[2023] KEPPDT 1270 (KLR)

Musamali v Nyaribo; United Progressive Alliance Party (Interested Party) (Complaint E005 (NRB A) of 2023) [2023] KEPPDT 1270 (KLR) (19 June 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1270 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E005 (NRB A) of 2023

D. Nungo, Chair, S Musau & T. Chepkwony, Members

June 19, 2023

Between

Eliki Tom Musamali

Complainant

and

Amos Kimwomi Nyaribo

Respondent

and

United Progressive Alliance Party

Interested Party

Ruling

The Application 1. The Interested Party (hereinafter referred to as the Applicant) has filed the instant Notice of Motion application dated 4th May 2023 (the Application) pursuant to the provisions of Rule 8 of the Advocates (Practice) Rules, Order 51 Rules 1 & 3 of the Civil Procedure Rules, Article 50 of the Constitution of Kenya, and all enabling provisions of the law. The Applicant seeks the following orders from this Honourable Tribunal: -i.Spentii.Spent.iii.That the firm of Dennis Anyoka Moturi & Company Advocates by itself, its proprietor, partners, associates, employees and/or agents be barred from and removed from the record as representing the Claimant.iii.That all pleadings filed by the firm of Dennis Anyoka Moturi & Company Advocates be struck out.iii.Cost of the Application be provided for.

2. The application is based on the grounds, inter alia, that:-i.Dennis Anyoka Moturi, who has the personal conduct of this matter, is also the Chairman of the Internal Dispute Resolution Committee of the Respondent.ii.Dennis Anyoka Moturi is the proprietor of the firm of Dennis Anyoka Moturi & Company Advocates.iii.The Claimant in his complaint alleges that efforts to procure an amicable resolution through engagement by the Applicant herein have not borne any fruit.iv.The Respondent and the Applicant have set up a defence based on whether or not the internal dispute resolution mechanism (IDRM) of the Applicant, which is chaired by Dennis Anyoka Moturi, was activated.v.Dennis Anyoka Moturi is therefore privy to all facts on the issue of IDRM, and there is an apparent conflict of interest as he has already taken sides, to the prejudice of the Respondent and the Applicant.vi.The Claimant’s counsel is likely to be called as a potential witness to give evidence by either party.vii.The right to a preferred legal representative is not absolute and can, in some cases, particularly in civil cases, be put to test where conflict of interest arises.viii.It is only fair and just to have the firm removed from the record and all pleadings filed be struck out.

3. The application is further supported by the Supporting Affidavit and Further Affidavit sworn by Michael Monari Obambah on the 4th May 2023 and 5th June 2023 respectively. The Applicant’s Supporting Affidavit has referred to letter dated 19th April 2023 to demonstrate that Dennis Moturi was the Chairman of the Applicant’s IDRM, and the letter dated 6th September 2022 to demonstrate that the said Dennis Moturi has exhibited hostility and made untenable demands against the Applicant.The Further Affidavit on the other hand has referred to and annexed the Further Affidavit sworn by the Complainant on 4th May 2023, together with annexures referred to therein, more particularly, the Complainant’s complaint letter to the Chairman of IDRM received on 30th March 2023, letters by Dennis Moturi addressed to the Complainant and the Respondent dated 31st March 2023, minutes of the meetings of 31st March 2023, 4th April 2023, 19th April 2023, and letter by the Complainant to the Registrar of Political Parties received on 12th April 2023, amongst others, to demonstrate that Dennis Moturi has been heavily involved in the instant dispute apparently at the behest of one party to the dispute.

4. It was submitted that in light of the foregoing, Dennis Moturi may be required to testify on NDC which is the subject matter of this Complaint, and further that Dennis Moturi has prepared pleadings using confidential and privileged information that he obtained while acting as the Chairman of the party’s IDRM to the detriment of the Applicant.

5. The Applicant relied on the cases of Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 others [2003] eKLR and King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd & another v M/s Kaplan & Stratton Advocates [1993] eKLR, amongst others.

