC 2830 (KLR)

Standard Chartered Kenya Nominees Limited v Samwel Njeru Muthi & 3 others [2020] KEELC 2830 (KLR)

Environment and Land Court
5 May 2020
2,456 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to disqualify Oraro & Company Advocates, confirming parties keep their lawyer unless real prejudice is proven.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (B M Eboso J) determined a notice of motion dated 14/1/2019 by the 1st defendant seeking the disqualification of Mr George Odinga Oraro, Senior Counsel, and the entire firm of Oraro & Company Advocates from acting for the plaintiff, and the striking out of all documents filed by that firm. The application was premised on the allegation that the suit rested on a provisional conveyance/indenture dated 13/6/1997 prepared by the defunct firm of Oraro & Rachier Advocates, in which Mr Oraro was a partner, and that he would therefore be required to testify as to the authenticity of that instrument. The plaintiff opposed, asserting the right to counsel of choice and noting no confidential information or prior retainer was alleged. The court framed three questions: disqualification of Mr Oraro, disqualification of the firm, and striking out of pleadings. Applying rule 9 of the Advocates (Practice) Rules and the 'real mischief and real prejudice' test from Delphis Bank Limited v Channan Singh Chathe, the court held the claim that Mr Oraro would be a witness was purely speculative, as no list of witnesses included him, and the applicant established no prior retainer, privileged information, or prejudice. All three prayers failed. The notice of motion was dismissed with costs to the 1st defendant.

Key legal issues

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01

Whether an advocate should be disqualified where he may be a witness on the authenticity of a document he drew

Holding

Disqualification refused: there was no evidence Oraro SC would be called as a witness; the contention was speculative, as no list of witnesses included him.

Reasoning

The court examined the record: the plaintiff's list of witnesses named only Fred Waswa, and no party had filed any list listing Mr Oraro. For him to be a witness, a party must call him. Rule 9 of the Advocates (Practice) Rules bars an advocate appearing in a matter where he may be required as a witness, but that premise was not established on the facts.

p. 3
02

Whether the entire firm of Oraro & Company Advocates should be disqualified

Holding

No: the applicant did not show prior retainer, possession of privileged information, or real mischief/real prejudice.

Reasoning

The applicant did not contend the firm acted for him or held privileged communications within section 35 of the Advocates Act. The mere fact a partner might be called as a witness does not warrant disqualification; the constitutional right to counsel of choice prevails absent demonstration of real mischief and real prejudice.

p. 1
03

Whether pleadings filed by the firm should be struck out

Holding

Striking out refused; no legal or jurisprudential basis was laid, and it followed from the failed disqualification.

Reasoning

The court found no authority supporting the draconian remedy of striking out pleadings as a consequence of a failed conflict application. Since the firm was properly on record, there was no basis to strike out its filings.

p. 3

Legal principles established

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  • A party seeking disqualification of an advocate or law firm must satisfy the court that real mischief and/or real prejudice will, in all human probability, result if the advocate is allowed to act.
  • A party is entitled to an advocate of their choice, and that right can only be derogated from upon satisfaction of rule 9 and the real mischief/real prejudice criteria.

Court orders

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  1. 1.The 1st defendant's notice of motion dated 14/1/2019 is dismissed for lack of merit
  2. 2.The 1st defendant shall bear the costs of the application
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (suit property dispute); no specific provision cited in the ruling

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Standard Chartered Kenya Nominees Limited v Samwel Njeru Muthi & 3 others [2020] KEELC 2830 (KLR)", Case Analysis (2020). Not stated in extract (ruling on 1st defendant's notice of motion dated 14/1/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2830/eng@2020-05-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.