1. The defendants/applicants filed a Notice of Motion application dated 17th October 2023 pursuant to the provisions of Sections 1A, 1B & 3A of the Civil Procedure Act, Order 11 Rule 3(2) & Order 51 Rule 1(1) of the Civil Procedure Rules, 2010, and Rule 9 of the Advocates (Practice) Rules, seeking orders that Mr. Njenga C. N. be removed from appearing as Counsel for the plaintiff company in this matter.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Prof. Kiama Wangai, an Advocate of the High Court of Kenya, and learned Counsel for the defendants. He averred that the plaintiff company has appointed Mr. Njenga C. N, as its Counsel, but he is also the current Secretary (Company Secretary) and a former Director of the company, making him a necessary witness in this case. He asserted that this dual role is seen as a breach of Rule 9 of the Advocates (Practice) Rules, and that it poses a conflict of interest that could undermine the Court’s integrity and proper functioning.
3. In opposition to the application, the plaintiff filed a replying affidavit sworn on 13th February 2024, by Charles N. Njenga, an Advocate of the High Court of Kenya, and learned Counsel for the plaintiff. He confirmed that he is the plaintiff’s Company Secretary, and in that capacity, he is responsible for filing statutory returns with the Registrar of Companies, which he noted are public records and not disputed in this case. He deposed that the subject matter of this suit is the election of the interested party's Directors on 12th September 2009, and the alleged election of the defendants as purported Directors on 9th August 2009.
4. He stated that he has represented the plaintiff company in various cases since the year 2009, including cases involving the current defendants, without prior objection to his appearance for either the plaintiff and/or its Directors. He further argued that conflict of interest must be clearly evidenced and cannot be assumed, and that by law, a Company Secretary is not automatically barred from representing the company in legal proceedings based on their role alone.
5. The application herein was canvassed by way of written submissions. The defendants’ submissions were filed by the law firm of Prof. Kiama Wangai & Company Advocates on 19th February 2024, whereas the plaintiff’s submissions were filed on 8th April 2024 by the law firm of Muchoki Kangata Njenga & Co. Advocates.
6. Mr. Wangai, learned Counsel for the defendants cited the provisions of Rule 8 & 12 of the Advocates Practice Rules, Section 9 of the Advocates Act, and relied on the Court of Appeal case of Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 others [2003] eKLR. He submitted that the defendants have demonstrated that the continued appearance of Mr. C.N. Njenga in this case on behalf of the plaintiff poses a conflict of interest that could undermine the Court’s integrity and proper functioning, considering the fact that he is a potential witness in this suit.
7. Mr. Njenga, learned Counsel for the plaintiff relied on the provisions of Article 50(g) of the Constitution and submitted that under the said provisions, the plaintiff has a constitutional right to representation by Counsel, which can only be restricted in line with the provisions of Article 24 of the Constitution, but the defendants have not justified any limitation on the said right. He referenced Rule 9 of the Advocates Practice Rules, noting that it does not strictly bar an Advocate from representing a client even if there is a remote chance that he may be called as a witness. Mr. Njenga emphasized that objections to his representation should have been raised earlier, as he has represented the plaintiff since the inception of this suit, without prior issue. He contended that the current application is a misuse of the Court process and should be dismissed on account of being filed late.
8. Counsel argued that the defendants provided no evidence to support their claim that he is a necessary witness or that a conflict of interest exists. He stated that he is not, and is unlikely to become a witness in this case, as pre-trial procedures are complete and the case had previously been set down for hearing on 19th June 2023. In addition, learned Counsel stated that he has not filed any witness statement or affidavit in the matter, except in response to the recusal application. Mr. Njenga cited the case of Dorothy Seyanoi Moschioni v Andrew Stuart & another [2014] eKLR, and asserted that any testimony he might provide in relation to the plaintiff company’s directorship would be irrelevant, as the Registrar of Companies holds the official records.
ANALYSIS AND DETERMINATION.
9. I have considered the application herein, the grounds on the face of it, and the affidavit filed in support thereof. I have also considered the replying affidavit by the plaintiff as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the plaintiff’s Advocate on record should be barred from representing the plaintiff.
10. Rule 8 of the Advocates (Practice) Rules provides that -
“No advocate may appear as such before any Court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear: (Emphasis added).
Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears”
11. In this case, it is not disputed that Mr. Charles N. Njenga is the plaintiff’s Company Secretary. The defendants contend that in view of his position in the plaintiff company, he is likely to be a witness in this suit, thus his continued appearance in this case on behalf of the plaintiff poses a conflict of interest that could undermine the Court’s integrity and proper functioning.
