https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4216

Faraj v Suleiman (Environment and Land Case E006 of 2025) [2026] KEELC 4216 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4216 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case E006 of 2025 A Ombwayo, J July 2, 2026 Between Feisal Hamdan Faraj Plaintiff and Kassim Suleiman Defendant Ruling Introduction 1.Kassim Suleiman (hereinafter referred to as the defendant) has come to this court by way of Notice of Motion seeking orders that the firm of M/S Stephen Oddiaga & Company Advocates, its Partners and or Associates be removed and or disqualified from representing Feisal Hamdan Farau (hereinafter referred to as the plaintiff) . That the costs of this application be provided for. The application is based on based on the grounds that the firm of M/S Stephen Oddiaga & Company Advocates drew documents in respect of the purchase, sale and transfer of Land Title Number Mombasa/Block XVI/ 1525 and 1526 and its partners attested signatures in the said documents which the Plaintiff relies on in this case. 2.The said firm drew the agreement for sale dated 2nd December, 2024 and the partner in the said firm attested the signature of Abdulkayun Ali Mohamed Ramzan who died on 30th September, 2024. 3.The Defendant shall require Stephen Oddiaga Advocate to attend Court to testify and be cross-examined on documents his firm drew. It is therefore untenable for the said firm to represent or continue to represent the Plaintiff when it is apparent that its partner will be required to attend court as a witness to give evidence. It is in the interest of justice that this application be allowed. 4.The Defendant herein states in the supporting affidavit that the Plaintiff has sued him in respect of his two houses on plot number Mombasa/ Block XVI/ and that from the Plaintiff's list of documents it is apparent that the firm of Stephen Oddiaga & Company Advocates was involved in the procurement of titles number Mombasa/Block XVI/ 1525 and 1526 apparently emanating from Mombasa/Block XVI/ 24 registered in the name of Issa Abdalla Yusuf and Asatbai Issa Abdalla Yusuf. 5.According to the defendant, the said firm drew instruments for the transfer of Land Title Number Mombasa/Block XVI/ 24 from Issa Abdalla Yusuf and Asatbai Issa Abdalla Yusuf to Abdulkayum Ali Mohamed Ramzan and from Abdulkayum Ali Mohamed Ramzan to Feisal Hamdan Faraj, the Plaintiff herein. The defendant states furthe that the Plaintiff has in its list of documents attached an agreement of sale dated 2nd December, 2024 drawn by M/S Stephen Oddiaga & Company Advocates between him and Abdulkayum Ali Mohamed Ramzan for the sale of Land Title Number Mombasa/Block XVI/ 1525 and the signatures on the said agreement have been attested by Stephen Oddiaga Advocate. He knew Abdulkayum Ali Mohamed Ramzan because, like him, he also had a house on land title number Mombasa/Block XVI/ 24 but relocated to Canada. 6.He states 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 signatures on the said documents that he attested. That the said firm's representation or continued representation of the Plaintiff in the suit herein is untenable and prohibited under Rule 9 of the Advocates (Practice) Rules. The said firm ought to be ordered to cease acting for the Plaintiff so that its partner can attend court as a witness to give evidence in respect of documents relating to the 6 suit herein drawn by the said firm. 7.In reply, the plaintiff states that the transaction was done by the firm of Stephen Oddiaga & Company, and this was on his instructions after confirming from Mr. Abdulkayum Ali Mohamed Ramzan the said Advocate was his lawyer of a long time and that he does not have a problem with the said Advocate. That he did due diligence about the property, inspected the title and confirmed that it was genuine and decided to proceed with the purchase. That he made a decision to buy the Plot subject matter of this suit on his own decision and was not misled, coached and or directed on what to do. 8.The process of signing the sale agreement and transfer by both of us was done sometime in April 2024 and that agreement was only dated by the Advocate when he went to collect his copy after finalizing the final payment sometime in December 2024. He believes that the Applicant is not being honest on her averment since he wants to block him from being represented by an advocate of his choice. 9.The defendant has inquired from Mr. Stephen Oddiaga Advocate if he has been listed as witness by the Applicant but he has denied being a witness. The Applicant is on a fishing mission instead of preparing for the hearing where after his case, he will have an obligation to present his adverse possession suit on his own. 10.The Applicant is on the plaintiffs Plot and has no title and it is surprising that he want to call the plaintiffs advocate to assist him litigate his case for adverse possession a suit which must be heard together with his suit. 11.The Applicant does not only want his advocate to be disqualified from acting for him but also any other advocate from his advocates firm something he finds not only strange but mischievous and aimed at blocking his Advocate to take unfair advantage of me. He believes that nothing has been demonstrated herein to allow the Court to disqualify his advocate, his partners and or Advocates from the firm on record and urges the Court to reject this application. Rival Submissions 12.The Defendant/Applicant submits that from the documents filed by the Plaintiff in support of the case, it is clear that all transaction documents relating to the suit property were drawn by the firm of Stephen Oddiaga & Company Advocates and signatures attested by Stephen Oddiaga Advocate. The Defendant has specifically averred that the firm of Stephen Oddiaga was involved in the procurement of title number Mombasa/Block XVI/1525, 1526 and 1531 apparently emanating from Mombasa/Block XVI/24 registered in the name of Issa Abdalla Yusuf and Asatbai Issa Abdalla Yusuf. 