[2025] KEHC 16867 (KLR)

Kiura t/a Wasonga Kimakia & Associates Advocates v Njuki & another (Civil Case 30 of 2017) [2025] KEHC 16867 (KLR) (Civ) (6 February 2025) (Ruling)

Neutral citation: [2025] KEHC 16867 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 30 of 2017

JN Mulwa, J

February 6, 2025

Between

Dennies Kimakia Kiura t/a Wasonga Kimakia & Associates Advocates

Plaintiff

and

Louis Mugambi Njuki

1st Defendant

Lilian Kawira Mugambi

2nd Defendant

Ruling

Ruling On Motion Dated 16/09/2024 1. The applicants who are the defendants in this suit by their Motion dated 16/09/2024 seek orders:-a.That all pleadings filed by the firm of Wasonga Kimakia & Associates Advocates be struck out of the court record as the said firm has no capacity to plead and appear on behalf of the plaintiff herein.b.That Bernard Omondi Wasonga together with his firm be disqualified from acting for the plaintiff.

2. The motion is grounded upon the supporting affidavit sworn on 16/09/2024 by Karuku Wachira advocate of the firm of Waruiru Karuku & Mwangale Advocates for the Defendants, and grounds stated at the face of the Motion and a further affidavit sworn on 8/11/2024 as well as submissions dated 8/11/2024.

3. It is the applicants case that there is a pending case at the Environment and Land Court No. 1084 of 2014 between the two parties predicted upon an Agency Agreement made in 2013 upon which the plaintiff’s law firm were not only parties to the agreement but also prepared the said agency agreement, and the applicants only discovered this fact when they were preparing for the hearing of this suit, and upon such discovery noted that the advocate Bernard Omondi Wasonga a partner in the said law firm would be a witness as to the purported agency agreement dated 16/08/2013, which it is stated would be in violation of Rules 8 of the Advocates Practice Rules Professional Ethics and conduct in regard to the said advocate being both the attorney and witness in the instant suit.

4. The applicants therefore seek the prayers sought in the motion due to the conflict the advocate being aware of the privileged information to the detriment of the defendants and fair hearing.

5. The motion is opposed by a Replying Affidavit sworn on 20/09/2024 by the plaintiff Advocate Dennis Kimakia Kiura. It is its deposition that the defendants filed their defence in the suit on 11/09/2024 after 10 years being on record and therefore late as the matter has been litigated in court since, and more importantly that counsel on record for the defendants has been representing them since 1/12/2022, and therefore deposes that the motion is an afterthought and inexcusable urging the court not to entertain it for being an abuse of the court process.

6. The respondent further avers that the applicants prayers lack specificity as to what indeed they seek from the court in view of their averments in paragraph 12 stating that no sufficient reasons have been advanced to warrant striking out the plaintiff’s pleadings as no conflict of interest has been demonstrated.

7. It is a further deposition by the respondent that the law firm only drew the agency agreement and did not witness execution of the same affirming that no conflict exists in the circumstances and that nothing bars the law firm from representing the parties therein as it never represented the defendants in the agency agreement and that no advocate/client relationship existed or exists between the plaintiffs law firm and the defendants.The Respondent therefore seeks that the motion be dismissed with costs.

8. Both parties have filed their respective submissions.

Applicants Submissions. 9. In their submissions dated 8/11/2024 the applicants submit that after directions were issued by the court on the hearing of the suit, they discovered that the law firm of Wasonga Kimakia & Associates Advocates does not exist necessitating filing of the instant motion.

10. To buttress the above submissions the applicants cited Rule 8 of the Advocates (practice) Rules that emphasizes that they have reason to believe that the plaintiff advocate may be required to give evidence in the suit as a witness. In support, the case of Tom Kusianya & Others [2013] eKLR for the proposition that an advocate can only be barred from acting if he would be required to give evidence in the matter.

11. The case of Delphis Bank Ltd vs. Channan Singh Chatthe & 6 others [2005] eKLR was also cited for the proposition that 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 and that the test laid by the Court of Appeal is whether there is mischief or real prejudice will in all human probability result.

