[1995] KEHC 107 (KLR)
The court found that Mr. Mugo had received instructions from both the applicant and the respondent regarding the same subject matter, namely land parcel No. Magumoni/Rubate/463. This dual representation created a real risk that confidential information obtained from one party could be used to the detriment of the...
Source-derived case information.
- Citation
- [1995] KEHC 107 (KLR)
- Parties
- Applicant: Murathi Chambira; Respondent: M'Iringo Kiria
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 448 of 1993
- Procedural Posture
- Civil Case / Ruling on Application for Advocate Disqualification
- Outcome
- Application for disqualification of advocate allowed.
- Legal Topics
- Advocate Conflict of Interest, Professional Ethics, Disqualification of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Murathi Chambira
Applicant
M'Iringo Kiria
Respondent
Procedural Posture
Civil Case / Ruling on Application for Advocate Disqualification
Legal Issues
- 1 Whether an advocate should be disqualified from acting where he has previously represented both parties in the same dispute.
- 2 Whether the advocate's prior instructions from the respondent compromise his ability to represent the applicant.
Ratio Decidendi
The court found that Mr. Mugo had received instructions from both the applicant and the respondent regarding the same subject matter, namely land parcel No. Magumoni/Rubate/463. This dual representation created a real risk that confidential information obtained from one party could be used to the detriment of the other, violating the rules of natural justice and professional ethics. The court held that such a situation undermines the integrity of the legal process and the sense of justice and morality. Consequently, the court ordered that Mr. Mugo disqualify himself from further conduct of the case to preserve fairness and public confidence in the administration of justice.
Court Disposition
Application for disqualification of advocate allowed.
Orders
- Mr. Mugo is ordered to disqualify himself from the conduct of this case.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO 448 OF 1993
MURATHI CHAMBIRA...................APPLICANT
VERSUS
M'IRINGO KIRIA..........................RESPONDENT
RULING
Although it is not expressly stated in the Advocates Act (Cap 16) it is an implied rule of practice and ethics that an advocate should not act in matter where his services had been retained by both parties to a litigation involving the same subject matter in dispute.
In the instant case Mr. Mugo was instructed by the respondent in July, 1993 and he lodged a caution on his behalf in respect of land parcel No. Magumoni/Rubate/463. Two months later he was briefed by the applicant and shifted his alliance to represent him. It must be remembered he had initially obtained full instructions from the respondent.
Mr Riungu has argued this application on behalf of the respondent who now feels compromised by the act of Mr Mugo, as the suit involves the same piece of land.
This Court did observe in Malizella Karambu Muriithi vs Ephantus ChegeHCCC No 53 of 1990 as follows:
“It would be a sad day for courts to disqualify counsels chosen by litigants. A litigant is entitled to be represented by a counsel of his choice. The courts leave it to the counsels themselves that exercising their minds reasonably at all times they would not engage in litigation that would embarrass them professionally or bring disrepute to their calling as officers of this Court “ – Per Ongudi J.
That case involved a counsel who had been a land registrar and who in his days in the civil service visited the suit land before resigning to practice. The Court dismissed an application for disqualification on the ground that what he did in his capacity as a land registrar had no bearing on the matters before it
In the instant case Mr. Mugo has had instructions from both sides. The respondent rightly feels his position is compromised.
I agree with him entirely. It cannot be dismissed that Mr. Mugo may use instructions he received from one party to the benefit of the other. That would be detrimental to the rules of natural justice and to our sense of justice and morality.
For the above reasons I order that Mr. Mugo do disqualify himself from the conduct of this case.
There shall be no orders as to costs.
Dated and delivered at Meru this 20th day of January 1995
C.O ONG’UDI
JUDGE