Ng’ang’a v Ng’ang’a & another (Environment and Land Case E001 of 2024) [2026] KEELC 3826 (KLR) (21 May 2026) (Ruling)

Ng’ang’a v Ng’ang’a & another (Environment and Land Case E001 of 2024) [2026] KEELC 3826 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3826 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case E001 of 2024 L Waithaka, J May 21, 2026 Between James Ndirangu Ng’ang’a Applicant and Margaret Wangoi Ng’ang’a 1st Respondent NCBA Bank 2nd Respondent Ruling 1.This ruling is in respect of three applications namely;i.Notice of Motion dated 3rd March 2026;ii.Notice of Motion dated 12th March 2026; andiii.Notice of Motion dated 13th March 2026. 2.The circumstances leading to the filing of the three applications are that on 27th February 2026, this Court differently constitituted (Hon. B.N Olao J.), found James Ndirangu Ng’ang’a, the applicant in the Notice of Motion dated 3rd March 2026 and Benson Ng’ang’a, the applicant in the Notice of Motion dated 12th March 2026, to have been in contempt of orders of the court issued on 7th and 28th March 2025 and summoned them to appear before it on 10th March 2026 for mitigation and sentence. 3.Dissatisfied with the decision of the court, James Ndirangu Ng’ang’a and Benson Ng’ang’a (hereinafter referred to as the 1st and the 2nd contemnors, respectively filed the applications dated 3rd and 12th March 2026. 4.In the application dated 3rd March 2026 James Ndirangu Ng’ang’a, the 1st contemnor, seeks the following orders:-i.Spentii.Spentiii.Stay of execution of the ruling dated 27th February 2026 and orders arising therefrom pending the hearing and determination of the intended appeal;iv.Stay of proceedings pending hearing and determination of the intended appeal.v.Costs of the application be provided for. 5.The application is premised on the following grounds:-a.That this court has power and jurisdiction to stay execution of its orders to allow for effective adjudication and determination of the case on merit;b.The applicant has an arguable appeal with good prospects of success;c.The applicant has raised fundamental issues of both law and fact which relate to the findings of the trial court;d.That the respondent shall suffer no prejudice if stay of the ruling is granted. In converse, the applicant shall greatly suffer if execution is carried out based on the ruling that is likely to dispossess the applicant who is the majority shareholder;e.The applicant is willing and ready to comply with whatever conditions this court shall give for stay of the impugned execution pursuant to the orders issued in the ruling;f.Payment and collection of rent from properties owned by the company goes against the rights of the company, a matter which the applicant intends to seek the Court of Appeal’s pronouncement of its validity;g.That compulsory payment of rents to the respondent amounts to the court re-writing tenancy agreements when the case is yet to be determined;h.That the payment of rents to the applicant will adversely affect the obligation of Bennandira Company to pay its loans which are secured using the suit properties with the rents being used to service the loans;i.There is need for redress in terms of confirming whether properties registered with legal personality qualifies for administration out of the law of insolvency as presumed in the ruling delivered on 27th February 2026;j.The applicant has right to exercise his undoubted right to appeal which he should exercise taking into account that his liberty is at brink;k.That the applicant, the company and the tenants stand to suffer if the order of stay is not granted more so if the case fails and the plaintiff is unable to pay;l.That there is likelihood for the applicant who is a major shareholder and director to suffer if the company is administered as an estate of the deceased;m.That the ruling may set a bad precedence where company assets can arbitrarily be deemed as estate assets which will have ramifications on the entire nation given the doctrine of stare decisis;n.That the appeal may be rendered nugatory if an order of stay is not granted;o.That the applicant will be seeking to understand whether the rights of an existing company can just be wished away and be given to an administrator of a defined share;p.That the application is made in good faith, without inordinate delay and to secure fair trial;q.That substantial loss will result to the defendant/applicant if the orders sought are not granted; andr.That the application ought to be granted in the interest of equity and justice. 6.The application is supported by the affidavit of the 1st contemnor/applicant in which the grounds on the face of the application are reiterated. Annexed to the affidavit are:-i)A copy of Notice of Appeal, Ruling and Receipt, marked JNN-(1) (a)-(c );ii.Copy of draft Memorandum of Appeal, marked JNN-2;iii.Copy of judgment delivered in Busia HCCRA No. E035 of 2025 delivered on 24/2/2026, marked JNN-3; andiv.Copy of ruling delivered on 23rd March 2026 in Petition No.E002 of 2025, marked JNN-4. 