12. In respect to the above, the applicants content that the same Agency Agreement made in 2013 was between the two parties in this suit as shown in the plaint and that it shows that the same was drawn by Wasonga Kimakia & Associates Advocates wherein the plaintiff served two interests; his personal interest as an agent in the sale and purchase of the suit property, and his own as advocate in the transaction and therefore it is likely that the said plaintiff/advocate might use confidential information and documents exchanged to prosecute the suit.

13. As to the status of the said plaintiff law firm Wesonga Kimakia & Associates Advocates the applicants submit that it does not exist stating that in course of the suit particularly in the period of 2021 to 2024, the plaintiffs documents have been filed by unknown firm in the name of Wasonga B. O & Associates without any change of advocates being filed and or served and therefore doubts raised as to the existence of the plaintiffs laws firm and its capacity to practice in Kenya.

14. Upon the above submissions, the applicants urge the court to strike out all pleadings filed by the plaintiff’s law firm in the instant suit with costs.

Respondent’s Submissions 15. In its submissions dated 26/11/2024 the respondent takes issue with the further affidavit filed by the applicants on 8/11/2024 with leave of court stating that the same raises new issues contrary to rules of procedure as the respondent is barred from responding to the said new issues being that the plaintiffs law firm does not exist.

16. Citing the case of Astute Africa Investments & Holding v Spire Bank Kenya Limited & Joseph M. Gikonyo t/a Garam Investments Auctioneers [2018]eKLR the respondent submits that a supplementary affidavit ought not be used to add new issues but only to clarify and or buttress averments in the supporting affidavit and not as a means to introduce new facts or new issues not at the core of the suit or application and argues that the existence of the plaintiffs law firm should not have been introduced.

17. On whether or not pleadings filed by the said law firm should be struck out, the respondent submits that the applicants have not demonstrated any ground as set out under Order Rule 15 of the Civil Procedure Rules for striking out the pleadings and so is an abuse of court process, citing the case of Nancy Wanjiru Ngahu v. Jane Wambui Wanjege & 2 Others [2013] eKLR among others in support of its submissions that striking out pleadings is a draconian measure and the court should be also in doing so and should exercise its discretion infavour of a trial in all cases.

18. On whether the plaintiff and his law firm should be disqualified from acting for the plaintiff in the instant suit, it is submitted that the only reason that the plaintiff doubled up as a party to the agency agreement (subject of the suit) and the advocate with instructions to draft the agency agreement are not enough reasons as no likelihood of mischief or conflict of interest has been demonstrated.

19. Further, it was submitted that the fact that he acted in the manner stated above raises no conflict of interest. The case of Murgor & Murgor Advocates v. Kenya Pipeline Co. Ltd [2021] eKLR was cited as well as Uhuru Highway Development Ltd & 3 Others v. Central Bank of Kenya & 4 Others [2003] eKLR wherein the parameters and principles of conflict of interest were discussed by the Court of Appeal.

20. The Respondent further submits that during the Agency Agreement his firm was not acting for the applicants there was no advocate/client relationship save that it only drew the Agency Agreement and therefore not a valid reason for his firm to be disqualified from acting for him the applicants having admitted that in the agency agreements their Advocates were Muriithi & Co. Advocates not his law firm.

21. Additionally, the respondent further submits that he will not testify as a witness in the suit a fact clearly seen in the plaintiffs list of witnesses and that even if he was to testify no prejudice has been demonstrated by the applicants to warrant grant of the draconian orders sought by the applicants.

Analysis and Determination 22. Two issues arise for determination:-1. Whether pleadings filed by the law firm of Kimakia & Associates Advocates on behalf of the Plaintiff should be struck out.2. Whether the plaintiff advocate together with his law firm should be disqualified from acting for the plaintiff in this suit.

23. The two issues above are intertwined. They will be interrogated simultaneously.

24. On the onset, the court finds it prudent to determine whether or not the law firm of Wasonga Kimakia & Associates Advocates does exist and more specifically as relates to the instant suit filed by a plaint dated 8/08/2014 by the said firm, Wasonga Kimakia & Associates. It is noted that this suit was initially filed in the Environment and land Court vide case no. 1083 of 2014 but later transferred to the High Court and serialized as HCCC. No. 30 of 2017.

25. As to whether the said law firm existed at the time of filing the suit in 2014, and to date, a certificate of Registration of Business Names is annexed to the plaint. It certifies that Bernard Omondi Wasonga and Dennis Kimakia Kiura carrying on business under the business name of Wasonga Kimakia and Associates were duly registered on 28/03/2011. Without further interrogation, it is evident, and prima facie that the law firm under the name of Wasonga Kimakia and Associates did indeed exist from 28/03/2011.

