https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6847

KKH v EIK (Matrimonial Case E024 of 2025) [2026] KEHC 6847 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6847 (KLR) Republic of Kenya In the High Court at Thika Matrimonial Case E024 of 2025 FN Muchemi, J May 14, 2026 Between KKH Petitioner and EIK Respondent Ruling Brief facts 1.The application dated 26th January 2025 by the respondent (hereinafter referred to as the applicant) seeks for orders of disqualifying the firm of Tim Njenga & C. Advocates/Timothy K. Njenga Advocate from acting for the petitioner/applicant in this petition on account of conflict of interest and that the pleadings filed by the said firm be struck out or in the alternative, the proceedings be stayed pending appointment of independent counsel. The respondent also filed a Notice of Preliminary Objection dated 26th January 2026 on the grounds that the firm of Tim Njenga & Co. Advocates acting for the applicant previously acted for both parties in respect of the parties matrimonial assets, which are the core subject matter of the instant proceedings. It is further argued that the said advocate acquired confidential and privileged information relating to the respondent’s financial affairs, proprietary interests and contributions to the matrimonial property. As such the continued representation of the applicant by the said advocate constitutes a direct and incurable conflict of interest in violation of the advocate’s duty of confidentiality; the Law Society of Kenya Code of Standards and Ethics and the respondent’s right to a fair hearing under Article 50 of the Constitution. 2.The petitioner’s counsel opposed the application and filed a Replying Affidavit dated 18th February 2026. The Applicant’s Case 3.The respondent/applicant states that the firm of Tim Njenga & Co. Advocates and the advocate himself acted for both parties jointly in respect of their matrimonial assets which involved ownership, financial composition and documentation of the said matrimonial property. During the representation, the respondent states that he disclosed confidential financial and personal information including contributions and proprietary interests. 4.The applicant argues that the present matrimonial cause concerns assets previously handled by the said advocate whom he considered a family advocate and confidant. Thus it is impossible for the said counsel to act without either using or appearing to use confidential information obtained from him in the instant proceedings causing a conflict of interest. The Petitioner’s Case 5.The petitioner did not file a replying affidavit to this application. Her advocate Timothy Njenga swore the replying affidavit and states that the respondent/applicant herein has never been his client; he has never acted for him in any suit or transaction and he has never received any payment from him for legal representation. Further, the petitioner has been his client and he has represented her in suits before courts of law and in land transactions in which she has disposed off property in her sole ownership and purchased property solely. 6.The counsel avers that the affidavit attached to the respondent’s supporting affidavit as exhibit ‘EIK 1A’ was a document that he prepared as part of the requisite documents for the disposal of the property comprised in L.R. No. Kiambaa/Kihara/7995, a property that was solely owned by the petitioner. It is noted that the respondent was not involved in the transaction either as a seller or a buyer. It was further stated that the respondent was not involved as a buyer or seller in the transaction relating to the property comprised in Title Deed No. Juja/Kiaura/Block 7 (Mangu) 1265. 7.It was further stated that he has never received or come across any confidential information of the respondent. Neither has the respondent ever disclosed to him any confidential information pertaining to him or his affairs. Furthermore, he states that he has never dealt with any transaction relating to property comprised in L.R. No. Juja/Kalimoni Block 45/33 and Title Deed No. IR 247274 which are the subject matter of the present suit. Thus, the counsel states that he has no conflict of interest in offering legal representation to the applicant herein. 8.Parties put in written submissions. The Applicant’s /Respondent’s Submissions 9.The respondent relies on the case of King Woolen Mills Ltd vs Kaplan Stratton Advocates [1993] eKLR and submits that the duty of confidentiality by an advocate survives the termination of the retainer and restrains the advocate from acting against a former client in a related matter. He argues that the former retainer and the current dispute concern the same parties and concerns their matrimonial assets thus the conflict is direct rather than remote or speculative. 10.The respondent submits that no professional undertaking or assurance can cure a conflict arising from prior joint representation on the same subject matter. The respondent further relies on Article 50 of the Constitution and the case of Uhuru Highway Development Ltd vs Central Bank of Kenya [2002] 2 EA 654 and submits that a reasonable litigant properly informed of the advocate’s prior joint representation in respect of the same parties in their matrimonial assets would apprehend that the process is compromised. The respondent argues that any inconvenience occasioned by the petitioner by the appointment of a new counsel cannot outweigh his right to a fair hearing and the court’s duty to protect the integrity of its process. The Respondent Submissions 11.The respondent’s counsel Tim Njenga relies on the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 and submits that the applicant’s preliminary objection is not predicated on any statutory provision. Further, the applicant has to adduce documentary proof to show the existence of an advocate client relationship between them to prove such relationship exists. Consequently, the preliminary objection is devoid of merit because it is neither predicated on a pure point of law nor does the objection arise out of the pleadings filed by the parties. 