7.In reply and opposition to the application the plaintiff/respondent, swore an affidavit, sworn on 13th March 2026, in which has deponed as follows:“ 12....that it is obvious that in light of the documents on record and Hon. Justice Boaz Olao ruling delivered on 27th February 2026 the 1st contemnor is lying on oath and guilty of serious perjury. To start with I am personally aware that not only was the 2nd contemnor aware of the injunction orders in issue but he actively took steps towards ensuring that the orders were disobeyed not only by himself but also all the Estate tenants. This honourable court found it as a fact that he opened a whatsApp group of tenants and in that WhatsApp group these are some of his orders to our Estate tenant (he is Lee Nganga or Ben Benna Plaza depending on how the tenants saved his number in their phones). ... 13.That it is obvious from those two WhatsApp messages above cited verbatim by the two contemnors that they were not only aware of the order in issue and their obligation to obey it and for the tenants to obey the same but most importantly, for purposes of mitigation and sentencing of the two contemnors, they actively incited the tenants to disobey the said court orders. 14.That as if the above messages were not worse enough, and to prove that the 2nd contemnor was aware of the said injunction order, he wrote at 1.08 pm on WhatApp group:‘Good afternoon tenants, a document was served upon yourselves by the office of Gatundu & Co. Advocates. We therefore advise you to not accept any letter if it is not accompanied with a legal title deed and a legal search proving the land belongs to them...’ 15...... 16......I want to confirm as I did in my affidavit in support of my contempt application that the numbers appearing on the said WhatsApp chats being 07XXXXXX66 and 07XXXXXX92 belong to the 1st and the 2nd contemnor respectively...” 8.The application was disposed of by way of submissions. 9.From the grounds taken up in support of the application, the response thereto and the submissions filed by the respective parties, the sole issue for determination is whether the 1st contemnor/applicant has made up a case for being granted the orders sought or any of them. 10.Concerning that issue, I note that none of the grounds taken up by the 1st contemnor/applicant in support of his appeal relate to the contempt proceedings before this Court. It appears that the intended appeal is premised on the order of the court requiring payment of rent to an account controlled by the plaintiff/respondent. The applicant has not provided any nexus of that order with the order of the court finding him to be in contempt of the court. For the foregoing reasons, I find the application, to the extend that it seeks to stay the order as regards the court’s finding that the 1st contemnor/applicant is in contempt of the orders issued by the Court to be lacking in merits. However, the documentary evidence annexed to the affidavit sworn in support of the application, shows that the Court might have been misled in issuing the said order said to have been issued in previous court proceedings regarding the issue of payment of rent in the account in question. The documentary evidence annexed to the affidavit sworn by the contemnor, shows that such order was fraudulently and/or erroneously introduced in the court order or decree in question and has since been revised by court. The documentary evidence adduced in this court also shows that the dispute concerning entitlement to rent is pending in court. In the circumstances, the order that comments itself, is an order preserving the rent pending hearing and determination of the issue of entitlement of the rent. 11.In view of the foregoing, I find and hold that the applicant has made up a case for stay of execution of the order of the Court requiring all tenants in the suit properties, Busia Municipality Block 532, 533 and 535 to be paid into bank account No.5XXXXXXX01 in the name of Esther Ng’ang’a and Margaret Ng’ang’a, which order I hereby stay its execution pending the hearing and determination of the intended appeal. 12.To preserve the subject matter of the suit, rent payable in respect of the suit properties, I set aside the order for payment of rent into bank account No.5XXXXXXX01 in the name of Esther Ng’ang’a and Margaret Ng’ang’a and direct the advocates for the parties to approach the court with a consent on where the rent payable shall be paid pending the hearing and determination of the appeal. 13.There being no sufficient reason given for varying or staying the contempt proceedings against the 1st contemnor/Applicant, I direct him to appear before the Court on 9th June 2026 for mitigation and sentence. Application Dated 12Th March 2026 14.Vide the Notice of Motion (application) dated 12th March 2026, the applicant Benson Ng’ang’a a.k.a Lee Ng’ang’a, seeks the following orders:-i.Spentii.Spentiii.Spentiv.That the Honourable Court be pleased to review, vacate, vary or set aside all proceedings leading to the orders issued on 27th February 2026 ex debito justitiae and particularly to review the same to have the applicant participate in them.v.The applicant be allowed to participate in contempt proceedings as regards application by plaintiff-Margaret Wangoi Ng’ang’a dated 24th May, 2025 and be allowed to adduce evidence to challenge the allegations of contempt cited against him;vi.That the name and person of the applicant be removed from the contempt proceedings and or main proceedings unless procedurally joined as a party;vii.That the honourable court do issue any and all such orders as are appropriate in the circumstances of the case;viii.That the plaintiff/respondent to settle costs of the application. 