[2021] KEHC 4182 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CONSTITUTIONAL PETITION NO. E009 OF 2021

IN THE MATTER OF THE CONSTITUTION OF KENYA

ARTICLES 1, 2 (1) & (2) & (5), 3 (1) & (2), 4 (2), 10, 19, 20, 21, 22 (1) & (2) (b) & (c), 23 (1), 24 (1), 33 (1) (a), 35, 38 (1), 47 (1) & (2), 48, 50, 52, 93, 96, 165 (3) (b) & (d) (ii), 73 (1), 75 (1) (c), 174, 175, 181, 196 (1) (b), 200, 258, 259, 260.

AND

IN THE MATTER OF ARTICLES 1, 2, 3, 47, 50 (b) & (c), 181 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURE RULES 2013

AND

IN THE MATTER OF ARTICLES 1, 3, 25 (a) OF THE INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS OF 1966

AND

IN THE MATTER OF THE COUNTY GOVERNMENT ACT 2012, SECTIONS 8, 30, 31, 33 (1) & (2), 87

AND

IN THE MATTER OF THE STANDING ORDER NO. 67 OF THE WAJIR COUNTY ASSEMBLY STANDING ORDERS

AND

IN THE MATTER OF THE INTENDED REMOVAL FROM OFFICE OF THE GOVERNOR OF WAJIR COUNTY BY WAY OF IMPEACHMENT

BETWEEN

ADEN IBRAHIM MOHAMMED...................................................1ST PETITIONER

OMAR JELE ABDI........................................................................2ND PETITIONER

BISHAR AHMED HUSSIEN.........................................................3RD PETITIONER

SAFIYA MAHAMED ABDI...........................................................4TH PETITIONER

YUSSUF IBRAHIM DIMBIL........................................................5TH PETITIONER

COUNCIL OF GOVERNORS.....................................................6TH PETITIONER

VERSUS

COUNTY ASSEMBLY OF WAJIR...........................................1ST RESPONDENT

CLERK OF THE COUNTY ASSEMBLY OF WAJIR..............2ND RESPONDENT

SPEAKER OF THE WAJIR COUNTY ASSEMBLY.................3RD RESPONDENT

ABDULLAHI ISSACK..............................................................4TH RESPONDENT

SPEAKER OF THE SENATE......................................................5TH RESPONDENT

THE SENATE..............................................................................6TH RESPONDENT

THE ATTORNEY GENERAL.....................................................7TH RESPONDENT

AND

HE. THE GOVERNOR OF WAJIR COUNTY

AMB. MOHAMMED ABDI MOHAMMUD...................1ST INTERESTED PARTY

THE DEPUTY GOVERNOR

AHMED ALI MUKHTAR................................................2ND INTERESTED PARTY

THE CHIEF REGISTRAR

OF THE HIGH COURT.................................................3RD INTERESTED PARTY

ASSUMPTION OF OFFICE COMMITTEE................…4TH INTERESTED PARTY

RULING

1. The issue in this Ruling is on whether Counsel who previously acted for some of the Petitioners and has now come on record for the 1st Interested Party should continue to participate in the proceedings in that capacity and whether on the conduct so far exhibited by the said Counsel from the inception of the matter to date, he should be censured by the court for beach of the Advocates’ Code of Conduct.

2. The Advocate, Mr. Ndegwa Njiru was the Counsel previously on record for the 1st to 5th Petitioners. At some point, the 1st and 5th Petitioners changed Advocates to Mr. Omwanza and the 2nd and 4th Petitioners changed Advocates to Mr. Marete. Later on, Mr. Ndegwa’s instructions were withdrawn by his only remaining client, the 3rd Petitioner who changed Advocates to Mr. Omwanza.

3. The proceedings witnessed a dramatic tussle for representation of the 3rd Petitioner with Mr. Ndegwa at one point claiming that Mr. Omwanza had filed a fraudulent Notice of Change of Advocates purporting to act for the 3rd Petitioner. The 3rd Petitioner then filed an affidavit confirming his decision to drop Mr. Ndegwa and reiterating his resort to have Mr. Omwanza act for him. With the Court’s intervention, Mr. Ndegwa ultimately accepted that his instructions had been withdrawn and this paved way for the Court to proceed with other substantive business including issuing directions for two applications that Counsel for the 1st to 4th Respondents, Senior Counsel Ahmednassir and Counsel for the 2nd Interested Party Mr. Issar Mansur had expressed intentions of filing.

