[2019] KEELC 146 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CASE NO. 246 OF 2018

SERE TECHNOLOGIES LIMITED……………....………1ST PLAINTIFF

DR. DAVY KIPROTICH KOECH……………………..2ND PLAINTIFF

VERSUS

FORWARD CARS LIMITED……………..……….....1ST DEFENDANT

WALTER KIPROP CHUMO……………….…..…..2ND DEFENDANT

HFC LIMITED……………………………………….3RD DEFENDANT

MIRIAM JEPKOSGEI MAINA…………………..….4TH DEFENDANT

JUMA WAHAGA MAULIDI…………………..……5TH DEFENDANT

THE CHIEF LAND REGISTRAR………….……...…6TH DEFENDANT

THE HON. ATTORNEY GENERAL…………...…..7TH DEFENDANT

RULING

The Plaintiffs brought the application dated 25/06/2018 seeking orders that Wandabwa Advocates and all advocates serving in this firm be disqualified from acting for the 4th and 5th Defendants in the suit. Additionally, they sought orders to strike out pleadings, affidavits and averments filed by the firm of Wandabwa Advocates in the matter on behalf of the 4th and 5th Defendants. The Plaintiffs also seek an order to bar the firm of Walker Kontos Advocates and all advocates serving in this firm from representing the 3rd Defendant and an order to strike out all the pleadings and documents filed by Walker Kontos Advocates.

The application was made on the ground that Paul Wandabwa of Wandabwa Advocates represented the 4th and 5th Defendants while Paul Ogunde of Walker Kontos Advocates represented the 3rd Defendants in transactions that led to transfer of the suit property to the 4th and 5th Defendants, and that it would be unprofessional for the said advocates or their law firms to represent the respective parties in this suit.

The application was supported by the 2nd Plaintiff’s supporting affidavit sworn on 25/06/2018. He deponed that on or about 09/08/2002, he bought property known as L.R No. 3734/710 (Original No. 37344/3/268) situated at Lavington, Nairobi and caused the land to be registered in the name of the 1st Plaintiff to hold in trust for him and his family.

He deponed that the property was fraudulently transferred and registered in the name of the 2nd Defendant, then charged to the 3rd Defendant and subsequently transferred to the 4th and 5th Defendants without his consent. He deponed further that Wandabwa & Co. Advocates represented the 4th and 5th Defendants in the transaction that resulted in the transfer of the suit property to the 4th and 5th Defendants and drew the discharge of charge dated 09/04/2018 between the 1st Defendant and the 3rd Defendant giving rise to the fraudulent transfer of the suit property to the 4th and 5th Defendants.

He also deponed that Paul Ogunde through Walker Kontos Advocates represented the 3rd Defendant in the discharge of charge dated 09/04/2018, which led to the transfer of the suit property to the 4th and 5th Defendants. He deponed that Paul Ogunde and Andrew Wandabwa are potential witnesses for purposes of canvassing the authenticity or validity of the transactions and should not therefore represent the parties even through their law practice. He also deponed that the two advocates have personal interest in the matter, and they have a higher duty to the cause of justice and truth since they are officers of the court.

The 3rd Defendant opposed the Plaintiffs’ application through the grounds of opposition dated 09/07/2018 and urged that the applicant did not satisfy the threshold to warrant grant of the orders sought.

The Plaintiffs submitted that they intend to summon Mr. Wandabwa, Paul Ogunde and Oluoch Olunya to give evidence in this matter. They also submitted that the 3rd Defendant would not be prejudiced if it were to appoint another advocate.

The 3rd Defendant submitted that pleadings filed by parties belong to parties and not the advocates hence the pleadings filed by Walker Kontos Advocates on behalf of the 3rd Defendant should not be struck out.

By the time this application was heard, Wandabwa Advocates had exited the matter.

The court has considered the application, grounds of opposition, submissions filed by respective parties as well as the law. The issue for determination is whether the firm of Walker Kontos Advocates should be barred from acting for the 3rd Defendant in this suit. The question is whether an advocate who has prepared a document or one who was involved in the preparation of a document which may be in issue in the proceedings must disqualify himself/herself from representing a party in the suit. The law does not automatically disqualify such an advocate. The court has to look into the nature of involvement of the advocate in such a transaction and whether the issues are such that the advocate may be called to testify if the matter becomes contentious. Rule 9 of the Advocates (Practice Rules), prevents an advocate appearing as advocate in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court. The discharge of charge in contention was drawn by Wandabwa & Company advocates who as mentioned above ceased appearing for the 4th and 5th Defendants.

Mr. Paul Ogude’s stamp appears on the discharge of charge document. It is not clear whether he merely witnessed the transaction or he represented the chargee who is the 3rd Defendant. Counsel for the Plaintiffs intimated to the court that the Plaintiffs intend to call him as a witness. The Plaintiffs have also argued that they will be prejudiced if Walker Kontos Advocates continue acting for the 3rd Defendant whom they represented in a transaction for discharge of charge relating to the suit property, which transaction the Plaintiffs have challenged on allegations of fraud.

It is apparent that Mr. Paul Ogunde of Walker Kontos Advocates may be called to testify as a witness in this case. Given the allegations of fraud raised in the transaction and in the interest of justice, it is only fair that the firm of Walker Kontos Advocates exit the matter altogether.

The application dated 25/06/2018 is allowed to the extent that the firm of Walker Kontos Advocates is barred from representing the 3rd Defendant. However, the pleadings drawn by this firm for the 3rd Defendant will remain on record.

The costs of the application shall be in the cause.

Dated and delivered at Nairobi this 30th day of October 2019

K.BOR

JUDGE

In the presence of: -

Mr. Charles Midenga for the Plaintiffs

Mr. Samuel Makori for the 1st and 2nd Defendants

Ms. I. Mburu holding brief for Paul Ogunde for the 3rd Defendant

Ms. B. Mueni holding brief G. Mureithi for the 4th and 5th Defendants

Ms. Fatma Ali holding brief for A. Kamau for the 6th and 7th Defendant

Mr. V. Owuor- Court Assistant