https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11469

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **COMMERCIAL & TAX DIVISION** **MILIMANI LAW COURTS** **HCCC E032 OF 2026** **JILK CONSTRUCTION COMPANY LTD......................................................PLAINTIFF** **VERSUS** **DIAGEO PLC.......................................................................................1ST DEFENDANT** **KENYA BREWERIES LTD..................................................................2ND DEFENDANT** **EAST AFRICAN BREWERIES LTD.....................................................3RD DEFENDANT** **COMPETITION AUTHORITY OF KENYA……………………......4TH DEFENDANT** **RULING** 1. This ruling determines two applications and a Preliminary Objection. 2. The plaintiff’s, **Jilk Construction Company Ltd (‘JILK’)** application dated 17.2.2026, seeking to restrain the law firm of **Mohammed Muigai LLP** from representing the 3rd defendant, **East African Breweries Ltd (‘EABL’)**. 3. The 1st defendant’s, **Diageo PLC’s** application dated 18.3.2026 seeking orders to cite JILK’s counsel for contempt. 4. And **JILK’s** preliminary objection (PO) dated 14.4.2026. 5. I will set out in summarize and consider the applications starting with Diageo’s contempt application because it has priority. **Diageo’s application dated 18.3.2026** 1. Diageo filed the notice of motion dated 18.3.2026. The application is supported by an affidavit sworn by **EABL’s** counsel, **Nancy Wagi Mathangani** on 18.3.2026 and written submissions dated 5.5.2026. 2. The gist of the application is that JILK’s counsel, Mr. Christopher Kibe Mungai’s did not hold a valid practicing certificate during the period 27.1.2026 to 10.3.2026. 3. As such, Diageo seeks a declaration that Mr. Kibe’s conduct is in contempt of court, an offence and professional misconduct as per section 31(2) (a) of the Advocates Act. 4. Diageo further seeks: - 5. appropriate orders in relation to the pleadings and documents filed by Mr. Kibe on JILK’s behalf during the period in question. 6. An order that no costs shall be recoverable by Mr. Kibe in respect of this matter prior to 11.3.2026, when he paid for his practicing certificate. 7. An order that Mr. Kibe shall personally bear costs of drawing, filing, serving the pleadings and documents prior to 11.3.2026. 8. An order that Mr. Kibe shall have no audience before this court and shall not be permitted to take any further steps until the subject costs are paid. 9. Diageo relied on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** and **Oraro v Mbaja [2005] KEHC 3182 (KLR)** to argue that JILK’s PO does not raise pure points of law as required. 10. Diageoasserted that **Mr. Kibe** cannot rely on section 34B and on **National Bank of Kenya Limited v Anaj Warehousing Limited (Petition 36 of 2014) [2015] KESC 4 KLR** as the authorities do not support the proposition that an advocate may conduct proceedings without a practicing certificate nor sanction non-compliance with section 9.It urged the court to allow its application. It submitted that the appropriate order is to expunge the documents filed during the period in question. 11. Diageo submitted that JILK has not provided evidence that it was unaware of Mr. Kibe’s non-compliance or that it would suffer prejudice that would warrant the application of section 34 B to save the documents. On this, it relied on **Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Others [2012] eKLR** 12. Diageo also relied on **Kasamani Charles Lutta & Others v Amani National Congress & Others [2017] eKLR** where the court held that such conduct amounted to professional misconduct. **Responses** 1. In support, KBL filed the replying affidavit sworn by **Nadida Rowlands** on 16.4.2026. 2. In opposition, JILK filed the PO dated 14.5.2026 and the replying affidavit sworn by **Mr. Kibe** on 15.4.2026. It also filed written submissions dated 15.4.2026 and 10.5.2026. 3. It urged the court to dismiss Diageo’s application with costs and uphold its PO. 4. The core contentions are that the application is prohibited by section 34B of the Advocates Act and that by dint of **Articles 27, 48 and 159 (2) of the Constitution** and **National Bank of Kenya v Anaj case [supra],** the prayers sought in the 1st defendant’s application cannot be granted. 5. Mr. Kibe indicated that as of late January 2026, when he applied for a 2026 practicing certificate, he faced numerous challenges including a filled-up email inbox that could not receive links and codes from LSK, issues with the newly updated system that possibly did not reflect his 2025 continuing professional development (CPD) points and inability to trace his certificate of admission. 