13.Rule 9 of the Advocates (Practice) Rules provides that:-“No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear:Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears.” 14.The said 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. 15He cites the case of Jefferson Mwendwa Muthama & Anor v the Hon Attorney General and Others, the court held at paragraph 10 and 11 that:-“….it is apparent that an advocate may be barred from appearing or continuing to appear for a litigant on a particular matter if his presence in the matter could endanger confidentiality of advocate/client fiduciary relationship, or where the advocate could be called as a witness in the matter, either by one of the parties or by the court on its own motion. For the court to determine if indeed there is a likelihood of breach of advocate/client confidentiality if an advocate continues acting for one of the parties, or if the advocate is a potential witness in a matter, the court has to look at the matter in a wholistic manner. Indeed, it is only after examining the pleadings that the court is able to determine the likelihood of an advocate appearing in a matter as a witness, or even as a potential party in the suit” (emphasis supplied). The assertion by the Plaintiff in his replying affidavit that his advocate has acted correctly and professionally misses the point. The question is whether it is apparent that the advocate may be called as a witness in the case. Whereas, as asserted by the Plaintiff, that he has a right to choose his advocate, the said right is not absolute, and in a proper case, like this one, the same can be fettered. 16.He cites the case of Francis Mugo and 22 other v James Bress Muthee & Others, the Court while dealing with a similar issue, expressed itself thus:-“While I agree that the choice of counsel is a prerogative of a party to a suit, it must be borne in mind that in the discharge of his office, an advocate has a duty to his client, a duty to his opponent, a duty to the court, a duty to himself and a duty to the state as was well put by Richard Du Cann in “THE ART OF THE ADVOCATE.” As an officer of the court, he owes allegiance to a cause that is higher than serving the interests of his client and that is to the cause of justice and truth” (emphasis supplied). 17.The cause of justice and truth requires that the firm of Stephen Oddiaga & Company Advocates be barred from representing the Plaintiff to enable the partner in the said firm to attend court and give evidence on matters he personally dealt with which have resulted in the dispute herein. 18.The Plaintiff's/Respondent submits that it is trite law that an Advocate cannot represent a party if a conflict of interest exists. This conflict can only arise if there is a former or previous Advocate-client relationship with the opposite party. The Defendant/Applicant can only bar the Advocate if he can show that the Advocate had previously handled this matter on his behalf and had received confidential information relevant to the case from him which would lead to prejudice to him and his case. The Court should also be satisfied that a real mischief is anticipated and a real prejudice will likely arise from the continued representation by the Advocate which will injure his case. The Applicant claims that the Advocate prepared the Agreement and he is likely to be called as a witness by the Defendant. 19.This application is purely speculative for reason that the Advocate has not been alerted and requested to be a witness by the Applicant and no letter is annexed to the Affidavit requesting the Advocate to write a statement and be a witness, his name does not appear in the list of witnesses filed in court such that the claim that the Advocate will be called as a witness for the Applicant or any party is purely conjectural and theoretical at this stage. 20.Disqualification of an Advocate who is acting for a party, in a land matter for that, should not be granted on such flimsy and frail grounds. Supposing the Applicants wish to claim that the person who sold the land to the Plaintiff was not there these are questions to be put to the Plaintiff at cross-examination for him to explain and not the Advocate. The case always belong to the party in the suit. The Advocate, his partner and or associate are not party to this suit. The Plaintiff will definitely be in a position to answer all the questions including the one in relation to agreement and how he acquired ownership of the land. 21.The Applicant has also filed a suit where she intends to acquire the suit property by Adverse Possession. He has gone for this mode of claim against the Plaintiff because she believes that he owns the land and that she is just squatting. This is an admission that the suit land belongs to the Plaintiff and she now wants to dislodge him using the maxim nec vi nec clam, nec precario. He cannot turn around against this Admission of Plaintiff's ownership and start questioning his title. The Plaintiff's Advocate cannot assist them in defending the Plaintiff's suit neither can he assist them in their Adverse Possession case. 22.The plaintiff cites rule 9 of the Advocates Act which states as follows;Rule 9(1)No advocate may coach or permit the coaching of any witness in the evidence he will or may give before any court, tribunal or arbitrator.