Okoyo v Guti & 8 others
The bottom line
#A Homa Bay court refused to remove a law firm from a land case because the applicants had no real evidence of a conflict of interest.
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 applicants are likely to suffer prejudice if the present application is not allowed
- 2.Who should bear the costs herein
Key legal issues
#Whether the applicants established grounds to disqualify the plaintiff's advocates for conflict of interest
No - the applicants failed to prove the firm possessed confidential information relevant to the suit; the burden never shifted to the firm to show no risk of disclosure
Applying Koch v Richards Butler, the former client must first establish that the solicitor possesses confidential information relevant to the matter. Other than the sale agreement dated 10th April 2018, the applicants produced no instruction note, fee note or other documentation evidencing any advocate-client relationship with the firm. Counsel denied ever acting for them and noted his stamp had been misused by unknown persons. Without that threshold showing, the burden could not pass to the firm, and the court could not intervene.
Whether the court should interfere with a litigant's choice of advocate
Courts should not dictate which advocate acts for a litigant unless the interests of justice would not be served
Relying on William Audi Odode v John Yier, the court affirmed that each party has the right to choose its own advocate and courts will only intervene where it is shown that allowing the advocate to act would not serve the interests of justice, such as where real mischief or real prejudice would result from conflict of interest.
Legal principles established
#- The burden lies on the party seeking to disqualify an advocate to prove conflict of interest or risk of breach of confidentiality; mere apprehension is insufficient
- Litigants have a constitutional right to be represented by an advocate of their choice, and removal of an advocate is a serious matter
Court orders
#- 1.The Notice of Motion dated 25th April 2023 is dismissed
- 2.Costs of the application awarded with costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159(2) of the Constitution of Kenya, 2010; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap 21)
Relief refused
#Disqualification of M/s Achillah T. O & Company Advocates from acting for the plaintiff
Applicants failed to establish the firm possesses relevant confidential information or risk of disclosure
Striking out of the plaintiff's plaint dated 1st January 2022
Consequential to dismissal of the disqualification application
Order that the firm account and disgorge all fees received
No evidence of fiduciary relationship or receipt of fees from the applicants
Costs
Application dismissed with costs in the cause.
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.
the applicants have failed to establish that the respondent’s counsel possesses confidential information which might be relevant to this suit. The burden has not passed to the respondent’s counsel to show that there is no risk of disclosure.
the onus is upon the applicant to provide evidence of asserted conflict of interest and not merely cite apprehension of possible conflict or prejudice.
I find the instant application originated by way of a Notice of Motion dated 25th April 2023 and filed herein on 5th May 2023 devoid of merit. The same is hereby dismissed, with costs in the cause.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoyo v Guti & 8 others", Case Analysis (2023). Civil Case E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20949/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.