The Applicants Case
The application before me is dated 10th July 2025. It seeks orders that Ochieng' Gai & Co. Advocates be disqualified from acting against the 1st Defendant in this matter, ELC No. E050 of 2023 for breach of fiduciary duty and confidentiality. The Honorable Court do make such further or other orders as it may deem just and expedient in the interest of justice. The costs of this application be provided for.
The application is based on allegation that the 1st Defendant instructed Advocate Ochieng Gai in 2022 to act for him in Nakuru ELC No. 27 of 2022, involving the parcel of land known as LR No. 10978/8.
In 2023, Ochieng Gai was instructed by the plaintiff in this matter, Richlands Limited, to act for them against the 1 st Defendant in a matter involving the same parcel of land known as LR No. 10978/8.
Both matters involve the same subject matter, namely the parcel of land known as LRNo. 10978/8.
There exists a clear conflict of interest, as the advocate who previously acted for 1st Defendant in relation to LR No. 10978/8 is now representing the opposing party in a matter concerning the same parcel of land.
The conflict of interest is not only evident but also flagrant and blatant, as the advocate was representing the 1st Defendant in ELC No. E027 of 2022, yet is now acting against the same 1st Defendant in the present matter involving the same parcel of land, thereby undermining the integrity of the legal process and breaching professional ethical standards.
The confidential information obtained from the 1st Defendant in the earlier suit could unfairly prejudice him in the present proceedings.
According to the applicant, the Chinese wall doctrine cannot apply in these circumstances, and continuing representation would compromise the integrity of the proceedings. The supporting affidavit reiterates the grounds.
The applicants contends that M/s Ochieng Gai & Co. Advocates, in purporting to act for the Plaintiff while he previously represented the 1st Defendant in a matter involving the same subject property, is in grave and incurable conflict of interest. He cites the case of King Woolen Mills Ltd & Another v Kaplan & Stratton Advocates (1990-1994) EA 244, the Court of Appeal held:
"An advocate who has acted for two common clients cannot later act for either party in litigation when a dispute arises between the common clients concerning the original transaction or the subject matter for which he acted for the clients as a common advocate.
According to the applicant, such representation offends the fundamental principles of professional ethics, compromises the integrity of these proceedings, and unjustly places the 1st Defendant at risk of prejudice. To allow the same will be to allow potential misuse, whether deliberate or inadvertent, of confidential information obtained during the prior engagement.
The 1st Defendant avers and supported by evidence that in 2022, he instructed M/S Ochieng Gai & Co. Advocates in ELC No. E027 of 2022 concerning LR No. 10978/8, as shown in the pleadings. The same firm now acts for the Plaintiff in this matter, involving the same parcel of land and in direct opposition to him, thereby creating a clear and irrefutable conflict of interest.
The Law Society of Kenya developed a Code of Standards of Professional Practice and Ethical Conduct, 2016 (hereinafter referred to as the '2016 Code'). The 2016 Code defines conflict of interest in Rule 6 paragraph 96 as follows: -
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.
Further, Rule 6 paragraph 95 of the 2016 Code states that: -
The Advocate shall not advise or represent both sides of a dispute and shall not act or continue to act in a matter when there is a conflicting interest, unless he/she makes adequate disclosure to both clients and obtains their consent.
The applicant contends that M/S Ochieng Gai & Co. Advocates has not in entering conduct of this matter tendered in any evidence that the 1st Defendant gave informed consent. There was clearly no adequate disclosure made if any at all. The firm's actions demonstrate a clear breach of trust and an attempt to gain an unfair advantage through prior privileged knowledge.
The applicant further cites the case of Delphis Bank Ltd v Channan Singh Chatthe & 6 Others 120051 eKLR, where the court emphasized that disqualification of an advocate must be considered where:
“There is a real mischief or real prejudice that will in all human probability result.
The risk of prejudice in the present matter is not remote, it is inevitable. The advocate previously received the 1st Defendant's legal instructions, strategic positions, and was privy to internal communications in relation to the land in dispute. That knowledge, consciously or unconsciously, would influence the current proceedings and compromise the integrity of the process.