6. Mr. Kibe stated that he eventually elected to apply for CPD’s to meet the required points requested for an update of his email address on 2.2.2026. He further indicated that after his compliance with the requisite 5 CPD points, he paid for his practicing certificate on 11.3.2026. 7. He relied on **Kasamani Charles Lutta & Others v Amani National Congress & Others [supra]** where the court cited with approval the **National Bank of Kenya Limited v Anaj Warehousing Limited** and found that instruments or documents prepared by an advocate without a practicing certificate are valid. 8. He also relied on **Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR and Mukuha v Gashwe & 14 Others [2023] KECA 1482 (KLR)** to argue that the threshold for civil contempt has not been met. **JILK’s application dated 17.2.2026** 1. **JILK** filed the notice of motion dated 17.2.2026 seeking an injunction to restrain the law firm of **Mohammed Muigai LLP** from representing the 3rd defendant, **East African Breweries Ltd (‘EABL’)**. It also seeks the expungement of all pleadings and affidavits filed by the firm on behalf of EABL from the court’s record. 2. The application is supported by the affidavits sworn by **Sammy Maina Kamau** on 17.2.2026 and 27.2.2026 and written submissions dated 27.2.2026. 3. JILK cites conflict of interest and violation of its rights under Articles 27 and 50 of the Constitution as it had engaged the law firm to represent it in the arbitral proceedings between it and KBL, EABL’s subsidiary. 4. Jilk expounded that in a letter of engagement dated 23.6.2022, the law firm accepted the appointment and on 13.7.2022, it paid a deposit of Kshs. 5,800,000/- on legal fees. 5. Jilk intimated that after about a month, during which the arbitration dispute was discussed in details by the firm and its representatives, it ceased further engagements with the law firm due to divergence as to strategy and was refunded Kshs. 5,600,000/- after a deduction of expenses and taxes. 6. Jilk therefore claimed that there is a conflict of interest due to the close connection between the subject matter of this dispute (execution of the construction project) and the relationship between KBL and EABL. **Response** 1. **Mohammed Muigai LLP** filed grounds of opposition dated 23.2.2026 and a replying affidavit sworn by its managing partner on 23.2.2026. 2. The salient point by the firm is that no basis has been laid for it to be barred from representing EABL. It highlighted that the nature of the cause of action herein against EABL relate to JILK’s claims of violation of the Constitution, the Employment Act and the Sexual Offences Act. It therefore contended that the issues in this suit are distinct and separate from the issues in the arbitration as per JILK’s letter of 15.2.2022. 3. The firm largely referenced its engagement letter to argue that there was no advocate-client relationship between it and JILK that existed beyond the letter. It asserted that the relationship ended immediately upon termination of the engagement letter and did not go into the proceedings in the reference. It pointed out that EABL was not joined as a party to the reference. It also contended that JILK has not demonstrated violation of its rights under Article 27 and 50. 4. The firm asserted that there is no conflict of interest. It contended that it is not enough for JILK to allege conflict of interest, as it has a duty to adduce evidence to support its claim. In support, it relied on **British American Investments Company (K) Limited v Njomaitha Investments Limited & Another [2014] eKLR**. 5. The firm added that the plaintiff cannot rely on ordinary circumstances but must demonstrate exceptional circumstances. 6. It relied on **Murgor & Murgor Advocates v Kenya Pipeline Co. Ltd [2021[ KLR and David Munga Kinyanjui t/a Njomuki Agencies v Gateway Insurance Company Limited & Another; MN Kamau & Company Advocates & another (interested parties) [2020] eKLR** on the principles for consideration when determining whether an advocate should be barred or disqualified from representing a party. 7. The firm relied on **Delphis Bank Ltd v Channan Singh Chatthe & 6 others [2005] eKLR and Mohan Galot & 5 others v Kenya National Capital Corporation Ltd [2016] eKLR** tosubmit that EABL has the right to be represented by advocates of its choice in this suit. 8. The firm further relied on **M’Bita Ntiro v Mbae Mwirichia & another [2018] eKLR** on the rule of evidence that he who alleges must prove. 9. The firm urged that documents filed by it on EABL’s behalf ought not to be expunged. **Analysis and Determination** **JILK’s PO** 1. A preliminary objection consists in a point of law which if successful decimates the suit. It should also not require probing of evidence to prove. **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696**. 