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|Case Number:||Civil Case 448 of 1993|
|Parties:||Murathi Chambira v M'Iringo Kiria|
|Date Delivered:||20 Jan 1995|
|Court:||High Court at Meru|
|Citation:||Murathi Chambira v M'Iringo Kiria eKLR|
|Advocates:||Mr Riungu for the Respondent|
|Parties Profile:||Individual v Individual|
|Advocates:||Mr Riungu for the Respondent|
Murathi Chambira v M'Iringo Kiria
High Court, at Meru January 20, 1995
Civil Case No 448 of 1993
Advocate – disqualification – application for – where an advocate shifts his alliance from one party and represents the other in litigation involving same subject matter – whether such an advocate should be ordered to disqualify himself.
The respondent in this case gave full instructions to an advocate, one Mr Mugo in July, 1993 who then lodged a caution on his behalf (respondents) in respect of land parcel No Magumoni/Rubate/463. However, two months later, he was briefed by the applicant and shifted his alliance to represent him.
Counsel for the respondent contended that his client felt compromised by the act of the said Mr Mugo, as the suit involved the same piece of land.
1. It is an implied rule of practice and ethics that an advocate should not act in a matter where his services have been retained by both parties to a litigation involving the same subject matter in dispute.
2. It cannot be dismissed that Mr Mugo may use instructions he received from one party for the benefit of the other; which case would be detrimental to the rules of national justice.
Muriithi, Malizella Karambu v Ephantus Chege Civil Case No 53 of 1990
Advocates Act (cap 16)
Mr Riungu for the Respondent
|History Advocates:||One party or some parties represented|
|Case Outcome:||Application allowed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO 448 OF 1993
Although it is not expressly stated in the Advocates Act (Cap 16) it is an implied rule of practice and ethics that an advocate should not act in matter where his services had been retained by both parties to a litigation involving the same subject matter in dispute.
In the instant case Mr. Mugo was instructed by the respondent in July, 1993 and he lodged a caution on his behalf in respect of land parcel No. Magumoni/Rubate/463. Two months later he was briefed by the applicant and shifted his alliance to represent him. It must be remembered he had initially obtained full instructions from the respondent.
Mr Riungu has argued this application on behalf of the respondent who now feels compromised by the act of Mr Mugo, as the suit involves the same piece of land.
This Court did observe in Malizella Karambu Muriithi vs Ephantus Chege HCCC No 53 of 1990 as follows:
“It would be a sad day for courts to disqualify counsels chosen by litigants. A litigant is entitled to be represented by a counsel of his choice. The courts leave it to the counsels themselves that exercising their minds reasonably at all times they would not engage in litigation that would embarrass them professionally or bring disrepute to their calling as officers of this Court “ – Per Ongudi J.
That case involved a counsel who had been a land registrar and who in his days in the civil service visited the suit land before resigning to practice. The Court dismissed an application for disqualification on the ground that what he did in his capacity as a land registrar had no bearing on the matters before it
In the instant case Mr. Mugo has had instructions from both sides. The respondent rightly feels his position is compromised.
I agree with him entirely. It cannot be dismissed that Mr. Mugo may use instructions he received from one party to the benefit of the other. That would be detrimental to the rules of natural justice and to our sense of justice and morality.
For the above reasons I order that Mr. Mugo do disqualify himself from the conduct of this case.
There shall be no orders as to costs.
Dated and delivered at Meru this 20th day of January 1995