https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1980

Sawe v Living Life Design Limited (Employment and Labour Relations Appeal E015 of 2025) [2026] KEELRC 1980 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1980 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Malindi Employment and Labour Relations Appeal E015 of 2025 K Ocharo, J July 10, 2026 Between Caleb Kimutai Sawe Appellant and Living Life Design Limited Respondent (Being an appeal from the whole of the Ruling of Hon. Charles Obulutsa, Chief Magistrate, Kilifi, delivered on 29th July 2025, in the Chief Magistrate's Court at Kilifi in CMC/ELRC No. E007 of 2025) Judgment Introduction 1.This appeal is not brought against a judgment on the merits of the underlying claim, but against an interlocutory Ruling of Hon. Charles Obulutsa, Chief Magistrate, Kilifi, delivered on 29th July 2025 in Kilifi CMC/ELRC No. E007 of 2025, by which the learned trial Magistrate disqualified the firm of M/s Mwakireti & Asige Advocates from continuing to act for the Appellant, Caleb Kimutai Sawe, in his pending claim against his former employer, the Respondent, Living Life Design Limited, on the footing that the firm's earlier professional and personal dealings with the Respondent and its director gave rise to a conflict of interest. Aggrieved, the Appellant brought this appeal, seeking to have that Ruling set aside. 2.I have had the benefit of the record of appeal, the impugned Ruling, the Memorandum of Appeal, and the respective written submissions of learned Counsel for the parties, and I now render my decision. Background to the Underlying Suit 3.The Appellant was the Claimant before the trial court in MCELRC No. E007 of 2025, in which he sued the Respondent, a building and architectural design consultancy, by a Statement of Claim dated 4th April 2025. He sought declarations and compensation for unfair and wrongful termination of his employment contrary to sections 35, 36, 41, 43, 44 and 45 of the Employment Act, 2007; non-payment of housing allowance contrary to section 31 of the Act; non-issuance of a written contract of service or employment particulars contrary to sections 9 and 10 of the Act; non-issuance of a certificate of service contrary to section 51 of the Act; and unlawful post-termination use of his practising licence as a registered architect in respect of five identified projects. 4.It was his case that he was engaged by the Respondent as a registered Architect on 3rd July 2023 at a gross monthly salary of Kshs. 120,000, that he served without a written contract of service despite persistent requests, and that his services were abruptly terminated on 17th September 2024, following a dispute over a design brief, without notice and without a hearing. He averred that protracted negotiations over his terminal dues broke down after the Respondent failed to honour a settlement it had itself proposed, and that the Respondent thereafter continued to use his architectural licence on ongoing projects without his consent. 5.The Statement of Claim, the Verifying Affidavit and the accompanying pleadings were drawn and filed by M/s Mwakireti & Asige Advocates, and it is not in dispute that the demand that preceded the suit, and the pleadings themselves, were the work of one of the firm's partners, Advocate Kelvin Asige. The Application Giving Rise to the Impugned Ruling 6.Before the suit could proceed to hearing, the Respondent, by a Notice of Motion dated 28th April 2025 brought under a Certificate of Urgency of the same date, sought an order disqualifying M/s Mwakireti & Asige Advocates from acting for the Appellant, on the ground that the firm's continued representation of him amounted to a conflict of interest and a breach of advocate-client privilege, contrary to Standards 6 and 7 of the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct (SOPPEC). 7.The application was supported by the affidavit of the Respondent's director, Ewoud Willem Overkamp, sworn on 29th April 2025, and by a Further Affidavit which he swore on 16th May 2025. The grounds advanced, distilled from those affidavits, were essentially these: that the firm, and Advocate Asige in particular, had for a period placed at between 2018 and 2024 offered the Respondent legal services, including drafting, reviewing and negotiating project agreements and following up debtors and claims, key among the assignments being the VDL Awali Fundraising Project and the Centum Project, in the course of which the firm was said to have gained access to a lot of confidential information on the Respondent; that Advocate Asige had drafted Mr Overkamp's personal will; that Advocate Asige had, together with Mr Overkamp and two other partners, been a director and shareholder of a separate company, Vipingo Lounge Limited, incorporated on 8th December 2023, until a misunderstanding led to his ceasing to be a director in mid-2024; that the Respondent had, on 28th March 2025, lodged a complaint against Advocate Asige and the firm before the Advocates Disciplinary Tribunal, which remained pending; and that, given the acrimonious end of the business relationship between Mr Overkamp and Advocate Asige, the Respondent was apprehensive that the firm lacked the objectivity to represent the Appellant against it and was liable to use confidential information it held to the Respondent's prejudice. 