12. The plaintiff on the other hand contended that the subject matter of this suit is the election of the interested party's Directors which took place on 12th September 2009, and the alleged election of the defendants as purported Directors on 9th August 2009. He averred that his role as the plaintiff’s Company Secretary is the filing of statutory returns with the Registrar of Companies. He submitted that the defendants have not provided evidence to support their claim that Mr. Njenga is a necessary witness in this suit or that a conflict of interest exists. He argued that he is not, and is unlikely to become a witness in this case, as pre-trial procedures are complete and the case had been set down for hearing on 19th June 2023. In addition, he has not filed any witness statement or affidavit in the matter, except in response to the application herein.
13. The Court of Appeal in the case of Delphis Bank Limited v Channan Singh Chatthe & 6 others [2005] eKLR, cited with authority the case Rakusen v Ellis, Munday & Clarke [1912] CH 831. The Court of Appeal in the Delphis Bank Limited case (supra), laid down the test for disqualification of an Advocate as hereunder -
…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 probability result…
14. It is now well settled that a party to a suit has a constitutionally underpinned right to be represented by an Advocate of his/her choice in a suit, however the said right could be put to serious test if there was a claim for conflict of interest, which could in turn endanger the principle of confidentiality in an Advocate/Client fiduciary relationship or where an Advocate could also double up as witness. The Court in the case of Charles Gitonga Kariuki v Akuisi Farmers Co. Ltd [2007] eKLR, dealt with the subject of conflict of interest and held that -
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 where the advocate is allowed to act for the opposing party against such a litigant.
15. Conflict of interest has been defined in the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, 2016 a hereunder -
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.
16. Rule 6 paragraph 99 of the aforesaid Code provides for instances where conflict of interest might arise to include -
a) Where the interests of one client are directly adverse to those of another client being represented by the Advocate or the firm, for instance in situations where the representation involves the assertion of a claim by one client against another client;
b) Where the nature or scope of representation of one client will be materially limited by the Advocate’s responsibilities to another client, a former client, a third person or by the personal interests of the Advocate; and
c) Where in the course of representing a client there is a risk of using, wittingly or unwittingly, information obtained from a current or former client to the disadvantage of that other client or former client.
17. The Court in the case of Murgor & Murgor Advocates v Kenya Pipeline Co. Ltd [2021] eKLR, in dismissing an application similar to the present one set out the general principles guiding the disqualification of Advocates from appearing for a client in a matter as hereunder -
i) The basis upon which a Court disqualifies an Advocate from acting arises from the need to protect the interests of administration of justice. Whereas it is understood that choice of Counsel is an entitlement of a party, such Counsel must always bear in mind that he/she becomes an officer of the Court and as such owes an allegiance to a higher cause (justice and truth) than serving the interests of the client.
ii) Disqualification of an Advocate is only desirable in contentious matters and where there is or was an Advocate-Client relationship;
iii) It must be apparent that the Advocate sought to be disqualified will be required as a witness to give evidence in the matter;
iv) It is desirable that when the principle of confidentiality in an Advocate/Client fiduciary relationship will be prejudiced or where there is a possibility of real conflict of interest, then an Advocate sought to be disqualified ceases to appear in the matter;
v) The fact that an Advocate acted for a litigant does not, per se, lead to a situation of conflict of interest;
vi) Conflict of interest is an issue of fact which must be proved by way of evidence; and
vii) It is not a requirement that in a situation where a firm of Advocates acted for the opposite party all the Advocates in the firm be disqualified from the matter. In such an instance, only the Advocates who are in possession of confidential information relevant to the matters in issue before Court or Tribunal may be called upon to cease from appearing in the matter.
18. This Court agrees with the plaintiff’s submission that the defendants bear the burden of proving that there exists a conflict of interest with respect to the plaintiff being represented by Mr. Charles N. Njenga Advocate. From the pleadings filed, it is evident that other than allege that Mr. Charles N. Njenga is likely to be a potential witness in this suit in view of his role and/or position as the plaintiff’s Company Secretary, the defendants have not demonstrated the nature of evidence that he is likely to give, and/or the conflict of interest arising from his continued representation of the plaintiff in this suit.
19. In addition, this Court notes and appreciates the fact that pre-trial directions in this suit have already been taken, and the case was certified ready for hearing, but none of the parties herein indicated that they intend to call Mr. Charles N. Njenga as a witness in this case. Further, the suit herein was filed in the year 2016 and the defendants have never raised an objection to Mr. Njenga’s representation of the plaintiff in this suit. It is also noteworthy that the defendants have not demonstrated what prejudice they will suffer in the event that Mr. Charles N. Njenga continues representing the plaintiff company in this suit.
20. In the circumstances, this Court is not persuaded that by virtue of Mr. Charles N. Njenga being the plaintiff’s Company Secretary, there arises any conflict of interest for his continued representation of the plaintiff company in this suit. I therefore find that the plaintiff has not discharged its burden of proof.