15.The application is premised on the grounds that the applicant has been ordered to appear in court on 18th March 2026 to mitigate and be sentenced for contempt of court orders following a ruling made on 27th February 2026; that the applicant has never been aware of any proceedings in the main suit nor was he made aware of the contempt proceeding vide a motion dated 24th May 2025 by Margaret Wangoi Ng’ang’a and/or anyone at all; that the applicant has never been served with any notice to show cause by the court or any person as regards contempt proceedings dated 24th May 2025; that the applicant stands to be condemned unheard in the circumstances of the case; that the applicant has no interest in the Estate of his deceased grandfather-Benson Ng’ang’a Ndirangu, whom he is named after and has his own parents who are still alive; that the applicant is a university student at Daystar, whose liberty is at stake due to extended family squables yet he has no direct interest in and or control over and in the Estate of his maternal grandfather-Benson Ng’ang’a Ndirangu; that the applicant has never collected rent and or disobeyed a court order in a suit he is not interested in nor a party to; that it is in the interest of justice, that the applicant be allowed to know the nature of allegations brought against him, by who and for what reason. 16.The applicant further contends that there is an error apparent on record since there is no evidence that he was ever served with any court order, has been a party to any suit and/or having been made aware of contempt proceedings by Margaret Wangoi Ng’ang’a; that there is apparent evidence of abuse of court process by the plaintiff to the applicant’s detriment, yet he is an innocent young adult who is not a party to family squabbles and that he is not a director and/or a shareholder of Bennandira Company Ltd nor does he have any nexus to the Estate of the deceased except through his mother who is not a party to any proceedings in this case. 17.The application is supported by the affidavit of the applicant in which the grounds on its face are reiterated. 18.In reply and opposition to the application, the plaintiff/respondent swore an affidavit sworn on 13th March 2026, in which she has deponed as follows:“ 12....that it is obvious that in light of the documents on record and Hon. Justice Boaz Olao ruling delivered on 27th February 2026 the 1st contemnor is lying on oath and guilty of serious perjury. To start with I am personally aware that not only was the 2nd contemnor aware of the injunction orders in issue but he actively took steps towards ensuring that the orders were disobeyed not only by himself but also all the Estate tenants. This honourable court found it as a fact that he opened a whatsApp group of tenants and in that WhatsApp group these are some of his orders to our Estate tenant (he is Lee Nganga or Ben Benna Plaza, depending on how the tenants saved his number in their phones). ... 13.That it is obvious from those two WhatsApp messages above cited verbatim by the two contemnors that they were not only aware of the order in issue and their obligation to obey it and for the tenants to obey the same but most importantly, for purposes of mitigation and sentencing of the two contemnors, they actively incited the tenants to disobey the said court orders. 14.That as if the above messages were not worse enough, and to prove that the 2nd contemnor was aware of the said injunction order, he wrote at 1.08 pm on WhatApp group:‘Good afternoon tenants, a document was served upon yourselves by the office of Gatundu & Co. Advocates. We therefore advise you to not accept any letter if it is not accompanied with a legal title deed and a legal search proving the land belongs to them...’ 15...... 16......I want to confirm as I did in my affidavit in support of my contempt application that the numbers appearing on the said WhatsApp chats being 07XXXXXX66 and 07XXXXXX92 belong to the 1st and the 2nd contemnor respectively...” 19.The application was disposed of by way of written submissions. 20.Whilst the applicant in his application inter alia contends that he was not served with the application pursuant to which he was found to have been in contempt of court, I note that the plaintiff/respondent has not, in her response to the application, addressed the issue of service which is critical in determining whether or not the applicant was afforded an opportunity to be heard on the allegation levelled against in accordance with the rules of natural justice. 21.It is trite law that a decision made without giving the person(s) affected by it an opportunity to be heard is a nullity in law. In that regard, see Republic v PS, Ministry of State for Public Service ex parte Joseph Maina Muthee e KLR where it was held that a court decision made in breach of natural justice is a nullity and of no effect. 