1. The petition filed on 2nd May, 2023 and amended on 4th March, 2024 seeks the following reliefs;
(a) A declaration that the Petitioners constitutional rights to non-discrimination, self-determination, property, fair hearing, freedom of conscience, religion, belief and pursuant to the constitution and international human rights instruments has been violated.
(b) A declaration that the 1st and 3rd Respondent’s transfer and subdivision of the suit property to the 2nd 1st Respondent flout Article 8 of the constitution.
(c) A declaration that the transfer and subdivision of parcel L.R NO. BARINGO/KAPCHKOB/725 to the 1st respondent was fraudulent.
(d) An order cancelling the registration of the 1st respondent as the proprietor titles numbers BARINGO/KAPCHKOR/ 988 and 989.
(e) An order compelling the 2nd and 3rd Respondents to register L.R No. BARINGO/KAPCHKOR/988 and 989 in the names of the 2nd Respondent to hold in trust for Kaptere Community.
(f) A permanent injunction restraining the 1st Respondent its agents/servants/employees from entering, constructing, disposing off or in any other way interfering with the Land Reference Nos. BARINGO/KAPCHKOR/ 988 and 989.
(g) Each party bears costs.
2. In response to the petition, the 1st respondent filed a replying affidavit and a supplementary replying affidavit. The 2nd respondent filed a replying affidavit sworn by Franklin Kiche and a further replying affidavit sworn by Hellen Juma. In paragraph 27 of the further replying affidavit, Hellen Juma deposed; “That the firm of M/s M.K Chebii & Company Advocates and Advocate M. K Chebii have a conflict of interest in this amended petition since they have been representing the former County Council of Baringo who are the predecessor of county government of Baringo, the 2nd respondent herein. They ought to recuse themselves from representing the amended petition. We will be raising a strong objection that they cannot represent us and then turn around and represent the petitioners’ herein”, and annexed a copy of the ruling delivered in High Court Civil Suit No 24 of 2005, marked HJ 13.
3. The petition was set down for hearing on 4th April, 2024 but hearing did not proceed. Counsel for the petitioner enquired from Counsel for the 2nd respondent whether they still intended to pursue the objection raised in paragraph 27 of the further replying affidavit. Counsel for the 1st respondent answered in the affirmative. He made reference to Paragraph 7 of the ruling by Wendoh J in High Court Civil Suit No 24 of 2005 delivered on 7th October, 2011.
4. In opposition, Counsel for the petitioners submitted that there was no conflict on his part and his firm, as the matter before the High Court was not heard and determined on merit having been dismissed for want of prosecution. Further, that the parties in the petition are different from those who participated in the civil case before the High court.
5. The instant petition was filed on behalf of the petitioners and on behalf of Kaptere community over a dispute for land parcel L.R Baringo/Kapchkor/75. They allege that the suit parcel was donated by members of the Kaptere community for establishment of Kaptere secondary school but was illegally, unlawfully and un procedurally transferred by the 2nd and 3rd respondents to the 1st respondent in blatant violation of the petitioners’ rights.
6. The case before the High Court was filed by Eliud Cheptoo, Michael Cherono and 94 others and was dismissed for want of prosecution. The ruling referred to on paragraph 7 of the supplementary affidavit, does not divulge much about the case other than that the plaintiffs in that suit (who are different from the petitioners in this petition) had filed numerous cases against the defendants (1st and 2nd respondents in this petition) regarding LR Baringo/Kapchkor/75 and that the 1st defendant (County Council of Baringo) was represented by Mr. Chebii, now representing the petitioners in the petition. It is also not disputed that the suit before the High Court was never heard and determined on merit.
7. In the case of Jamal Abeid Khamis & 2 others v Ainushamsi Multiple Agencies Ltd [2021] Eklr,
Matheka J stated as follows on conflict of interest;
‘…..All litigants have the right to be represented by counsel of their own choice. The question then, is whether this is an absolute right. That question was answered by the Court of Appeal in the case of Delphis Bank Ltd vs Chatt & 6 Others (2005) 1KLR where it was held that a litigant’s right to legal representation by an advocate of his choice is not absolute. In that case the Court of Appeal held as follows;
“1. The right to a legal representative or advocate of his choice is a most valued constitutional right to a litigant. In some cases, however particularly civil cases, the right may be put to serious test if there is a conflict of interests which may endanger the equally hallowed principle of confidentiality in advocate/client fiduciary relationships or where the advocate would double up as a witness.
2. There is 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 the Court of Appeal is whether real mischief or real prejudice will in all human possibility result”
In respect to possible conflict of interest the Court of Appeal in Delphis Bank Ltd v Channan Singh Chatthe & 6 others (2005) eKLR observed that;
“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.”
In the case of British-American Investments Company (K) Limited vs 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 applying the principles in the above decision to the circumstances of this case, whereas it is not in dispute that Mr. Chebii acted for the defunct County Council of Baringo in High Court Civil Case NO. 24 of 2005 (now the 2nd respondent in this petition), the 2nd respondent, other than stating that the firm of M/s M.K Chebii & Company Advocates and Advocate M.K Chebii is conflicted by representing the petitioners’ having represented the former County Council of Baringo, has not provided sufficient evidence to demonstrate that such conflict of interest indeed exists; that there is real mischief that will in all human possibility result and that the 2nd respondent has suffered or will suffer prejudice if the firm of M/s M.K Chebii & Company Advocates and Advocate M.K Chebii continues to act for the petitioners.
9. In the end, the objection is found to be devoid of merit and is dismissed.
10. Costs in the cause
11. Orders accordingly
Dated, signed and delivered at Kabarnet this 29th day of May, 2025
Ruling delivered virtually in the presence of;-
Mr. Chebii for the Petitioners
Ms. Ochieng holding brief for Mr. Oregi for the 1st Respondent
Mr. Kwame for the 3rd Respondent and 1st Interested Party
N/A for the 1st Interested Party and 2nd Respondent
Court Assistant: Lilian