6. The Applicant maintains that using privileged information to the disadvantage of another party is against the rules of fairness, justice and equity, and they pray that Dennis Moturi be barred from participating in this matter and that all the pleadings filed by him be struck out as a change of advocates may not even arrest the situation. The Response by the Respondent

7. The Respondent filed a Replying Affidavit sworn by Hon. Amos Kimwoni Nyaribo on 5th June 2023 in response to the application.

8. It is the Respondent’s submission that there exists a well-known common law maxim which bars a person from prosecuting a matter in which open bias or conflict of interest on the face of the pleadings exists. The maxim has been encapsulated in Regulation 25 of the PPDT Procedure Regulations, 2017 to the effect that a bench which is conflicted on interests is required to recuse itself or remove itself after declaring such an interest. In the same light, an advocate who is conflicted in a matter should have the matter handled by another advocate. He submits that in the instant Complaint, the Complainant and his counsel on record are both interested persons aggrieved by the subject matter of this complaint. One cannot be the Complainant while the other is counsel, and that the Complaint should have maintained himself as the 1st Complainant and Mr. Dennis Moturi as the 2nd Complainant in adherence to Rule 2 of the Legal Notice No. 117 (The Constitution of Kenya (Protection of Rights And Fundamental Freedoms) Practice and Procedure Rules, 2013).

9. He further submits that pursuant to the maxim, audi alteram partem, it is expected that as a cause of natural justice, a person cannot be condemned unheard. It is obvious that, following the decision of an irregular National Executive Committee meeting held on 19th April 2021, the Complainant sanctioned his counsels on record to chair a sitting of the IDRM but instead of proceeding with the IDRM, the counsel filed the instant matter hereby adjudging the Respondent as guilty and deserving of reproach by this Honourable Tribunal.

10. The Respondent further submitted on the principle of nemo judex in causa sua, that no man should sit as an adjudicator in a case in which he has an interest. Considering that a disciplinary process is a quasi-judicial process, one cannot be expected to be fair where the outcome of his decision and actions make the substratum of the Complaint and ultimately shall affect his interests. He submits that pursuant to Article 20 and Article 50 of the Constitution of Kenya, he has a legitimate expectation that this Honourable tribunal shall uphold its role in facilitating enjoyment and protection of all human rights including his right to a fair trial.

11. The Respondent further contends that the pleadings filed by Mr. Dennis Moturi are crafted with bold reliance on documents, facts and information collected during his tenure as the chairman of a standing committee of the Applicant. These documents and information are either unsanctioned, privileged or unavailable for purposes of such a prosecution by the chairman of a standing committee (as an organ of the party) against its other organs, and that Courts of law should shy away from intermeddling with the internal affairs of a political party. He maintains that there exists an open and glaring conflict of interest which goes to the root of this suit potentially exposing the Honourable tribunal to embarrassment and a resultant abortion of justice. The tribunal was referred to the cases of Philomena Mbete Mwilu v Director of Public Prosecutions & 2 Others; Stanley Muluvi Kiima (Interested Party) [2018] eKLR.

12. It is submitted that Dennis Moturi has been so overzealous in pursuing his clients’ interests that he has failed in professional conduct expected of an advocate to guard himself against such fatal conflict of interests. The pleadings are in breach of all known maxims of equity, and whereas the Respondent has conceded to the Tribunal’s findings on its jurisdiction to hear the instant suit, the pleadings before the tribunal are incompetent and infects the tribunal with conjunctive partiality/bias thereby exposing the Respondent to a forum that is neither impartial nor fair by admission of documents and pleadings that were obtained improperly as evidence. In the event that the tribunal relies on the evidence made and acquired by Mr. Dennis Moturi in the course of his leadership as the Chairman of the party’s IDRM and in favour of the Complainant’s case, which evidence is inadmissible, then all fabric to a fair trial will be lost. As such, and for purposes of meeting the ends of justice, Mr. Dennis Moturi ought to be barred from continuing in this matter and any documents filed in his name or his style and writing be expunged from the tribunal records.

