https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5148

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COUR AT MILIMANI** **ELCLC NO. E011 OF 2023** **FRANCES WANJIRU GETECHA…………...........….PLAINTIFF/APPLICANT** **-VS-** **HYDRO DEVELOPERS LTD…………...........…DEFENDANT/RESPONDENT** **RULING** 1. Before this court for determination is the notice of motion dated 16th February 2026, filed by the plaintiff/applicant and it is expressed to be brought under **Article 50** of the **Constitution,** the **Advocates Practice Rules under the Advocates Act,** **Section 3A** of the **Civil Procedure Act** and **Order 51** of the **Civil Procedure Rules** seeking the following orders:- 2. ***Spent.*** 3. ***That this honourable court be pleased to disqualify the firm of Mwaniki Gachoka & Co. Advocates from representing the defendant herein.*** 4. ***That the court do issue any other orders that may meet the ends of justice.*** 5. ***That the costs of this application be provided for.*** 6. The application is premised on the grounds on its face. It is further supported by the affidavit of the plaintiff/applicant sworn on even date. She deposed that she entered into a land purchase transaction with the defendant/respondent whereby they were both represented by the firm of Mwaniki Gachoka & Co Advocates in the conveyance transaction that forms the subject matter in this suit. Further, that she was shocked when the advocates firm of Mwaniki Gachoka & Co Advocates acted against her interest and purported to refund the purchase price against her intentions and purported to have forwarded completion notice and later issued a rescission. 7. The plaintiff/applicant deposed that in her interactions with the said firm on record, they have shown total bias by swaying towards the defendant/respondent in all matters relating to the transaction hence distorting the true picture of the conveyance to her detriment. She is apprehensive that their continued acting for the defendant/respondent will perpetuate the same bias to her prejudice before the court for the reasons that the advocates delivery of the requisite notices is in question and was merely to frustrate the transaction to enable the return the purchase price having mishandled the transaction. 8. She deposed that the advocates held the purchase price of the sale without remitting to the vendor to date compromising the transaction leading to the current predicament and purported to return the same against her interest. Further, that the circumstances under which the documents and purchase price were retained are matters within the exclusive knowledge of the said firm hence potential witnesses, and that she is apprehensive that the past interactions may be used against her in favour of the defendant/respondent in view of the information they hold in their files relating to the transaction having handled the preparation of documents, received the purchase price and now the subsequent rescission which is the subject of the dispute. 9. The plaintiff/applicant contends that their representation of the defendant/respondent raises serious questions of conflict of interest and offends the advocates duty of loyalty and confidentiality, and will occasion prejudice, undermine public confidence in the administration of justice and compromise fairness of the trial. 10. In response thereto, Mohamed Tahir, the defendant/respondent’s finance manager, filed the replying affidavit sworn on 18th March, 2026. He deposed that the instant application is an afterthought; a calculated strategy designed to indefinitely delay the hearing and final determination of this matter. He highlighted that the matter has been set down for hearing on several occasions, yet the hearing has on each occasion failed to commence owing entirely to the plaintiff/applicant’s dilatory conduct. Specifically, the matter was set down for hearing on 22nd November 2023, 12th June 2024, 14th October 2024, 16th January 2025, 12th June 2025, 16th October 2025, and 18th February 2026, each adjournment, having been occasioned at the plaintiff/applicant’s instance. 11. The defendant/respondent further averred that the application was filed on the very eve of the hearing date, notwithstanding that the plaintiff/applicant has been intimately acquainted with the facts and history of this dispute and of the defendant’s representation by the firm of M/S Mwaniki Gachoka & Company Advocates not only in the present proceedings but equally in the underlying transactions giving rise to this suit. 12. In response to the application, the defendant/respondent deposed that in the material land transaction, the plaintiff/applicant upon receipt of the offer letters thereafter instructed the firm of M/s Wanjiru Mwai & Company Advocates to act on her behalf in connection with the said transaction, which instructions were communicated by way of a letter dated 20th January, 2015 annexed to his affidavit. Further, that they are aware that the firm of Mwaniki Gachoka & Company Advocates subsequently engaged and corresponded extensively with the firm of M/s Wanjiru Mwai & Company Advocates in relation to the transactions. Later on, the plaintiff/ applicant thereafter instructed Ms. Kananu Kinya Mutea Advocate to take over the conduct of the purchase transaction on her behalf in place M/s Wanjiru Mwai & Company Advocates. 