2. The arguments presented on the PO portend factual evaluation and probing of evidence. I am not persuaded that the grounds of the PO are pure points of law capable of resolution under the remit of PO. 3. However, I will consider the grounds raised in the PO within Diageo’s application. **Diageo’s application** 1. I have read the exhibits. 2. By an email dated 24.3.2026, the LSK indicated that per **section 24 of the Advocates Act**, when a member pays for their practicing certificate between 1st February and 31st December, they are certified to practice law from the date the payment was made. 3. Mr. Kibe paid for his 2026 practicing certificate on 11.3.2026. 4. **Section 9 of the Advocates Act** states that subject to the Act, no person shall be qualified to act as an advocate unless he has in force a practicing certificate. 5. By admission and from the evidence on record, Mr. Kibe did not have in force a practicing certificate for the period between 1.1.2026 and 10.3.2026. 6. Mr. Kibe attributed the delay in obtaining the practicing certificate to the faulty LSK system following an upgrade. I have seen LSK’s update of 17.12.2025 regarding the new ERP Bespoke Integrated System and the issues that had been raised including CPD points visibility discrepancies due to legacy data structures. 7. I have also seen emails by Mr. Kibe to the effect that his email address was full and could not receive new emails, that he was unable to trace his certificate of admission and a CPD compliance certificate showing that he attended 5 CPD in February 2026. 8. The evidence points to and supports the conclusion that Mr. Kibe did not have a practicing certificate in force during the period in question. 9. Now, I turn to consider the effect of Mr. Kibe acting for JILK during the period in question. 10. Diageo urged that the appropriate order is to expunge the documents and pleadings filed during the period in question. 11. However, the Supreme Court in **National Bank of Kenya Ltd v Anaj Warehousing Ltd [supra]**stated that: - ***“…no instrument or document of conveyance becomes invalid under Section 34(1)(a) of the Advocates Act, only by dint of its having been prepared by an advocate who at the time was not holding a current practising certificate. The contrary effect is that documents prepared by other categories of unqualified persons, such as non-advocates, or advocates whose names have been struck off the roll of advocates, shall be void for all purposes.”*** 1. In view of the above holding, **Mwita J.** (as he then was) in the **Kasamani case [supra],** held that an advocate without a practicing certificate can draw and file documents but even as he does so, he commits a professional misconduct. **Amendments to the Advocates Act** 1. After the Supreme Court’s decision in the **NBK case**, the National Assembly amended the Advocates Act through the **Statute Miscellaneous Act No. 11 of 2017**. 2. **Section 34B** which was introduced provides in part that: - ***“nothing shall affect the validity of any legal document drawn or prepared by an advocate without a valid practicing certificate.”*** 1. It further provides that for purposes of the section, **“legal document” includes pleadings, affidavits, depositions, applications, deed, and other related documents, filed in any registry under any law requiring filing by an advocate.** 2. Therefore, Diageo’s prayer seeking to expunge the documents and pleadings filed by Mr. Kibe during the period he did not have a practicing certificate runs afoul of the law and is not merited. 3. However, I am inclined to order that Mr. Kibe is not entitled to costs and no costs shall be recoverable by him in respect of this matter 1.1.2026 to 10.3.2026, when he did not have a practicing certificate. 4. I agree with Diageo’s argument that the advocate is obligated to ensure that he procures his practicing certificate in a timely manner. 5. In the upshot, Diageo’s application is partially successful to the extent that Mr. Kibe will not be entitled to any costs in respect of anything done by him during the period 1.1.2026 to 10.3.2026. Any prayer not specifically granted is deemed to be denied. **JILK’s application** 1. Through its application, JILK seeks an order to bar Mohammed Muigai LLP from representing EABL. 2. It is established that parties have the right to choose counsel to represent them. 3. The guiding principles for determining whether to bar an advocate to represent a party were underscored in **Murgor & Murgor Advocates v Kenya Pipeline Co. Ltd [supra].