4. The former application was scheduled for hearing on 18th August 2021 and Counsels appeared before the Court as scheduled. When the Court recorded the quorum for the day, Counsel for the 1st Interested Party Senior Counsel Prof. Tom Ojienda indicated his joint appearance with the very Mr. Ndegwa aforementioned and Mr. Mburu whom he has been leading. He indicated that they had opted to bring Mr. Ndegwa on board following the withdrawal of his instructions by the 3rd Petitioner. He represented to be the leading Counsel. This representation coupled with the Notice of Appointment dated 3rd August 2021 recently filed jointly by the firms of Ndegwa & Ndegwa Advocates and Kago Mburu & Associates Advocates elicited objection from other Counsel, with Counsel for the 1st to 5th Petitioners, Counsel for the 1st to 4th Respondents and Counsel for the 2nd Interested Party asserting that Mr. Ndegwa, having been formerly on record for the Petitioners was barred from acting for the 1st Interested Party by dint of Section 134 of the Evidence Act as read with the Advocates Act. Counsel for the 6th Petitioner and that for the 1st Interested Party found nothing untoward with Mr. Ndegwa’s shift of camps.

Application by Mr. Omwanza for the 2nd, 3rd and 5th Petitioners

5. Counsel for the 2nd, 3rd and 5th Petitioners, Mr. Omwanza, protested Mr. Ndegwa’s appearance and representation of the 1st Interested Party. His contestation was two pronged and premised, first, on the fact that the document dubbed Notice of Appointment dated 3rd August 2021 filed by Mr. Ndegwa was not known in law as there cannot be an arrangement where two firms of Advocates act jointly for a single party unless one firm is leading the other. He further urged that Mr. Ndegwa, having formerly acted for the Petitioners, cannot purport to act for the 1st Interested Party because the Petitioners had not waived the privilege under Section 134 of the Evidence Act. This submission was supported by Mr. Marete for the 1st and 4th Petitioners as well as Senior Counsel Ahmednassir for the 1st to 4th Respondents who cited the decision of Uhuru Highway Development Limited vs Central Bank of Kenya & 2 Others, Civil Appeals No. 286 of 2001 & 15 of 2002 (2003) eKLR.It was also supported by Mr. Issa Mansur for the 2nd Interested Party who urged that Mr. Ndegwa’s conduct is contrary to the Advocates Professional Code of Conduct and that he cannot wear two hats. He urged that the Notice of Appointment by Mr. Ndegwa should be struck off. Ms Thanji for the 5th and 6th Respondent left the matter to the Court.

6. In opposition, Senior Counsel Prof. Tom Ojienda urged that unless a formal application is filed, showing the apprehension of disclosure of privileged information obtained by Mr. Ndegwa, there would be no basis for the Court to make a finding on the legality of Mr. Ndegwa’s representation of the 1st Interested Party. He urged that the 1st Interested Party is not a Respondent and there is therefore no basis for the apprehensions by Mr. Omwanza’s clients. He further urged that the instant Petition is a public interest matter which is about the law and not a personal matter, and further that Mr. Ndegwa is merely acting alongside him. This position was supported by Mr. Wanyama for the 6th Petitioner.

7. Mr. Ndegwa on his part asked the Court to consider the history of the matter including the fact that the Petitioners previously wanted the Court to revert back to the Petition of 26th April 2021. He urged that this is a public interest litigation and there is no confidential information which was passed. He urged that the Petition is brought under the provisions of Section 33 of the County Governments Act and Article 22 and 258 of the Constitution and that in public interest litigation, there is no classified information and if any exists, there ought to be a clear demonstration of the same. He urged that Section 134 of the Evidence Act applied in a party to party case and not in public interest litigation. He urged that in upholding the fidelity to the Constitution, the Petitioner must demonstrate the details as to existence of confidential information, the fact of the said information relating to the Petition, the fact of the information having been advanced to the Advocate and the client who advanced the information.

8. He further urged that Article 50 (2) (g) of the Constitution affords citizens the right to choose and to be represented by Counsel and that this right cannot be waived by mere allegation. He urged that the Petitioners are in fact pursuing the interests of the 1st Interested Party since if the Petition succeeds, it is the 1st Interested Party who stands to benefit and vice versa. He added that supposing the instant Petition was to be consolidated with Petition No. 17 of 2021, the 1st Interested Party would become the Petitioner as he is in fact the Petitioner in Petition No. 17 of 2021 and this demonstrates that the interests of the Petitioners and those of the 1st Interested Party are the same.

9. In rebuttal, Mr. Omwanza indicated that he did not have to file a formal application because Section 55 of the Advocates Act gives the Court summary powers to deal with such an Advocate. He also expressed that there is no need to reveal the privileged information and the only thing to be proved is that the Advocate was in employment of the client. He added that his clients are not proxies of the 1st Interested Party.

