https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1676

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E686 OF 2025** **ALAN MASAKHALIA …...………………….......CLAIMANT/RESPONDENT** **VERSUS** **AGRICULTURAL FINANCE CORPORATION..RESPONDENT/APPLICANT** **RULING** 1. Before Court is a Notice of Motion application dated 17th November, 2025, brought pursuant to Articles 45, 50 (1) of the Constitution, and Sections 1A, B, and 3A of the Civil Procedure Act, where the Applicant seeks orders THAT: - 2. Spent 3. This Honourable Court be pleased to bar Eurry Mabonga Advocate from representing the Claimant in this matter 4. This Honourable Court be pleased to bar the firm of S & K Advocates LLP associated with Eurry Mabonga Advocates, its associates, or another firm associated with him from representing the Claimant in this matter. 5. This Honourable Court be pleased to expunge the documents filed by the firm of S & K Advocates LLP on behalf of the Claimant 6. Costs of this Application be provided for. 7. The application is supported by grounds on the face thereof and the affidavit of TRIZAH MAINA. The crux of the motion is that Eurry Mabonga was previously employed by the Respondent/Applicant and that he represented it in ongoing matters before the Commission on Administrative Justice relating to the Claimant/Respondent’s employment dispute. The Applicant further states that the advocate also participated in providing legal advice on its behalf concerning the Claimant’s disciplinary process. 8. The Respondent/Applicant further contends that Eurry Mabonga became hostile to it after the termination of his employment and has since been representing the Respondent’s former clients and employees against it. 9. The Respondent /Applicant therefore states that his representation of the Claimant in the present matter is in bad faith, and it further expresses apprehension that it will suffer prejudice if the advocate’s law firm is allowed to continue acting for the Claimant in the matter. 10. The Claimant opposed the motion vide a Replying affidavit sworn by one **JOHN M. KOGWENO** on 20th November, 2025, wherein he avers that the Respondent/Applicant has invoked wholly inapplicable constitutional provisions in support of its application, namely Articles 45 and 51 of the Constitution. 11. The Claimant/Respondent asserts that reliance on the said provisions demonstrates a fundamental misunderstanding of the applicable legal framework, lack of due diligence, and disregard of the constitutional principles governing judicial proceedings. 12. The Claimant/Respondent argues that the application is fundamentally defective because it wrongly identifies Eurry S. Mabonga as the Advocate on record instead of John M. Kogweno. he contends further that this misidentification goes to the root of the application, rendering it baseless and incapable of judicial consideration. 13. The Claimant/Respondent further submits that the attempt to bar unnamed advocates associated with the alleged counsel is unconstitutional, overbroad, and infringes the right to counsel of choice under Article 50(2)(g) of the Constitution. 14. The Claimant further argues that no real prejudice has been demonstrated to justify the disqualification of counsel and that granting such orders would undermine the independence of the legal profession and create a dangerous precedent for blacklisting advocates. 15. The Claimant/Respondent states that even if Eurry S. Mabonga were the Advocate on record, his previous employment with the Applicant would not, by itself, establish a conflict of interest. He avers that the law requires proof of specific confidential information and actual prejudice, none of which has been demonstrated by the Applicant. 16. The Claimant/Respondent maintains that legal principles do not support automatic disqualification based solely on former employment and asserts that there is no realistic risk of misuse of confidential information. 17. The Respondent/Applicant’s application is therefore described as an improper attempt to weaponize disqualification proceedings for extraneous motives, contrary to the Constitution and established legal principles. 18. The Claimant/Respondent further states that the application is barred by the doctrines of sub judice and res judicata, as similar issues concerning Eurry S. Mabonga and S&K Advocates LLP are pending before the High Court and were previously determined in Mpeketoni Civil Suit No. E004 of 2024, where a similar application was dismissed with costs. 19. The Claimant/Respondent further states that since the Advocate on record is John M. Kogweno, allegations regarding possession of confidential information by Eurry S. Mabonga are speculative and unsupported by evidence. 20. The Claimant/Respondent contends that the Respondent’s allegations are based on vague fears and personal hostility rather than legitimate legal grounds. He avers that Rule 8 of the Advocates (Practice) Rules only bars an advocate from acting where the advocate may be required as a witness on contentious matters and does not support disqualification founded on speculation. 