https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3264

Faraj v Mzee (Environment and Land Case E007 of 2025) [2026] KEELC 3264 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEELC 3264 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case E007 of 2025 A Ombwayo, J May 29, 2026 Between Feisaal Hamdan Faraj Plaintiff and Khadija Mzee Defendant Ruling 1.This ruling is in respect of the Defendant/Applicant’s Notice of Motion application dated 28th July, 2025 which seeks the following orders:a.That the firm of M/s Stephen Oddiaga & Company Advocates, its Partners and or Associates be removed and or disqualified from representing the Plaintiff herein.b.That the costs of this application be provided for. 2.The application is supported by the annexed affidavit of Hadija Omar Abdalla, the Defendant/Applicant, sworn on 28th July, 2025. She deponed that the Plaintiff has sued her in respect of her house on plot number Mombasa/Block XVI/24. She deponed that from the Plaintiff’s list of documents, it is apparent that the firm of Stephen Oddiaga & Company Advocates was involved in the procurement to title number Mombasa/Block XVI/1531 apparently emanating from Mombasa/Block XVI/24 registered in the name of Issa Abdalla Yusuf and Asatbai Issa Abdalla Yusuf. She deponed that the said firm drew instruments for the transfer of Land Title Number Mombasa/Block XVI/24. 3.It was the Defendant’s/Applicant’s deposition that Stephen Oddiaga Advocate will be required to attend court as a witness to give evidence in respect of the documents drawn by his firm and the signature on the said documents that he attested. She deponed that the said firm’s representation or continued representation of the Plaintiff in the suit is untenable and prohibited under Rule 9 of the Advocates (Practice) Rules. 4.Feisal Hamdan Faraj, the Plaintiff/Respondent filed a Replying Affidavit dated 4th September, 2025. She deponed that she has a right to choose an advocate to represent her and she has not called and she does not intend to call Mr. Stephen Oddiaga as her witness or at all since she is capable of presenting her case on the basis of the documents she has filed in Court. She denied the notion that any impropriety in acquiring of plot number Mombasa/Block XVI/1531.She urged the court to reject this application. 5.Hadija Omar Abdalla, the Defendant/ Applicant filed a Supplementary Affidavit sworn on 14th October, 2025. She deponed that the right of a litigant to appoint counsel of his choice is not absolute and this is one of the cases where the same has to be curtailed as representation by Stephen Oddiaga Advocate herein will be in conflict with his duty to the court and the administration of justice. Defendant’s/Applicant’s Submissions 6.Counsel for the Defendant/Applicant filed submissions dated 3rd November, 2025 and identified the following issues for determination:a.Whether the firm of Stephen Oddiaga & Company Advocates should be barred from representing the Plaintiff?b.Who should bear the costs of the application? 7.Counsel submitted that Stephen Oddiaga Advocate and or his firm cannot be an Advocate for the Plaintiff and at the same time be a witness in the case. Counsel relied on Rule 9 of the Advocates (Practice) Rules and the cases of Jefferson Mwendwa Muthama & another vs The Hon Attorney General and others and Francis Mugo and 22 others vs James Bress Muthee & others. Counsel asked the court to allow the application with costs. Plaintiff’s/Respondent’s Submissions 8.Counsel for the Plaintiff/Respondent filed submissions dated 14th November, 2025 and identified the following issues for determination:a.Whether the Applicant has demonstrated conflict of interest?b.Whether the Applicant has demonstrated that the Advocate coached a witness?c.Who should pay the costs? 9.Counsel submitted that the Applicant wants to block the Advocate from acting for a party 10.for selfish reasons and urged the court to disallow the mischievous attempt by the Applicant. Counsel relied on the cases of Murgor & Murgor Advocates vs Kenya Pipeline Co. Ltd (2021) eKLR and Delphis Bank Limited vs Channan Singh Chattbe & 6 others eKLR. Counsel urged the court to dismiss the application with costs. Analysis and Determination 11.The issue for determination is whether the firm of M/s Stephen Oddiaga & Company Advocates, its Partners and or Associates should be removed and or disqualified from representing the Plaintiff herein. 12.The Defendant/Applicant informed this court that from the Plaintiff’s list of documents, it is apparent that the firm of Stephen Oddiaga & Company Advocates was involved in the procurement to title number Mombasa/Block XVI/1531 apparently emanating from Mombasa/Block XVI/24 registered in the name of Issa Abdalla Yusuf and Asatbai Issa Abdalla Yusuf. She stated that the said firm drew instruments for the transfer of Land Title Number Mombasa/Block XVI/24. 13.It is the Defendant’s contention that Stephen Oddiaga Advocate will be required to attend court as a witness to give evidence in respect of the documents drawn by his firm and the signature on the said documents that he attested. 14.The Plaintiff/Respondent on the other hand contends she has a right to choose an advocate to represent her and she has not called and she does not intend to call Mr. Stephen Oddiaga as her witness or at all since she is capable of presenting her case on the basis of the documents she has filed in Court. 15.In the case of Delphis Bank Ltd v Channan Singh Chatthe & 6 others [2005] eKLR, the Court stated as follows;“The starting point is, of course, to reiterate that most valued constitutional right to a litigant; the right to a legal representative or advocate of his choice. In some cases, however, particularly civil, the right may be put to serious test if there is a conflict of interests which may endanger the equally hallowed principle of confidentiality in advocate/client fiduciary relationships or where the advocate would double up as a witness. There is otherwise no general rule that an advocate cannot act for one party in a matter and then act for the opposite party in subsequent litigation.” 16.In this case, there is no danger of conflict of interest as the Plaintiff has chosen and consented on the counsel to represent her. The Defendant ought not to direct the Plaintiff on how she chooses to prove her claim. This court finds that the application dated 28th July, 2025 lacks merit and is hereby dismissed with costs. THE JUDICIAR Y OF KENY AHON. JUSTICE ANTONY O. OMBWAYOMOMBASA ENVIRONMENT AND LAND COURTDATED AND DELIVERED THIS 29TH DAY OF MAY 2026 SIGNED BY/FOR:THE JUDICIARY OF KENYAHON. JUSTICE ANTONY O. OMBWAYO