8.The application was resisted. Advocate Kelvin Asige swore a Replying Affidavit on 5th May 2025 in which he conceded that his firm had, at various points in the past, provided legal services to the Respondent, but averred that this was limited to construction law advice, that no retainer agreement had ever existed between the firm and the Respondent, and that the Respondent had in fact last engaged the firm in late 2021, and not mid-2024 as alleged. He deponed further that the "confidential information" pleaded in the Supporting Affidavit related, on a fair reading of the Respondent's own exhibits, to the incorporation of an entirely different company, Firstrade Ventures Limited, and to the notarisation of an agreement for another unconnected company, East of Eden Limited; that the personal will he had drawn for Mr Overkamp was prepared for him in his personal capacity and had no bearing on the Respondent's affairs; that his directorship of Vipingo Lounge Limited, a bar and lounge business wholly distinct from the Respondent's building design business, was equally personal to him; and that nothing in the Respondent's affidavit identified any communication, confidential or otherwise, bearing on the Appellant's employment or on the subject matter of his claim. He invoked the Guidance on the Interpretation of the Standards, Code 100, of Part IV of SOPPEC, and the formulation of the Supreme Court of Samoa in Apia Quality Meats Limited v Westfield Holdings Limited [2007] 3 LRC 172, as adopted by the Court of Appeal in Jopa Vilas LLC v Overseas Private Investment Corp & 2 Others [2014] eKLR, that removal of an advocate is an extraordinary and drastic remedy. 9.In his Further Affidavit, Mr Overkamp maintained that the firm's engagement, and Advocate Asige's involvement in the conceptual, legal and operational set-up of Vipingo Lounge Limited, were more extensive and longer-standing than the Replying Affidavit acknowledged, and relied on Rule 6 of the LSK Code of Conduct and Ethics for Advocates, which defines conflict of interest as "an interest that 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," and on Rule 7, which requires an advocate to maintain client confidentiality even after the professional relationship has ended. The Ruling of the Trial Court 10.By a Ruling running to forty-seven pages and delivered on 29th July 2025, the learned trial Magistrate allowed the application, with costs to the Respondent. The greater part of that Ruling, some forty of its forty-seven pages, is a verbatim reproduction of the grounds of the application, the Supporting and Further Affidavits, the Replying Affidavit, and the parties' written submissions in their entirety. 11.The learned Magistrate's own analysis is confined to its final two pages. He recorded that it was "not in dispute" that the firm had acted for the Respondent while the Appellant was its employee, that Advocate Asige, "having been a director of the respondent," had been in a private business venture with Mr Overkamp that ended in a falling-out, that Advocate Asige had prepared a will for Mr Overkamp, and that a complaint against Advocate Asige remained pending before the Advocates Disciplinary Tribunal. On that basis, having recited the several authorities placed before him, he concluded that "there is sufficient grounds to support the application that there exists a conflict of interest in allowing the firm of Asige Mwakireti & Company Advocates act for the claimant against the respondent who is their former client," and allowed the application with costs. The Appeal 12.Aggrieved, the Appellant filed a Memorandum of Appeal dated 18th August 2025, advancing ten grounds, which I summarise as follows. The learned Magistrate is said to have erred:(a)in failing to properly apply the principles of advocate-client privilege under Standards 4, 6 and 7 of SOPPEC, read together with the Guidance on the Interpretation of the Standards, Code 100;(b)in failing to appreciate that the instances of alleged conflict relied upon by the Respondent were not shown to be of the "same or related matter" as the Appellant's claim;(c)in finding that the instances of alleged conflict all occurred during the Appellant's period of employment with the Respondent;(d)in conflating the affairs of the Respondent, a limited liability company, with the personal affairs of its director;(e)in finding that the Appellant's counsel had been a director of the Respondent company, where no such evidence was adduced;(f)in finding that counsel