22.In view of the foregoing, a question of fact and law arises from the application namely, proof of service of the application for contempt on the applicant or the manner in which the application was served on the applicant, if at all the application was served on the applicant. 23.I note that the plaintiff/respondent has merely adduced evidence showing that the 2nd contemnor was aware of the orders he is accused of having disboyed and/or aided in its disbodience, which is not enough for purpose of demonstrating that the applicant was afforded an opportunity to be heard on the allegations levelled against him. The plaintiff/respondent needed to by way of evidence, to file an affidavit of service to satisfy the court that the applicant was indeed served with the application for contempt. In the absence of any evidence capable of proving that the applicant was served with the application, I find and hold that the applicant has made up a case for re-opening of the contempt proceedings with a view of according the applicant an opportunity to be heard on the allegations/accusations levelled against him. Consequently, I allow the applicant’s Notice of Motion dated 12th March 2026 in the following terms:-i.I set aside the Order issued on 27th February 2026 adjudging the applicant herein to have been in contempt of court and re-open the contempt proceedings in respect of the application by the plaintiff/respondent-Margaret Wangoi Ng’ang’a dated 24th May, 2025 solely for the purpose of according the applicant an opportunity to be heard in the application and to adduce evidence to challenge the allegations of contempt made against him;ii.Having read and considered the circumstances surrounding the issuance of the impugned orders, despite having determined that the applicant has made up a case for re-opening the contempt proceedings to give him an opportunity to be heard, I make no order as to costs. Notice Of Motion Dated 13Th March 2026 24.Through the Notice of Motion (application) dated 13th March 2026, the plaintiff/applicant seeks the following orders:-i.Spentii.That counsel Okutta O. Wycliffe, Toney Omeri and Tyson Ouma Otieno be disqualified from appearing in this matter as counsel for parties or in the alternative, they be enjoined to recuse themselves from appearing for the parties in this case and their clients in this matter be granted an opportunity to retain other unconflicted counsel for them. 25.The application is premised on the grounds that contempt proceedings are, by their own nature urgent and prioritized; that Okuta O. Wycliffe and Toney Omeri were advocates of the late Benson Ng’ang’a Ndirangu pertaining to his cases and transactions related to the suit properties and other properties and some of which disputes are still ongoing and therefore their appearance in this case against the interest of the Estate of the deceased is obviously direct conflict of interest, grave violation of client-advocate confidentialities and highly personalized conflicted positions; that counsel Tyson Ouma Otieno and Toney Omeri are in direct and obvious dispute with the Estate of the late Benson Ng’ang’a Ndirangu as the Estate is claiming unpaid rent arrears and their firms’ assets have already been proclaimed; therefore under that circumstance, they cannot be expected to be objective, are highly conflicted and have direct and obvious interest in the subject matter of this suit as tenants or previous tenants and debtors and that it is in the interest of justice that the three counsels be disqualified or be enjoined to recuse themselves from this case in its entirety as counsel. 26.The application is supported by the affidavit of the plaintiff/applicant sworn on 13th March 2026 in which the applicant has inter alia deponed as follows:-“.... 2.That the contents of the 1st contemnor/convict’s application dated 3rd March 2026 and the 2nd contemnor/convict’s application dated 12th March 2026 have been read to me by the Estate advocate Mr. Gatundu and in reply thereto I wish to state as follows; 3.That granted the nature of the two applications I vehemently object to the appearances of Mr. Tyson Ouma Otieno, Mr. Wycliff Ouma Okutta and Mr. Toney Omeri as advocates representing parties in this matter on the following grounds: 4.That Mr. Tyson Ouma Otieno owes the Estate Kenya Shillings One Hundred and Thirty Five Thousand (Ksh. 135,000/) in unpaid rent by their law firm. I instructed auctioneers Messrs Semy Auctioneers to Levy distress against them, but instead of paying the said rent arrears they unethically relocated without my knowledge. They still owe the Estate the said rent arrears and the auctioneers fees amounting to Kshs. 65,000/-. Shown to me and annexed hereto as annexture “MWN 1” is a copy of distress proclamation. 