26. Whereas the defendants/applicants stated otherwise, they have not adduced as evidence that as at date of this application - 16/09/2024 - the said law firm had ceased to exist. The burden of prove of such allegation lies squarely on the applicants. It is not enough to simply state so.

27. Section 107, 109 and 112 of the Evidence Act mandates the party who desires any court to give judgment as to any legal right or liability or existence of any fact to prove existence of such facts see Sangala v. Sagala [2024] eKLR and Mbuthia Macharia vs. Annah Mutha & Another [2017] eKLR.What the applicants are asking the court to do in respect is to shift the burden of proof to the plaintiff to which this court will not do.

28. It would have been very easy for the applicants to tender proof of nonexistence of the plaintiff’s law firm by obtaining such details from the Law Society of Kenya.If no notice of change of advocates has since 2014 upto 2024 been filed by the plaintiff, then the presumption is that the law firm that filed the plaint in 2014 is the same law firm acting for the plaintiff. It’s none existence or capacity has not been proved or at all.The court finds no merit at all in that allegation. It is dismissed.

29. On the substantive issues, I have already rendered that the plaint herein was filed by the firm of Wasonga Kimakia & Associates in 2014. There is no dispute that the Agency Agreement subject of the suit was prepared by the plaintiff’s law firm, Wasonga Kimakia & Associates. It is also not in dispute that the said law firm is on record representing the plaintiff, a partner in the law firm.

30. It is further not in dispute that the applicants/defendants in the suit Agency Agreement dated 27/08/2013 that I have seen executed the said agreement before their advocate Charles Muriithi of Muriithi & Co. Advocates and for the plaintiff, witnessed by Kimakia K. Dennis advocate of the plaintiff’s law firm.The above is further buttressed by reading of the several correspondences between the two law firms in course of and before the litigation was instituted in 2014.

31. Rule 8 of the Advocates (Practice) Rules states;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-contentions matter of fact in any matter in which he acts or appears. (emphasis added)

32. In the case of Tom Kusienya & Others vs. Kenya Railways & 2 others (Supra) in interpreting the above rule the court rendered that an advocate can only be barred from acting if he or she would be required to give evidence in a matter, whether orally or by way of affidavit.

33. In this matter the Plaintiff who is an Advocate is not appearing as a witness but is the plaintiff and a litigant. As such, his choice of representation in this case by his law firm must be respected. Ordinarily the subject of the litigation being non-contentious (conveyancing transaction) falls under Rule 8 cited above.It is trite that a litigant is entitled to representation in a court of law or tribunal by an advocate of own choice. However, this right of legal representation may in certain circumstances be put to serious test if there is a conflict of interest which may endanger the equally hallowed principle of confidentiality in an advocate/ client fiduciary relationship or where such relationship would double up as the advocate and witness as held in the case of Delphis Bank Limited vs. Channan Singh Chattle & Six Others [2005] eKLR.

34. Additionally, it is also NOT the general rule that an advocate cannot act for one party in a matter and then act for the opposite party in subsequent litigation, as is the case in this matter before the court.As ably held in the Court of Appeal case of Delphis Bank Ltd (Supra) the test which has been laid down in authorities and applied by the court is whether real mischief or real prejudice will in all human probability result.

35. In the circumstances have the applicant’s demonstrated real mischief or real prejudice to persuade the court to strike out the pleadings filed by the plaintiff’s law firm?On striking out of a litigant’s pleadings, the law is now settled. Order 2 Rule 15 of the Civil Procedure Rules provides the grounds upon which pleadings may be struck out as follows;a.That the pleadings disclose no reasonable cause of action or defence in law; orb.It is scandalous, frivolous or vexations; orc.It may prejudice, embarrass or delay the fair trial of the action; ord.It is otherwise an abuse of the process of the court.