was on a retainer with the Respondent, where no retainer agreement was produced;(g)in misdirecting himself that there was sufficient and relevant evidence to establish a clear and incontrovertible conflict of interest;(h)in misdirecting himself by failing to bring independent analysis to bear on the application, the Ruling being, save for its final paragraphs, substantially a reproduction of the parties' affidavits and submissions;(i)in treating the mere existence of an unheard and undetermined complaint before the Advocates Disciplinary Tribunal as sufficient grounds for a finding of conflict of interest; and(j)in finding that a business venture between the Respondent's director and the Appellant's counsel, having no connection to the Respondent, sufficed to establish a conflict of interest warranting disqualification. 13.The Appellant prayed that the Ruling of 29th July 2025 and the consequent orders be set aside, that the appeal be allowed, and that costs of the appeal be awarded to him. The Appellant's Submissions 14.Learned Counsel for the Appellant submitted that the trial court erred in relying on Standard 6 of SOPPEC and the underlying Overriding Principle without descending into the Guidance on the Interpretation of the Standards, Code 100, which expressly permits an advocate to act against a former client in a fresh and independent matter wholly unrelated to any work previously done for that person, and that none of the matters deponed to by Mr Overkamp met the threshold of a "same or related matter." It was submitted that the Respondent had adduced no evidence that Advocate Asige was ever a director of the Respondent, nor of any retainer agreement, nor of any prior representation touching the Appellant or the subject matter of his claim, and that the trial court's finding that Advocate Asige had been a director of the Respondent was factually erroneous and had never been pleaded. Reliance was placed on Jopa Vilas LLC v Overseas Private Investment Corp & 2 Others [2014] eKLR and Apia Quality Meats Limited v Westfield Holdings Limited [2007] 3 LRC 172, for the proposition that removal of an advocate is an extraordinary and drastic remedy reserved for the most extraordinary circumstances; on Wakahe v Faulu Floor Mills (Civil Case E564 of 2021) [2022] KEHC 47 (KLR), for the proposition that the burden of proving that an advocate had access to prejudicial confidential information, or that his interaction with the former client went beyond routine professional work, lies with the party alleging conflict; on Sunrise Properties Limited v National Industrial Credit Bank & 2 Others (HCCC No. 452 of 2007), for the propositions that mere suspicion or apprehension of a possible conflict cannot found removal, and that every party has a right to be represented by counsel of choice; and on William Audi Ododa & another v John Yier & another [2007] eKLR, as cited in Blast Contractors & General Suppliers Ltd v County Government of Meru (Civil Suit 15 of 2020) [2023] KEHC 1478 (KLR), for the proposition that it is not the business of the courts to tell litigants which advocate should or should not act for them, save where it is shown that the interests of justice would not be served by a particular advocate continuing to act. It was submitted, further, that the application was actuated by bad faith and was aimed at frustrating the Appellant's lawful claim, and that its allowance had deprived him of his constitutional right to representation by an advocate of his choice. The Respondent's Submissions 15.Learned Counsel for the Respondent supported the Ruling, submitting that an appellate court will not interfere with the exercise of a trial court's discretion save where it is shown that the court misdirected itself in some matter and thereby arrived at a wrong decision, or that it was plainly wrong, occasioning an injustice, relying on Mbogo v Shah [1968] EA 93, as applied in Naima Khamis v Oxford University Press (E.A) Ltd [2017] KECA 480 (KLR) and Ken Odondi & 2 others v James Okoth Omburah t/a Okoth Omburah & Company Advocates [2013] KECA 252 (KLR). It was submitted that it was uncontroverted that an advocate-client relationship of some five years' standing had existed between the firm and the Respondent, that one of the firm's partners had been engaged in a business partnership with the Respondent's director which ended acrimoniously, and that these uncontroverted facts sufficed to establish a conflict of interest, the objectivity of the firm being severely impaired and a reasonable person, aware of the facts, being entitled to anticipate a degree of likelihood that confidential information would be used to the Respondent's prejudice. Reliance was placed on the definition of "client" under section 2 of the Advocates Act as applied in Jopa Vilas LLC v Overseas Private Investment Corp & 2 Others [2014] KECA 232 (KLR), and on Delphis Bank Limited (now Oriental Commercial Bank Limited) v