The Response by the Complainant 13. In response to the application, the Complainant has filed his Replying Affidavit and Further Affidavit sworn on 31st May 2023 and 7th June 2023 respectively.

14. It is submitted on behalf of the Complainant that the issue arising from the application is a legal question, that Rule 8 of the Advocates (Practice) Rules uses the word ‘may,’ is not a complete bar, and the rule ought not to be interpreted narrowly. The rule uses the phrase ‘in which he has reason to believe’ and to this extent, an advocate can continue to appear where he believes there is no conflict. It is for this reason that the Complainant has in his Replying Affidavit confirmed that he appointed the firm of Dennis Anyoka Moturi & Company Advocates to represent him in the matter having established that there was no apparent conflict of interest that would have existed in the firm representing him.

15. He avers that it is the Applicant’s presentation that his counsel chaired the disciplinary proceedings under Article 8 of the party constitution, and that the same is not IDRM. That his appointment was vide letter dated 25th November 2022 annexed to his Further Affidavit, and that the minutes relied on by the Applicant show that the processes which took place were by the committee.

16. In response to allegation that the Complainant cannot rely on documents his counsel obtained as chairman of IDRM, counsel submitted that he is not a party to the instant proceedings and that he has not presented any documents in his personal capacity but that he has presented his client’s documentary evidence. It is further submitted that the tribunal was not pointed to any confidential information and that the documents relied on by the Applicant simply demonstrate that there was a process and that the Respondent did not appear. The tribunal was not pointed to any interests of the Applicant which conflict with the Complainant’s representation. That the Applicant should be neutral and wait for the tribunal to determine the substantive matter before it.

17. The Complainant submits that the Applicant has not laid any basis to demonstrate real prejudice and/or real mischief should his advocates on record continue representing him in this matter. That the mere fact that Dennis Moturi, a partner of the concerned law firm and who is representing him herein, is Chairman of the party’s IDRM, is not sufficient reason for the law firm to be barred from acting in this matter without demonstrating that real prejudice or real mischief will be suffered by the Applicant. Moreover, the firm has many advocates and the tribunal should not debar the whole law firm from representing him since the general rule on conflict of interests applies on individual advocates and not necessarily a law firm.

18. The issues before the tribunal revolve around dispute between members of a political party on the legality of a notice dated 13th March 2023, and a special National Delegates Conference held pursuant to the notice, and the same does not touch directly on IDRM at the party. The issue of IDRM was brought out in the Applicant’s preliminary objection dated 4th May 2023 which has since been dismissed. The application is therefore misguided and is made for tactical reasons.

19. It is further submitted that the Applicant has not demonstrated how Mr. Dennis Moturi will be called to give evidence, whether orally or by way of an affidavit, and the tribunal cannot evaluate at this stage that the Complainant’s counsel will be required to be a witness and cannot assume so. The Respondent did not appear in IDRM and there is therefore no aspect of the IDRM that would make counsel conflicted. Under Order 2 Rule 15 of the Civil Procedure Rules, conflict of interests is not a basis upon which pleadings can be struck out and the prayer seeking to strike out the pleadings should therefore not be allowed.

20. Article 50(2) of the Constitution grants a party a right to appoint an advocate of his choice and the court has held it will refrain from interfering with this right unless there is apparent conflict of interest. An applicant who wishes to bar an advocate must demonstrate that there was an advocate-client relationship and this has not been demonstrated in this case.

21. Further in any event, as per the Further Affidavit filed on 7th June 2023, the Complainant has deposed to the fact that the Applicant listed its new NEC officials during the course of these proceedings, and one Julius Anyoka, who is counsel for the Respondent, is a beneficiary, as he has been appointed Secretary Legal & Constitutional Affairs. The Applicant’s interest is therefore to ensure he has counsels on both sides to defend it.