5.That Mr. Tony Omeri Advocate and his firm Omeri & Associates Advocates owe the Estate Kshs.390,000/- in unpaid rent arrears and he owes auctioneers fees of Kshs. 87, 250/-. Like Tyson before him Omeri unethically relocated his firm from the suit properties without having paid the said rent arrears and without my knowledge. The said acts of the two advocates to defraud the Estate of its rightful entitlement to rent from its tenants and former tenants and granted the Order by Hon. Justice Boaz Olao on 27th February 2026 that required the tenants to pay rent arrears to the specified Estate account, I need not remind the two advocates and their law firms that they ought to clear the said rent arrears forthwith. If they had any issue with the said distress proclamations they should have sought court’s intervention rather than engage in the embarrasing act of defrauding the estate of the said rent arrears. Shown to me and exhibited hereto as annexure MWN 2 is proclamation against Mr. Omeri. 6.That the less I depose about advocates Wycliff Ouma Okutta and Mr. Omeri the better for them. Both were advocates of my late husband and our family businesses in relation to our properties and transaction. 7.That Mr. Omeri confirmed in the related criminal case that he used to act for my late husband in relation to his properties and transactions. That in itself is enough to disqualify him ethically and professionally to act in this matter. Shown to me and exhibited as annexture “MWN3” is a copy of court document by Mr. Omeri dated 7th November 2022. 8.That I want to confirm to this Honourable Court that even before Mr. Omeri came to the scene before that was Mr. Wycliff Ouma Okutta advocate who was acting for my late husband pertaining to his properties and transactions. Shown to me and exhibited as annexture MWN 4 is a copy of Mr. Outta’s letter dated 17th April 2017 addressed to Ecobank (K) Ltd pertaining to long winded dispute over one of the estate’s properties. In that letter, Mr. Okutta can be seen coming out gun blazing in defence of the estate’s properties when my late husband was still alive. Now we can see him coming out gun blazing against the interests of his former client Mr. Benson Ng’ang’a Ndirangu by purporting to act for a contemnor in contempt proceedings brought by the administrator of the same estate properties that he was acting for in the past, was privy to crucial sensitive information and my husband’s briefs pertaining to the said properties. 9.That for avoidance of doubt, the reason why I did not formally raise this issue of conflict of interest and conflicted personal interests in the subject matters of litigation by the three advocates before was because I did not want to embarass them before the same courts they practice but I decided to let them decide upon their own ethical conscience to recuse themselves rather than wait for me to raise the issues of ethics, professional responsibilities, client-advocate confidentiality, conflict of interest and harbouring personal interests in subject matters of litigation for instance as tenants of the Estate...” 27.The application is opposed by the interested party (Bennandira Limited) through grounds of opposition dated 24th March 2026 on the following grounds:-i.The applicant has not demonstrated any client-advocate relationship between herself (or the estate she represents) and the firm of Omeri & Associates Advocates to warrant any claim of conflict of interest;ii.The application is premised on a fundamental misdirection in law, as the alleged former tenancy relationship does not, in law, constitute a professional or fiduciary relationship capable of giving rise to conflict of interest;iii.The application disregards the doctrine in Salomon v Salomon & Co. Ltd (1897)AC 22, as the company is distinct from its shareholders, directors, and estates and any dealings with the company cannot be imputed to the applicant;iv.The alleged tenancy between the advocates and the interested party is a purely commercial landlord-tenant relationship, which does not create conflict of interest within the meaning of the law governing advocates;v.The firm of Omeri & Associates Advocates is properly on record, having been instructed by the majority shareholder and the surviving director, who are legally competent to act for and bind the company;vi.The applicant has failed to show that the advocates are in possession of any confidential information belonging to her capable of being used to her detriment;vii.The advocates are exclusively for the interested party as a corporate entity and not any individual shareholder, director or estate;viii.The applicant has failed to demonstrate any real or probable prejudice that would arise from the advocates remaining on record;ix.The application unjustifiably infringes the interested party’s constitutional right under article 50 to legal representation of its choice;x.The application is belated, having been brought after the advocates have actively participated in the proceedings and is intended to derail the fair hearing of the matter being an afterthought. 28.In reply and opposition to the application, the 2nd contemnor filed grounds of opposition dated 17th March 2026 and two affidavits (replying and further) sworn on 16th March 2026 and 20th March 2026. 29.In the affidavit sworn on 16th March 2026, the 2nd contemnor has reiterated some of the grounds in his grounds of opposition and deponed as follows:-“... 