(2)No advocate may call to give evidence before any court, tribunal or arbitrator a witness whom he knows to have been coached in the evidence he is to give without first informing the court, tribunal or arbitrator of the full circumstances. 23.This rule talks about coaching of a witness. There has not been any evidence that the firm has coached a witness or any witness for that matter therefore there is absolutely no basis for this Application which in our considered opinion and with due respect is a fishing expedition by the Defendant/Applicant. 24.The respondent relies on the case of Ubhi Ripthuman Sing –vs- Hon. Dr. Alfred Mutua & 2 Others where the court agreed with the opinion in the case of Murgor & Murgor Advocates –v- Kenya Pipeline Co. Ltd.(2021) eKLR had this to say,“................................ii.Disqualification of an Advocate is only desirable in contentious matters and where there is or was an Advocate-Client relationship;iii.It must be apparent that the Advocate sought to be disqualified will be required as a witness to give evidence in the matter;iv.It is desirable that when the principle of confidentiality in an Advocate/Client fiduciary relationship will be prejudiced or where is a possibility of real conflict of interest, then an Advocate sought to be disqualified ceases to appear in the matter;v.The fact that an Advocate acted for a litigant does not, per se, lead to a situation of conflict of interest;vi.Conflict of interest is an issue of fact which must be proved by way of evidence and;vii.It is not a requirement that in a situation where a firm of Advocates acted for the opposite party all the Advocates in the firm be disqualified from the matter. In such an instance, only the Advocates who are in possession of confidential information relevant to the matters in issue before Court or Tribunal may be called upon to cease from appearing in the matter”. 25.The above are the required conditions for an Advocate to be disqualified to act in a matter for a client. 26.In another referred case in Delphis Bank Limited –v- Channan Singh Chattbe & 6(supra) eKLR the Court says as follows;“……there is no general rule that an advocate cannot act for one party in a matter and then act for the opposite party in a subsequent litigation. The rest which has been laid down in authorities applied by the Court of Appeal is whether real mischief or real prejudice will in all human probability result….”. 27.The Court after being guided by the above cases stated as follows;“On perusal of the plaint, it is evident that there is no dispute as to whether or not the 1st Defendant executed the Share Purchase Agreement and Form of transfer. Further, the Plaintiff has not alleged that he is a former client of the law firm of B.M. Musau & Company Advocates LLP. The 1st Defendant has not demonstrated what prejudice he will suffer in the event that the said law firm continues representing the 1st defendant in this suit. I am therefore not persuaded that by virtue of witnessing the 1st defendant's signatures on the Share Purchase Agreement and Form of transfer, there arises a conflict of interest by the 1st defendant being represented by the law firm of B.M. Musau & Company Advocates LLP and more specifically, Dr. B.M. Musau Advocate. In view of the foregoing, I find that the Plaintiff has not discharged his burden of proof”. 28.It is clear that the party wants to block the Advocate from acting for a party for selfish reasons and the plaintiff urges the court to disallow the mischievous attempt by the applicant. 29.The defendant submits that from the documents filed by the Plaintiff in support of the case, it is clear that all transaction documents relating to the suit property were drawn by the firm of Stephen Oddiaga & Company Advocates and signatures thereon attested by Stephen Oddiaga Advocate. The said firm and Advocate represent the Plaintiff herein. Analysis and Determination 30.Rule 9 of the Advocates Practice Rules under the Advocates Act, Chapter 16 of the Laws of Kenya provides as follows[[No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear:Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears.]]Three things stand out in this rule – (emphasis is mine). 31.Firstly the Rule uses the word “may” which in my view is not a complete prohibition or bar for an advocate to act for a client. Any narrow interpretation will open the floodgates for abuse of the Rule by opportunistic litigants. Had the Rules Committee thought otherwise they could have used the word “Shall” which would have created a complete bar to representation. 