21. In the result, the instant application is devoid of merits. It is hereby dismissed with costs to the plaintiff.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November 2024. Ruling delivered through Microsoft Teams online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the plaintiff
No appearance for the defendant
Ms B. Wokabi – Court Assistant
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Prof. Kiama Wangai, an Advocate of the High Court of Kenya, and learned Counsel for the defendants. He averred that the plaintiff company has appointed Mr. Njenga C. N, as its Counsel, but he is also the current Secretary (Company Secretary) and a former Director of the company, making him a necessary witness in this case. He asserted that this dual role is seen as a breach of Rule 9 of the Advocates (Practice) Rules, and that it poses a conflict of interest that could undermine the Court’s integrity and proper functioning.
3. In opposition to the application, the plaintiff filed a replying affidavit sworn on 13th February 2024, by Charles N. Njenga, an Advocate of the High Court of Kenya, and learned Counsel for the plaintiff. He confirmed that he is the plaintiff’s Company Secretary, and in that capacity, he is responsible for filing statutory returns with the Registrar of Companies, which he noted are public records and not disputed in this case. He deposed that the subject matter of this suit is the election of the interested party's Directors on 12th September 2009, and the alleged election of the defendants as purported Directors on 9th August 2009.
4. He stated that he has represented the plaintiff company in various cases since the year 2009, including cases involving the current defendants, without prior objection to his appearance for either the plaintiff and/or its Directors. He further argued that conflict of interest must be clearly evidenced and cannot be assumed, and that by law, a Company Secretary is not automatically barred from representing the company in legal proceedings based on their role alone.
5. The application herein was canvassed by way of written submissions. The defendants’ submissions were filed by the law firm of Prof. Kiama Wangai & Company Advocates on 19th February 2024, whereas the plaintiff’s submissions were filed on 8th April 2024 by the law firm of Muchoki Kangata Njenga & Co. Advocates.
6. Mr. Wangai, learned Counsel for the defendants cited the provisions of Rule 8 & 12 of the Advocates Practice Rules, Section 9 of the Advocates Act, and relied on the Court of Appeal case of Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 others [2003] eKLR. He submitted that the defendants have demonstrated that the continued appearance of Mr. C.N. Njenga in this case on behalf of the plaintiff poses a conflict of interest that could undermine the Court’s integrity and proper functioning, considering the fact that he is a potential witness in this suit.
7. Mr. Njenga, learned Counsel for the plaintiff relied on the provisions of Article 50(g) of the Constitution and submitted that under the said provisions, the plaintiff has a constitutional right to representation by Counsel, which can only be restricted in line with the provisions of Article 24 of the Constitution, but the defendants have not justified any limitation on the said right. He referenced Rule 9 of the Advocates Practice Rules, noting that it does not strictly bar an Advocate from representing a client even if there is a remote chance that he may be called as a witness. Mr. Njenga emphasized that objections to his representation should have been raised earlier, as he has represented the plaintiff since the inception of this suit, without prior issue. He contended that the current application is a misuse of the Court process and should be dismissed on account of being filed late.
8. Counsel argued that the defendants provided no evidence to support their claim that he is a necessary witness or that a conflict of interest exists. He stated that he is not, and is unlikely to become a witness in this case, as pre-trial procedures are complete and the case had previously been set down for hearing on 19th June 2023. In addition, learned Counsel stated that he has not filed any witness statement or affidavit in the matter, except in response to the recusal application. Mr. Njenga cited the case of Dorothy Seyanoi Moschioni v Andrew Stuart & another [2014] eKLR, and asserted that any testimony he might provide in relation to the plaintiff company’s directorship would be irrelevant, as the Registrar of Companies holds the official records.
ANALYSIS AND DETERMINATION.
9. I have considered the application herein, the grounds on the face of it, and the affidavit filed in support thereof. I have also considered the replying affidavit by the plaintiff as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the plaintiff’s Advocate on record should be barred from representing the plaintiff.
10. Rule 8 of the Advocates (Practice) Rules provides that -
“No advocate may appear as such before any Court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear: (Emphasis added).
Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears”
11. In this case, it is not disputed that Mr. Charles N. Njenga is the plaintiff’s Company Secretary. The defendants contend that in view of his position in the plaintiff company, he is likely to be a witness in this suit, thus his continued appearance in this case on behalf of the plaintiff poses a conflict of interest that could undermine the Court’s integrity and proper functioning.
12. The plaintiff on the other hand contended that the subject matter of this suit is the election of the interested party's Directors which took place on 12th September 2009, and the alleged election of the defendants as purported Directors on 9th August 2009. He averred that his role as the plaintiff’s Company Secretary is the filing of statutory returns with the Registrar of Companies. He submitted that the defendants have not provided evidence to support their claim that Mr. Njenga is a necessary witness in this suit or that a conflict of interest exists. He argued that he is not, and is unlikely to become a witness in this case, as pre-trial procedures are complete and the case had been set down for hearing on 19th June 2023. In addition, he has not filed any witness statement or affidavit in the matter, except in response to the application herein.
