[2017] KEHC 1515 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL CASE NO. 1 OF 2017

TOBIAS O. SEE..............................................PLAINTIFF

VERSUS

SAMUEL MICHAEL ONYANGO............1ST DEFENDANT

SAMUEL OKELO DEYA.......................2ND DEFENDANT

MAURICE ODUOR................................3RD DEFENDANT

DANIEL O. AJULU...............................4TH DEFENDANT

PAUL OTIENO......................................5TH DEFENDANT

GEOFFREY OBWON.............................6TH DEFENDANT

RULING

1. By a notice of motion dated 3. 4.17; brought under Rule 9 of the Advocates (Practice) Rules and Order 51 rule 1 & 3of the Civil Procedure Rules, 2010 and all enabling provisions of the law, the plaintiff/applicant prays for orders that

1) The firm of S .M. Onyango & Associates by itself, its partners, associates, employees and/or agents be barred and removed from the record as representing the 2nd, 3rd, 5th and 6th defendants/respondents

2) Costs of this application be provided for

2. The application is based on the grounds among others that:-

a. The defamatory letters that are the subject of this case were authored by Samuel Michael Onyango and the 2nd, 3rd, 5th and 6th defendants/respondents

b. The firm of S .M. Onyango & Associates drew pleadings in Kisumu CMCC 471 of 2016 between the Samuel OkeloDeya& 4 Others v Managing Committee of Nyanza Club Kisumu

c. Samuel Michael Onyango who has personal conduct of this matter is the 1st defendant in this suit

3. The application is also supported by an affidavit sworn by the plaintiff/applicant on 3. 4.17 in which he reiterates the grounds on the face of the application.

4. The application is opposed on the grounds set out in a replying affidavit sworn on 18. 4.17 by Samuel Michael Onyango, the 1st defendant/respondent. He concedes that the letters forming the subject matter of this suit were written by the 2nd, 3rd, 5th and 6th defendants/respondents together with him, not as an advocate but in his capacity as Golf Captain at Nyanza club together with. He avers that the pleadings in Samuel OkeloDeya& 4 Others v Managing Committee of Nyanza Club Kisumu were drawn by the firm of M/S OmondiAbande& Company Advocates. He also concedes that the firm of S .M. Onyango & Associates drew the pleadings in this case but denies that he is in personal conduct of the matter. He avers that the firm of S .M. Onyango & Associates has never acted for the plaintiff/applicant and that there is no fear of conflict of interest as regards any privileged information. He additionally avers that Rule 9 of the Advocates (Practice) Rules is specific to an advocate and does not extend to other members of the firm.

SUBMISSIONS BY THE PARTIES

Applicant’s submissions

5. It was submitted for the applicant that the 1st defendant has disputed signing one of the impugned letters and that there exists a conflict of interest since he may be required to appear in this matter as a witness. In support thereof, the applicant cited Rule 9 of the Advocates (Practice Rules);Francis Mugo& 22 others versus James BressMuthee& 3 others (2005) eKLR,Riley Falcon Security Services Limited v Maseno University & another HCCC No. 22 of 2014where an advocate that had drawn a contested agreement was barred from appearing in that case and GiovamniGaida& 79 Others V Gian Carlo Ferrari & Others [2008] eKLR where a firm of advocates that had drawn a contested agreement were barred from appearing in a matter where the agreement was the subject matter.

2nd, 3rd, 5th and 6th respondent’s submissions

6. It was submitted for the 2nd, 3rd, 5th and 6th respondents that mere suspicion, apprehension of a possible conflict of interest or fear of prejudice cannot be a basis to stop an advocate from acting on behalf of a party. In support thereof, they cited three authorities. In Delphis Bank Ltd v Channan Singh Chatthe& 6 others [2005] eKLR where the court held as follows:

“There is otherwise 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 this Court is whether real mischief or real prejudice will in all human probability result.”

7. In British-American Investments Company (K) Limited v Njomaitha Investments Limited & another [2014] eKLR,the court reiterated that existence of conflict of interest must be demonstrated and stated as follows:-

“It is therefore clear that where a party asserts that conflict of interest exists, he must provide sufficient evidence to demonstrate that such conflict of interest indeed exists. It is incumbent upon such party wishing to disqualify an advocate or a firm of advocates from acting for a particular party to show that it has suffered or will suffer prejudice if such an advocate or firm of advocates continues to so act for that party. Mere suspicion, apprehension of a possible conflict of interest or fear of prejudice cannot be a basis to stop an advocate from acting on behalf of a party.”