32.Secondly, the Rule also uses the words “ … in which he has reason to believe …”. This therefore means that the advocate being instructed must have thought about the case and reflected upon it before accepting instructions either to prosecute and/ or defend the suit. When taking instructions, it is to be assumed that the parties to the action would have been disclosed to the advocate as also the subject matter. At that stage of disclosure it is expected that the advocate would elect whether to take or accept instructions. An application for the advocate to recuse made thereafter by the opposing camp should not be handled casually by the Court. 33.Thirdly, the Rule further uses the words “…while appearing in any matter, it becomes apparent …”. The Rule seems to have made provision for instances where Counsel may discover much later, or probably through oversight, that he may be required to testify in a matter or circumstances change during the proceedings drawing focus on Counsel, then in such instances Counsel may be required to cease acting. Each case should however be decided on their own merits and their own peculiar facts. 34.The Court ought to interrogate further to determine whether the aggrieved applicant’s application has merit or it is just being made -1.to derail the proceedings one way or the other,2.to defeat justice3.to deliberately deprive the opponent of the services of an advocate of their choice or in other words is a technical maneuver by the applicant to disqualify the opposing party’s advocate from representing that party.4.to settle personal scores5.With the aim of abusing the Judicial system or is an opportunistic abuse of Rule 9 by the applicant 35.If a party were allowed to take advantage of the Rules to make such applications without laying a proper basis it would amount to a mockery of the Judicial system. Such abuse of the Court process should be frowned upon and discouraged 36.This is not the first time an application of this nature is being made. In Nairobi HCCC No. 570 of 2011 ( Milimani), British – American Investments Co. (K) Ltd -vs.- Njomaitha Investments Ltd & Another, The Honourable Court in this case referred to several decisions namely;In the case of HCCC No 452 of 2007 Sunrise Properties Limited vs National Industrial Credit Bank & 2 Others (unreported), the court dismissed an application asking a firm of advocates to disqualify itself on the ground that the applicant therein did not show there was any advocate/client relationship between it and that firm of advocates or establish circumstances justifying reasonable apprehension of likelihood of bias.Where a party asserts that conflict of interest exists, he must provide sufficient evidence to demonstrate that such conflict of interest indeed exists. It is incumbent upon such party wishing to disqualify an advocate or a firm of advocates from acting for a particular party to show that it has suffered or will suffer prejudice if such an advocate or firm of advocates continues to so act for that party. Mere suspicion, apprehension of a possible conflict of interest or fear of prejudice cannot be a basis to stop an advocate from acting on behalf of a party. Every party has a right to be represented by counsel of his choice. In other words, he is entitled to his own choice of legal representation as was with the Plaintiff herein. The applicant has failed to demonstrate that there exist any conflict of interest on the part of the advocate for the plaintiff. The court would therefore be very hesitant to come to the conclusion that M/S Stephen Oddiaga and co advocates ought to be disqualified from acting in this matter on behalf of the Plaintiff herein.In Eldoret E&L Case No. 21 of 2017, Serve in Love Africa (Sila) Trust -vs.- David Kipsang Kipyego & 2 Others and Ambrose Kiprop & 4 Others, I cited the Court of Appeal in Rakusen vs. Ellis Munday and Clarke (1912) 1 Ch. 831 (1911 -1913) ALL ER Rep 813…where Cozens-Hardy MR laid down the test as being that a court must be satisfied that real mischief and real prejudice will, in all human probability, result if the solicitor is allowed to act…..As a general rule, the court will not interfere unless there be a case where mischief is rightly anticipated." 37.I further cited other decisions as well, as where O’Kubasu, JA in William Audi Odode & Another-vs- John Yier & Another, Court of Appeal Civil Application No. NAI 360 of 2004 (KSM33/04) while declining to bar an advocate from acting for some of the parties in the matter, made his ruling as follows;[[I must state on (sic) the outset that it is not the business of the courts to tell litigants which advocate should and should not act in a particular matter. Indeed, each party to a litigation has the right to choose his or her own advocate and unless it is shown to a court of law that the interests of justice would not be served if a particular advocate were allowed to act in the matter, the parties must be allowed to choose their own counsel.]] 