Issues, Analysis and Determination 22. Flowing from the application and the parties’ responses thereto, we have isolated the following key issues for determination: -i.Whether Dennis Anyoka Moturi and/or the law firm of Dennis Anyoka Moturi & Company Advocates should be barred from representing the Complainant in this case?ii.Whether the Complainant’s pleadings and documents filed herein by the firm of Dennis Anyoka Moturi & Company Advocates should be struck out?iii.Who should bear the costs?

Whether Dennis Anyoka Moturi and/or the law firm of Dennis Anyoka Moturi & Company Advocates should be barred from representing the Complainant in this case? 23. Rule 8 of the Advocates (Practice) Rules states as follows: -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.

24. Courts have on several occasions dealt with the above issue. The Court of Appeal in Civil Appeals 286 of 2001 & 15 of 2002, Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 others [2003] eKLR stated thus: -The counsel being the author of the charge may know much more behind the charge than is apparent on the charge and is bound to use that knowledge against the plaintiffs, his former clients. The suspicion is well-founded.We have no doubt whatsoever in our minds that in the particular circumstances of this case, mainly due to the role played by the counsel in bringing about the 1st and the 2nd plaintiffs to agree to sign the charge, he may consciously or unconsciously or even inadvertently use the confidential information acquired during the preparation of the charge.

25On the subject of conflict of interest, in the case of King Woolen Mills Ltd & Another vs. Kaplan and Straton Advocates (1990-1994) EA 244 relied upon by the Applicant, the Court of Appeal 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. And whilst laying the test for disqualification of an Advocate, the Court of Appeal (O’Kubasu, Waki & Deverell, JJ.A) in Delphis Bank Limited v. Channan Singh Chatthe & 6 Others Civil Application No. 136 of 2005 [2005] eKLR, held 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. The test which has been laid down in authorities applied by the Court of Appeal is whether real mischief or real prejudice will in all human probability result…”

27. In Charles Gitonga Kariuki v Akuisi Farmers Co. Ltd [2007] eKLR the Court dealt with the subject of conflict of interest as follows: -“…The fact that an advocate acted for a litigant does not, per se, lead to a situation of conflict of interest. The applicant was required to establish, and present to the court evidence that would persuade the court to reach a conclusion that indeed there was a possibility that a conflict of interest would arise where the advocate is allowed to act for the opposing party against such a litigant…”

28. In calling for an Advocate to cease acting for a party, it may be alleged that an Advocate or a firm of Advocates acted for one of the parties and is in possession of confidential information. In such a case, the averment should not be general. The principle was discussed in Re a firm of Solicitors [1995] 3 ALL 482, at page 489 as follows: -“…. on the issue whether the solicitor is possessed of relevant information, it is in general not sufficient for the client to make general allegation that the solicitor is in possession of relevant confidential information if this is in issue: some particularity as to the confidential information is required…”

29. There are also instances where only some of the Advocates in a firm may be liable to disqualification. In National Bank of Kenya Limited v. Peter Kipkoech Korat & Another [2005] eKLR the High Court stated as follows: -“…even in a situation where the firm was actually acting for the opposite party, disqualification of the entire firm may not be required…”

30. We are also alive to the fact that the Law Society of Kenya developed a Code of Standards of Professional Practice and Ethical Conduct, 2016 (hereinafter referred to as the ‘2016 Code’). The 2016 Code defines conflict of interest in Rule 6 paragraph 96 as follows: -“..A conflicting interest is an 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…”

31. Rule 6 paragraph 95 of the 2016 Code states that: -“…The Advocate shall not advise or represent both sides of a dispute and shall not act or continue to act in a matter when there is a conflicting interest, unless he/she makes adequate disclosure to both clients and obtains their consent...”

32. Rule 6 paragraph 99 of the 2016 Code enumerates instances in which a conflict of interest might arise. They include: -a.Where the interests of one client are directly adverse to those of another client being represented by the Advocate or the firm, for instance in situations where the representation involves the assertion of a claim by one client against another client;b.Where the nature or scope of representation of one client will be materially limited by the Advocate’s responsibilities to another client, a former client, a third person or by the personal interests of the Advocate.c.Where in the course of representing a client there is a risk of using, wittingly or unwittingly, information obtained from a current or former client to the disadvantage of that other client or former client.