Channan Singh Chatthe & 5 others [2014] KECA 808 (KLR) and Uhuru Highway Development and others v Central Bank of Kenya & 2 others [2002] 2 EA 654, for the proposition that there is a degree of likelihood of mischief in confidential information imparted by a former client, consciously, unconsciously or even inadvertently, being used to the benefit of a current client and to the prejudice of the former client's case. Counsel urged that the Appellant had failed to demonstrate any error warranting interference, and prayed that the appeal be dismissed with costs. Issues for Determination 16.Having considered the record of appeal, the impugned Ruling, the grounds of appeal, and the rival submissions, I find that the following issues arise for determination:(a)whether the learned trial Magistrate applied the correct legal test in determining whether a conflict of interest existed such as to warrant the disqualification of the Appellant's advocates;(b)whether, on the material that was before the trial court, a conflict of interest, in the sense contemplated by law, was in fact established;(c)whether the learned Magistrate's findings that the Appellant's counsel had been a director of the Respondent, and was on a retainer with it, were supported by the evidence on record;(d)whether the pendency of an unheard complaint before the Advocates Disciplinary Tribunal could properly found, in whole or in part, a conclusion that a conflict of interest existed; and(e)who should bear the costs of the application before the trial court and of this appeal. Analysis and Determination 17.This being a first appeal against the exercise of a trial court's discretion, I am guided by the well-settled principle that an appellate court will not interfere with such an exercise unless it is satisfied that the court below misdirected itself in some matter and as a result arrived at a wrong decision, or that it is manifest from the record as a whole that the court was clearly wrong, occasioning an injustice: Mbogo v Shah [1968] EA 93; Naima Khamis v Oxford University Press (E.A) Ltd [2017] KECA 480 (KLR); Ken Odondi & 2 others v James Okoth Omburah t/a Okoth Omburah & Company Advocates [2013] KECA 252 (KLR). I bear that threshold firmly in mind in what follows, together with the ordinary duty of a first appellate court to reconsider and re-evaluate the material on record and draw its own conclusions: Selle v Associated Motor Boat Co Ltd [1968] EA 123. 18.Conflict of interest, in its wider sense, is not a concept unique to the SOPPEC standards invoked at the trial. It finds statutory root in section 134 of the Evidence Act, Cap. 80, which protects the confidentiality of advocate-client communication both during and after the subsistence of the retainer, and it is elaborated in the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, whose underlying value is expressed thus: "Trust and confidence in the legal profession depends upon the legal professional's loyalty to clients. Avoidance of situations of conflict of interest also enhances the legal professional's ability to render unbiased and objective service to the client and enhances the standing of the legal profession." Rule 6 of the Law Society of Kenya Code of Conduct and Ethics for Advocates, relied upon by the Respondent's director in his Further Affidavit, defines conflict of interest as "an interest that 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," and identifies, among the situations in which it may arise, an advocate getting involved in a business transaction with a client, or having a personal or professional relationship with the adverse party. Properly read, however, this definition is protective in the first instance of the current client's interest in undivided loyalty; it does not, of itself, confer upon a former client, or upon an opposing party who was never the advocate's client in the matter at hand, a free-standing right to demand an advocate's removal merely upon establishing some prior dealing, however historical or unconnected to the dispute in question. 19.The more precise, and more directly applicable, test is that articulated in the Guidance on the Interpretation of the Standards, Code 100, of Part IV of SOPPEC, which both counsel placed before the trial court and which the learned Magistrate quoted but did not, with respect, apply: "an Advocate who has acted for a client should not, in the same or a related matter, act against the client or otherwise act against the client where the Advocate might be at risk of using against the client information previously obtained from the client. It is not however improper for the Advocate to act against the former client in a fresh and independent matter wholly unrelated to any work the Advocate has previously done for that person." This formulation, it must be emphasised, is not exceptional; it accords with the position taken by the Court of Appeal in England in Re a firm of