38.I held as follows:-I believe that the right to legal representation by counsel of one’s choice in civil matters is implicit in the constitutional provisions with regard to access to justice, particularly Articles 48, 50 (1) and 159(2) (a) of the Constitution, and it is only in exceptional circumstances that this right should be taken away’ 39.Honourable Mr. Justice Gikonyo in the case of Dorothy Seyanoi Moschioni v. Andrew Stuart & another (2014) e KLR, stated;[[12] I will not re-invent the wheel. All the cases which have been quoted by counsels are relevant. I will not multiply them too. What I need to state is that, in applications for disqualification of a legal counsel, a court of law is not to engage a cursory look at the argument that “these advocates participated in the drawing and attestation of the Deeds in dispute’’; as that kind of approach may create false feeling and dilemmas; for it looks very powerful in appearance and quite attractive that those advocates should be disqualified from acting in the proceedings. It is even more intuitively convincing when the applicant say “ I intend to call them as witnesses’’. What the court issupposed 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.]]. 40.I have looked at other Jurisdictions, such as Rule 3.7 of the Witness Rules of New York State and do find that the rules and court decisions are similar. Disqualification of counsel is no longer automatic. He who seeks to disqualify an advocate from representing any particular client and/ or party must lay a sound basis for so applying. 41.The Rule provides as follows: (Lawyer as a Witness)a.A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:1.the testimony relates solely to an uncontested issue;2.the testimony relates solely to the nature and value of legal services rendered in the matter;3.disqualification of the lawyer would work substantial hardship on the client;4.the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or5.the testimony is authorized by the tribunal.b.A lawyer may not act as advocate before a tribunal in a matter if:1.another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; or2.the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9. 42.The leading case construing Rule 3.7 in New York is Murray v. Metropolitan Life Ins. Co., 583 F.3d 173 (2d Cir. 2009). The Second Circuit Court explained the policies underlying the rule that forbids the same lawyer from serving simultaneously as both advocate and witness thus:[[We have identified four risks that Rule 3.7(a) is designed to alleviate: (1) the lawyer might appear to vouch for his own credibility;(2) the lawyer’s testimony might place opposing counsel in a difficult position when she has to cross-examine her lawyer-adversary and attempt to impeach his credibility; (3) some may fear that the testifying attorney is distorting the truth as a result of bias in favor of his client; and (4) when an individual assumes the role of advocate and witness both, the line between argument and evidence may be blurred, and the jury confused. These concerns matter because, if they materialize, they could undermine the integrity of the judicial process.]] 43.The Murray court also explained that these policies are much weaker in cases of “imputed” disqualification under Rule 3.7(b) and reformulated the test for imputed disqualification under the advocate-witness rule thus:[[We now hold that a law firm can be disqualified by imputation only if the movant proves by clear and convincing evidence that (1) the witness will provide testimony prejudicial to the client, and (2) the integrity of the judicial system will suffer as a result. This new formulation is consistent with our prior efforts to limit the tactical misuse of the witness- advocate rule.]] 44.Uribe Bros. Corp. v. 1840 Washington Avenue Corp. 26 Misc.3d 1235(a), 2010 WL 918432 (Bronx County Sup. Ct. 2010) as per (Dominic R. Massaro, J.) 45.In this case a commercial tenant (Uribe) sued a landlord (1840 Washington Avenue) for breach of contract and other alleged wrongs. Apparently, the landlord had failed to obtain a certificate of occupancy, so Uribe didn’t pay rent. The landlord had sued (in another case) for nonpayment of rent and for eviction, and Uribe brought this suit to settle the score. By order to show cause, the landlord sought to disqualify both Uribe’s attorney (Bernard Weintraub) and the law firm at which Weintraub was “of counsel.” The basis for the motion was that Weintraub, representing Uribe, had prepared and witnessed the original lease, and a later lease amendment now at issue. 46.The landlord argued that Weintraub was likely to be called as a “necessary witness” to testify about the “circumstances surrounding the lease agreement and the parties’ intentions involved in agreeing to the amendment.” More specifically, the landlord said that Weintraub’s “credibility” was in issue concerning the parties’ intent when they negotiated the lease and the amendment to the lease, and that Weintraub was needed to testify concerning other aspects of the negotiations, including whether the terms were translated so that defendant Pedro Hernandez could understand the agreement. Finally, mistakenly believing that the advocate-witness rule would disqualify Weintraub as a witness if he remained as an advocate, the landlord argued that allowing Weintruab to remain as Uribe’s counsel and to be unavailable to testify would cause significant prejudice to the landlord’s case. 47.Uribe countered that the landlord had made no showing as to why Weintraub’s testimony would be necessary. Uribe also said he would be severely prejudiced if the landlord could “dictate who is their attorney in this litigation.” Uribe pointed out that “when a lawyer invokes the need to call an opposing attorney as witness and then acts to disqualify the witness as counsel, such motions are subject to strict scrutiny because of the likelihood for abuse and use as a tactical device.” 