33. From the foregoing, and as summed up by Mrima, J in the case of Murgor & Murgor Advocates v Kenya Pipeline Co. Ltd [2021] eKLR, the following are some of the general principles guiding the disqualification of Advocates from appearing for a client in a matter: -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;

34. We will now apply the above general principles to the case at hand.

35. The debarment of the Complainant’s counsel from representing the Complainant in these proceedings is sought mainly on the grounds that the Complainant’s Counsel, Mr. Dennis Moturi, was the Chairman of the Applicant’s IDRM as evidenced by the documentation that the tribunal has been referred to. It is alleged that as Chairman of the Applicant’s IDRM, Mr. Dennis Moturi is privy to all facts and information on the issue of IDRM whose subject was the disputed Special National Delegates Convention (NDC) subject hereof, which facts, information and documentation are confidential, privileged and unsanctioned, and that he has proceeded to use the same in these proceedings to the disadvantage of the Applicant. That there is an apparent conflict of interest as he has already taken sides yet he may be called as a witness in this case. It was further alleged that there was breach of various legal maxims of audi alteram partem, nemo judex in causa sua, amongst others.

36. In consideration of the above general principles that have been laid out to guide the disqualification of advocates from appearing in the matter, we first ask ourselves whether it is apparent that the Advocate sought to be disqualified in this case will be required as a witness to give evidence in this matter. We have examined the record and our first observation is that the substratum of this complaint is not the party’s IDRM. As can be deciphered from the complaint, the issue in controversy is the legality of the notice issued by the Respondent dated 13th March 2023 convening the Special NDC meeting of 21st April 2023 and the resolutions emanating therefrom.

37. Our second observation is that the Applicant has merely averred that Mr. Dennis Moturi may potentially be summoned as a witness. The Applicant has, however, not demonstrated the purpose that Mr. Dennis Moturi’s testimony, if summoned, will serve in the determination of this Complaint. Neither has the Applicant demonstrated the nature of the evidence that Mr. Dennis Moturi will be required to tender, or the prejudice that would result from his continued representation of the Complainant. In essence, there is no evidence to show that Mr. Dennis Moturi’s testimony is relevant, material or necessary in the Complaint at hand.

38. In the case of Seina Lekisaat v Alphonce Mbinda Musyoki & 4 others [2019] eKLR, Achode, J in allowing an appeal against this tribunal’s ruling that barred counsel from representing one of the parties, stated as follows: -“… 33. From the pleadings filed hereto, the court gathers that the issue which is the subject of the appeal before the PPDT is a gazette notice published by the 4th Respondent the Registrar of Political Parties. The issue in controversy is a gazette notice and there is no evidence to show that Mr. Walukwe’s testimony is relevant, material or necessary in the appeal. All the 1st, 2nd and 3rd Respondents have done is state that Mr. Walukwe could potentially be summoned as a witness. They however failed to demonstrate what purpose Mr. Walukwe’s testimony, if summoned, would serve in the determination of the appeal; the nature of the evidence he is required to tender; or the prejudice that would result from Mr. Walukwe’s continued representation of the Appellant.34. Whereas the 1st, 2nd and 3rd Respondents alluded to Mr. Walukwe having been present at a meeting in which a decision to change the national officials of PNU was made, a cursory glance at the Statement of Appeal dated 1st July, 2019 reveals that the appeal before the PPDT is against the decision of the Registrar of Political Parties. In this respect, the Respondents ought to have demonstrated a nexus between Mr. Walukwe and the Registrar to the effect that Mr. Walukwe was part of the decision making process of the Office of the Registrar or that the evidence he would be required to tender would shed light on that process. This is bearing in mind that Mr. Walukwe is neither an official or staff member of the Office of the Registrar of Political Parties. Alternatively, the Respondents should have demonstrated that there is no other evidence which will serve the same purpose as the evidence which Mr. Walukwe would be likely to tender, and this they failed to do…”

