Afrikasa Real Estate Limited v Scorpio Enterprises Limited [2021] KEELC 1132 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether conflict of interest was established to warrant disqualification of the defendant's advocates
The application was dismissed; the plaintiff failed to discharge the burden of proving a conflict of interest and real prejudice.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 26th March 2021 seeking disqualification of Kiarie Kariuki & Company Advocates is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
The application was dismissed with costs (costs to the defendant).
Quotable passages
#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.
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.
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.
It is trite that a litigant is entitled to legal representation or counsel of his/her own choice but the same is not absolute
Issues in the judgment
#The judgment names the applicant's deponent inconsistently as 'Alessandro Tentravizi' in the submissions and 'Alessandro Trentavizi' in the replying affidavit reference
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.