[2018] KEELC 801 (KLR)
The court found that the applicant failed to establish a conflict of interest because the two entities—Kabuki Company Limited and Kabuki Women Group—are distinct, with different legal personalities and registration histories. There was no evidence that Nyairo & Company Advocates had acted for the current plaintiff...
Source-derived case information.
- Citation
- [2018] KEELC 801 (KLR)
- Parties
- Applicant: Kabuki Women Group (suing through its officials: Cecilia Nalanya, Janet Malamba, Fatuma Munyendo); Respondent: Elizabeth Weya Mwaura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case48 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Disqualification of Advocate
- Outcome
- application dismissed with costs to the defendant
- Legal Topics
- Conflict of Interest, Advocate Disqualification, Advocate Client Confidentiality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kabuki Women Group (suing through its officials: Cecilia Nalanya, Janet Malamba, Fatuma Munyendo)
Applicant
Elizabeth Weya Mwaura
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Disqualification of Advocate
Legal Issues
- 1 Whether the firm of Nyairo & Company Advocates should be disqualified from acting for the defendant due to alleged conflict of interest.
- 2 Whether there exists advocate/client confidentiality between the plaintiff and the said firm that would prejudice the plaintiff if the firm acts for the defendant.
Ratio Decidendi
The court found that the applicant failed to establish a conflict of interest because the two entities—Kabuki Company Limited and Kabuki Women Group—are distinct, with different legal personalities and registration histories. There was no evidence that Nyairo & Company Advocates had acted for the current plaintiff or that confidential information relevant to the present proceedings was at risk. The court further held that the applicant did not demonstrate any likelihood of prejudice or necessity for a member of the firm to be called as a witness. Consequently, the application for disqualification lacked merit and was dismissed with costs to the defendant.
Court Disposition
application dismissed with costs to the defendant
Orders
- The application dated 17th April 2018 is dismissed.
- Costs of the application are awarded to the defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ENVIRONMENT AND LAND CASE NO. 48 OF 2017
KABUKI WOMEN GROUP Suing through its official
CECILIA NALIANYA (Chairlady)...............................1st PLAINTIFF/APPLICANT
JANET MALAMBA (Treasurer).................................2ND PLAINTIFF APPLICANT
FATUMA MUNYENDO (Secretary)...........................3RD PLAINTIFF/APPLICANT
VERSUS
ELIZABETH WEYA MWAURA.................................DEFENDANT/RESPONDENT
RULING
This is the ruling in respect of an application dated 17th April 2018 brought by way of notice of motion by the plaintiff/applicant for orders :
1. That the firm of M/S Nyairo & Company Advocates be and/or disqualify itself in this matter fro and on behalf of the defendants.
2. That the court be pleased to grant such or further orders as it deems fit.
3. That the costs of the application be borne by the defendant.
Counsel argued the application and relied on the grounds on the face of the application together with the supporting affidavit. It was Counsel’s submission that Nyairo & Company Advocates represented and acted for the plaintiff in respect of the suit land herein. That the correspondences and documents prepared by the said Advocates form part of the documents the plaintiff intends to rely on in this suit.
Mr. Omusundi submitted that there is conflict of interest if the said Advocates are allowed to continue to act for the defendants which may cause prejudice to the plaintiff. That there existed advocate/client confidentiality whereby the plaintiff has reasonable apprehension that there is likelihood of bias from the firm that was privy to such confidential information.
Counsel urged the court to allow the application as prayed.
Counsel for the respondent opposed the application and relied on the replying affidavit and the authorities filed in court. It was Counsel’s submission that there is no conflict of interest as it acted for Kabuki Company Limited and not Kabuki Women Group. That the two entities are distinct as the current plaintiff was registered in 2016 with the Ministry of Labour Social Security and Services. He urged the court to dismiss the application as it has no merit.
Analysis and determination
I have considered the application together with the rival submissions of Counsel and find that the application lacks merit. The two entities are distinct from each other as one is a Limited Liability Company which was in existence in the 1990s and one is a Women Group registered with the Ministry of Labour, Social Securty Services on 27th April 2016.
The plaintiff has further not established the alleged conflict of interest or that they would require a member of the firm of Nyairo & Co Advocates to come and give evidence in respect of any alleged transaction.
I find that there would be no prejudice that would be occasioned to the plaintiff if Nyairo & Company Advocates represented the defendant herein. I have also considered the authorities relied on and find that this application lacks merit and is therefore dismissed with costs to the defendant.
Dated and delivered at Eldoret this 17th day of October, 2018
M.A ODENY
JUDGE
Ruling read in open court in the presence of Miss Wahome for Defendant/Respondent and in the absence of the counsel for the Plaintiff/Applicant.
Mr. Koech: Court Assistant.