Application by Senior Counsel Ahmednassir for the 1st, 2nd, 3rd and 4th Respondents

10. Senior Counsel Ahmednassir for the 1st to 4th Respondents raised another issue with respect to Mr. Ndegwa’s representation in the matter. He brought to the attention of the Court an email sent out to counsel in the matter on Friday 13th August 2021 by Mr. Ndegwa insinuating that Senior Counsel Ahmednassir had put up a strategy to delay the matter. He expressed his objection to the remarks by Mr. Ndegwa who he urged had resorted to hurling insults and abuse to other Counsels in the matter. He urged that Section 55 of the Advocates Act gives the Court summary powers against an Advocate and that the Court should sanction Mr. Ndegwa with an indication that he had reached the point of not being able to participate in the proceedings should Mr. Ndegwa continue with his actions. He urged the Court to protect him from Mr. Ndegwa. Mr. Issa, Mr. Omwanza and Mr. Marete supported Senior Counsel’s Ahmednassir’s position.

11. Mr. Wanyama, Ms. Thanji and Mr. Mburu expressed that Senior Counsel’s Ahmednassir’s dismayal with Mr. Ndegwa’s conduct, however valid, could be dealt with by way of filing a formal application.

12. Mr. Ndegwa in response confirmed that the email was generated from his office and he apologized to all the counsel for the parties. He said that was a vendetta between him and Senior Counsel Ahmednassir ever since they had appeared for their respective clients in the impeachment proceedings during the Senate hearing.

13. Senior Counsel Ahmednassir insisted that the email was a serious indictment on Counsel but he however welcomed the apology by Mr. Ndegwa.

Determination

14. This Ruling, as said at the onser, is with respect to the above matters being two oral applications seeking for the removal, recusal and sanctioning of Mr. Ndegwa Advocate. Counsel for the 2nd, 3rd and 5th Petitioners, Mr. Omwanza and Counsel for the 1st to 4th Respondents, Senior Counsel Ahmdenassir were urged to file formal applications but both of them contended that that the Court had summary powers to deal with the issue and filing a formal application was thus not necessary.

15. The ideal would of course have been for them to file formal applications which would allow the Court, as well as parties, adequate opportunity to address all concerns. However, in view of the need for expeditious disposal of the dispute herein relating to the governance of a County Government; the delay that would naturally be occasioned by formal application; the protracted applications and the myriad preliminary issues that have so far been raised in the matter, this Court takes the view that it should deal with the issues raised despite the absence of formal applications, so as to achieve a just determination and timely disposal of the dispute at affordable cost and with efficient use of court resources, in accordance with the overriding objective of the court process under Rule 3 (5) of the Mutunga Rules. The Court did, however, consider the respective submissions of all the parties in the matter.

16. There are three main issues arising for determination as follows: -

i) Whether the Notice of Appointment of Advocates filed jointly by M/S Ndegwa and Ndegwa Advocates and M/S Kago Mburu Advocates is valid.

ii) Whether Mr. Ndegwa’s representation of the 1st Interested Party offends the rules guarding against breach of the Advocate-Client Privilege thus calling for his disqualification.

iii) Whether Mr. Ndegwa’s conduct and association with other Counsel in the matter is a breach of professional conduct of advocates and if so, what sanctions the said conduct attracts from this Court.

Whether the Notice of Appointment of Advocates filed jointly by M/S Ndegwa and Ndegwa Advocates and M/S Kago Mburu Advocates is valid.

17. Following the withdrawal of his instructions by the 3rd Petitioner, Mr. Ndegwa somehow managed to obtain instructions from the 1st Interested Party to act on his behalf. His firm jointly filed a Notice of Appointment of Advocates dated 3rd August 2021 indicating the joint appointment of the firm of Ndegwa & Ndegwa Advocates and Kago Mburu & Associates Advocates.

18. This Court has observed the contents of the said document and finds the same wanting for two reasons. Firstly, the rules on representation do not permit for two firms of advocates to be placed on record jointly for a party. The only known arrangement is to have one firm on record and the other firm(s) act as leading Counsel or assisting Counsel. In the circumstances where there are more than two advocates, it would be neater, for coherent proceedings, that one leads, usually the senior most, then the others assist the leader, but have only one firm on record. The firm on record would be the one responsible for filing of pleadings and documents on behalf of the mutual client. The leading Counsel would then have the duty to introduce his team and indicate to Court, if all the Counsel would be addressing the Court, and which aspect of the case will be handled by which Counsel.

19. Secondly, there having been an advocate previously on record for the 1st Interested Party i.e the firm of Kago Mburu & Associates Advocates, and lead by Prof. Tom Ojienda & Co. Advocates, the proper document to file would have been a Notice of Change of Advocates as opposed to a Notice of Appointment which is normally filed when a party who has been acting in person has now instructed Counsel. In filing the Notice of Appointment for the 1st Interested Party when there was already an Advocate on record, we find that the document is not only unknown in law but it is also superfluous and serves no purpose at all. It matters not that the document was jointly signed by Mr. Ndegwa and the Advocate already on record, Mr. Mburu.

For the above reasons, this Court finds the document dubbed Notice of Appointment of Advocates dated 3rd August 2021 invalid and the same is hereby struck off the record.

