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ELCDismissedCivil Case E004 of 2022

Okoyo v Guti & 8 others

Environment and Land Court
26 October 2023
2,349 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (GMA Ongondo, J) determined a Notice of Motion dated 25th April 2023 by the 1st and 7th defendants seeking the disqualification of M/s Achillah T. O & Company Advocates from acting for the plaintiff, striking out of the plaint, and an order that the firm account for and disgorge fees received. The applicants alleged the firm had drafted and attested a sale agreement dated 10th April 2018 between the 1st and 7th defendants over the suit land, which agreement now formed the basis of the plaintiff's suit, breaching fiduciary duties and exposing confidential information. The plaintiff's counsel denied ever acting for or receiving instructions from the applicants, denied receiving privileged information or fees, and stated the annexed agreement was not prepared by the firm. The court framed two issues: prejudice and costs. Applying Rule 9 of the Advocates (Practice) Rules 1966, Delphis Bank v Chatthe, and the Koch v Richards Butler principles, the court held that the applicants bore the burden of establishing that the firm possessed relevant confidential information. Other than the sale agreement, the applicants produced no instruction note, fee note or other documentation evidencing any relationship with the firm. The burden therefore never shifted to the firm to show absence of risk of disclosure. The court also affirmed the constitutional right of litigants to counsel of their choice. The application was dismissed with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the applicants are likely to suffer prejudice if the present application is not allowed
  2. 2.Who should bear the costs herein

Key legal issues

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01

Whether the applicants established grounds to disqualify the plaintiff's advocates for conflict of interest

Holding

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

Reasoning

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.

p. 5
02

Whether the court should interfere with a litigant's choice of advocate

Holding

Courts should not dictate which advocate acts for a litigant unless the interests of justice would not be served

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 25th April 2023 is dismissed
  2. 2.Costs of the application awarded with costs in the cause

The bench

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

majority

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

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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

p. 5

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

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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.

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.
p. 5Burden of proof in advocate disqualification applications
the onus is upon the applicant to provide evidence of asserted conflict of interest and not merely cite apprehension of possible conflict or prejudice.
p. 5Evidence required to disqualify counsel
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.
Final orders - dismissal of application

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, "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.