https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3400

Rosa v Koriko & 3 others (Environment and Land Case 4 of 2021) [2026] KEELC 3400 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEELC 3400 (KLR) Republic of Kenya In the Environment and Land Court at Kilgoris Environment and Land Case 4 of 2021 MN Mwanyale, J June 8, 2026 (FORMERLY KISII HCC 171 OF 2011 & NAROK ELC CASE NO. 293 OF 2017) Between Everline Rosa Plaintiff and Catherine Koriko 1st Defendant Benja Koriko 2nd Defendant Daniel Koriko 3rd Defendant Felix Koriko 4th Defendant Ruling 1.The application dated 29.05.2026 coming up for Ruling seeks two substantive prayers, to wit,(i)The firm of Mireri and Co. Advocates be and is hereby disqualified from representing the Defendant/Applicant in the matter herein.(ii)The Notice of Motion dated 28.04.2026 be struck out forthwith having been drawn by counsel who acted for the Plaintiff/Respondent in the instant suit contrary to principles of confidentiality. 2.In view of the pendency of the substantive application dated 28.04.2026 coming up for interpartes hearing on 10.06.2026 and filed by the said Ms. W. Mireri Advocate, the court directed this application be served the said Advocate and the Resopondents and come up for directions on 04.06.2026, whereat Ms. Kithinji learned counsel appeared for the Respondents in the matter, having filed a notice of change from the firm of W. Mireri Advocates and stated that as Miss Mireri was no longer on record, thus the application had been overtaken by events. 3.On her part Miss Ochwal learned counsel for the Applicant, stated that since the application dated 28.04.2026 is a post judgment application, Ms. Kithinji ought to have obtained consent from the previous counsel and as Ms. Mireri’s involvement in the matter was challenged having acted previously for the Applicant herein, the matter was not overtaken by events. 4.As there was no response filed in respect of the present application, though service was confirmed, the court reserved its ruling for today and the issues arising isi.whether or not the application is merited?ii.What reliefs ought to issue. Analysis and Determination 5.There is no response to the application hence the depositions therein remain unchallenged, Ms. Mireri Advocate is said to have acted for the Applicant herein and that having opted to act for the Applicant previously, she came in possession of confidential information of Advocate-Client in nature and she cannot chose to represent the Defendant/Respondents in the same matter. 6.The court notes that there is a judgment/decree in this matter and the application herein is a post judgment application. 7.The court did not consider any submissions from either party, mostly because the Respondent did not file any response, to the application. 8.Even though the matter was concluded, and what is pending is a post judgment application, having acted for one party in this matter previously, Ms. Mireri cannot now represent the other party in the same matter, and I think its in realisation of this, that a Notice of change of Advocate was filed by the firm of G.P Mwangi Kithinji Advocates in place of Ms. W. Mireri Advocates, hence making prayer 1 of the application to be overtaken by events, but the other substantive prayer seeking to strike out the application dated 28.04.2026 is still live. 9.Having not filed a Response to the application, it follows and must be deemed that Ms. Mireri Advocate was under a retainer by the Plaintiff/Applicant, thus the general principle as established in King Woolen Mills Ltd Vs. Kaplan Stratton Advocates 1993 comes into play. The court held as follows inn that matter,“Once a retainer is established, then the general principle is that an advocate should not accept instructions to act for two or more clients when there is a conflict of interests between those clients….” 10.The court thus, finds that the Notice of Motion dated 28.04.2026 having been filed by Messrs W. Mireri Advocate poses a potential conflict of interest by the said Advocate and the same is hereby struck out. The Respondents in the application are at liberty to pursue the services of another counsel other than Ms. Mireri, and file the application afresh. 11.There shall be no orders as to costs. DATED AT KILGORIS THIS 8TH DAY OF JUNE 2026HON. M.N. MWANYALEJUDGEIn the presence ofCA – Sylvia/ClaraMs. Kithinji for RespondentMr. Langat for Applicant.