20. This Court however notes that the failure to file the proper document indicating an Advocate’s or a party’s representation is not a fatal omission as to completely render the Advocate barred from representing their client. In other words, this is a curable omission. A reading of the rules reveal that parties are indeed allowed to change Advocates at any time of the proceedings unless Judgement has been delivered in a matter, at which point they would be required to seek leave of Court or file a consent between the incoming and outgoing Advocates. See Order 9 Rule 5 and Order 9 Rule 9 of the Civil Procedure Rules, 2010. The purpose of this latter requirement of seeking of leave or filing a consent is to secure the payment of instructions fees especially where a (former) client is unhappy with the outcome of a matter. If one was to go back to history of that amendment to the rules, the mischief sought to be cured was the then rampant practice where a litigant in a personal injury claim, representing as indigent would engage the Advocate to the end, and upon nosing the decretal sum, would sneak in a Notice to Act in Person or a Notice of Change of Advocate to the disadvantage of the Advocate who prosecuted the matter. Needless to say, Judgement in this matter was yet to be delivered by the time the 1st Interested Party purported to change Advocates and there would thus be no need to seek leave of Court. To this Court’s mind, this being the case, the said Mr. Ndegwa and Mr. Mburu, upon filing the proper document which would be a Notice of Change of Advocates, if they so wish, and upon them getting into a proper arrangement as to who would be lead Counsel and who would be assisting Counsel, they may very well proceed to represent the 1st Interested Party.

Whether Mr. Ndegwa’s representation of the 1st Interested Party offends the rules guarding against breach of the Advocate-Client Privilege thus calling for his disqualification.

21. The other contestation to Mr. Ndegwa’s representation is hinged on the provisions of Section 134 of the Evidence Act which provides as follows: -

134. Privilege of advocates

(1) No advocate shall at any time be permitted unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing gin this section shall protect from disclosure-

(a) any communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to the fact by or on behalf of his client.

(2) The protection given by subsection (1) of this section shall continue after the employment of the advocate has ceased.

22. The essence of Section 134 of the Evidence Act is to protect the client from any prejudice likely to be suffered by reason of the information shared between him and his Advocate even beyond the Advocate-Client relationship i.e even after the instructions have been executed. It is understood that an Advocate cannot render effective professional legal service unless there is full and accurate disclosure of all relevant information. To this extent, there is need to protect the public trust that is entrusted to Advocates alongside ensuring the continuity of legal service, without fears of potential embarrassment resulting from the disclosure of secret and confidential information passed from a client to the Advocate. It is obvious that in the absence of the Advocate-Client relationship, the information in issue would have remained secret and confidential. It is therefore necessary to maintain the secrecy and confidentiality even with the existence and after the end of the Advocate-Client relationship.

23. This rationale for the rule under Section 134 of the Evidence Act has also been established in Law Society of Kenya Code of Standards of Professional Practice and Ethical Conductas follows: -

103. SOPPEC-7Communication between the Advocate and client is protected by the rule on confidentiality of Advocate-client communication. Consequently, the Advocate has a duty to keep confidential the information received from, and advice given to, the client. Unauthorised disclosure of client information amounts to professional misconduct.

104. Rationale for the Standard: The protection accorded to communication between the Advocate and client and advice given by the Advocate to client through the doctrine of professional privilege is a crucial element of public trust and confidence in the administration of justice and the independence of the legal profession. The Advocate cannot render effective professional service to the client unless there is full and unreserved communication between them. The client is entitled to assume that, without his express consent or unless otherwise required by law, matters disclosed to or discussed with the Advocate will be held secret and confidential.

24. It is clear that disclosure of information obtained in the existence of an Advocate-client relationship is frowned upon. In fact, the laws make reference to the term ‘duty’ in that an Advocate has a duty not to disclose the information. To this Court’s mind, the real question to ask therefore is whether it is permissible for a former client, in supposed assertion of their said entitlement and expectation to have their information kept confidential to make an application asking the Court to disqualify an Advocate from acting for another party, in the fears that disclosure may be made in the future. This Court finds this to be a matter dependent on all the circumstances of the case. In other words, the test applicable is an objective one, whether the participation of an Advocate in a matter would prejudice the former client. A key consideration for instance would be the nature of representation that the former Advocate now seeks to make on behalf of his new client in the matter.

25. It is not in dispute that Mr. Ndegwa acted on behalf of the Petitioners at one point in time. According to Mr. Omwanza, the only fact to be proven is the existence of employment between a former client and the Advocates and that there is no need to disclose the nature of information in issue because once the disclosure is made, there would be no confidentiality to protect. Senior Counsel Prof. Tom Ojienda and Mr. Ndegwa on the other hand insist that this information must be disclosed. To this end, this Court agrees that disclosure may negate the essence of the confidentiality. However, there must be a demonstration at least in the broader context of the type of information and its relevance to the matter.