Solicitors [1992] 1 All ER 353, cited with approval by our own Court of Appeal in Delphis Bank Limited (now Oriental Commercial Bank Limited) v Channan Singh Chatthe & 5 others [2014] KECA 808 (KLR), that there is no general rule that a firm of advocates who had acted for a former client can never thereafter act for another client against that former client; the firm will be restrained only where a reasonable person, apprised of the facts, would reasonably anticipate a danger that information gained while acting for the former client would be used against that former client, or where there is some degree of likelihood of mischief in confidential information being used for the benefit of the current client. The same thread runs through Uhuru Highway Development and others v Central Bank of Kenya & 2 others [2002] 2 EA 654, where the advocate in question had personally drawn the very charge documents whose validity was the central issue in the litigation he was later retained to conduct against his former client, a proximate and obvious nexus between the prior instructions and the subject matter of the subsequent suit. 20.It is against that backdrop that the Court of Appeal, adopting the Supreme Court of Samoa's formulation in Apia Quality Meats Limited v Westfield Holdings Limited [2007] 3 LRC 172, held in Jopa Vilas LLC v Overseas Private Investment Corp & 2 Others [2014] eKLR that the removal of an advocate from acting for a party in proceedings is an extraordinary and drastic remedy, to be contemplated only in the most extraordinary circumstances, requiring misconduct so serious that removal is the only way of safeguarding the future integrity of the proceedings. That formulation is not a mere rhetorical flourish; it reflects the gravity of what is at stake whenever a court is asked to stand between a litigant and the advocate of his choice. 21.Which brings me to the second strand of this appeal, namely the right to representation by counsel of one's choice. Article 50(2)(g) of the Constitution guarantees to every accused person, and by extension of principle to every litigant invoking the machinery of justice, the right to choose, and be represented by, an advocate. It is not, and has never been, the business of the courts to tell litigants which advocate should or should not act for them in a particular matter; each party has the right to choose his own advocate, and unless it is shown that the interests of justice would not be served by a particular advocate continuing to act, the party must be left to that choice: William Audi Ododa & another v John Yier & another [2007] eKLR, cited in Blast Contractors & General Suppliers Ltd v County Government of Meru (Civil Suit 15 of 2020) [2023] KEHC 1478 (KLR). Where conflict of interest is alleged, the burden lies squarely on the party so alleging to place before the court sufficient evidence to demonstrate that the conflict indeed exists and that it has suffered, or will suffer, real prejudice; mere suspicion, apprehension of a possible conflict, or fear of prejudice, will not suffice: Sunrise Properties Limited v National Industrial Credit Bank & 2 Others (HCCC No. 452 of 2007). Nor does the law require an advocate to prove a negative; rather, the burden of proving that an advocate had access to information prejudicial to the party alleging conflict, or that his interaction with that party went beyond the routine, lies with the party making the allegation: Wakahe v Faulu Floor Mills (Civil Case E564 of 2021) [2022] KEHC 47 (KLR). It follows, and I so hold, that it is not in every case where an advocate has, at some earlier point and in some capacity, represented or otherwise dealt with a person, that he may thereafter be forbidden from accepting instructions in a wholly different and unrelated matter initiated against that person by another party. To hold otherwise would place in the hands of any erstwhile client a ready instrument for the tactical removal of opposing counsel, on the strength of nothing more than a past association, however stale or however far removed from the matter in dispute. 22.I turn, then, to apply these principles to the material that was before the trial court. The subject matter of the suit in which the Appellant's advocates were sought to be disqualified is a discrete and self-contained employment dispute: whether the Appellant's employment was unfairly and unlawfully terminated, whether he was denied statutory dues and a written contract of service and a certificate of service, and whether the Respondent unlawfully continued to use his architectural licence after termination. Every instance of prior dealing between the firm, or Advocate Asige personally, and the Respondent or its director, on which the application was founded, must be tested against that specific subject matter. 