39. Similarly, in Delphis Bank Ltd vs. Channan Singh Chatthe & 6 others (supra), the Court of Appeal observed thus:“…In the Uhuru Highway development case the court stated that the bar to the counsel appearing as a possible witness was not subjective. Mr. Menezes here does not believe he would be a useful witness, but that is not the point because the indication is that he would be summoned. We remain uneducated however on the nature of the evidence that he is required to tender before the superior court. If it is merely formal and non-contentious, then of course the proviso to the rule would bail him out. The only certainty is that Mr. Menezes would not be required, and we have not been told so, to testify as a witness before us in the pending application. On that consideration we find it unnecessary to issue orders barring him from participating in the application either as the advocate directly instructed to do so or as lead counsel for such advocate.”

40. Applying the above reasoning in Seina Lekisaat and Delphis Bank Limited to the observations we have made above on the facts and circumstances of this case, we find that the Applicant has not demonstrated that it is apparent that Mr. Dennis Moturi Advocate, who is sought to be disqualified, will be required as a witness to give evidence in this Complaint.

41. We have further addressed our mind to the question whether the Applicant in this case has demonstrated real mischief or prejudice that he is likely to suffer as a consequence of the representation of the Complainant by Mr. Dennis Moturi. As already stated above, it is now settled law that for a Court to deprive a litigant of his right to legal representation of his choice, there must be a clear and valid reason for so doing and that each must turn on its own facts to establish whether real mischief or real prejudice will result. This was aptly elucidated in Guardian Bank Limited vs. Sonal Holdings (K) Limited & 2 others [2014] eKLR where the court opined thus:“What I need to state is that, in applications for disqualification of a legal counsel, a court of law is not to engage a cursory look at the argument that “these advocates participated in the drawing and attestation of the Deeds in dispute;” as that kind of approach may create false feelings and dilemmas; for it looks very powerful in appearance and quite attractive that those advocates should be disqualified from acting in the proceedings. It is even more intuitively convincing when the applicant says “I intend to call them as witnesses.” What the court is supposed to do is thrust the essential core of the grounds advanced for disqualification, look at the real issues in dispute, the facts of the case and place all that on the scale of the threshold of the law applicable. In the process, courts of law must invariably eliminate any possibility that the arguments for disqualification may have subordinated important factual and legal vitalities in the transactions in question while inflating generalized individual desires to prevent a party from benefiting from a counsel who supposedly should be “their counsel” in the conveyancing transaction. I say these things because that kind of feeling is associated with ordinary human sense where both parties in the suit were involved in the same transaction which was handled by the advocate who now is acting for one of the parties in a law suit based on the very transaction; and the feeling is normally expressed in an application for disqualification of the counsel concerned in the hope it will pass for a serious restriction to legal representation. But the law has set standards and benchmarks which must be applied in denying a person of legal representation of choice; the decision must not be oblivious of the centrality of the right to legal representation in the Constitution as the over-arching hanger; equally, it should not be removed from reach to the sensitive fiduciary relation between an advocate and his clients, which in transactions such as these, would prevent the advocate from using the privileged information he received in the employ of the parties, to the detriment of one party or to the advantage of the other; it must realize that the advocate has a duty not only to himself or his client in the suit, but to the opponent and the cause of justice; but in all these, it must be convinced that real mischief and real prejudice would result unless the advocate is prevented from acting in the matter for the opponent. The real questions then become: Is the testimony of the advocate relevant, material or necessary to the issues in controversy, or is there other evidence which will serve the same purpose as the evidence by counsel. Eventually, each case must be decided on its own merits, to see if real mischief and real prejudice will result in the circumstances of the case. And in applying the test, if the argument on disqualification becomes feeble and inconsistent with causing real mischief and prejudice, then a disqualification of counsel will not be ordered.