26. This Court finds so against the backdrop and context of the Constitutional right to Counsel. At the centre of the right to a fair trial as provided for under Article 50 (2) (g) of the Constitution is the right of a party to be represented by Counsel of his choice. It is thus imperative that before any disqualification of an Advocate is done, there must be clear demonstration of the reasons and justice for such disqualification. In the case of Dorothy Seyanoi Moschioni vs Andrew Stuart & Another (2014) eKLR Gikonyo J held as follows with respect to conflict of interests: -

“But besides that, the mere fact that an advocate acted for both parties in an agreement subject of the proceedings, does not per se amount to conflict of interest. The party applying must show there is real possibility of the advocate concerned using the privileged information to the detriment of the said party and or to the advantage of the other party.”

27. In the case of Guardian Bank Limited vs Sonal Holdings (K) Limited & 2 Others (2014) eKLR Gikonyo J again held as follows:-

“What the court is supposed to do is to thrust the essential core of the grounds advanced for disqualification, look at the real issues in dispute, the facts of the case and place all that on the scale of the threshold of the law applicable. In the process, courts of law must invariably eliminate any possibility that the arguments for disqualification may have subordinated important factual and legal vitalities in the transactions in question while inflating generalized individual desires to prevent a party from benefiting from a counsel who is supposedly should be ‘’their counsel’’ in the conveyancing transaction. I say these things because that kind of feeling is associated with ordinary human sense where both parties in the suit were involved in the same transaction which was handled by the advocate who now is acting for one of the parties in a law suit based on the very transaction; and the feeling is normally expressed in an application for disqualification of the counsel concerned in the hope it will pass for a serious restriction to legal representation. But the law has set standards and benchmarks which must be applied in denying a person of legal representation of choice; the decision must not be oblivious of the centrality of the right to legal representation in the Constitution as the over-arching hanger; equally, it should not be removed from reach to the sensitive fiduciary relation between an advocate and his clients, which in transactions such as these, would prevent the advocate from using the privileged information he received in the employ of the parties, to the detriment of one party or to the advantage of the other; it must realize that the advocate has a duty not only to himself or his client in the suit, but to the opponent and the cause of justice; but in all these, it must be convinced that real mischief and real prejudice would result unless the advocate is prevented from acting in the matter for the opponent. The real questions then become: Is the testimony of the advocate relevant, material or necessary to the issues in controversy? Or is there other evidence which will serve the same purpose as the evidence by counsel? Eventually, each case must be decided on its own merits, to see if real mischief and real prejudice will result in the circumstances of the case. And in applying the test, if the argument on disqualification becomes feeble and inconsistent with causing real mischief and prejudice, then a disqualification of counsel will not be ordered.”

28. In the above two cases, the common factor leading to the applications for disqualification involved the possibility of calling the Advocates as witnesses. In the present case, the Petitioners have not indicated their intention to call either Mr. Ndegwa or Mr. Mburu as a witness. When put to task to explain the nature of the information, Mr. Omwanza expressed that it is not necessary to disclose this information. This Court finds that the test does not end with proof of employment as that alone will not amount to conflict of interests but there must be a demonstration, even if in its broader sense, of the existence of information which could prejudice the party seeking disqualification. As in any other case, the burden of proof is on the person alleging. This Court finds that this was not properly demonstrated by Counsel for the 2nd, 3rd and 5th Petitioners.

29. This discussion may not be complete without delving into the broader concept of conflict of interest, for which the rule on Advocate-Client privilege is a subset. Conflict of interest could take manifest in many forms. Potential areas of conflict of interests have been outlined in the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct as follows: -

Conflict of Interest

92. SOPPEC-6: The Advocate shall not advise or represent both sides of a dispute and shall not act or continue to act in a matter when there is a conflicting interest, unless he/she makes adequate disclosure to both clients and obtains their consent.

93. A conflicting interest is an interest which gives rise to substantial risk that the Advocate’s representation of the client will be materially and adversely affected by the Advocate’s own interests or by the Advocate’s duties to another current client, former client or a third person.

94. Rationale for the Standard: The Advocate’s ability to represent the client may be materially and adversely affected unless the Advocate’s judgment and freedom of action are as free as possible from compromising influences and the relationship between the Advocate and the client is not materially impaired by the Advocate acting against the client in any other matter.

95. Maintaining loyalty to clients promotes trust and confidence in the Advocate. Therefore, as a general rule, an Advocate should not knowingly assume or remain in a position in which a client’s interests conflicts with the interests of the Advocate, the firm’s or another client. The Advocate should not represent a client of the representation involves a conflict of interest.

