[2004] KEHC 1943 (KLR)
The court found that Bowyer Mahihu & Co. Advocates acted for both the plaintiff and the defendant in the transaction (the charge) that is the subject of the dispute. Allowing the firm to represent the plaintiff would likely prejudice the defendant, as the firm may possess confidential information from both parties....
Source-derived case information.
- Citation
- [2004] KEHC 1943 (KLR)
- Parties
- Plaintiff: East African Building Society; Defendant: Muriuki Mburu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 442 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application for Disqualification of Advocate
- Outcome
- Application granted with costs.
- Legal Topics
- Advocate Conflict of Interest, Disqualification of Counsel, Professional Ethics, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
East African Building Society
Plaintiff
Muriuki Mburu
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Disqualification of Advocate
Legal Issues
- 1 Whether Bowyer Mahihu & Co. Advocates should be disqualified from acting for the plaintiff due to conflict of interest.
- 2 Whether the firm acted for both parties in the transaction forming the basis of the suit.
Ratio Decidendi
The court found that Bowyer Mahihu & Co. Advocates acted for both the plaintiff and the defendant in the transaction (the charge) that is the subject of the dispute. Allowing the firm to represent the plaintiff would likely prejudice the defendant, as the firm may possess confidential information from both parties. There is also a risk that the firm could be called as a witness, leading to confusion and further prejudice. To maintain fairness and avoid any appearance of impropriety, the court granted the application to disqualify the firm from acting for the plaintiff in this matter.
Court Disposition
Application granted with costs.
Orders
- Bowyer Mahihu & Co. Advocates are disqualified from acting for the plaintiff in this suit.
- Plaintiff to appoint other advocates to represent it.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO.442 OF 2002
EAST AFRICAN BUILDING SOCIETY ……………………. PLAINTIFF
VERSUS
MURIUKI MBURU ……….……………………………….. DEFENDANT
R U L I N G
Falling to be determined is the defendant’s application dated 28/11/03. It was brought under SS 3A, 6 CPA for two main prayers plus costs. However, during the arguments Mr. Mogaka put forth only costs for this application but principally posited that:
a) The firm of Bowyer Mahihu & Co. Advocates be disqualified from acting for the plaintiff here.
It was stressed, and not rebutted by a replying affidavit, that M/s Bowyer Mahihu Co. Advocates did act for the plaintiff as well as the defendant on a certain charge – now the basis of this suit. That indeed one Sally Muchoki of that firm of advocates did not only draft the charge (dated 12. 3.97) but that she witnessed it too, as the defendant signed his part and the plaintiff appended its seal. Reference was made to a certain case, which Mr. Odhiambo for the plaintiff brings out below.
Mr. Odhiambo referred to a certain suit HCCC 405”B”/2001 between these two same parties. It must have concerned itself with the charge here, but that in that case the present applicant did not object to m/S Bowyer Mahihu & Co. Advocates representing the present plaintiff there. That in the deal leading to the charge, now in issue here, M/s Bowyer Mahihu only acted for the present plaintiff. It was not disclosed even from the Bar as Mr. Odhiambo argued the grounds of opposition only as who acted for the defendant in that deal. But it was maintained that the plaintiff’s present lawyers only acted for it as regards preparation and lodgment of the charge and no more.
The court is satisfied that from presentations made and without proper or clear refutation the plaintiff’s lawyer here M/S Bowyer Mahihu & Co. Advocate acted for both litigants here in the deal that produced the charge which is the centre of dispute here. If that firm is allowed to act for one of the parties there in this dispute, the other is bound to suffer prejudice particularly if it appears as it does that the lawyers might or will use the information, material etc given to them by both litigants for the benefit of one. Who knows the defendant may decide to call M/s Bowyer Mahihu & Co. Advocate as witnesses. Then more confusion, embarrassment and prejudice will accrue. To avoid that may the plaintiff have other lawyers representing it here.
The prayer sought is granted with costs.
Delivered on 17th March 2004.
J.W. MWERA
JUDGE