48.Judge Massaro, in a well-reasoned opinion, had little difficulty denying the motion to disqualify. In determining whether to disqualify an attorney on advocate-witness grounds, the court said, it would be “guided, but not bound in discretion,” by Rule 3.7. Then Judge Massaro recognized that the advocate-witness rule lends itself to “opportunistic abuse.” Because of that potential abuse, a court “must guard against the advocate/witness rule’s tactical use to disqualify counsel, and must subject disqualification motions to strict scrutiny.” The moving party bears the burden of demonstrating specifically both (a) how and as to what issues prejudice may occur, and (b) that the likelihood that “prejudice” will occur is substantial. 49.Judge Massaro set a standard:Disqualification is appropriate only if proven by clear and convincing evidence that1.the witness will provide testimony prejudicial to the client and2.the integrity of the judicial system will suffer as a result. 50.The landlord in Uribe did not meet this burden. The essence of the question was “whether Weintraub simultaneously can function as witness and attorney, and whether the need to obtain counsel’s testimony will place defendants at a disadvantage if Weintraub continues as Plaintiffs’ counsel.” The court understood that the parties disagreed about the proper interpretation of the lease, but “the factual dispute is insufficient by itself to deprive Plaintiffs of Weintraub’s legal services,” and the factual dispute provided no grounds for disqualifying the firm. 51.The Court found for a fact that the trial was still a long way off. The court therefore stated: [[Courts often permit attorneys who are potential witnesses to represent clients throughout pretrial proceedings including discovery and dispositive proceeding before considering disqualification. At this stage of the litigation, where the pleadings are incomplete, doubt remains that attorney Weintraub in fact needs to be called as a witness. as a result, this motion can be viewed as premature …] 52.In conclusion, I do find that the bottom line is that the applicant should demonstrate the following:-1.The application by the applicant must establish circumstances justifying reasonable apprehension of likelihood of bias.2.Where a party asserts that conflict of interest exists, he must provide sufficient evidence to demonstrate that such conflict of interest indeed exists.3.A party wishing to disqualify an advocate or a firm of advocates from acting for a particular party must show that it has suffered or will suffer prejudice if such an advocate or firm of advocates continues to so act for that party.4.The Court must be alive to the fact that mere suspicion or apprehension of a possible conflict of interest or fear of prejudice cannot be a basis to stop an advocate from acting on behalf of a party.5.Every party has a right to be represented by counsel of his choice and as such applications to disqualify counsel from acting for a party should be thoroughly interrogated.6.The proper test is that a court must be satisfied that real mischief is anticipated and real prejudice will, in all human probability, result if the advocate is allowed to act for the opponent.7.If the argument on disqualification becomes feeble and inconsistent with causing real mischief and prejudice, then a disqualification of counsel should not be ordered.8.Each party to a litigation has the right to choose his or her own advocate and unless it is shown to a court of law that the interests of justice would not be served if a particular advocate were allowed to act in the matter, the parties must be allowed to choose their own counsel.9.The right to legal representation by counsel of one’s choice in civil matters is implicit in the constitutional provisions with regard to access to justice and it is only in very exceptional circumstances that this right should be taken away.10.The Court 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.11.The decision to disqualify counsel must not be oblivious of the centrality of the right to legal representation in the Constitution as the over-arching hanger.12.The decision to disqualify should not be removed from reach to the sensitive fiduciary relation between an advocate and his clients.13.The Court 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.14.The Court should also consider whether the testimony of the advocate is relevant, material or necessary to the issues in controversy.15.Consideration should be given to any other evidence that can be supplied by the parties which will serve the same purpose as the evidence by counsel sought to be disqualified.16.Ordinarily Courts often determine disqualification of advocates who are suspected to be potential witnesses during the pretrial proceedings and after discovery has been done.17.An application for disqualification of an advocate made before pre – trial would therefore be premature and without basis.18.that there was an advocate/client relationship between him and that firm of advocates he seeks to disqualify. 53.This court finds that there s no advocate client relationship between the applicant and Mr Oddiaga advocate and that the applicant has not demonstrated that he is going to call Mr Oddiaga sa a witness. The application lacks merit and is dismissed with costs. Signed by/for:HON. JUSTICE ANTONY O. OMBWAYODate: 2026-07-02