23.On the Respondent's own pleaded case, the firm's past instructions consisted of construction law advice and the drafting, review and negotiation of project agreements in respect of the VDL Awali Fundraising Project and the Centum Project, the notarisation of an agreement for East of Eden Limited, and assistance with the incorporation of Firstrade Ventures Limited. Not one of these engagements is shown, or even alleged, to have touched upon the Respondent's employment relationship with the Appellant, the terms of his engagement, the circumstances of his termination, or the use of his professional licence. Mr Overkamp's affidavits speak, in general and conclusory terms, of "a lot of confidential information" and "pertinent trade secrets," but at no point do they identify a single item of information, obtained in the course of any of those engagements, that bears in any way on the subject matter of MCELRC No. E007 of 2025. An apprehension expressed in such generalised terms, unanchored to the dispute at hand, does not rise to the level of a "same or related matter" within the meaning of Code 100, nor does it disclose the "degree of likelihood of mischief" contemplated in Re a firm of Solicitors and Delphis Bank. 24.The drafting of Mr Overkamp's personal will stands on no different footing. It was, on the uncontroverted evidence, an instruction given to Advocate Asige in Mr Overkamp's personal capacity, wholly extraneous to the Respondent's corporate affairs and further removed still from the Appellant's employment. I am unable to discern, and none has been shown to me, how a personal testamentary instrument could conceivably found a conflict of interest in an employment dispute between the testator's company and a former employee. 25.Nor, in my view, does the Vipingo Lounge Limited venture assist the Respondent. The evidence on record, including the Company Registry Form 12 annexed to the Supporting Affidavit itself, establishes that Vipingo Lounge Limited is a distinct legal person, incorporated on 8th December 2023, in which Mr Overkamp personally, and not the Respondent company, held shares and a directorship alongside Advocate Asige and two others, and whose business, a bar and lounge, bears no relation whatsoever to the Respondent's business of building and architectural design. A falling-out between Mr Overkamp and Advocate Asige, in their personal capacities as co-venturers in a separate enterprise, however genuinely felt, cannot, consistently with the doctrine of separate corporate personality, be visited upon the Respondent as a ground for disqualifying counsel in litigation to which the Respondent, and not Vipingo Lounge Limited, is a party. 26.I am, moreover, unable to sustain the learned Magistrate's finding that Advocate Asige "having been a director of the respondent" had fallen out with Mr Overkamp. That finding does not find support anywhere in the record placed before the trial court or before this Court. The only company of which Advocate Asige was ever shown to have been a director is Vipingo Lounge Limited, a company distinct from the Respondent, Living Life Design Limited. This was not a peripheral slip; it was a material misapprehension of a central fact, one which appears to have supplied part of the very foundation upon which the trial court's ultimate finding of conflict rested, and it substantiates ground five of the Memorandum of Appeal. Equally, no retainer agreement between the firm and the Respondent was ever produced, and Advocate Asige's evidence that the firm's last instructions from the Respondent were received in late 2021, and not mid-2024 as Mr Overkamp maintained, stood uncontradicted by anything beyond Mr Overkamp's bare assertion to the contrary, substantiating ground six. 27.As for the complaint lodged by the Respondent against Advocate Asige before the Advocates Disciplinary Tribunal, I agree with the Appellant that it could not, without more, found a conclusion that a conflict of interest existed. It is, on its face, nothing more than an untested allegation, pending hearing and determination by the body properly seized of it. Were the mere lodging of a disciplinary complaint, without proof of its merits, to be treated as sufficient grounds for disqualifying the advocate complained against, any litigant minded to remove opposing counsel would need only to lodge a complaint, however unmeritorious, to set that result in motion. That cannot be the law, and the learned Magistrate erred in treating the pendency of the complaint as contributing to "sufficient grounds" for the Respondent's application, substantiating ground nine. 28.I have not lost sight of the Respondent's submission, echoing the reasoning of the trial court, that an advocate-client relationship of some years' standing, followed by an acrimonious falling-out over a personal business venture, suffices, without more, to establish a conflict of interest by application of the "reasonable man" test drawn from Re a firm of Solicitors. I do not accept that submission. The reasonable man of that