8. In RakusenvsEllis Munday and Clerke [1912] 1 Ch. 83, Cozens – Hardy M.R. 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.”

9. Respondents further submitted that Rule 9 of the Advocates (Practice) Rules prevents the individual advocate from acting and not the entire firm of advocates. They relied onNationalBank of Kenya Limited vs Peter KipkoechKorat [2005] eKLR, where the court held as follows:-

“Granted he may be called as a witness, but as well put by MrKuloba, he is just one of the advocates in the firm and in my mind, though he can be called to give evidence in this suit, it would not require the disqualification of the whole firm of advocates. It is clear that it is MrKuloba who is handling this matter and I see no prejudice cause by the Defendants.”

10. They also placed reliance on the decision of the Court of Appeal in the case of William Audi Ododa& Another –vs- John Yier&Another CA No. Nai 360 of 2004 (UR) where the court held interalia that:

“The Constitution of Kenya does not specifically talk about the right of representation by counsel in civil matters as it does in respect of criminal matters in Section 77(1) (d) but Section 70(a) guarantees citizens the protection of the law and to enjoy that right fully, the right to representation by counsel in civil matters must be implicit. Accordingly, for a court to deprive a litigant of that right, there must be clear and valid reason for so doing. I can find no such clear and valid reason for depriving the applicants of their right to be represented by counsel of their choice.”

ANALYSIS

11. I have carefully considered the submissions made both for and against this application. The Court of Appeal in the case of Delphis Bank Ltd VsChatt& 6 Others (Supra) set out the principles upon which an advocate may be disqualified from acting for a litigant. This right may be limited in two instances. Firstly where there is a possibility that the advocate may be called as a witness in the case and secondly where there exists a conflict of interest between two clients out of a previous advocate/client fiduciary relationship with the opposing client.

12. The cases of Francis Mugo& 22 others versus James BressMuthee& 3 others (Supra);Riley Falcon Security Services Limited v Maseno University & another(Supra) andGiovamniGaida& 79 Others V Gian Carlo Ferrari & Others [2008] eKLR are distinguishable from the present case for the reason that while it is indeed true that Mr. Samuel Michael Onyango is a partner in the firm of S.M. Onyango & Associates, he has conceded that he drew the letter dated 12. 7.16 which forms part of the subject matter of this case, in his capacity not as an advocate, but as a past Golf Captain at Nyanza club.From the foregoing; I find thelikelihood that a conflict of interests may arise and endanger the equally hallowed principle of confidentiality in advocate/client fiduciary relationships remote.

13. As is clear from the cited authorities, each case must turn on its own facts to establish whether real mischief and real prejudice will result. I am persuaded by the holding in NationalBank of Kenya Limited vs Peter KipkoechKorat (Supra) and I hereby hold that the relationship between the 1st respondent and the other respondents would not require the disqualification of the whole firm ofS .M. Onyango & Associates. It is clear from the record that Mr. Samuel Michael Onyango is not handling this matter and I see no prejudice causedto the applicant/plaintiff.

14. I am also persuaded by the holding inWilliam Audi Ododa& Another –vs- John Yier& Another (Supra), and I accordingly find that no material has been placed before the court upon which I can safely deprive the 2nd, 3rd, 5th and 6th respondentsof the right to be represented by counsel of their choice.

15. I am not persuaded thatreal mischief and real prejudice will, in all human probability result if the firm of S .M. Onyango& Associates is allowed to act but Mr. Samuel Michael Onyango is barred from acting for the 2nd, 3rd, 5th and 6th defendants/respondents..

16. For the foregoing reasons, this court does not find merit in the plaintiff/applicant’s notice a notice of motion dated 3. 4.17 and the same is hereby dismissed with costs to the 2nd, 3rd, 5th and 6th defendant/respondents.

17. It is so ordered.

DATED AND DELIVERED THIS 9TH DAY OF NOVEMBER 2017

T.W.CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Plaintiff/Applicant - N/A

1st Defendant - N/A

2nd, 3rd, 5th and 6th defendant/respondents - MS. AYIETA