36. I have perused the plaint and the defence filed by the parties.In the case of Nancy Wanjiru Ngahu vs. Jane Wambui Wanjege & 2 others [2013] eKLR the court set out parameters underpinned at Rule 15 of order 2 hereunder;“….The first issue to be determined is whether there is a reasonable cause of action disclosed by the plaint. On this issue, it is trite law that no evidence is admissible on such application and therefore the application on grounds of no reasonable cause of action is not properly before court because the applicant relies on a supporting affidavit that is full of evidence and submission based on the evidence that require full trial.The second issue to be considered under this ground is whether the plaint is scandalous. A pleading is scandalous if the same is indecent or contains offensive matter or has allegation made for abusing or prejudicial to other party.The third issue on the same ground is a frivolous pleading. The pleading must be so clearly frivolous that to put it forward would be an abuse of the process of the court.A statement of claim is prejudicial and embarrassing if it tends to delay other fair trial of an action or fair dealing with the main issue. A statement of claim is embarrassing if it raises a claim that the plaintiff is not entitled to make. The defendant has not demonstrated that the plaintiff is making a statement of claim that he is not entitled to make.A statement of claim would be an abuse of the process of court if it raised an issue that has been determined by the court or raises an issue based on speculation rather than facts. The plaintiff has failed through affidavit or otherwise to prove that the suit is an abuse of the process of court.The court has considered the above issues and finds that the applicant has failed to prove that the suit is scandalous, frivolous, and vexatious and otherwise an abuse of the process of the court, the same is dismissed with costs…..”

37. Further, it is trite that a court should be very slow in striking out pleadings except in very plain and obvious cases and should exercise its discretion in favour of a trial in all cases.Having perused the pleadings filed by the plaintiff, nothing persuades this court to exercise its discretion in favour of striking out the pleadings. The suit shall be sustained. Each party shall be granted an opportunity to fair hearing under Article 50 of the Constitution upon which the court will be placed in a better position to determine the suit on merit.

38. The matter of disqualification of the plaintiff and its law firm from acting for the plaintiff has been interrogated partly, wherein the court has already made a finding that the law firm of Wasonga Kimakia & Co. Advocates does exist with nothing tendered to the contrary, and that there being no notice of change of Advocates by the plaintiff, the said law firm is properly on record for the plaintiff.

39. While urging the court to disqualify the said law firm from representing the plaintiff in this case, and upon the submissions on the issue by both parties, the applicants have fallen short of convincing the court that the plaintiff has violated provisions of Rule 8 of the Advocates (Practice Rules (Cited above) and by holding in the case of Tom Kusienya & others v. Kenya Railways Corporation and Others [2013]eKLR(Supra) as well as finding any act of mischief or prejudice by the said law firm in acting for the plaintiff.

40. Further, the issue of disqualification of an advocate from acting for a litigant has been discussed in several other cases, among them the case of Murgor & Murgor v. Kenya Pipeline company Ltd [2021]eKLR and Uhuru Highway Development Ltd & 3 Others (supra) and King Woolen Mills Ltd & Another vs. Kaplan & Stratton Advocates [1990-1994] EA 244 from which the following guiding principles were stated:-i.The basis upon which a court disqualifies an Advocate from acting arises from the need to protect the interests of administration of justice. Whereas it is understood that choice of counsel is an entitlement of a party, such counsel must always bear in mind that he/she becomes an officer of the court and as such owes an allegiance to a higher cause (justice and truth) than serving the interests of the client;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 there 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;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.

41. In analysis the above parameters it is evidently clear that the plaintiff’s legal firm did not act for the applicants nor was there a client/advocate relationship in the Agency Agreement and that the mere fact that the plaintiff drew the Agency Agreement is not a good or valid reason to disqualify the plaintiffs law firm from acting for the plaintiff. The plaintiff has not indicated in its list of witnesses filed in the suit that Bernard Omondi Wasonga shall be called as a witness during the hearing of the suit and should that be necessary, he would only be called by the plaintiff not the defendants.

42. Further, upon consideration of totality of the matter, the court finds no iota of prejudice that would be occasioned by the plaintiff’s law firm acting for him. The applicants failed to demonstrate what prejudice they would suffer if the orders they seek are denied.

43. In conclusion, the court finds no plausible grounds and/or reasons upon which the applicant’s application dated 16/09/2024 could be granted. It is dismissed in its entirety with costs to the plaintiff/respondent.

Orders accordingly.

DELIVERED SIGNED AND DATED AT NAIROBI THIS 6TH DAY OF FEBRUARY 2025. JANET MULWAJUDGE