96. Situations in which a conflict of interest might arise include:

(a) Where the interests of one client are directly adverse to those of another client being represented by the Advocate or the firm, for instance in situations where the representation involves the assertion of a claim by one client against another client;

(b) Where the nature or scope of representation of one client will be materially limited by the Advocate’s responsibilities to another client, a former client, a third person or by the personal interests of the Advocate;

(c) Where in the course of representing a client there is a risk of using, wittingly or unwittingly, information obtained from a current or former client to the disadvantage of that other client or former client.

30. Tied to the above definitions of conflict of interest, another key issue that arose from parties’ representations is on whether the interests of the Petitioners and those of the 1st Interested Party are in tandem or are conflicting. If conflicting, this would advance the case for disqualification of Mr. Ndegwa. According to Mr. Ndegwa and Senior Counsel Prof. Tom Ojienda, their interests are similar. Mr. Issa Mansur however contended that their interests are not similar.

31. The uniformity or otherwise variance of their interests can be ascertained by looking at the contents of their respective pleadings and also by considering the history of the matter from its inception, as Mr. Ndegwa urged the Court to do. This Court previously determined the application dated 16th June 2021 by which the 2nd and 3rd Petitioners sought to have the Court revert to the Petition dated 26th April 2021. This application was strongly opposed by then Counsel for the 3rd Petitioner Mr. Ndegwa and joining strongly in the opposition was Senior Counsel Prof. Tom Ojienda for the 1st Interested Party. In the Court’s Ruling of 26th July 2021, the Court disallowed the application and held that the Petition dated 7th June 2021 was the reigning Petition. In the premises, parties including the Petitioners are bound by the contents of the said Petition for which the Court has already given directions for filing of replies. This Court does not therefore discern any obvious conflict that would warrant Mr. Ndegwa’s disqualification. In any event, even if he is to be disqualified, there will still be other Advocates on record for the 1st Interested Party who had also previously associated themselves with Mr. Ndegwa’s (on behalf of his then client) contestations of reverting to the Petition dated 26th April 2021. Further, all factors constant, as correctly pointed out by Mr. Ndegwa, if the Petition is to succeed, the 1st Interested Party will be a key beneficiary and if the Petition fails, the 1st Interested Party will similarly lose alongside the Petitioners. This Court does not therefore find any conflicting interests.

32. Another key argument propelled by Mr. Ndegwa and Senior Counsel Prof. Tom Ojienda is that the nature of the matter is a public interest litigation and there could therefore be no such classified information which would possibly prejudice the interests of any of the Petitioner. The instant Petition concerns the legality of the impeachment process that led to the removal of the 1st Interested Party as Governor as well as the succeeding events that led to the swearing in of the 2nd Interested Party as Governor. It goes without saying that the stakeholders of the Petition go beyond the 6 Petitioners. The citizens and residents the County of Wajir most of who are not direct parties to these proceedings are stakeholders. We find that by its nature as disclosed in the pleadings, there is possibly no confidential information that was accessed by Mr. Ndegwa as Counsel of the Petitioners that he is likely to employ to the prejudice of those Petitioners.

33. This Court agrees that in such constitutional petitions where the subject matter transcend the individual interests of the parties, there is need and duty upon the Court to ensure that justice is done to the cause and any of the contestations to representation by Counsel will only be acceded to in the clearest of the clear circumstances. Those circumstances don’t manifest themselves here and we are thus unable to bar Mr. Ndegwa from appearing for the 1st Interested Party.

Whether Mr. Ndegwa’s conduct and association with other Counsel in the matter is a breach of professional conduct of advocates and if so, what sanctions the said conduct attracts from this Court.

34. The attention of the Court was drawn to the contents of the email admittedly sent out from Mr. Ndegwa’s office to other Advocates on Friday 13th August 2021 at 9. 25 a.m. The email reads as follows: -

Dear Respondents and the 2nd to 5th Interested Parties,

This is a kind reminder to you are yet to serve us with your replies to the Petition as directed by the Hon. Judges. It will do us a great deal if you may disclose whether you are still interested in filing your replies thereto. In addition to the above, SC Ahmednasir is yet to serve us with his application for the recusal of Mr. justice P. J. Otieno. As much as we well understand the litigation strategy now being operationalized by SC Ahmednasir and his cahoots, be it known to you that we are eagerly waiting for the said application so that we can as well respond to the same. Mr Mansur we are yet to receive your application as well.

Yours,

Ndegwa Njiru

35. At 9. 55 a.m, there was a reaction to the said email from Mr. Ombati as follows: -

Mr Ndegwa Njiru Advocate,

Kindly note that your tone and language amounts to professional misconduct and conduct unbecoming.

Let this be the last warning as going forward, we shall file a complaint in the Disciplinary Committee against yourself.

Be advised.

36. This elicited another reaction from Mr. Ndegwa as follows: -

Mr. Omwanza,

The content of your email is duly noted, and the scheme by you and your cahoot is well known to us, and the same is vividly evidenced by the Respondents’ failure to comply with the court order issued in respect to compliance.