13. The defendant/respondent deposed that the plaintiff/applicant was however unable to raise the full purchase price in respect of all the five parcels of land. Following further engagement between the parties, a revised arrangement was reached whereby the plaintiff/applicant proceeded to purchase only plot Nos. 254 and 283. However, no fees were paid by the plaintiff/applicant to the firm in connection with the intended acquisition of the LR. 29123/284, the suit property. Further, that the receipts and fee notes produced by the plaintiff/ applicant were not issued in relation to the suit property but were issued in relation to the earlier transactions involving Land Reference No. 2912/254 and 29123/283 which transactions were concluded. 14. Thus, the defendant/respondent’s contention is that the object of the motion is clearly to prevent it from benefiting from representation by an advocate of its choice. There exists no advocate client relationship between the plaintiff/applicant and the firm of M/s Mwaniki Gachoka & Company Advocates and the application is thus bereft of any factual or legal bona fides. 15. The application was canvassed through written submissions. The defendant/respondent filed its written submissions dated 5th June, 2026. The plaintiff/applicant did not file written submissions. Be that as it may, I have considered the application, the reply thereof and the written submissions filed. The issue for determination is *whether the firm of M/s Mwaniki Gachoka & Co. advocates ought to be disqualified from representing the defendant/respondent in these proceedings.* 16. The plaintiff/ applicant herein has raised issue in the instant application that the firm of Ms. Mwaniki Gachoka should be disqualified from acting for the defendant/respondent due to a conflict of interest. She argues that when she entered into a land purchase transaction with the defendant/respondent, which is the subject of the suit, both parties were represented by the said firm. However, she accuses the said firm of advocates of acting against her interests in the transaction and rescinding the said transaction against her wishes. She is apprehensive that since the said firm of advocates will act as a witness in the case, there lies a conflict of interest and that they be disqualified. 17. **Rule 8** 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.”*** 1. In the case of **Dorothy Seyanoi Moschioni v Andrew Stuart & another [2014] KEHC 8238 (KLR)** Gikonyo, J in a similar predicament as in this case held that:- ***“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 says ‘’ I intend to call them as witnesses’’. What the court is supposed 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……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.******In line with the above rendition, I do not think there was any possibility of real prejudice being occasioned to the applicant by representation of the 1st respondent by the said firm of advocates. And I so hold fully aware of the applicant’s desire to call them as witnesses- and I suppose only the advocate who witnessed and or drafted the agreement was to be the witness. The rules even allow such advocate to testify on matters which are not contentious”*** 1. Similarly, in the case of **Charles Gitonga Kariuki V Akuisi Farmers Co. Ltd [2007] KEHC 1059 (KLR)** the court held that:- ***“The fact that an advocate acted for a litigant does not, per se, lead to a situation of conflict of interest. The applicant was required to establish, and present to the court evidence that would persuade the court to reach a conclusion that indeed there was a possibility that a conflict of interest would arise were the advocate is allowed to act for the opposing party against such a litigant. In the present case, apart from stating that Mr. Karanja had acted for it in several matters, the defendant did not present to the court material upon which this court could make a determination that indeed there were grounds upon which this court could reach a determination that there exist a possibility of conflict of interest.”*** 1. The plaintiff/applicant has alleged that the firm of Mwaniki Gachoka & Co. Advocates acted for her as well in the land transaction for the purchase of plot nos. 254, 283, 284 and 285 on LR 29123. However, the defendant/respondent has controverted this by exhibiting letters dated 20th January, 2015, 18th February, 2015 and 12th March, 2015 annexed to their affidavit marked as “MT-1”, a letter by the firm of Wanjiru Mwai & Co. Advocates, expressly indicating that they act for the plaintiff/applicant in the said land transaction. It is therefore clear that the plaintiff/applicant had her own representation separate from the defendant during the land transaction in question. 2. Let me say this, the defendant/respondent has every right to choose their legal representation. Rule 8 does not bar advocates from giving evidence as witnesses on non-contentious matters of fact such as the drawing of a legal instrument as an agreement for sale is or a well-documented transaction such as this one. The court is thus of the view that no conflict of interest arises in the firm of Mwaniki Gachoka & Co. Advocates representing the defendant/respondent. 3. From the above, the notice of motion dated 16th February 2026 lacks merit, and it is hereby dismissed. Costs in the cause. Further mention on 3rd November, 2026 for further directions. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 4TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **04/08/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Mr. Kinyua Kariuki for the Defendant/Respondent* *Wangai Nyuthe for the Plaintiff/Applicant – absent*