3.It has been brought to my attention an application dated 13.3.2026 and which relates to an application for my advocate M/S Wycliffe Ouma Okutta to recuse himself from representing me in the contempt proceedings; 4...the basis of the said application and reasons advanced have been explained to me and I wish to respond to the same as below, and with some instances, with assistance of my advocate on record; 5....the application is frivolous and is meant to divert attention of Court on real issues for determination. 6....I have enquired from my advocate, Wycliffe Ouma Okutta, on the veracity of the facts deponed to and he has informed me that the application is based purely on fear and is not factual; 7...M/S Wycliffe Ouma Okutta advocate appeared for my late grandfather in a matter in which he had a dispute with one Samuel Tirus Wainaina and Eco-bank and the matter was settled way back in 2017 and it did not concern the estate of the deceased as alleged; 8....What we have here and I am aware of same is alleged contempt proceedings and the estate of the deceased is not involved at all; 9....I have exercised my constitutional right on representation and I should not be denied such a basic constitutional right; 10....There is no prejudice the applicant would face if M/S Wycliffe Ouma Okutta advocate whom I trust and believe in as my legal counsel were to represent me; 11....I wish to oppose the application and apply that the same be struck out with attendant costs. 12.....I wish to raise an objection and seek striking out of the application dated 13.3,2026 because I have not been cited as a party to the same application...” 30.In his further affidavit, dated 20th March 2026, the second contemnor has deponed as follows:-“... 2....I know of my own knowledge and I am being informed by my advocate on record that he has never handled any property belonging to the estate of the deceased grandfather as deposed to by the applicant; 3....I know of my own that the property Busia Municipality/530 which once belonged to my grandfather ceased to be his by a decree of this court when the Court of Appeal dismissed his appeal against Samuel Tiras Wainaina and following the unsuccessful litigation by him this court differently constituted (See a copy of judgment by Court of appeal marked BNN-1) and judgment by this court marked BNN2); 4....It follows logically and legally that the said property in which M/S Wycliffe Okutta Advocate participated in representing my grandfather way back in 2017 cannot be considered a property of the estate to which conflict of intererest may arise as suggested by applicant. 5....the rest of the properties to wit, Busia Municipality 532, 533 and 535 belong to and is registered in the name of a legal person-Bennandira Ltd and therefore is not part of the estate of deceased but for his share which is 20,000 shares only; 6...I am being advised that being the case, it is misleading to suggest that M/S Wycliffe Okutta advocate is capable of interferring with the estate of the deceased and over a matter already litigated to finality and his instructions over them ceased; 7...further, the issue of rent is one between Bennandira Limited and specific tenants and therefore is in the purview of Business Rent Tribunal in terms of jurisdiction and none of the tenants have complained; 8...I know that the applicant is out to abuse court process to achieve her aim of irregularly collecting rent from the tenants and I am aware of her having initiated criminal law process and misused police to have my uncle-James Ndirangu Ng’ang’a arrested and charged of forgeries and fraud in a case which collapsed, all the 22 counts (See copy of charge sheet marked as BNN3(a)-Copy of judgment of lower court B.N.N-3(b) and copy of High Court judgment marked 3(c); 9....The purpose of this contempt proceedings and the application to have M/S Wycliff Okuta Recuse himself is because he has been in Court fighting for our uncle James Ndirangu Ng’ang’a successfully and his participation was not challenged until the frivolous charges collapsed; 10....I am aware that in the cases concluded in which due process and police were abused M/S Tyson Ouma Otieno Advocate, M/S Wycliffe Okutta Advocate and M/S Omeri Tony Advocate participated for James Ndirangu Ng’ang’a whereas M/S Alex Ng’ang’a acted for the complainant-applicant herein alongside the Office of the Director of Public Prosecution. 11....I pray this court to find the application for contempt as punitive as I was not served and also application to have M/S Wycliffe Okutta recuse himself as being informed by fear rather than fact and law. 12.... I pray that the application for Recusal be disallowed and also one by myself to be allowed to participate and explain myself in Contempt proceedings be allowed such that justice be done to all. 13....” 31.In reply and opposition to the application, the 1st Contemnor through his replying affidavit sworn on 20th March 2026 has deponed as follows:-“..... 