It thus leaves me marveled as to whose conduct really attracts a disciplinary action. From compromising the Petitioners to wanting to mutilate the Petition. Really, whose conduct is questionable in the circumstances? Am I obliged to honour such conduct? I propose you take some time and attempt to retrace your steps in order to determine what is ethical and who between yourself has conducting himself unethically.

37. The next email is by Hanan El-Kathiri Advocate forwarding the contents of the thread to the Deputy Registrar asking for the same to be brought to the attention of the Judges.

38. The Court has observed the contents of the communication between Advocates. It goes without saying that the tone and language of Mr. Ndegwa in the email was calculated to paint an image in the minds of the reader that there is a strategy orchestrated by learned Senior Counsel Ahmednassir and Mr. Omwanza as his supposed cahoots to delay the matter. In the emails, Mr. Ndegwa expressed his concerns with the issue of late service of an application for recusal. To this Court’s mind, this could well have been communicated in a lawyerly language, with usual decorum and courtesy. This Court has repeatedly asked to observe decorum and without insinuating improper conduct upon a colleague, we find the language wholly inappropriate and once again, the Court implores upon Counsel in this matter and wherever they deal with each other to common expected sobriety for that is the only way legal practitioners can remain distinguishable from the rest.

39. This is not, to our recollection, the first time that Mr. Ndegwa’s remarks are stirring attention and revulsion from fellow Counsel. Indeed, Senior Counsel Ahmednassir has previously raised concerns over Mr. Ndegwa’s remarks. This Court has previously urged Counsel in the matter to approach the proceedings with decorum and to this extent, there have indeed been attempts to regulate the proceedings. Mr. Ndegwa has however remained unmoved, going by the correspondence complained about. However emotive a matter may be, this has never and will never be an excuse to indict fellow Counsels. Notably however, Mr. Ndegwa took the earliest opportunity and apologized verbally to Court and the fellow Counsels when this matter was dealt with on 18th August 2021. We consider the apology sufficient in this matter but remind Counsel that indeed, the Court retains its statutory powers under Section 55 and 56 of the Advocates Act to sanction its officers which includes Advocates and will not hesitate to invoke the same in every appropriate case.

Conclusion

40. There is no provision under the Rules of Court for the filing of a second Notice of Appointment of Advocates for a party once a Notice of Appointment of Advocate has already been filed by another advocate. What should be filed is a Notice of Change of Advocates or the advocate coming in for the party in addition to the one who has already filed a Notice of Appointment may come into the proceedings as a lead counsel leading the advocate on record in the prosecution of the brief for the given party. There is also no provision for the filing of a Notice of Appointment in the names of two law firms of advocates. The Notice of Appointment of Advocates signed in the joint names of the firms of M/S Ndegwa Njiru and M/S Kago Mburu dated 3rd August 2021 shall therefore be struck out and expunged from record. Mr. Ndegwa Advocate may be introduced as a lead counsel to act for the relevant party alongside the advocate on record. This clarification is important because it indicates the advocate on record who therefore has authority to file pleadings and other formal process of the court on behalf of the party.

41. The provision of section 134 of the Evidence Act is a rule of evidence barring disclosure, without express consent of his client, of evidence of communication and documents exchanged or coming into his knowledge in the course of his retainer as such advocate or advice given by him to such client. The Petitioners/Applicants who seek to bar the Mr. Ndegwa from acting for the 1st Interested Party have not demonstrated that there is a danger of breach of the evidentiary rule in section 134 of the Evidence Act by disclosure of any such information, document or advice subject of the rule. While the applicant is not required to state the exact information, document or advice threatened with disclosure, they could have given the general nature of such communication, document or advice for the court to consider the potential likelihood of the breach of the rule by the advocate’s continued acting for the 1st Interested Party. This proof is necessary in order to forestall breach of a party’s constitutional right to counsel by flimsy objection. The onus remains upon him who alleges and it is not enough to assert that a Counsel who has acted for a client should forever be beholden from acting against him. If the rule was to acquire such interpretation, a mischievous litigant would just identify the best legal brains in town, throw some petty claims their way and then ‘own’ such Advocates to the exclusion of all. That would be most undesirable.

42. The Court accepts that the nature of the public interest litigation which is on the removal of Governor in the present Petition is primarily concerned with the constitutionality and legality of the process of removal rather the merit of the decision to remove the Governor which calls for examination of the strengths of the decision by the County Assembly and the Senate. The Court cannot therefore assume that the advocate is possessed of confidential information which he may use for the benefit of his new client the 1st Interested Party to the detriment of the Petitioners for whom he previously acted.