The applicant prays that this Honorable Court balances the competing rights of the parties and, in doing so, tilts the scales of justice in favour of the 1st Defendant. This court ought to uphold the integrity of the advocate-client relationship and disqualify counsel whose continued presence offends the principles of fairness, confidentiality, and professional ethics.
In light of the submissions, evidence and law herein above stated, we believe that the 1st Defendant has demonstrated the merits of this application. It should therefore be allowed with costs to the 1st Defendant.
Respondent’s Case
The respondent on his part contends that it is not true that the advocates were concurrently acting for the applicant in Nakuru ELC No.027 of 2022 and at the same time acting against him in Nakuru ELC No.050 of 2023.
The respondent states that the firm was instructed and acted in Nakuru ELC No.027 2022 of not by the applicant but by a Self Help namely Keres Self Help Group. They add that though the applicant signed the verifying affidavit it was not in his personal capacity but as chairman of the group and with the consent and mandate of the group. It is added that the suit did not belong to the applicant per-se to warrant personal claims of breach of fiduciary duty and or confidentiality.
The respondent argues that the legal advice given, pleadings filed and confidential Instruction was not a secret close to the applicant but was open and exposed to the entire group of over 56 members including their wives, children, assigns, and employees and also to the public and the applicant has no right to aim personal privy to the information. The respondent adds that after the legal advice. pleadings. instructions and strategy the same were filed and served and instantly became open to members of the public to all and sundry and published in the newspaper. The respondent adds that the firm stopped working for applicant on his own request and specifically when he filed a notice of change of advocates in the matter on the 24th May, 2023.
The respondent also adds that the application has no merit and the same is merely filed to scuttle the hearing, delay and derail the same being filed on the eve of a hearing. The respondent adds further that the application is a sideshow, a ruse to derail the hearing of this matter and the application is vexatious, malicious and abuse of the court process.
According to the respondent, it is trite law that an advocate can only be disqualified from a matter if found guilty of gross professional misconduct or guilty of a crime or moral turpitude. An advocate can only be disqualified in a clear ease of conflict or bias and disqualification requires strong evidence and not mere suspicion conjecture. averments and allegations.
In this instance there is no proof of any unethical conduct on the part of the firm, there is no proof of fraud or any allegations of dishonesty or misuse of confidential information. There is no allegations or violation of moral principles or professional misconduct. It is not pointed out or prosed that there is any conflict of interest, the allegations of the applicant are contradictory and one hand they state that the firm was acting concurrently in both matters and on the other hand they state that the firm had acted for the applicant in a previous matter.
The respondent acted for the applicant on the instructions of a group not personal instructions in ELC No.027 of 2022. The instructions ceased when the applicant tiled a notice of change on 24th May, 2023. This suit was filed on 19th December, 2023 so it is not correct to state that the firm was acting concurrently. Under the current rules of procedure there is no practice via ambush and a party has to file and exchange all the pleadings they seek to rely on in a matter.
A party cannot rely on pleadingsand facts that are not filed and exchanged. There is no secret information strategy or document that a party may use after exchange of pleadings. All the information that the firm is aware of is on the pleadings and there is no other information that the firm can be aware and use in the matter. Even if the advocate were to be disqualified from acting in the matter any other Advocate coming on record would have the same information. It is not stated that the advocate drew any of the documents that had to be used in the matter.
In the event of an application for disqualification of an advocate it is not only the rights of an applicant that are for consideration but also the rights of the advocates and the instructing party. An applicant has to prove with strong evidence any prejudice that may be occasioned to him if the firm continues to act.
An advocate has the right to work and the instructing party has the right to instruct the advocate of his choice. We do humbly submit that there is no prejudice whatsoever to the applicant if the firm continues to act against him as he will have all the rights and opportunity to defend himself. Moreover his application is merely an afterthought and the same was not indicated in the first instance in his pleadings on defence, On the other hand if the application is allowed it is the advocate and the instructing party who stand prejudiced as the advocate will clearly lose his brief and the instructing client will have to instruct another advocate at the risk of increased costs and fees.
In conclusion the respondent contends that it is clear the firm not concurrently acting for and against the applicant and the firm does not owe the applicant any fiduciary duty. The accusations of the applicant are merely flat allegations and do not contain any substantial instances and or evidence of any breach of fiduciary duty confidentiality r information. There are no allegations or proof of professional misconduct on the part of the firm.