4.The present advocate of the plaintiff expressed interest to represent the late Benson Ng’ang’a in the case which Okutta was favoured and appointed to represent the deceased something that created a grudge between Mr. Gatundu advocate that he disappered only to resurface after the death of Benson Ng’ang’a; 5.That as a result of denial of representation he has never liked Mr. Okutta to date so this is personal to him; 6.That the buildings in question do not belong to the estate but to the company which had tenancies with everyone and as a director I confirm that none of the impugned law firms owe any rent to the company or anyone to be precise. 7.That since I participated in the decision that denied Mr. Gatundu an opportunity to represent the deceased in the case involving Eco Bank, he developed hatred towards me and has since been looking for an opportunity to revenge against me. That’s why he condoned forging an order dated 3/9/2024 in Busia Criminal Miscellaneous No. e035 of 2024 that he placed in his file and misled the court that tenants had been ordered to pay them rent an order that had been overturned in Busia HCCREV No.E016 of 2025 (Annexed herein and marked JNN-1 is a copy of order dated 3/9/2024 and HCC REV. No. E016 of 2025); 8.That the said alien order was relied upon in holding that I was in contempt and relied upon to direct tenants to pay rent to the plaintiff; 9.That Mr. Gatundu does not fit the status of an advocate if you were to ask me since he suppressed true documents including the green cards for suit properties by bringing 2015 documents when he had all current documents obtained by assistance of DCI; 10.That Mr. Gatundu was brought by Anastacia Wanjiru a person who together with Gatundu have tried to dissolve the company from early 2024 through derivative action which failed; 11.That the deceased during his lifetime had the right to choose his advocate and that by itself cannot be used as a bar for the advocate to represent any person over the matter; 12.That in fact Mr. Gatundu while working with the investigating officer in a bid to prevent interrogation of the forged order threatened Mr. Omeri leading to forceful withdrawal of HCRREV No. E029 of 2024 which in order to hide the truth told court that they had agreed with Mr. Omeri to withdraw the matter. I had not authorized the withdrawal but when I got the explanation of the intimidation I just relented for the sake of Omeri and his family which was being hunted. 13.That when we had intended to settle this matter through mediation, Mr. Gatundu strongly objected and has always wanted to get a share of the suit properties to the extent of misrepresenting court orders such as one that led to the contempt proceedings herein. Annexed herein and marked JNN-2 is a copy of the letter dated 13/11/2024 and an order dated 12/11/2024. 14.That if there is a person who is emotionally invested in this case is Mr. Gatundu to the extent the High Court noted in HCFP No. E003 of 2024 between same parties at paragraph 14 of ruling that he was even pulling stunts to sway court. annexed herein and marked JNN-3 is a copy of the ruling dated 30/9/2024. 15.That his emotion can also be shown from how he disregards my advocates such as calling Mr. Omeri a culprit in court because he testified against them in the criminal trial. 16.That the applicant has not demonstrated how the advocates on record are conflicted. I belief it is misplaced to strike out an advocate for representing a party in contempt proceedings on the basis that the advocate acted for his grandfather in the matter; 17.That these are the kicks of a dying horse after losing all the cases that were geared to pave way for them to sell the assets of the company.... 18.That in all the above matters I was represented by the same advocate and the plaintiff never complained since they were optimistic to win as they dismissed my advocate as being a mere junior who cannot go against a senior admitted way back. 19.That all through they never raised any objection to the representation until i heard the plaintiff, her daughters and MS Chala the prosecutor from Kakamega saying that my advocate has proved to be the stumbling block to them in achieving the objective so they had to come up with a plan to remove him representing me which they attempted in the High Court but failed. 20.That this case is the only case they have placed their hopes on to nail me as all other cases have crumbled and the only way to do that is to drag the court in mud and remove my advocates from the record who are standing in the way of my imprisonment as sought by Mr. Gatundu. In fact, he intends to compensate acquittal in the criminal cases through the contempt proceedings. 21.That Mr. Tyson has never been a tenant and or traded using the name Odera Odhiambo and Associates Advocates, as the name belonged to Charles Odera who was a tenant and has no any rent arrears. 22 That there was mass exodus on the building due to worse management by the plaintiff and her children through harassment of tenants which caused several persons to move including Odera who was a tenant. In fact, even the financial institutions are only there to recover the loans taken by the deceased and transferred to the company. 