https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8932

Nyaga v Kabu (Civil Suit E286 of 2024) [2026] KEHC 8932 (KLR) (Civ) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 8932 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Suit E286 of 2024 KL Kandet, J June 24, 2026 Between Sarah Njoki Nyaga Applicant and Simon Waithaka Kabu Respondent Ruling 1.Before me for determination is the Notice of Motion dated the 5th day of August 2025 brought pursuant to the provisions of Rule 9 of the Advocates (Practice) Rules, Order 51 Rule 1 & 3 of the Civil Procedure Rules and all enabling provisions of the law where the Applicant is seeking for orders that the Advocate for the Plaintiff/Respondent, Judith Kamoing’ T/A Kamoing’ & Co. Advocates, be barred or disqualified from this suit and that all attendant pleadings by the erstwhile Advocate be expunged and struck out from the Court records. 2.This application is premised on the grounds that:a.The Plaintiff/Respondent and the Defendant/Applicant are both directors of Bonfire Adventures and Events Limited, a private limited company actively involved in litigation in multiple courts, particularly the Court of Appeal at Nairobi.b.The Respondent’s Counsel acts for Bonfire Adventures & Events Ltd in Civil Appeal No. E304 of 2025: Judy Karimi v Bonfire Adventures & Events Ltd, Simon Kabu & Sarah Njoki Nyaga, which is an appeal rising from ELRC Case No. E032 of 2024c.That the said Advocate is privy to confidential, sensitive, and prejudicial information concerning both the Plaintiff/Respondent and the Defendant/Applicant in their capacity as directors of the said company, information which directly affects or relates to the issues in dispute in the present suit.d.That by acting for the Plaintiff/Respondent in the present suit against a co-director while simultaneously representing the company, whose interests both parties are charged to protect, the Advocate is in flagrant breach of fiduciary duty, client confidentiality and the professional obligation to avoid conflict of interest.e.That the dual representation offends Rule 9 of the Advocates Practice Rules, Canons 4 and 5 of the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct.f.That the conflict of interest is not speculative but active and ongoing, posing a real risk of prejudice and procedural injustice to the Defendant/Applicant. 3.The Applicant/Defendant avers that it is trite that an advocate owes a continuing fiduciary duty of confidentiality and loyalty to every client, whether individual or corporate. This duty precludes the advocate from acting against that client, or against another person whose information he has obtained in confidence, where there exists a real possibility of conflict of interest. 4.The Application is opposed through the Replying Affidavit of Judith Kamoing’, Counsel for the Plaintiff/Respondent sworn on the 3rd day of November 2025. Counsel acknowledges that their firm, Kamoing’ & Co. Advocates acted for Bonfire Adventures & Events Ltd in Nairobi Court of Appeal Civil Appeal No. E304 of 2025: Judy Karimi v Bonfire Adventures & Events Ltd, Simon Kabu & Sarah Njoki Nyaga. 5.Counsel for the Plaintiff/Respondent maintains that the said representation was strictly on behalf of Bonfire Adventures & Events Ltd as a corporate entity, and that it was undertaken under instructions of its duly authorised officers, and not in the personal capacity of either Simon Kabu, the Plaintiff/Respondent, or Sarah Njoki Nyaga, the Defendant/Applicant. It is also emphasized that a company is a separate legal person distinct from its directors and shareholders, and any instructions received from or on behalf of the company are to be regarded as belonging to the company itself and not its individual directors. 6.Counsel for the Plaintiff/Respondent further argues that they never received, were not privy to, or relied upon any confidential information belonging to the Defendant/Applicant, that is or could be relevant to the issues in dispute in this personal civil suit. 7.Counsel for the Plaintiff/Respondent further states that the matters handled on behalf of Bonfire Adventures & Events Ltd involved employment disputes unrelated to the present suit, which concerns purely private and personal issues between the two directors in their individual capacities. 8.Counsel for the Plaintiff/Respondent asserts that the allegations of professional misconduct and conflict of interest have been raised in bad faith and are designed to intimidate them, malign their character, and interfere with their client’s right to Counsel of choice. 9.Counsel for the Plaintiff/Respondent finally draws reference to HCCOM No. E029 of 2025: Sarah Njoki Nyaga and Bonfire Adventures and Events Ltd v Simon Waithaka Kabu, whereby the firm of Mwenda Njagi & Company Advocates acts for both the Defendant/Applicant herein and Bonfire Adventures and Events Ltd in a suit against the Plaintiff/Respondent herein. Counsel considers this as a demonstration of the frivolity of the Application, the bad faith of the Defendant/Applicant, and the vexatious nature of the Application, in an attempt to disqualifying Counsel for the Plaintiff/Respondent in the present matter. 10.In support of the Application, the Defendant/Applicant filed submissions dated 10th February 2026.The Applicant cited the case of King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting division Ltd) & another v M/s Kaplan & Stratton Advocates [1993] KECA 57 (KLR) where the Court of Appeal held that where an advocate’s continued appearance undermines the perception of impartial justice, the court must intervene notwithstanding a party’s preference for that advocate. 