[2019] KEHC 4900 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

SUCCESSION CAUSE NUMBER 640 OF 2004

IN THE MATTER OF THE ESTATE OF KARIU NYANGE (DECEASED)

RULING

1. The notice of motion before court is dated 11th February, 2019. Vide this application Hon. John Francis Wanyange Mwangi (applicant) seeks orders;

1. That Mr. Karanja Mbugua Advocate and/or the firm of M/s Karanja Mbugua & Co. Advocates be ordered to cease acting in this matter on behalf of John Wanyange Mwangi the 2nd petitioner herein.

2. That Mr. Karanja Mbugua Advocate and/or M/s Karanja Mbugua & Co. Advocates do cease in any manner conceivable from associating himself and/or itself in matters relating to this cause.

3. That Mr. Karanja Mbugua Advocate and/or M/s Karanja Mbugua & Co. Advocates be ordered to release to me and/or to the 1st, 3rd and 4th administrators the original file of papers in his possession since 2003 to-date.

4. That the costs of this application be costs in the cause.

2. The application is based on grounds;

a) That all the administrators and administratrices at their own behest and those of the beneficiaries appointed Mr. Karanja Mbugua of M/s Karanja Mbugua & Co. Advocates to act for them in this cause and Succ. Cause No. 157 of 2003 and his/its legal fees paid.

b) That the instructions were express and detailed and contained several original supportive documents.

c) That all the named beneficiaries appeared before Mr. Karanja Mbugua Advocate and executed the appropriate consent as drawn by Mr. Karanja Mbugua Advocate through his firm M/s Karanja Mbugua & Co. Advocates as contained in this petition.

d) That contrary to the express instructions as evident from the petition herein and the application for the Limited Grant (157 of 2003), Mr. Karanja Mbugua Advocate on 21st January, 2008 admitted one Ruth Nduta Isaac as a beneficiary.

e) That upon discovery of the mischief of admitting Ruth Nduta Isaac, Mr. Karanja Mbugua agreed in writing that he had made the mistake and further agreed to cease representing the petitioners/administrators/administratrices. The admission of Ruth Nduta Isaac came pursuant to an objection filed four years after the petition and Gazettement of the same.

f) That Mr. Karanja Mbugua Advocate then later took up the 2nd petitioner and using privileged information obtained from all the parties as detailed herein abandoned all and created a totally different case which is now being pushed by the 2nd petitioner.

g) That Mr. Karanja Mbugua Advocate is still in possession of the original file of papers and instructions as obtained from all parties in this petition which he is using to advance the case as differently created by the 2nd petitioner with the assistance of Mr. Karanja Mbugua Advocate. The other parties do not have even copies of most of the documents given to the Advocate.

h) That the continued participation of Mr. Karanja Mbugua Advocate in this cause in opposition to all the other parties who had appointed him is prejudicial to the interests of all the parties myself included. He is using the information obtained on the basis of Advocate/client privileged relationship to scuttle my rights and all the named beneficiaries.

i) That the applicant and the rest of the parties except the 2nd petitioner shall not get a fair hearing and a fair outcome with Mr. Karanja Mbugua Advocate on board in the circumstances.

3. It is further supported by the affidavit sworn by the applicant on 11th February, 2019.

4. The gist of the application as gleaned from the grounds and the supporting affidavit is that the legal firm of M/s Karanja Mbugua & Company Advocates and specifically Mr. Karanja Mbugua Advocate are conflicted when they appear in this matter as counsels for the 2nd administrator since the said firm and the particular advocate had received instructions from all the administrators at their behest and those of other beneficiaries to act for them in this cause and in Succession Cause Number 157 of 2003.

5. It is urged that while seized of such instructions, the said firm obtained express and detailed information based on advocate/client privileged relationship.

6. It is the applicant’s case that the continued participation of Mr. Karanja Advocate in this matter in opposition to all other parties who had earlier appointed him is prejudicial to the interests of all parties in the matter.

7. It is feared that the applicant and the rest of the parties shall not get a fair hearing and a fair outcome with Mr. Karanja Mbugua Advocate on record for the 2nd administrator.

8. It is urged that the Advocate/Client relationship aforesaid went south when the said firm of advocates went contrary to instructions and included one Ruth Nduta Isaac as a beneficiary. It is alleged that Mr. Karanja Mbugua Advocate admitted the mistake, agreed to cease acting and allowed the parties to instruct another advocate which they did by appointing Rubua Ngure & Company Advocates.

9. The firm of M/s Karanja Mbugua and Company Advocates is said to be in possession of the original file which contains original documents. The applicant has no copies of the said documents and the firm is accused of refusal to release the same to the applicant and other parties.