13. The Court of Appeal in the case of Delphis Bank Limited v Channan Singh Chatthe & 6 others [2005] eKLR, cited with authority the case Rakusen v Ellis, Munday & Clarke [1912] CH 831. The Court of Appeal in the Delphis Bank Limited case (supra), laid down the test for disqualification of an Advocate as hereunder -
…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 probability result…
14. It is now well settled that a party to a suit has a constitutionally underpinned right to be represented by an Advocate of his/her choice in a suit, however the said right could be put to serious test if there was a claim for conflict of interest, which could in turn endanger the principle of confidentiality in an Advocate/Client fiduciary relationship or where an Advocate could also double up as witness. The Court in the case of Charles Gitonga Kariuki v Akuisi Farmers Co. Ltd [2007] eKLR, dealt with the subject of conflict of interest and held that -
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 where the advocate is allowed to act for the opposing party against such a litigant.
15. Conflict of interest has been defined in the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, 2016 a hereunder -
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.
16. Rule 6 paragraph 99 of the aforesaid Code provides for instances where conflict of interest might arise to include -
a) Where the interests of one client are directly adverse to those of another client being represented by the Advocate or the firm, for instance in situations where the representation involves the assertion of a claim by one client against another client;
b) Where the nature or scope of representation of one client will be materially limited by the Advocate’s responsibilities to another client, a former client, a third person or by the personal interests of the Advocate; and
c) Where in the course of representing a client there is a risk of using, wittingly or unwittingly, information obtained from a current or former client to the disadvantage of that other client or former client.
17. The Court in the case of Murgor & Murgor Advocates v Kenya Pipeline Co. Ltd [2021] eKLR, in dismissing an application similar to the present one set out the general principles guiding the disqualification of Advocates from appearing for a client in a matter as hereunder -
i) The basis upon which a Court disqualifies an Advocate from acting arises from the need to protect the interests of administration of justice. Whereas it is understood that choice of Counsel is an entitlement of a party, such Counsel must always bear in mind that he/she becomes an officer of the Court and as such owes an allegiance to a higher cause (justice and truth) than serving the interests of the client.
ii) Disqualification of an Advocate is only desirable in contentious matters and where there is or was an Advocate-Client relationship;
iii) It must be apparent that the Advocate sought to be disqualified will be required as a witness to give evidence in the matter;
iv) It is desirable that when the principle of confidentiality in an Advocate/Client fiduciary relationship will be prejudiced or where there is a possibility of real conflict of interest, then an Advocate sought to be disqualified ceases to appear in the matter;
v) The fact that an Advocate acted for a litigant does not, per se, lead to a situation of conflict of interest;
vi) Conflict of interest is an issue of fact which must be proved by way of evidence; and
vii) It is not a requirement that in a situation where a firm of Advocates acted for the opposite party all the Advocates in the firm be disqualified from the matter. In such an instance, only the Advocates who are in possession of confidential information relevant to the matters in issue before Court or Tribunal may be called upon to cease from appearing in the matter.
18. This Court agrees with the plaintiff’s submission that the defendants bear the burden of proving that there exists a conflict of interest with respect to the plaintiff being represented by Mr. Charles N. Njenga Advocate. From the pleadings filed, it is evident that other than allege that Mr. Charles N. Njenga is likely to be a potential witness in this suit in view of his role and/or position as the plaintiff’s Company Secretary, the defendants have not demonstrated the nature of evidence that he is likely to give, and/or the conflict of interest arising from his continued representation of the plaintiff in this suit.
19. In addition, this Court notes and appreciates the fact that pre-trial directions in this suit have already been taken, and the case was certified ready for hearing, but none of the parties herein indicated that they intend to call Mr. Charles N. Njenga as a witness in this case. Further, the suit herein was filed in the year 2016 and the defendants have never raised an objection to Mr. Njenga’s representation of the plaintiff in this suit. It is also noteworthy that the defendants have not demonstrated what prejudice they will suffer in the event that Mr. Charles N. Njenga continues representing the plaintiff company in this suit.
20. In the circumstances, this Court is not persuaded that by virtue of Mr. Charles N. Njenga being the plaintiff’s Company Secretary, there arises any conflict of interest for his continued representation of the plaintiff company in this suit. I therefore find that the plaintiff has not discharged its burden of proof.
21. In the result, the instant application is devoid of merits. It is hereby dismissed with costs to the plaintiff.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November 2024. Ruling delivered through Microsoft Teams online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the plaintiff
No appearance for the defendant
Ms B. Wokabi – Court Assistant