21. The Claimant/Respondent further submits that the applicable test is whether real prejudice or real mischief is likely to arise, and no such prejudice has been specifically demonstrated. 22. The Claimant/Respondent also states that the application is motivated by personal animus against Eurry S. Mabonga rather than sound legal principles, and describes the pleadings as frivolous, vexatious, and an abuse of the court process. It is further asserted that the judicial process should not be used to settle personal grievances and that there is no general prohibition against an advocate acting for opposing parties in unrelated matters, absent proof of actual prejudice. 23. The Claimant/Respondent further argues that courts should not entertain personal disputes, emotional assertions, or attempts to misuse judicial processes for ulterior motives. 24. The Claimant/Respondent urges the Court to dismiss the application dated 17th November 2025 with costs. 25. The Motion was canvassed by way of written submissions. Both parties filed submissions, which have been duly considered. **Determination** 1. The singular issue falling for my determination is whether the Applicant has established sufficient legal grounds to warrant the disqualification of counsel from acting for the Claimant in these proceedings. 2. The principles governing the disqualification of counsel are now well settled. Courts exercise the jurisdiction to bar an advocate from acting sparingly, cautiously, and only where clear evidence is presented showing that continued representation would occasion real prejudice, real mischief, or likely to compromise the due administration of justice. 1. The Court of Appeal in ***King Woolen Mills Ltd & Another v Kaplan & Stratton Advocates*** ***[1993] KECA 57 (KLR)***, emphasized that the court must balance the right of a litigant to counsel of their choice against the need to protect confidential information and preserve the integrity of the judicial process. The Court proceeded to hold that disqualification cannot issue on the basis of conjecture or mere apprehension; there must be a demonstrated risk of misuse of confidential information and real prejudice to the applicant. 2. The Applicant’s application rests substantially on the assertion that Eurry S. Mabonga was previously employed by the Applicant and that he participated in legal advisory services touching on the Claimant’s disciplinary process. However, beyond these broad allegations, the Applicant has not identified with specificity the confidential information allegedly possessed by the said advocate, nor demonstrated how the information he holds would occasion prejudice if used in these proceedings. 3. Prior employment on its own or previous legal representation does not, in my view, automatically establish a conflict of interest. The Court must be satisfied that there exists a real and appreciable risk of misuse of confidential information. 4. Further, the material before Court shows that the Advocate formally on record for the Claimant is one John M. Kogweno and not Eurry S. Mabonga. The Applicant has not shown any pleading, appearance, or formal appointment, placing the latter advocate directly on record in these proceedings. 5. The prayer seeking to bar “the firm of S & K Advocates LLP associated with Eurry Mabonga Advocates, its associates, or another firm associated with him” is a sweeping and generalized prohibition that is unsupported by law and offends the constitutional right to legal representation under Article 50 of the Constitution. 1. In my view, courts cannot issue omnibus orders barring an entire firm absent cogent evidence establishing actual conflict and prejudice. 2. On the question of Rule 8 of the Advocates (Practice) Rules, the Rule principally bars an advocate from appearing in a matter where he is likely to be called as a witness on contentious matters. The Applicant has neither demonstrated that Eurry S. Mabonga is a necessary witness in these proceedings nor established that the issues raised fall within the ambit contemplated under the Rule. 3. In the upshot, this Court is not persuaded that the Applicant has demonstrated real prejudice, mischief, or the likelihood of compromise of confidential information sufficient to justify the drastic remedy of disqualification of counsel. 4. I am equally alive to the need for courts to guard against attempts to use disqualification motions as tactical tools to interfere with a litigant’s choice of counsel or to derail court proceedings. 5. Accordingly, I find the Notice of Motion application dated 17th November, 2025, devoid of merit and is hereby dismissed with costs to the Claimant, which costs shall be in the cause. 6. Orders accordingly. **SIGNED, DATED, AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE, 2026** **C. N. BAARI** **JUDGE** **Appearance:** Mr. Makonga present for the Claimant/Respondent N/A for the Respondent/Applicant Ms. Esther S - Court Assistant