23.That the issue of conflicts by my advocates was never raised at any point until when I won the criminal case No. HCCRA No. E035 of 2025 which they viewed him as a threat to their goal which was to cause my imprisonment in order for them to sale the building which has been their objective all along. 24.That the affidavit is defective as the swearing could not have been done by a person who is not in Busia. 25.That if there is a person to be recused in this case should be Gatundu and in fact the Society should investigate his conduct in relation to this estate and related cases. 26.That the applicant has not demonstrated any conflict of interest between my advocates and them in any way. If at all Odera owes the company rent, then the company is the one obligated to follow up. 27.The applicant is taking advantage that this court is new since such application had been previously made before justice Musyoka but the same was dismissed. 28.....” 32.The application was disposed of by way of written submissions. 33.From the grounds taken up in support of the application, the response thereto and the submissions, the sole issue for the court’s determination is whether the applicant has made up a case for issuance of the orders sought. 34.To be granted the orders sought, the applicant has to prove that is a conflict of interest on the part of the Advocate which implicates the right of the other party to have a fair trial. 35.In that regard, see the case of David Munga Kinyanjui T/A as Njomuki Agencies vs. Gateway Insurance Co. Ltd & another where the Court stated/held:-“a party is entitled to counsel of its choice and a party who seeks to interfere with that right must demonstrate exceptional circumstances. One of the exceptional circumstances includes a conflict of interest on the part of the Advocates which of course implicates the right of the other party to have a fair trial. This position was outlined by the Court of Appeal in King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd & another v Kaplan & Stratton Advocates NRB CA Civil Appeal No. 55 of 1993 [1993] eKLR where it cited with approval the observations of the Sir Nicolas Browne-Wilkinson VC in Supasave Retail Ltd v Coward Chance and others [1991] 1 All ER 668 follows:‘The English law on the matter has been laid down for a considerable period by the decision of the Court of Appeal in Rukusen v Ellis, Munday & Clerke [1912] 1 Ch 831… The law as laid down is that there is no absolute bar on solicitor in a case where a partner in a firm of solicitors has acted for one side and another partner in that firm wishes to act for the other side in litigation. The law is laid down that each case must be considered as a matter of substance on the facts of each case. It was also laid down that the Court will only intervene to stop such a practice if satisfied that the continued acting of one partner in the firm against a former client of another partner is likely to cause (and ……….) real prejudice to the former client unhappily, the standard to be satisfied is expressed in numerous different forms in Rukusens case itself. Cozens – Hardy MR laid down the test as being that a Court must be satisfied that real mischief and real prejudice will, in all human probability result if the solicitor is allowed to act ………… As a general rule, the Court will not interfere unless there be a case where mischief is rightly anticipated.....” 36.In applying the above principles to the circumstances of this case, I have read and considered the grounds taken up in support of the application and the responses thereto alongside the applicable law, cited herein above. In the instant case, the applicant has not disclosed existence of any conflict of interest by the advocates sought to be prohibited from representing the respondents to warrant issuance of the orders sought. The applicant has also failed to demonstrate that the advocates are seized of any confidential information passed to them in their capacity as advocates for the estate the aplicant represents, which may be used against the estate. In any event, the application that has led to the application relates to contempt of the court by the contemnors herein, which case has nothing to do with the claim by the applicant that the respondents are seized with information which may be used against the estate she represents. Further, the alleged dispute concerning payment of rent is commercial in nature and has nothing to do with advocate-client relationship hence it is incapable of forming the basis of the order for recusal of an advocate or for barring an advocate from representing a party to the suit or dispute before court. Moreover, there is contention about existence of the alleged rent arrears. 37.The upshot of the foregoing is that the application dated 13th March 2026 has no merits. Consequently, I dismiss it with costs to the respondents. 38.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT BUSIA THIS 21ST DAY OF MAY, 2026L. N. WAITHAKAJUDGEIn the presence of;-Mr Karanja Mbugua for the PlaintiffMr Okutta for the 2nd Contemnor and h/b for Mr. Otieno for the 1st Contemnor/ DefendantMs Juma for the Interested PartyMs. Obware for the InterplederCourt Assistant: Tracy