11.The Defendant/Applicant also place reliance in the case of Delphis Bank Limited V Channan Singh Chatthe & 6 others [2005] KECA (KLR) where the court held that:‘The starting point is, of course, to reiterate that most valued constitutional right to a litigant, the right to a legal representative or advocate of his choice. In some cases, however, particularly civil, the right may be put to serious test if there is a conflict of interest which may endangered the equally hallowed principle of confidentiality on Advocate/client fiduciary relationships or where the advocate would double up as a witness…the test which has been laid down in authorities applied by this court is whether real mischief or real prejudice will in all human probabilities result’ 12.On the relationship between the instant case and the Court of Appeal matter where the Plaintiff’s advocate acts for Bonfire Adventure, the Applicant avers that the two matters are interrelated as they arise from the operations and management of the same company, involves the same parties and touch on the same governance dynamics between the directors. 13.The Defendant/Applicant also referred to a fee note dated 9th July 2025 issued by the plaintiff’s advocate to Bonfire Adventures & Events Ltd which demonstrates a continuing professional relationship with the company suggesting the advocate’s fiduciary relationship extends to the directors. Respondent’s submissions 14.The Respondent filed submissions dated 6th November 2025.While citing King Woolen Mills Ltd V Kaplan &Stratton Advocates [1993] Eklr, Counsel submitted that to establish a conflict, an Applicant must prove that a prior advocate-client relationship existed, confidential information was acquired in that relationship and the information is relevant to the matter in which the advocate is now acting adversely. The Plaintiff’s Counsel submitted that the Applicant has not met the above three-pronged test. 15.The Respondent further submitted that her firm acted for Bonfire Adventures & events Ltd, the company in a separate Court of Appeal matter. 16.Counsel cited the case of Victor Mabachi & Nurtub Rates Another where the court held:‘a body corporate is a persona juridica, with a separate independent identity in law, distinct from its stakeholders, directors and agents unless there are factors warranting a lifting of the veil.’ 17.The Respondent submitted that there is no evidence of acquired confidential information relevant to this dispute and further that there is no evidence of real mischief or likelihood of prejudice arising from her representing Bonfire Adventures & Events Ltd in the Court of Appeal matter. Counsel reiterate that the Court of Appeal matter arises from a decision of the Employment and Labour Relations Court while the current matter relates to a defamation suit brought by the plaintiff/ Respondent against the Defendant/Applicant. 18.The Plaintiff/Respondent’s Counsel further submitted that the Defendant/Applicant has failed all the tests for disqualification of Counsel and as such the prayer to strike out pleadings must also fail. It is also the Plaintiff/Respondent Counsel’s contention that the Applicant has failed to demonstrate what prejudice she will suffer in the event of the continued representation of the Respondent by the law firm of his choice. She cited the case of Singh V Mutua & 2 others where the court held:‘On the issue where the pleadings filed by the law firm of BM Musau &Company Advocates LLP should be struck out, I find that the plaintiff has not made out a case for stricking out of the said pleadings in view of the findings Ihave made on the first issue. The plaintiff has also not established any of the grounds set out in Order 2 Rule 15 of the Civil Procedure Rules, 2010, on striking out pleadings.’ Analysis and Determination 19.The court has carefully considered the Notice of Motion Application, affidavits, written submissions and the authorities cited by Counsel on record 20.Every person has a constitutional right to legal representation of their choice. Disqualifying an advocate from representing a client has been viewed as an extreme sanction that courts grant sparingly. For this reason and as ably submitted by learned Counsel in this matter, there are established guiding principles to test whether or not an advocate is suitable to continue representing a client. 21.In the case of Murgor & Murgor Advocates v. Kenya Pipeline Co. Ltd. [2021] eKLR, courts utilize the following tests to determine whether an advocate must be barred from representation:a)It must be apparent that the advocate's continued participation will cause real mischief or real prejudice to the administration of justice. Speculation or a mere "appearance of impropriety" is generally insufficient to remove a client's chosen counsel.b)Disqualification typically requires proof that a fiduciary advocate-client relationship exists (or previously existed) and that the matters in the current and former disputes are substantially related.c)An advocate cannot simultaneously act as counsel and a material, contested witness in the same proceeding. If their testimony is strictly formal or uncontested, they may remain.d)The court must verify that confidential information acquired through a prior or current representation will prejudice the opposing party. A conflict must be proven via concrete evidence. 22.In addition, The Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, 2016, contains provisions on the threshold for conflict of interest in an advocate – client relationship. Paragraph 93 defines a conflicting interest in the following terms:“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.” 