Professional conduct is the reason why advocates shake hands and take tea together after a court session despite representing clients who are sworn enemies, do not see eye to eye, cannot bear the sight of each other least of all shaking hands. The advocate has no interest in the matter other than advancing the interest of his instructing client. The advocate does not stand 10 gain anything in the matter as the matter not personal to him. The application reeks of malice, the same is misconceived. is an afterthought, has no merit and should be dismissed with costs.
An advocate-client conflict of interest arises when an advocate's duties to one client clash with duties to another, a former client, or their own interests, compromising loyalty, objectivity, and independence; this is governed by Law Society of Kenya rules requiring full disclosure and informed written consent to continue, otherwise, the advocate must decline or withdraw to uphold ethical standards, ensuring the client's interests are paramount and not adversely affected. The Key Principles & Rules include the Duty of Loyalty & Independence: Advocates must remain independent, objective, and loyal, ensuring their judgment isn't compromised by personal interests or duties to others. Moreover, there must be No Dual Representation: An advocate generally cannot represent both sides of a dispute. Furthermore there must be Disclosure & Consent: If a conflict exists direct adversity between clients, or materially limited representation, the advocate must make full disclosure, explain risks, and get written informed consent from all affected clients to proceed. Lastly the must be Protection of Confidential Information: Using information from one client to the disadvantage of another, current or former is a breach.
Analysis and determination
I have considered the application, the replying affidavit and rival submissions and do find that the applicant has demonstrated that the firm of M/S Gai and Company advocates appeared for the 1st defendant as a chairman of the Keres Self Help Group and not in his individual capacity and therefore appearing for the plaintiff herein against the 1st defendant does not in any way make him conflicted though the parcel of land is the same. The applicant has not demonstrated any conflict of interest against the firm of Ochieng Gai as the parties in the suits are not the same. The plaintiffs in the suit are not the same as the plaintiff in ELC 27 of 2022 is a self-help group and not Simon Kipsang Yator. Moreover, Keres Self-help group is not a party in this suit. There is no evidence of dual representation. I do find that application without merit and the same is dismissed with costs.
The application before me is dated 10th July 2025. It seeks orders that Ochieng' Gai & Co. Advocates be disqualified from acting against the 1st Defendant in this matter, ELC No. E050 of 2023 for breach of fiduciary duty and confidentiality. The Honorable Court do make such further or other orders as it may deem just and expedient in the interest of justice. The costs of this application be provided for.
The application is based on allegation that the 1st Defendant instructed Advocate Ochieng Gai in 2022 to act for him in Nakuru ELC No. 27 of 2022, involving the parcel of land known as LR No. 10978/8.
In 2023, Ochieng Gai was instructed by the plaintiff in this matter, Richlands Limited, to act for them against the 1 st Defendant in a matter involving the same parcel of land known as LR No. 10978/8.
Both matters involve the same subject matter, namely the parcel of land known as LRNo. 10978/8.
There exists a clear conflict of interest, as the advocate who previously acted for 1st Defendant in relation to LR No. 10978/8 is now representing the opposing party in a matter concerning the same parcel of land.
The conflict of interest is not only evident but also flagrant and blatant, as the advocate was representing the 1st Defendant in ELC No. E027 of 2022, yet is now acting against the same 1st Defendant in the present matter involving the same parcel of land, thereby undermining the integrity of the legal process and breaching professional ethical standards.
The confidential information obtained from the 1st Defendant in the earlier suit could unfairly prejudice him in the present proceedings.
According to the applicant, the Chinese wall doctrine cannot apply in these circumstances, and continuing representation would compromise the integrity of the proceedings. The supporting affidavit reiterates the grounds.
The applicants contends that M/s Ochieng Gai & Co. Advocates, in purporting to act for the Plaintiff while he previously represented the 1st Defendant in a matter involving the same subject property, is in grave and incurable conflict of interest. He cites the case of King Woolen Mills Ltd & Another v Kaplan & Stratton Advocates (1990-1994) EA 244, the Court of Appeal held:
"An advocate who has acted for two common clients cannot later act for either party in litigation when a dispute arises between the common clients concerning the original transaction or the subject matter for which he acted for the clients as a common advocate.