42. In the instant case, the Applicant’s argument is that the Complainant’s counsel has relied on confidential information that he was able to secure in his capacity as Chairperson of the Applicant’s IDRM and he has already taken sides to the detriment of the Applicant. To this end, the tribunal was referred to various contested documents relating to IDRM proceedings. We remain alive to the fact that the same formed the basis of the Respondent’s preliminary objection dated 4th May 2023 which we found was not a proper PO and accordingly overruled the same vide our ruling delivered on 26th May 2023.

43. Be that as it may, even if it were to be ascertained that the Complainant’s counsel was the Chairman of the party’s IDRM, we have already observed that the substratum of this dispute is not the party’s IDRM, but the legality of the notice of the special NDC meeting subject of these proceedings. The Applicant has not demonstrated or shown the tribunal any allegedly confidential information or documentation that are in Mr. Dennis Moturi’s possession that relate to the subject disputed Special NDC, and how any such information or documentation are detrimental to the Applicant.

44. We have in addition considered the allegation of conflict of interest and we note that the Applicant has not furnished any evidence to substantiate the same. No evidence has been furnished of the existence of any advocate client relationship between the Applicant and the Complainant’s counsel. As was held in Re a firm of Solicitors (supra), conflict of interest is an issue of fact which must be proved by way of evidence.

45. We have further considered the various maxims that were alluded to by the Respondent in support of the application and we find that no evidence has been led to substantiate the same. We are not persuaded by the Respondent’s argument that the Complainant or his counsel or any party to this case is acting as a judge in their own cause. Neither are we persuaded with the Respondent’s claim that the Applicant or even the Respondent was and/or is likely to be condemned unheard. It is not enough to make mere statements without substantiation. Most importantly, we note that in any event, the Respondent is not the mover of the instant application, and we are therefore not persuaded that he is aggrieved by the current Complainant’s representation as purported or at all.

46. Taking into consideration the totality of the facts of this case, the law and the foregoing judicial authorities, we find that the Applicant’s prayer to have Mr. Dennis Moturi barred from representing the Complainant in these proceedings is not warranted. We accordingly make a finding on this issue in the negative.

Whether the Complainant’s pleadings and documents filed herein by the firm of Dennis Anyoka Moturi & Company Advocates should be struck out? 47. The Applicant’s additional prayer is that all the Complainant’s pleadings filed by the firm of Dennis Anyoka Moturi should be struck out. The principles guiding the striking out of pleadings and cases are well settled. These principles, as set out in D T Dobie & Company (K) Ltd vs. Muchina [1982] KLR 1, are that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. This position has been fortified in numerous judicial authorities including Madison Insurance Company Limited v Augustine Kamanda Gitau [2020] eKLR. The Court exercises its powers to strike out with the greatest care and circumspection and only in the clearest of cases as regards the facts and the law.

48. In the instant case, we note that the application before us has not been brought pursuant to the provisions of the law on striking out of pleadings. Instead, this tribunal has been moved pursuant to Rule 8 of the Advocates (Practice) Rules. The grounds upon which the application was based were that the information and documents constituting the pleadings were confidential, privileged and unsanctioned, and the same were obtained under circumstances that amounted to conflict of interests to the detriment of the Applicant. The Applicant has not demonstrated how these grounds satisfy the guiding principles established by a plethora of judicial authorities on striking out of pleadings. Further and in any event, we have already made a finding that the Applicant has not sufficiently demonstrated that the Complainant’s counsel should be barred from representing him.

49. Noting that the tribunal has not been properly moved vide the appropriate law and the guiding principles that it should adhere to, and further noting that we have already made a finding that the prayer to bar the Complainant’s counsel from representing him is unsubstantiated, we find no justifiable basis for striking out the Complainant’s pleadings herein.

Who should bear the costs? 50. In regards to costs of the application, we are of the considered view that the same be in the cause.

Disposition 51. In light of the foregoing, we order as follows: -i)That the Notice of Motion Application dated 4th May 2023 be and is hereby dismissed.ii)Costs in the cause.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2023. DESMA NUNGO - CHAIRPERSONSTEPHEN MUSAU - MEMBERTHERESA CHEPKWONY - MEMBER