The rule speaks of representation by an advocate and not advocates.
23.The right to access to justice is guaranteed under Article 48 of the Constitution for the litigants including the interested Party herein and is realized through litigation tools like pleadings, applications, submissions, authorities, arguments, highlighting of submissions and the examination of witnesses inter alia that the advocates prepare, lodge and use to front their innocent clients in the court room.
24.No doubt a litigant will not be expected to issue two or more sets of instructions to different law firms or advocates at different times in the same suit to represent them in court. This would generate confusion and anarchy in the courtroom at the expense of the client.
25.The judge who presides over a matter where there are two or more advocates appearing for one client in the same suit will find it difficult to determine the dispute that is before him. It becomes awkward for the court where the two law firms are at cross purposes seeking to represent the same client to the extent that they are fronting conflicting arguments in court. The court will not be able to address the counsel appropriately in court or in the judgment that would flow from such a circus. This would culminate in the breach of the rule of law. It is not acceptable. Right from the outset, when the 1st Respondent and the interested Party filed their responses to the substantive application in this suit, the issue of representation came to fore exposing the underbelly of interested party herein.
26.This court has addressed its mind to the following: On 4th April 2023, a resolution was passed that the law firm of Ngala Awino & Co Advocates do appear for the interested Party and for Ezra Okoth in this matter as set out in the said Minutes marked as annexure E0011. Upon the realization of the gravity of the matter and the kind of allegations that had been levelled against the interested Party and its officials, the 1st Respondent and interested party sought to have the services of a Senior Counsel.
27.Subsequently on 12th April 2023, a resolution was passed that the law firm of Prof Tom Ojienda & Associates Advocates should appear for the interested Party and Ezra Okoth. This can be gleaned from the minutes and the letter of instruction annexure E0012.
28.On 14th April 2023, the law firm of Prof Tom Ojienda & Associates Advocates filed a Notice of change of Advocates for the 1st Respondent and the interested party herein from the firm of Ngala Awino and co advocates.
29.On 20th April 2023, the firm of Ochiel J. Dudley Advocates filed a Notice of change of Advocates to act for the Interested Party replacing the firm of Prof Tom Ojienda & Associates Advocates. On 27th April 2023, Prof Tom Ojienda & Associates Advocates filed a replying Affidavit of Simon Wesechere on behalf of the Interested Party.
30.On 5th May 2023, Prof Tom Ojienda & Associates Advocates filed a notice of change of Advocates in place of the firm of Ochiel J. Dudley Advocates for the interested Party. On 6th May 2023, the firm of Ochiel J. Dudley Advocates filed a Notice of change of Advocates to act for the interested Party replacing the firm of Prof Tom Ojienda & Associates Advocates.
31.The appointment was pursuant to the resolution signed by the Applicants and dated 20th April 2023. On 18th May 2023, the Respondent and the interested Party filed a joint replying Affidavit in opposition to the Notice of Motion dated 13th April 2023 through the firm of, Prof Tom Ojienda & Associates Advocates.
32.On 23rd May 2023, the firm of Ochiel J. Dudley Advocates filed skeleton arguments supporting the applicants Preliminary Objection dated 18th April 2023 for and on behalf of the interested party. On the same day 23rd May 2023, Prof Tom Ojienda & Associates Advocates filed submissions in opposition of the applicant’s Preliminary Objection dated 18th April 2023 for and on behalf of the 1st and 2nd Respondent and the interested Party.
33.On 29th May 2023, the firm of Ochiel J. Dudley Advocates filed submissions on the representation of the interested Party. On the same day 23rd May 2023, Prof Tom Ojienda & Associates Advocates filed submissions in opposition to the Application dated 13th April 2023 for and on behalf of the 1st and 2nd Respondent and the interested Party.
34.The 1st Respondent contends that it was shocked to receive a call from their Advocate, Prof Tom Ojienda SC, that the Federation had allegedly filed a notice of change replacing his law firm with another law firm called Ochiel J. Dudley Advocates. On further inquiry, the 1st Respondent was informed that a resolution was passed by the Federation on 20th April 2023 to replace the Law Firm for Prof Tom Ojienda & Associates as set out in the resolutions marked as annexure E0013.
35.According to the 1st Respondent, being the Secretary General, he retains the sole mandate to convene any meeting of the interested Party and this can only be done by the deputy upon express authorization. The 1st Respondent further avers that he has never authorized the said Simon Wesechere to convene any meeting of the interested Party let alone make any communication to the law firm of Ochiel J Dudley Advocates and the resolution cannot hold any water being illegal for being convened in outright contravention of the interested Party 's Constitution.
36.As a result of the above the 1st Respondent immediately convened an urgent meeting to settle the question of representation. A resolution was passed to regularize this purported change of Advocates on the 2nd of May 2023 as set out in the Minutes for 2nd May 2023 annexed as E0014.
