1. Before this court for determination is the Petitioner/Applicant’s Notice of Motion application dated 20th May 2024 brought pursuant to the provisions of Section 1A, 1B, and 3A of the Civil Procedure Act seeking the following orders;
i. THAT Messers Kimani Githongo & Co. Advocates be disqualified from acting for the Respondents in this matter.
ii. THAT costs be provided for.
2. The application is premised on the grounds as set on the face of the motion and is supported by the affidavit of Robert Nicholas Darby of even date.
3. According to Mr. Darby, the firm of Messers Kimani Githongo & Co. Advocates were his Advocates and incorporated Ashbourne Properties Limited, the company, the subject of this Liquidation Petition. It is further the Applicant’s position that the law firm helped both the Petitioner and the 2nd Respondent, being the shareholders of the said company, to negotiate and complete the shareholding structure of the company.
4. The Applicant further alleges that the said law firm of Messers Kimani Githongo & Co. Advocates assisted the Respondent in fraudulently transferring the property of Ashbourne Properties Limited to the 1st Respondent, against the interest of the Applicant.
5. In view of the above, the Petitioner/Applicant is apprehensive that the said law firm is likely to use the information held by them to the Advantage of the Respondent, and at significant detriment to the Petitioner.
6. For the above reasons, the Petitioner prays that the application be allowed and the law firm of Messers Kimani Githongo & Co. Advocates be barred from representing the Respondent due to conflict of interest.
7. In response to the application, the Respondents filed a Replying affidavit dated 14th October 2024, sworn by Mr. J. G. Kimani, the advocate for the Respondents herein. In the said affidavit, the Advocate denied that his law firm has ever acted for the Petitioner, either in his personal capacity or in his capacity as a shareholder of Ashbourne Properties Limited. According to the Advocate, the law firm was instructed by the 2nd Respondent to incorporate Ashbourne Properties Limited, with the 2nd Respondent having 50% of the shareholding and a third party, Shibero Akatsa–Darby, having the remaining 50% shareholding.
8. The Advocate, however, denied that the firm negotiated the shareholding of the company, neither did they prepare any agreement in that regard. According to the Advocate, the law firm was only instructed to draw a transfer document for a property from the 2nd Respondent to the company, and from the company to the 1st Respondent.
9. The Advocate wondered why the Petitioner has only raised the issue of the law firm’s disqualification in these proceedings, while the Applicant is fully aware that the law firm has always acted for the Respondents, including in the HC ELC No. 365 of 2015, where the Petitioner herein sued the Respondents.
10. The Advocate states that there is no information that he is privy to regarding incorporation of the company, distribution of shares, payment for the shares, or any other transaction or information between the shareholders and directors that can be detrimental to the Petitioner. According to him, the Petitioner has not laid down the information that is in his possession in respect of the company other than the incorporation of the same. Consequently, he asserts that the Petitioner has not placed any material evidence justifying the firm’s disqualification.
11. He therefore prays that the Petitioner’s application be dismissed with costs and that he be allowed to continue acting for the Respondents.
12. This application was canvassed by way of written submissions. The Applicant filed his submissions dated 8th November 2024, whereas the Respondent's submissions are dated 21st November 2024.
Analysis and Determination
13. Upon considering the application, the replying affidavit and the supplementary affidavits alongside the rival submissions, I find that the only issue arising for determination is whether the Petitioner has made a case for the disqualification of the firm of Messers Kimani Githongo & Co. Advocates from representing the Respondents in this matter.
14. Regarding disqualification of an Advocate, the Court of Appeal in Delphis Bank Limited vs Channan Singh Chatthe & 6 others (2005)eKLR, the Court of Appeal stated that;
“The starting point is, of course, to reiterate that most valued constitutional right to a litigant; the right to a legal representative or advocate of his choice. In some cases however, particularly civil, 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…...”
15. Again, in the case of charles Gitonga Kariuki V Akuisi Farmers Co. Ltd [2007] KEHC 1059 (KLR) the Court of Appeal stated as follows on the issue:
“ In Uhuru Highway Development Limited vs Central Bank of Kenya [2002] 2E.A 654 at page 661, the Court of Appeal held that an advocate would not be allowed to act against a client where he could consciously or unconsciously or even inadvertently use the confidential information acquired when he acted for such a client to his detriment. The Court held that where it was established that such a client would suffer prejudice, then the court would have no alternative but to order that such an advocate ceases to act for the opposing party. An applicant, who is seeking the disqualification of an advocate from acting for the opposing party in the circumstances contemplated above, must establish the existence of such advocate-client relationship that could lead such an advocate to be in possession of confidential information which he could use to the detriment of the client seeking the disqualification of an advocate.”
16. In the instant case, the firm of Kimani Githongo & Co. Advocates confirms that it was instructed by the 2nd Respondent to incorporate the company the subject of the instant liquidation Petition, with the 2nd Respondent having 50% shares and Shibero Akatsa-Darby, the initial shareholder, with 50% shares. There is also the allegation by the Petitioner that the law firm assisted the Respondents in compromising his interest in the company and that the Advocate may be a witness in the matter.
17. From the documents filed, there is enough evidence that the firm of Kimani Githongo & Co. Advocates participated in the incorporation of Ashborne Properties Ltd, as confirmed by the Registrar of Companies' letter dated 15th May 2012. Consequently, the issue of conflict of interest may arise, and the firm may consciously or unconsciously use the information acquired in the process to the disadvantage of the Applicant/Petitioner. This court is guided by the Court of Appeal decision in King Woolen Mills Ltd & Another vs Kaplan and Straton Advocates (1990-1994) EA 244 where the court observed that: -
“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.”
18. In the circumstances, I find the application merited and proceed to make the following orders in regard to the Notice of motion dated 20th May 2024:
a) The firm of Kimani Githongo & Co. Advocates be and is hereby disqualified from acting for the Respondents in this matter.
b) Costs in the cause.
19. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF APRIL 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses