https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8286

Republic v Inspector General of Police & 3 others; Andrew Ombwayo Advocate p/a Andrew Ombwayo & Co. Advocates (Ex parte Applicant) (Civil Application E164 of 2022) [2026] KEHC 8286 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8286 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Application E164 of 2022 TW Ouya, J June 11, 2026 Between Republic Applicant and Inspector General of Police & Anr Respondent and John Njuna Nduati & Anr & 2 others & 2 others & 2 others & 2 others & 2 others Interested Party and Andrew Ombwayo Advocate p/a Andrew Ombwayo & Co. Advocates Ex parte Applicant Ruling 1.The Applicant by a Notice of Motion dated 21st February 2026 lodged the instant application seeking orders that:i.Leave be and is hereby granted to join Synergy Industrial Credit Limited as a 3rd Interested Party in this cause.ii.Leave is hereby granted to the Exparte Applicant to rebut the Respondents’ and 1st and 2nd Interested Parties’ responses without professional ethical constraints. 2.The Application was premised on grounds on its face as well as the Supporting Affidavit of Andrew Ombwayo of even date where it was deponed that the Respondent and Interested Parties have filed responses to The Substantive Notice of Motion which adversely mentioned Ms Synergy Industrial Credit Limited as the Applicant’s alleged accomplice in a criminal complaint pursuant to a consent order given in NBI HCCOMM 319 OF 2015 which is the subject of these judicial review proceedings and the criminal complaints by the Interested Parties. 3.It was further deposed that although the Court granted the Ex Parte Applicant leave to rebut the Respondents’ and Interested Parties’ responses, the Ex parte Applicant is constrained by professional ethical concerns from revealing certain information that came into his possession whilst an Advocate of the 1st interested party and which is necessary in these judicial review proceedings. He is therefore constrained by Client’s privilege from revealing any adverse information he had regarding the 1st interested party hence this application for special leave to allow him to do so. 4.The application is undefended as none of the parties filed any response to the Application. Also, no submissions were filed in respect of the Application. 5.Upon perusal of the Application and the supporting affidavit the main issue for determination is:i.Whether the Applicant has met the requirements for admission as an interested party;ii.Whether the Applicant has met the threshold for lifting of the advocate-client privilege. 6.The grant or refusal of an application for joinder involves the exercise of a discretion. However, such discretion must be exercised judicially and upon reason, rather than arbitrarily or capriciously. The term ‘Interested Party’ is defined in Black’s Law Dictionary, 9th Edition, at pg. 1232 as:-“A party who has a recognizable stake (and therefore standing) in a matter …” 7.The Supreme Court of Kenya in the case of Attorney General v David Ndii & 73 Others (Petition 12 (EO16) of 2020) [2021] KESC 17 (KLR), offered guidance on the applicable principles in an application of joinder by an interested party. The Court stated that:“An Applicant to be enjoined as an Interested Party has to satisfy this Court that it has met the legal requirements for joinder………..This court has laid down the guiding principles applicable in determining an application to be enjoined as an interested party in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others SC Petition (Application) No. 12 of 2013. The principles were affirmed in the case of Francis Karioki Muruatetu & another v Republic & 5 others (supra) where the court stated:“.… One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements:(i) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. (ii)The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. (iii)Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court” …. (Emphasis Added) 8.A relevant provision addressing the joinder of parties, but not interested parties expressly, is Order 1, Rule 10(2) of the Civil Procedure Rules which provides as follows:“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 9.The Supreme Court spelt out the respective positions of parties in a suit where an interested party had been enjoined or is seeking to be enjoined. In the case of Francis Karioko Muruatetu & Another v Republic & 5 others [2016] eKLR“(41)…We are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the Court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the Court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us…” 10.The Supreme Court further exhorted that the joinder or proposed joinder of an interested party should neither involve nor entitle such a party to raise new issues or cause of action not already pleaded by the primary parties in the suit, before proceeding to state that:“(42)…One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether new issue to be introduced before the Court” …. (Emphasis added). 11.In the instant case, although the Applicant has required that the intended interested party be joined to these proceedings, he has not specifically outlined any submissions that the intended Interested Party will be making should he be joined to the suit. While the Applicant has clarified that his intention to join the intended interested party is premised on the fact that certain averments to the responses by the Respondent in the substantive motion have necessitated the need to file the Application seeking to join Ms. Synergy as an interested party in support of the Application to be joined to the proceedings. Additionally, it is notable that there is no Affidavit by Synergy, the proposed interested party in support of the Application. This approach by the Applicant departs from the Supreme Court’s standard in the Mumo Matemu case. 12.In the court’s view, therefore, the Applicant has failed to delineate the personal or legal stake of the intended interested party in these proceedings. In the circumstances, the prayer for joinder must fail. 13.Regarding the second issue, Section 134(1) of the Evidence Act provides that;“(1)No advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:Provided that nothing in this section shall protect from disclosure–(a)any communication made in furtherance of any illegal purpose;(b)any fact observed by any advocate in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to the fact by or on behalf of his client. (2) …” (Emphasis added) 14.On the other hand, Section 137 of the Evidence Act provides as follows:“ 137.Communications with an advocate No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his advocate unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.” 15.My reading of the above provisions, which are germane to my determination, is that an advocate is expressly prohibited from disclosing communication made to him or her by his or her client or divulging information regarding documents that come to his/her attention in the course of employment as the client’s advocate. The prohibition is thus for the protection of the client and not of the advocate. All the advocate gets is the privilege of non-disclosure. 16.The client’s protection is however, not absolute, as there are instances stated in the proviso, where the advocate may be required, for the stated compelling reasons to disclose such communication or content and condition of documents. That is, there can be breach of the privilege but only in two instances. First, where the communication between an advocate and the client furthers an illegal purpose and secondly, where the advocate observes that the client used the privilege to commit a crime. This position was affirmed by the Court of Appeal in Mohammed Salim Balala & Anor vs Tor Allan Safaris Ltd [2015] eKLR. 17.The importance of the privilege was acknowledged by the English Court of Appeal in Conlon vs. Conlons Limited [1952] 2 All ER 462 with that court observing that the privilege has been zealously guarded by the courts as long as the history of the law goes and that there are only two instances in which it is lost; if something of a criminal nature is involved and if there is waiver by the client. In particular, the court observed that:“What is the rule [as to privilege] and what is the meaning of the rule? …The object and meaning of the rule is this; that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentlemen whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communication be so makes to his should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enable properly to conduct his litigation. That is the meaning of the rule.” 18.Furthermore, in King Woolen Mills Ltd & Another vs Kaplan & Stratton Advocates [1990-1994] E. A 244 it was held that;“… the fiduciary relationship created by the retainer between client and advocate demands that the knowledge acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without that client’s consent. The fiduciary relationship exists even after conclusion of the matter for which the retainer was created.” 19.From the above decisions, it is clear that an advocate cannot claim the protection of the rule, as it belongs to the client and not the advocate. That is, the advocate-client privilege can only be waived by the client and not the advocate since that privilege belongs to the client and the right of waiving the privilege lies with the client and not the advocate as contemplated for under Section 136 of the Evidence Act. 20.I am therefore of the considered view that an advocate/client privilege binds an advocate not to be compellable to disclose a client’s affairs without express authority or consent of his or her client. An advocate cannot therefore be compelled to breach the said requirement either by court or any other person. The waiver/lifting of the same can only be done by the client unless the exceptions in Section 137 of the Evidence Act are met. 21.In the foregoing, I find that the application dated 21st February 2026 lacks merit and is hereby dismissed. 22.No orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 11TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Nakhone for 1st Interested PartyAndrew Ombwayo for ApplicantNyabuto – Court Assistant