37.In the case of Uhuru Highway Development Ltd & Others vs Central Bank of Kenya Ltd & Others (2)  2 EA 654, that it is not the business of the Courts to tell litigants which advocate should or should not act in a particular matter as each party to a litigation has the right to choose his or her own advocate, unless it is shown to a Court of law that the interests of justice would not be served if a particular advocate were allowed to act in the matter. In addition, the reasons why it is prudent to resolve any conflict as regards representation of a party and to have one firm of advocates on record two firms on record for a party in a suit were stated Kenya Commercial Bank Ltd. v. John Benjamin Wanyama, Civil Appeal No. 97 of 1999;  eKLR as follows:
38.I am guided by the case of Murigi Kamande v Nelson Andayi Havi & another; Mercy Kalondu Wambua (Interested Party)  eKLR where in justice Rika made the following findings:10.The dispute regarding who should appear for the LSK, is an offshoot of the main dispute. The main dispute revolves around the LSK President Mr. Nelson Havi, and the LSK CEO Ms. Mercy Wambua. In their respective camps are some Council Members.11.The President’s position is that the CEO is no longer validly in office. The President does not recognize her, and is not ready to work with her. The CEO insists she was absolved by the Council of certain allegations made against her with regard to discharge of her role, and was returned to office through the resolution of the Council. A majority of the Council Members agreed that she resumes office.12.This internal conflict has affected decision-making in the LSK. The appointment of the Law Firm, or Law Firms to appear for the LSK, in various matters before the Courts, is just one among other decisions, affected by the conflict. For instance, on 9th November 2020, the President wrote to Audit Firm, Parker Randall, calling for forensic audit of the accounts and balance sheet of the LSK, for a specified period. The President directed that the exercise is completed within 30 days of 9th November 2020. The following day, 10th November 2020, the CEO wrote to Parker and Randall, advising that the Council had initiated the process of appointing an Auditor. The Auditor was told to cease the proposed audit, until the process of appointing an Auditor was complete.13.It is clear therefore, that there is a fundamental conflict within the Council of the LSK. This conflict is not just about the appointment of a Law Firm, or Law Firms, to represent the LSK in this Petition, and related Petitions. It is about the governance of the LSK.14.The Court will not be assisting the Parties, by endorsing Mr. Kurgat, or Mr. Muhoro, or other Learned Counsel, over the other, in representation of the LSK. By making a ruling for one against the other, the Court will have shown where its mind lies, with regard to the larger dispute. The Court will be fanning the flames engulfing the LSK. It will be prejudicial to the Parties, to say at this stage, that the decision made by the President and his faction in the Council, or that made by the CEO and Council Members in her faction, is the right decision. It should not be the role of the Court to fan the fires of factionalism. The Law Society of Kenya Act, has provisions, which in the view of the Court, empower the President and /or the Council, in appointment of Lawyers, and other professionals, to act for the LSK. Both the President and the Council can appoint a Lawyer to act for the LSK. The law however, presumes that the President and the Council stand on the same platform. Their voice is meant to be a collective voice. Their decisions are meant to be collective. They are all elected by the LSK Members.15.The most suitable forum to resolve the preliminary and the main issues in dispute, is the General Meeting. Part 3, Section 15, of the LSK Act, deals with effective governance of the LSK. It creates 4 organs of governance: The General Meeting; the Council; the Secretariat; and the Branches. Section 16 of the Act, states that the General Meeting shall be the supreme authority of the Society.16.The LSK Act presupposes that there is a single Council of the LSK. Throughout, the LSK Act refers to ‘the Council.’ There is one Council. Its decisions are made through majority vote. There is one President, who is a Member of the Council. There is one LSK. Section 3 of the Act establishes one LSK. What the disputants herein are doing, is to pluralize the LSK. The law does not contemplate a situation where the President and the Council act at cross-purposes. As it is, it is not possible to grant orders which can practicably be executed, for or against the LSK. It is not known who the LSK in the dispute is. How will the orders be enforced? One faction could compromise the Petition against the other, risking the resources of the membership at large. The LSK cannot enjoy client-advocate confidentiality with multiple, differently instructed Lawyers. It cannot have control over the litigation. No Court ought to approve this anomaly. The LSK needs to be placed in a position where it has a conventional advocate-client relationship. There is need for some coherence, which the Court is not able to hand to the Parties.17.Should it happen that the President and the Council are involved in a dead heat, as they seem to be, the Society ought to ask for intervention of the supreme authority of the Society. The President, the Council and the Secretariat are subordinate to the General Meeting. The intervention of the Court as sought, does not result in, or promote, effective governance of the LSK. It would only fan, the fires of factionalism.