According to the applicant, such representation offends the fundamental principles of professional ethics, compromises the integrity of these proceedings, and unjustly places the 1st Defendant at risk of prejudice. To allow the same will be to allow potential misuse, whether deliberate or inadvertent, of confidential information obtained during the prior engagement.
The 1st Defendant avers and supported by evidence that in 2022, he instructed M/S Ochieng Gai & Co. Advocates in ELC No. E027 of 2022 concerning LR No. 10978/8, as shown in the pleadings. The same firm now acts for the Plaintiff in this matter, involving the same parcel of land and in direct opposition to him, thereby creating a clear and irrefutable conflict of interest.
The Law Society of Kenya developed a Code of Standards of Professional Practice and Ethical Conduct, 2016 (hereinafter referred to as the '2016 Code'). The 2016 Code defines conflict of interest in Rule 6 paragraph 96 as follows: -
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.
Further, Rule 6 paragraph 95 of the 2016 Code states that: -
The Advocate shall not advise or represent both sides of a dispute and shall not act or continue to act in a matter when there is a conflicting interest, unless he/she makes adequate disclosure to both clients and obtains their consent.
The applicant contends that M/S Ochieng Gai & Co. Advocates has not in entering conduct of this matter tendered in any evidence that the 1st Defendant gave informed consent. There was clearly no adequate disclosure made if any at all. The firm's actions demonstrate a clear breach of trust and an attempt to gain an unfair advantage through prior privileged knowledge.
The applicant further cites the case of Delphis Bank Ltd v Channan Singh Chatthe & 6 Others 120051 eKLR, where the court emphasized that disqualification of an advocate must be considered where:
“There is a real mischief or real prejudice that will in all human probability result.
The risk of prejudice in the present matter is not remote, it is inevitable. The advocate previously received the 1st Defendant's legal instructions, strategic positions, and was privy to internal communications in relation to the land in dispute. That knowledge, consciously or unconsciously, would influence the current proceedings and compromise the integrity of the process.
The applicant prays that this Honorable Court balances the competing rights of the parties and, in doing so, tilts the scales of justice in favour of the 1st Defendant. This court ought to uphold the integrity of the advocate-client relationship and disqualify counsel whose continued presence offends the principles of fairness, confidentiality, and professional ethics.
In light of the submissions, evidence and law herein above stated, we believe that the 1st Defendant has demonstrated the merits of this application. It should therefore be allowed with costs to the 1st Defendant.
Respondent’s Case
The respondent on his part contends that it is not true that the advocates were concurrently acting for the applicant in Nakuru ELC No.027 of 2022 and at the same time acting against him in Nakuru ELC No.050 of 2023.
The respondent states that the firm was instructed and acted in Nakuru ELC No.027 2022 of not by the applicant but by a Self Help namely Keres Self Help Group. They add that though the applicant signed the verifying affidavit it was not in his personal capacity but as chairman of the group and with the consent and mandate of the group. It is added that the suit did not belong to the applicant per-se to warrant personal claims of breach of fiduciary duty and or confidentiality.
The respondent argues that the legal advice given, pleadings filed and confidential Instruction was not a secret close to the applicant but was open and exposed to the entire group of over 56 members including their wives, children, assigns, and employees and also to the public and the applicant has no right to aim personal privy to the information. The respondent adds that after the legal advice. pleadings. instructions and strategy the same were filed and served and instantly became open to members of the public to all and sundry and published in the newspaper. The respondent adds that the firm stopped working for applicant on his own request and specifically when he filed a notice of change of advocates in the matter on the 24th May, 2023.
The respondent also adds that the application has no merit and the same is merely filed to scuttle the hearing, delay and derail the same being filed on the eve of a hearing. The respondent adds further that the application is a sideshow, a ruse to derail the hearing of this matter and the application is vexatious, malicious and abuse of the court process.
According to the respondent, it is trite law that an advocate can only be disqualified from a matter if found guilty of gross professional misconduct or guilty of a crime or moral turpitude. An advocate can only be disqualified in a clear ease of conflict or bias and disqualification requires strong evidence and not mere suspicion conjecture. averments and allegations.
