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ELCDismissedConsolidated: LCMCC No. 18 of 2019 and ELC No. 1 of 2020

Afrikasa Real Estate Limited v Scorpio Enterprises Limited [2021] KEELC 1132 (KLR)

Environment and Land Court
2 November 2021
2,423 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to remove the defendant's lawyer, holding that suspicion of conflict of interest alone is not enough to disqualify an advocate.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny J, 2 November 2021) determined a Notice of Motion dated 26 March 2021 by the plaintiff/applicant in a consolidated suit (LCMCC No. 18 of 2019 and ELC No. 1 of 2020) seeking the disqualification of Mr. Kiarie Kariuki and his firm, Kiarie Kariuki & Company Advocates, from acting for the defendant. The applicant argued that the firm had drafted the sub-lease agreements at the heart of the dispute and was therefore a potential witness whose continued appearance breached Rule 9 of the Advocates (Practice) Rules and rules of professional ethics. The defendant countered that the plaintiff was represented by Acumen Business Consultants Limited during the transaction, that the disputed issues arose between the parties without the advocate's involvement, and that the applicant had not met the threshold of real mischief or real prejudice established in Rakusen v Ellis Munday and Clarke and related authorities. The court framed one issue: whether the applicant had established a conflict of interest warranting disqualification. Applying Delphis Bank Ltd v Channan Singh Chatthe, King Woolen Mills v Kaplan & Straton, British-American Investments v Njomaitha Investments and Uhuru Highway Development v Central Bank of Kenya, the court held that a litigant's right to counsel of choice, though not absolute, can only be disturbed upon proof of real mischief or real prejudice. The applicant had not stated an intention to call Mr. Kiarie as a witness, nor produced the alleged instruction notes; mere preparation of transaction documents does not establish confidentiality or conflict. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff/applicant has established a conflict of interest to warrant the disqualification of the firm of Kiarie Kariuki & Company Advocates from acting for the defendant in this case

Key legal issues

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01

Whether conflict of interest was established to warrant disqualification of the defendant's advocates

Holding

The application was dismissed; the plaintiff failed to discharge the burden of proving a conflict of interest and real prejudice.

Reasoning

The court held that while a litigant is entitled to counsel of choice, that right may yield where there is real conflict of interest. Rule 9 of the Advocates (Practice) Rules bars an advocate from acting where he may be a witness. However, the applicant neither stated an intention to call Mr. Kiarie as a witness nor identified the evidence he would give; mere preparation of the sub-lease agreements and reference to purported instruction notes, without evidence of prejudice, cannot sustain the drastic step of removing counsel from the record.

p. 4

Legal principles established

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  • A party seeking to disqualify an advocate must provide sufficient evidence of actual conflict of interest and real prejudice; mere suspicion, apprehension or fear of prejudice is not a basis to stop an advocate from acting.
  • An advocate may not appear in a matter in which he may be required as a witness, but the mere fact that an advocate drew transaction documents does not of itself make the matter confidential or disqualify him.
  • The right to legal representation of one's choice is not absolute and yields where real mischief or real prejudice will in all human probability result.

Court orders

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  1. 1.The Notice of Motion dated 26th March 2021 seeking disqualification of Kiarie Kariuki & Company Advocates is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the consolidated suit; interlocutory application under the Civil Procedure Rules
Consolidated with
LCMCC No. 18 of 2019, ELC No. 1 of 2020

Relief refused

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Disqualification of Mr. Kiarie Kariuki and his firm from representing the Defendant

The plaintiff did not prove real mischief or real prejudice; mere preparation of the lease agreement by the firm is not sufficient to establish conflict of interest

p. 4

Orders restraining M/S Kiarie Kariuki & Company Advocates from acting for the Defendant or any other party

The applicant failed to adduce sufficient evidence of conflict of interest and prejudice; a litigant is entitled to counsel of choice

p. 4

Costs

The application was dismissed with costs (costs to the defendant).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I have considered the submissions by counsel together with the relevant judicial authorities and find that the application lacks merit and is therefore dismissed with costs.
p. 4Disposition
It is incumbent upon the applicant who assets that there is conflict of interest to provide sufficient evidence to show that such conflict interest exists.
p. 4Burden of proof on an application to disqualify an advocate
Mere suspicion, apprehension of a possible conflict of interest or fear of prejudice cannot be a basis to stop an advocate from acting on behalf of a party.
p. 4Threshold for disqualification
It is trite that a litigant is entitled to legal representation or counsel of his/her own choice but the same is not absolute
p. 3Right to counsel of choice

Issues in the judgment

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minor

The judgment names the applicant's deponent inconsistently as 'Alessandro Tentravizi' in the submissions and 'Alessandro Trentavizi' in the replying affidavit reference

minor

The full names of the plaintiff and defendant are never stated in the judgment; parties are referred to only as plaintiff/applicant and defendant

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, "Afrikasa Real Estate Limited v Scorpio Enterprises Limited [2021] KEELC 1132 (KLR)", Case Analysis (2021). Consolidated: LCMCC No. 18 of 2019 and ELC No. 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1132/eng@2021-11-02

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