test is not invited to speculate at large; he is asked whether, knowing the facts, he would reasonably anticipate a danger that information gained in the former retainer would be used against the former client in the very matter at hand. Knowing, as such a person would, that the former retainer concerned construction law advice on unrelated projects, the incorporation of unconnected companies, and a personal will, and that the current matter concerns the termination of a former employee's employment, I do not consider that a reasonable person would anticipate any such danger. This case is, in that respect, far removed from Delphis Bank and Uhuru Highway Development, in each of which the advocate's own prior work, the very charge or security documents whose validity was in issue, was the direct subject matter of the subsequent litigation; no comparable nexus has been shown, or even asserted, here. 29.Considering the subject matter of the suit before the trial court, namely the termination of the Appellant's employment, and the wholly unrelated character of the matters on which the Respondent's application was founded, I am unable to find that any situation of conflict of interest of the kind of which the Appellant's advocates stand accused has been established. Even a critical examination of the Law Society of Kenya's Code of Standards, and of Rule 6 of the Code of Conduct and Ethics for Advocates upon which the Respondent placed particular reliance, does not, in my view, extend to cover the circumstances disclosed on this record. Grounds one, two, three, five, six, seven and ten of the Memorandum of Appeal accordingly succeed, and ground four, concerning the conflation of the Respondent's corporate affairs with the personal affairs of its director, succeeds to the extent I have indicated in addressing the Vipingo Lounge Limited venture. 30.I add, without in any way discounting the importance of thoroughness in judicial writing, that a ruling which devotes forty of its forty-seven pages to verbatim reproduction of the parties' pleadings, affidavits and submissions, reserving independent analysis to its final two pages, runs a real risk of precisely the kind of misapprehension that occurred here, where a material fact, generated nowhere in the record, found its way into the operative reasoning. I do not rest my decision on that infirmity alone, but it reinforces the conclusion I have independently reached on the substance of the matter, and substantiates ground eight of the Memorandum of Appeal. 31.It follows that the threshold for appellate interference identified in Mbogo v Shah has been met: the learned trial Magistrate misdirected himself both as to the applicable legal test, by omitting to hold the Respondent to the "same or related matter" standard prescribed by Code 100 and by the authorities cited to him, and as to a material fact central to his conclusion, and the resulting Ruling occasioned an injustice to the Appellant by depriving him, on an insufficient evidentiary and legal basis, of his right to representation by counsel of his choice. This is precisely the class of case in which an appellate court is entitled, indeed obliged, to intervene. 32.I should add, for the avoidance of doubt, that this determination is confined to the narrow question that was before the trial court and is now before this Court, namely whether the Appellant's advocates ought to have been barred from acting for him in this specific employment dispute. Nothing in this judgment touches upon, still less determines, the separate complaint pending before the Advocates Disciplinary Tribunal, which will proceed, if at all, on its own merits and before the body properly seized of it. 33.On costs, it is trite that costs ordinarily follow the event, save where good cause is shown for a different order. The Appellant has succeeded, both before this Court and, in substance, in respect of the application that ought to have been dismissed by the trial court. No cause has been shown, nor do I find any, to depart from the ordinary rule. Disposition 34.For the foregoing reasons, I find that this appeal has merit. It is hereby allowed, and I make the following orders:(a)The appeal be and is hereby allowed.(b)The Ruling of the trial court delivered on 29th July 2025 in Kilifi CMC/ELRC No. E007 of 2025, and all consequent orders made therein, be and are hereby set aside.(c)In substitution therefor, the Respondent's Notice of Motion application dated 28th April 2025 be and is hereby dismissed.(d)The costs of the said application before the trial court, and the costs of this appeal, shall be borne by the Respondent and paid to the Appellant.(e)Kilifi CMC/ELRC No. E007 of 2025 shall proceed to hearing before the trial court on its merits, with M/s Mwakireti & Asige Advocates remaining on the record for the Appellant. 35.It is so ordered. READ, SIGNED AND DELIVERED THIS 10TH DAY OF JULY 2026.OCHARO KEBIRAJUDGE