43. We find that the Petitioners and the 1st Interested Party are on the same side on the basis of the reliefs sought in the Amended Petition. We accept that the Petitioners for whom the impugned advocate acted, have not sought reliefs contrary to the interests of the 1st Interested Party for whom the advocate seeks to take up instructions. The principal relief sought by the Petitioners is the nullification of the process of impeachment of the 1st Interested Party, which if granted will be for the benefit of the 1st Interested Party. The decision of the Court of Appeal Uhuru Highway Developers Limited case is therefore distinguishable.

44. As regards the conduct of the Advocate, there is merit in the objection by Counsel for 1st to 4th Respondents that the Advocate has behaved with less than decorum before the Court, and outside of Court in mail concerning the litigation, by making various allegations of impropriety against Counsel for the 1st to 4th Respondents and the other Counsel who took over the briefs for the Petitioners from him and more specifically by insinuating a calculated but improper scheme or collusion to defeat the Petition. The written allegations of impropriety against the Advocates were more explicit and the Advocate is to our mind out of order. It does not matter that the conduct was outside the Court as it was touching on a matter pending hearing and determination before the Court, and in any event, Advocates are required to behave with fitting decorum both before and outside Court and they are subject to the disciplinary powers of the Court under Section 56 of the Advocates Act for any misconduct or offences committed during, or in the course of, or relating to, proceedings before the Court.

45. Mr. Ndegwa Advocate cited an alleged vendetta between him and Senior Counsel Ahmednassir arising from their appearance before the Senate for hearing for their respective clients. Advocates should not have or take up vendetta between each other in their appearance for different parties in litigation or other non-contentious business for different clients in their practice of law. Clients come and go but the profession and brotherhood remains. No vendetta should justify use of conduct or language that casts aspersions on colleague Advocates before the Court or outside the Court in official or non-official communication. Mr. Ndegwa Advocate was in breach of the propriety principle in his written accusations of collusion against Senior Counsel Ahmednassir and other Counsel in the Petition, and these having been brought to the attention of the Court, the Court shall, pursuant to Section 56 of the Advocates Act exercise its jurisdiction over the advocate as an officer of this court for the protection of the dignity and sanctity of its proceedings and the authority of the Court. The Court notes that Mr. Ndegwa Advocate orally apologized to his colleagues in response to the objection taken by Senior Counsel Ahmednassir. As said before, we deem the apology sufficient but will again reprimand him strongly against such conduct in the future.

46. Senior Counsel Ahmednassir was, however, also out of order in threatening to leave the proceedings of the Court if the Court did not sanction Mr. Ndegwa Advocate. That Mr. Ndegwa did what he did does not justify a threat by the Senior Counsel to boycott and thus stall the proceedings. All Counsel are subject to the jurisdiction of the Court and they may only leave the proceedings with leave of the Court, sought and obtained beforehand.

ORDERS

47. Accordingly, for the reasons set out above, the Court makes the following orders: -

i) The Notice of Appointment of Advocates by Ms Ndegwa & Ndegwa advocates and Ms Kago Mburu Associates advocates dated 3rd August 2021 is hereby struck off and expunged from the Record.

ii) The request to have Mr. Ndegwa Njiru disqualified from acting for the 1st Interested Party is hereby declined.

iii) The firm of Kago Mburu & Associates Advocates being on record will continue on record for the 1st interested party for purposes of drafting, filing and receiving court process on behalf of the 1st Interested Party and shall indicate to court the roles to be played by Prof Ojienda and Mr. Ndegwa advocates.

iv)In the same manner as in the offending communication, Advocate Ndegwa Njiru shall, within 24 hours, apologize in writing to the Advocates in the matter by email to each of them by their official email addresses, with a copy to the Court.

v)Advocate Ndegwa Njiru shall within 24 hours from the date of this order lodge with the Court and serve upon the Advocates on record for the parties in this Petition an undertaking to the Court and Counsel to observe decorum before the Court, in and out of the Court and in relation to these proceedings, in accordance with the applicable Code of Conduct and Etiquette for Advocates

Orders accordingly.

DATED AND DELIVERED ON THIS 1ST DAY OF SEPTEMBER, 2021.

EDWARD M. MURIITHI P. J. O. OTIENO WAMAE. T. W. CHERERE

JUDGE (PRESIDING) JUDGE JUDGE

Appearances:

Mr. Omwanza for the 1st , 3rd and 5th Petitioners

Mr. Marete for the 1st and 4th Petitioners

Mr. Wanyama for the 6th Petitioner

Mr. Ahmednassir, SC with Miss Hannan and Miss Wangui for the 1st, 2nd, 3rd and 4th Respondents

Ms. Thanji for the 5th and 6th Respondents

Prof. Tom Ojienda, SC, Mr. Ndegwa and Mr. Mburu for the 1st Interested Party

Mr. Issa Mansur for the 2nd Interested Party

N/A for the 3rd Interested Party

N/A for the 4th Interested Party.