Ruling:
1. I have considered the grounds on the face of the notice of motion application dated 11.10.23 together with the supporting affidavit sworn on even date and the grounds of opposition dated 16 October 2023 and the appropriate authorities, and submissions of counsel.
2. The applicant submitted that the firm of IKM have been on record for the applicant since the year 2015, and the firm has provided various legal services in relation to several areas of law, including several opinions for the applicant company. Counsel stated that to date, the said firm is on record it in a matter with a hearing scheduled for next year.
3. Counsel submitted that looking at the relationship, a fiduciary duty is bestowed upon the said firm, and even though several matters have been concluded, the confidentiality owed to the applicant remains intact. His concern is that the respondent will use information provided to it in the course of its services rendered to the applicant to the detriment of the applicant.
4. In opposition to the application, counsel for the respondent submitted that the applicant is bound by its pleadings and has introduced matters that were not found in its pleadings. She further submitted that this matter ought to have been dealt with by the LSK as the appropriate body mandated to deal with complaints and enforcement of the codes of conduct.
5. Counsel further submitted that the only matter in matter in which IKM is representing the applicant is in relation to an employment matter. She stated that the present matter is about recovery of a debt, and that the matters are entirely unrelated, accordingly, no conflict will occur as a result.
6. I have noted Rule 6 of Paragraph 96 of the Law Society of Kenya Code of Conduct which defines conflict of interest. I have further noted Paragraph 99 of the said Code, which states the various instances in which a conflict of interest may arises. The same are detailed in the written submissions of the respondent and need not be restated here in full.
7. I find that the threshold of proof in claims for conflict of interest is set out in British-American Investments Company (K) Limited v Njomaitha Investments Limited & another [2014] eKLR, where the court stated, and I am in agreement, that a party seeking to establish conflict of interest ought to set out sufficient evidence to demonstrate that a conflict of interest exists; and show prejudice that will suffer; and further stated, that mere suspicion and apprehension will not suffice.
8. Further, in Delphis Bank Limited v Chatthe &6 Other 2005 1 KLR 766 the Court of Appeal sated:
“There is no general rule that an advocate cannot act for one party in a matter and then act for the opposition party in a subsequent litigation. The test which has been laid in authorities applied by the court of appeal is whether real mischief or real prejudice will in all human probability result.”
9. Guided by the law as set out above, I do not think that the applicant has satisfied the test to the appropriate standard and burden of proof. This is especially because the matters in which the law firm is representing the applicant and the respondent appear to my mind to be materially different.
10. Based on the facts as set out above, I am not persuaded that the applicant has satisfied the court with sufficient evidence that it is likely to be prejudiced or to suffer harm arising out of the alleged conflict. To my mind, the allegations therefore, do not transcend “mere apprehension” or “suspicion” based on the record before me.
11. I further take note of the delay in making the present application, one entire year after the firm came on record, and the fact that no sufficient explanation has been provided for the said delay.
12. Based on the reasons as set out above, I find the application is without merit and the same is dismissed with costs.
Mention for further directions with a view to taking a hearing date (subject to compliance with case management) on 25th January 2024.