23.Paragraph 96 further provides for situations in which such conflict of interest may arise. The instances are only indicative and include circumstances where the interests of one clientare directly adverse to those of another, where representation of one another client or third party and where confidential information obtained from a client may be used to that client’s disadvantage. This was also the holding in confidential information obtained from a client may be used to that clients disadvantage.This was also the holding in Hassan & 8 others v We Tilley (Muthaiga) Limited [2026] KEHC 455(KLR). 24.This court must therefore interrogate the above principles, which essentially forms the issues for determination in this case between the Defendant/Applicant and the Plaintiff’s/Respondent. 25.Applying the above principles to the instant case, the Defendant/Applicant herein is expected to demonstrate that the continued representation of the Plaintiff /Respondent by the firm of Kamoing’ & Co. Advocates, will occasion real prejudice to the administration of justice and further that a fiduciary Advocate - Client relationship exists that would limit the Advocate from acting for the Respondent. The Defendant/ Applicant must also demonstrate that the instant matter and the previous matter in the Court of Appeal in which the Advocate acted for Bonfire Adventures & Events Ltd are related and that confidential information acquired through that representation, if any, will prejudice the Defendant/Applicant. 26.It is not in dispute that the firm of Kamoing’ and Co Advocates represented Bonfire Adventures & Events Ltd in Nairobi Court of Appeal Civil Appeal No. E304 of 2025: Judy Karimi v Bonfire Adventures & Events Ltd, Simon Kabu & Sarah Njoki Nyaga. Whereas the Plaintiff and the Defendant herein are co-directors of Bonfire, which is a separate legal entity, instructions to the Advocate to act in that matter must have been given by authorized officers of the corporate body and not by the directors in their personal capacity. 27.In Salomon V Salomon & Co Ltd, [1897] AC 22, an important precedent in Corporate Law, the principle of the distinct legal personality that a company acquires after incorporation is elucidated. The court therefore concludes that Judith Kamoing’ T/A Kamoing’ & Co. Advocates indeed acted for Bonfire Adventures & Events Ltd, in its capacity as a separate legal entity, and not in the personal capacity of its directors. There is nothing placed before the court to demonstrate that the Defendant/Applicant has ever been a client of the advocate sought to be disqualified in any personal matter between her and the Plaintiff. I therefore find no fiduciary relationship exist between the two for purposes of the orders sought in this Application. 28.On the subject matter in Nairobi Court of Appeal Civil Appeal No. E304 of 2025: Judy Karimi v Bonfire Adventures & Events Ltd, Simon Kabu & Sarah Njoki Nyaga, it is not in dispute that the case relates to an appeal arising from a decision of the Employment and Labour Relations Court. This was an employment dispute between one Judy Karimi and Bonfire Adventure & Events Ltd 29.The case before this court, involves personal issues between the Plaintiff and the Defendant touching on defamation claims. These two suits are advancing different and distinct causes of action. Considering the material placed before this court, I find it insufficient to clearly create a co relation between this matter and the case in the court of appeal. There is nothing credible to convince the court that the Advocate is in possession of confidential information arising from the Court of Appeal matter that would put her in a position of conflict if she is retained by the plaintiff in the current matter. 30.In Charles Gitonga Kariuki V Akuisi Farmers Co Ltd, [2007] KEНС 1059 (КLR), the Court held as follows:“It is not enough for the applicant to allege that because an advocate acted for it in several matters, such an advocate was barred from acting against it in other matters. 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 were the advocate allowed to act for the opposing party against such a litigant.”In the present case, I find that no concrete evidence was placed before this court to make a positive finding that indeed the advocate for the Plaintiff/Respondent will be conflicted in this matter. 31.In the case of HCCC No 452 of 2007 Sunrise Properties Limited vs National Industrial Credit Bank & 2 Others (unreported), the court dismissed an application asking a firm of advocates to disqualify itself on the ground that the applicant therein did not show there was any advocate/client relationship between it and that firm of advocates or establish circumstances justifying reasonable apprehension of likelihood of bias. 32.The Applicant in the instant motion has not sufficiently demonstrated that real mischief and or prejudice will result if the current advocate for the plaintiff/Respondent is not disqualified from acting for him in this matter. The Applicant has not demonstrated any conflict of interest that would warrant the constitutional right to a Counsel of choice to be taken away from the Plaintiff/Respondent. As held in many authorities, the right to be represented by counsel of choice is a cornerstone of a fair trial, though it is generally not absolute. Courts consistently hold that litigants can choose their preferred advocates, but this right is balanced against the administration of justice and can be restricted in cases of conflict of interest. In this case, the threshold to disqualify the Plaintiff’s/Respondent’s counsel from acting in this matter has not been met. 33.In the upshot, the Application dated the 5th August, 2025 is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH JUNE,2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORMKENNEDY KANDETJUDGEIn The Presence Of:No Appearance For The ApplicantKamoing For The RespondentCourt Assistant: Aggrey Ochieng