12.The counsel further submits that there is no advocate client relationship between him and the applicant as the applicant was not a party to any of the transactions in the agreements for sale he has attached to his affidavit in support of his application. In all the transactions, the firm of Tim Njenga & Co. Advocates represented the petitioner only. Further, the spousal consent he drafted for the respondent to sign does not make the petitioner a client in his firm as the document was drafted as part of the transaction for sale of a property which was being sold by the petitioner. Counsel further submits that the applicant has never instructed him or his firm to act for him in any transaction or any suit whatsoever thus he does not hold any confidential information about the applicant or any information that could disadvantage the applicant in the present suit. Further the applicant has never made any payment to the firm of Tim Njenga & Co. Advocates for any legal service rendered to him. The Law Whether the preliminary objection is sustainable 13.The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:-…..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. 14.Sir Charles Newbold P. stated:-A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop. 15.Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR held that:-A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. 16.Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:-Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record. 17.It is trite that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. 18.The respondent argues that the firm of Tim Njenga & Co. Advocates is conflicted as the said advocate previously acted for both parties in matters relating to matrimonial assets. It is my considered view that the existence of a situation of conflict of interest does not constitute a proper ground to be raised in a preliminary objection as it requires a detailed examination of facts. The respondent has not backed his contentions with any provisions of law. In the circumstances I find that the preliminary objection dated 26th January 2026 lacks merit and is dismissed. 19.Having found the preliminary objection unmeritious, I proceed to make a determination of the application dated 26th January 2026. 20.It is trite law that a litigant is entitled to legal representation or counsel of his/her own choice but the same is not absolute as was held in the case of Delphis Bank Ltd vs Channan Singh Chatthe & 6 Others [2005] eKLR as follows:-The starting point is, of course, to reiterate that most valued constitutional right to a litigant, the right to a legal representative or advocate of his choice. In some cases however, particularly civil, the right may be put to serious test if there is a conflict of interest which may endanger the equally hallowed principle of confidentiality in advocate/client fiduciary relationships or where the advocate would double up as a witness….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. 21.Rule 9 of the Advocates (Practice) Rules provides:-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. 22.This rule prevents an advocate from appearing for a litigant in a case in which it is known or becomes apparent that the counsel will be required to give evidence material to the determination of contested issues before the court. The rule safeguards litigants from themselves and the advocate who has so acted where there may be conflict of interest. 23.The respondent must prove that there is likely to be conflict of interest by demonstrating that there is real mischief or real prejudice against him to warrant counsel for the petitioner to be disqualified from acting. 24.The Law of Society of Kenya developed a Code of Standards of Professional Practice and Ethical Conduct, 2016 which defines conflict of interest in Rule 6 paragraph 96 as follows:-A conflict of interest which gives rise to substantial risk that the Advocate’s representation of the client will be materially and adversely affected by the Advocate’s own interests or by the Advocate’s duties to another current client, former client or a third person. 25.The Court of Appeal in dealing with the issue of conflict of interest in King Woolen Mills Ltd & Another vs Kaplan & Stratton Advocates (1900-1994) EA 244 observed as follows:-An advocate who has acted for two common clients cannot later act for either party in litigation when a dispute arises between the common clients concerning the original transaction or the subject matter for which he acted for the clients as a common advocate. 26.Similarly in British American Investments Company (K) Limited vs Njomaitha Investments Limited & Another [2014] eKLR the court explained:-It is therefore clear that where a party asserts that conflict of interest exists, he must provide sufficient evidence to demonstrate that such conflict of interest exists. It is incumbent upon such party wishing to disqualify an advocate or a firm of advocates from acting for a particular party to show that it has suffered or will suffer prejudice if such an advocate or firm of advocates continues to so act for that party. Mere suspicion, apprehension of a possible conflict of interest or fear of prejudice cannot be a basis to stop an advocate from acting on behalf of a party. 27.Upon perusal of the pleadings, the assets in contention are LR. No. Juja/Kalimoni Block 45/33 and IR 247274 which are contested as matrimonial property. The affidavit sworn by the respondent has listed properties LR. No. Kiambaa/Kihara/7995 and Juja/Kiaura Block 7(Mangu)/1265 which properties are both in the applicant’s names solely. Furthermore, the respondent signed the spousal consent consenting to the transaction for the sale of property Kiambaa/Kihara/7995. I have noted that the respondent has not put in a written response to the originating summons but it is evident that he has not claimed that the assets are matrimonial properties. Furthermore, counsel has sworn an affidavit refuting the claims and explicitly stated that he was acting for the applicant solely in acquiring and disposing off the said properties listed by the respondent in his affidavit. Counsel has also stated that he did not represent either of the parties when they acquired the properties that are in contention in the instant matrimonial cause. 28.It is therefore my considered view that the respondent has not shown any existence of a client advocate relationship between him and Mr. Timothy Njenga or even demonstrated that a conflict of interest will arise if he continues to represent the applicant in this case. It is worth noting that the said advocate is acting for the applicant in the divorce cause which shows that he is and has been the advocate of the applicant and not of the respondent.Accordingly, it is my view that the application dated 26th January 2026 lacks merit and is hereby dismissed with costs to the petitioner. 29.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 14TH DAY OF MAY 2026.F. MUCHEMIJUDGE