In this instance there is no proof of any unethical conduct on the part of the firm, there is no proof of fraud or any allegations of dishonesty or misuse of confidential information. There is no allegations or violation of moral principles or professional misconduct. It is not pointed out or prosed that there is any conflict of interest, the allegations of the applicant are contradictory and one hand they state that the firm was acting concurrently in both matters and on the other hand they state that the firm had acted for the applicant in a previous matter.
The respondent acted for the applicant on the instructions of a group not personal instructions in ELC No.027 of 2022. The instructions ceased when the applicant tiled a notice of change on 24th May, 2023. This suit was filed on 19th December, 2023 so it is not correct to state that the firm was acting concurrently. Under the current rules of procedure there is no practice via ambush and a party has to file and exchange all the pleadings they seek to rely on in a matter.
A party cannot rely on pleadingsand facts that are not filed and exchanged. There is no secret information strategy or document that a party may use after exchange of pleadings. All the information that the firm is aware of is on the pleadings and there is no other information that the firm can be aware and use in the matter. Even if the advocate were to be disqualified from acting in the matter any other Advocate coming on record would have the same information. It is not stated that the advocate drew any of the documents that had to be used in the matter.
In the event of an application for disqualification of an advocate it is not only the rights of an applicant that are for consideration but also the rights of the advocates and the instructing party. An applicant has to prove with strong evidence any prejudice that may be occasioned to him if the firm continues to act.
An advocate has the right to work and the instructing party has the right to instruct the advocate of his choice. We do humbly submit that there is no prejudice whatsoever to the applicant if the firm continues to act against him as he will have all the rights and opportunity to defend himself. Moreover his application is merely an afterthought and the same was not indicated in the first instance in his pleadings on defence, On the other hand if the application is allowed it is the advocate and the instructing party who stand prejudiced as the advocate will clearly lose his brief and the instructing client will have to instruct another advocate at the risk of increased costs and fees.
In conclusion the respondent contends that it is clear the firm not concurrently acting for and against the applicant and the firm does not owe the applicant any fiduciary duty. The accusations of the applicant are merely flat allegations and do not contain any substantial instances and or evidence of any breach of fiduciary duty confidentiality r information. There are no allegations or proof of professional misconduct on the part of the firm.
Professional conduct is the reason why advocates shake hands and take tea together after a court session despite representing clients who are sworn enemies, do not see eye to eye, cannot bear the sight of each other least of all shaking hands. The advocate has no interest in the matter other than advancing the interest of his instructing client. The advocate does not stand 10 gain anything in the matter as the matter not personal to him. The application reeks of malice, the same is misconceived. is an afterthought, has no merit and should be dismissed with costs.
An advocate-client conflict of interest arises when an advocate's duties to one client clash with duties to another, a former client, or their own interests, compromising loyalty, objectivity, and independence; this is governed by Law Society of Kenya rules requiring full disclosure and informed written consent to continue, otherwise, the advocate must decline or withdraw to uphold ethical standards, ensuring the client's interests are paramount and not adversely affected. The Key Principles & Rules include the Duty of Loyalty & Independence: Advocates must remain independent, objective, and loyal, ensuring their judgment isn't compromised by personal interests or duties to others. Moreover, there must be No Dual Representation: An advocate generally cannot represent both sides of a dispute. Furthermore there must be Disclosure & Consent: If a conflict exists direct adversity between clients, or materially limited representation, the advocate must make full disclosure, explain risks, and get written informed consent from all affected clients to proceed. Lastly the must be Protection of Confidential Information: Using information from one client to the disadvantage of another, current or former is a breach.
Analysis and determination
I have considered the application, the replying affidavit and rival submissions and do find that the applicant has demonstrated that the firm of M/S Gai and Company advocates appeared for the 1st defendant as a chairman of the Keres Self Help Group and not in his individual capacity and therefore appearing for the plaintiff herein against the 1st defendant does not in any way make him conflicted though the parcel of land is the same. The applicant has not demonstrated any conflict of interest against the firm of Ochieng Gai as the parties in the suits are not the same. The plaintiffs in the suit are not the same as the plaintiff in ELC 27 of 2022 is a self-help group and not Simon Kipsang Yator. Moreover, Keres Self-help group is not a party in this suit. There is no evidence of dual representation. I do find that application without merit and the same is dismissed with costs.