** 4. They include the need to protect the interests of administration of justice, in contentious matters or where there was an advocate-client relationship, it is desirable that when the principle of confidentiality in an Advocate/Client fiduciary relationship will be prejudiced or where there is a possibility of real conflict of interest, then an Advocate sought to be disqualified and ceases to appear in the matter. 5. JILK’s application is anchored on conflict of interest caused by its earlier engagement of the law firm of Mohammed Muigai LLP to represent it in the arbitral proceedings between it and KBL. It argued that based on the conflict of interest, its rights under article 27 and 50 would be violated. It asserted that the law firm agreed to avoid conflict of interest. It also alluded to the question of confidentiality as the arbitral dispute was discussed between the firm’s and its representatives. 6. On the other hand, the law firm contended that while JILK has alleged conflict of interest, it has not discharged its duty to adduce evidence to support its claim. It also contended that there were no exceptional circumstances. 7. ‘Where a party asserts that conflict of interest exists, he must provide sufficient evidence to demonstrate that such conflict of interest indeed exists.’ **British-American Investments Company (K) Limited v Njomaitha Investments Limited & another [supra]** 8. From reading of the respective affidavits, it is not in contest that **JILK** had engaged **Mohammed Muigai LLP** to represent it in the arbitral proceedings. 9. The firm’s managing partner, **Mr. Geoffrey Imende** was firm that he only met JILK’s director, **Eng. Kamau** once on 22.6.2022. He stated that he had other interactions with him via phone and email. He stated that he could not recall receiving any pleadings relating to the arbitration. He also could not recall having strategy discussions with **Eng. Kamau** or receiving confidential information that would be relevant to these proceedings. 10. Conversely, Eng. Kamau stated that met with Mr. Imende at least thrice. He stated that he discussed details of the arbitration case, based on the same facts and evidence as this suit. He also stated that he furnished the law firm with the pleadings. 11. Eng. Kamau produced emails dated 23 and 25th June 2022 relating to the letter of engagement. 12. However, he did not produce evidence that the pleadings were forwarded to the law firm. 13. There is no general rule that an advocate cannot act for one party in a matter and then act for the opposite party in subsequent litigation. Each case is determined on its own facts.The test which has been laid down is **‘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”.*Rakusen v Ellis, Munday & Clarke* [1912] CH 831, Delphis Bank Ltd v Channan Singh Chatthe & 6 others [2005] KECA 297 (KLR),** **Re – A Firm of Solicitors [1992] 1 A 11 E.R 353,** **and Supasave Retail Ltd v. Coward Chance and others [1991] 1 All ER 668.** 14. The onus is on the applicant to show real mischief or real prejudice will occur to them as former clients and that conflict of interest exists. 15. It was claimed that EABL and KBL has a relationship. **Mohammed Muigai LLP** stated that these are two separate entities. Despite the claim of a relationship between EABL and KBL, it was not tied to any prejudice that may occur to the applicant if EABL is represented in these proceedings by **Mohammed Muigai LLP**. There was also not succinct material on which the court may rightly anticipate any or real mischief or serious risk that the said advocates may be in breach of their fiduciary obligations. Even where there was a solid advocate-client relationship, this test is critical that the applicant must show that it will be difficult for the advocates to devote skills and judgment to the interest of one client without making use of the confidence and knowledge of the other client’s affairs. The latter risk is what Prof. Githu Muigai emphasized in his submissions. 16. From the record, I am not persuaded that JILK has made out a case to bar **Mohammed Muigai LLP** from representing EABL. **Conclusion and orders** 1. In conclusion: - 2. **JILK’s PO dated 14.4.2026 does not meet the threshold of a PO.** 3. **Diageo’s application dated 18.3.2026 is partially successful to the extent that Mr. Kibe will not be entitled to any costs in respect of anything done by him during the period 1.1.2026 to 10.3.2026. No orders as to costs.** 4. **JILK’s application dated 17.2.2026 is dismissed for want of merit with no order as to costs given the nature of the application.** **Dated, signed and delivered at Nairobi through Microsoft Teams online application this 16th day of July, 2026** **------------** **F. Gikonyo M** **Judge** **In the presence of: -** Kibe/Sylvia for Plaintiff Ms Mathagani for Regeru for 1st defendant Ms Wambui for Prof. Githu for 3rd defendant Karori/Ms. Odari/Ms Weru for 4th defendant CA- Ivan/Aggrey