10. An affidavit in reply sworn by Joseph Karanja Mbugua in response to the application was vide a ruling and order of court dated 20th May, 2019 expunged from the record. In essence therefore, the application is unopposed.

11. Of determination is;

1. Whether the firm of M/s Karanja Mbugua and Company Advocates should cease acting for John Wanyange Mwangi.

2. Whether the said firm should cease from associating itself in matters relating to this cause.

3. Whether Mr. Karanja Mbugua Advocate and/or M/s Karanja Mbugua and Company Advocates should be ordered to release to the applicant and/or to the 1st, 3rd and 4th administrators the original file papers in his possession since 2003 to date.

12. It is clear from the averments, and this is not denied, that the firm of M/s Karanja Mbugua and Company Advocates and specifically Mr. Karanja Mbugua Advocate himself acted for the applicant and other beneficiaries in the initial stages of this matter.

13. It is also borne out of record that the advocate/client relationship broke down save for instructions from the 2nd administrator whom the firm of M/s Karanja Mbugua and Company Advocates continued to represent.

14. It is a fact that during the subsistence of the Advocate/Client relationship Mr. Karanja Mbugua Advocate received considerable privileged information from his clients based on Advocate/Client privilege.

15. In answering issue 1 above, the Court has, on the basis of the material before it, to determine whether the firm of M/s Karanja Mbugua and Company Advocates and specifically Mr. Karanja Mbugua Advocate is conflicted and unfit to continue acting in the matter.

16. In DELPHIS BANK LIMITED VS CHANNAN SINGH CHATTHE & 6 OTHERS [2005] eKLR the Court held as follows;

“There is otherwise no general rule that an advocate cannot act for one party in the matter and then act for the opposite party in subsequent litigation. The test which has been laid down in authorities applied by this Court is whether real mischief or real prejudice will in all human probability result.”

17. The court is thus duty bound to safe guard the interests of a party by ensuring that such a party does not suffer prejudice if such an advocate or firm of advocates continues to act in the matter. The applicant has a duty to satisfy the court that it has suffered or is likely to suffer prejudice should the advocate or firm of advocates complained of continue to act in the matter.

18. When does a conflict of interest arise in circumstances like the ones before this Court?

19. Rule 99(c) of the Advocates Code of Standards of Professional Practice and Ethical Conduct provides;

“Situations in which conflict of interest arise include;-

Where in the course of representing a client there is a risk of using wittingly or unwittingly, information obtained from a current or former client to the disadvantage of that other client or former client.”

20. In our instant suit, there is no disputing that there was joint retention of the advocate by the parties herein. Indeed the parties were on the same side until they parted ways. Secondly, I am satisfied that confidential information was shared freely between advocate and client. The danger that such information could be now used to the prejudice of the applicant is real.

21. I fully concur with Makau J who in NJAMA WAMBUGU VS SPACE AND STYLE LIMITED [2018] eKLR stated;

“In the instant matter, the plaintiff has sufficiently demonstrated existence of a retainer between the plaintiff, 2nd defendant and the Advocates and the Advocates should not have agreed to act for any of the parties herein, thus the plaintiff and the 2nd defendant due to conflict of interest between the two clients.

Further I find that the Advocate had confidential information which may be used in representing the 2nd defendant as against the plaintiff wittingly or unwittingly to the disadvantages of the plaintiff or former client or to the advantages of the other client.

There is real mischief or real prejudice against the applicant which in all human likelihood may occur…..”

22. I am satisfied that the applicant has demonstrated through sufficient evidence that a conflict of interest indeed exists and I sum it up with the words of Muchelule J in RE ESTATE OF WILLIAM KIMUTAI MARTIN (DECEASED) [2018] eKLR where he stated;

“Secondly having acted for all the beneficiaries of the estate, and specifically for the applicant during administration of the estate of her deceased husband Ian Kipkoech Martin who was an executor of the Will dated 20th July 2011, Mr. Munyororo again is conflicted in the present suit where he now acts against his former client the applicant.”

23. Issue number 2 above is tied to issue 1 and the same is resolved by the findings in issue 1 above.

24. As regards issue number 3 on whether the firm should be ordered to release to the applicant and or 1st, 3rd & 4th administrators the original file papers in his possession since 2003 to date, I find this prayer amorphous, uncertain and lacking in specifics of the documents complained of. The Court cannot possibly order the release of unascertained documents.

25. It is noted that the applicant has lodged a complaint with the advocates complaints commission against the advocate. Perhaps he should use this avenue to seek redress on this and any other outstanding issues against the firm/advocate.

26. With the result that the application herein is partially successful. I allow the same in terms of prayers 1 & 2. Each party to bear its own costs.

Dated and Signed at Nakuru this 11th day of July, 2019.

A. K. NDUNG’U

JUDGE