Douglas Msamali Agoi (Suing on behalf of Oscar Akelo Lung’aho by Virtue of A Power of Attorney) v Jane Mwanjeh Manasseh,Margaret Maraga Mudogo, Stephen Muchunu Mbaria, Kenya Women Microfinance Bank Ltd, Reg. of Titles Kak. Lands Registry, Chief Registrar of Lands, National Land Commission & Attorney General [2017] KEELC 319 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 90 OF 2017

DOUGLAS MSAMALI AGOI (SUING ON BEHALF OF OSCAR AKELO LUNG’AHO

BY VIRTUE OF A POWER OF ATTORNEY):::::::::::::::::::::::: PLAINTIFF/APPLICANT

VERSUS

JANE MWANJEH MANASSEH :::::::::::::::::::::::::::::::::::::::::::::::::::::: 1ST DEFENDANT

MARGARET MARAGA MUDOGO ::::::::::::::::::::::::::::::::::::::::::::::: 2ND DEFENDANT

STEPHEN MUCHUNU MBARIA :::::::::::::::::::::::::::::::::::::::::::::::::::: 3RD DEFENDANT

KENYA WOMEN MICROFINANCE BANK LTD. ::::::::::::::::::::::::::::: 4TH DEFENDANT

REG. OF TITLES KAK. LANDS REGISTRY ::::::::::::::::::::::::::::::::::: 5TH DEFENDANT

THE CHIEF REGISTRAR OF LANDS ::::::::::::::::::::::::::::::::::::::::::::: 6TH DEFENDANT

THE NATIONAL LAND COMMISSION :::::::::::::::::::::::::::::::::::::::::: 7TH DEFENDANT

THE HONOURABLE ATTORNEY GENERAL::::::::: 8TH DEFENDANT/RESPONDENTS

RULING

This application is dated 1st July 2017 and is brought under rule 9 of the Advocates, (Practice) rules, Section 134 and 136 of the Evidence Act Cap. 80, Laws of Kenya seeking the following orders;

1. This honourable court be pleased to order that this application be heard in priority to any pending application before court;

2. This honourable court do order that the firm of Abok Odhiambo & Company Advocates to cease to appear or continue to appear for the 1st, 2nd, 3rd and 4th Defendants and/or any other party in this suit; and/or;

3. This honourable court do stay the representation by the firm of Abok Odhiambo & Company Advocates for the 1st, 2nd, 3rd and 4th defendants, and or any other party and/or;

4. The firm of Abok Odhiambo & Company advocates be restrained whether by themselves, their partners, servants or agents from representing the 1st, 2nd, 3rd and 4th defendants, and or any other party in this action;

5. This honourable court do issue such or consequential orders as it may deem fit;

6. That the costs of this application be provided for.

The applicant submitted that, Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates acted for the 1st and 3rd defendants herein in taking instructions, drawing and witnessing the execution of the sale agreement dated 17th November, 2016 in relation to property title Number Kakamega/Municipality Block 1/28, which forms the substratum of the suit herein. The said firm of Abok Odhiambo & Company Advocates also acted for the 3rd and 4th defendants herein in taking instructions, drawing and witnessing the execution of the charge instrument dated 30th November, 2016 in relation to property Title Number Kakamega/Municipality Block 1/28, which is purportedly a charge over property Title Number Kakamega/Municipality Block 1/28, the suit property herein. That further, the said Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates commissioned the affidavit of consent of spouse sworn by one Naomi Wairimu Muchunu on 30th November, 2016 in relation to the aforesaid charge instrument dated 30th November, 2016. That in view of the foregoing, the said firm was privy to confidential information passing between parties prior and during the drawing and execution of the aforesaid sale agreement and charge instrument relating to the suit property herein. That the plaintiff intends to challenge the allegations made by the defendants in their statements of defence and/or the main suit herein. That Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates being the advocate/firm who advised the parties and drew the subject sale agreement and charge instrument is therefore a potential witness in this matter and the plaintiff intended to have him put to the witness stand at the trial hereof. That as such Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates, cannot purport to act for the 1st, 2nd, 3rd and 4th defendants, and/or any party herein against the plaintiff and at the same time appear as a witness in the same matter without conflict of interest. That further Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates will use confidential information that may have passed on between him and the defendants and/or the plaintiff and the defendants to the detriment of the plaintiff. That it is therefore manifest that there will be likelihood of a mischief or real prejudice against the plaintiff resulting in Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo resulting in Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates continued acting for the 1st, 2nd, 3rd and 4th defendants. That it is therefore in the interest of justice that the said firm of advocates be restrained from acting for the plaintiff. That it is in the spirit of fairness and justice that the court ought to grant prayers sought herein. That no prejudice shall be suffered by the respondents if the prayers sought herein are granted.

The applicant submitted that, the plaintiff is a donee of a power of Attorney from Oscar Akelo Lung’aho one of the sons of the deceased Thomas Ganira Lung’aho by virtue of a Power of Attorney dated 24th June, 2016 and registered as NO. IPA/A 66691/1 at the Land’s Registry Nairobi. The 1st and 2nd defendants are sisters of the said Oscar Akelo Lung’aho and beneficiaries to the estate of their late father together with Oscar Akelo Lung’aho.

The gist of the suit before this honourable court is that the 1st and 2nd defendant had irregularly obtained letters of administration on 22nd September, 2014 and purported to act as administrators in the absence of consent from other beneficiaries in the estate of Thomas Ganira Lung’aho whose suit property is subject of the suit herein. The 1st defendant fraudulently applied for renewal of a lease over Land Reference Number Kakamega Municipality Block/28 registered in the name of their late father and available for distribution amongst all the beneficiaries of the Estate, and caused the same to be registered in her name as opposed to holding the same in trust for the other beneficiaries as per the certificate of confirmation of grant and has now sold it to the defendant.

The plaintiff on learning that the 1st defendant had sought for renewal of the lease and had it registered in her name, lodged a caution against any dealings on the aforesaid property at the lands office. The aforesaid caution lodged by the plaintiff was hastily removed through an application by the 1st defendant’s counsel on record, Mr. Hezron Abok Advocate, who wrote a complaint letter to the land’s Registrar. The 3rd defendant upon having a successful transfer and registration of the disputed suit property in his name from the 1st defendant, borrowed money from the 4th defendant who created a charge on the property to secure payment of the amount borrowed to the tune of Kenya Shillings Forty Five Million (Ksh. 45,000,000/=).

Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo Company Advocates acted for the 1st and 3rd defendants herein in taking instructions drawing and witnessing the execution of the sale agreement dated 17th November, 2017 in relation to property Title Number Kakamega/Municipality Block 1/28 which forms the substratum of the suit herein.   The said firm of Abok Odhiambo & company Advocates also acted for the 3rd and 4th defendants herein in taking instructions, drawing and witnessing the execution of the charge instrument dated 30th November, 2016 in relation to property title Number Kakamega/Municipality/Block 1/28 which is purportedly a charge over property title number Kakamega/Municipality Block 1/28, the suit property herein.

Further, the said Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates commissioned the affidavit of consent of spouse sworn by one Naomi Wairimu Muchunu on 30th November, 2016 in relation to the aforesaid charge instrument dated 30th November, 2016.   In view of the foregoing, the said firm was privy to confidential information passing between parties prior and during the drawing and execution of the aforesaid sale agreement and charge instrument relating to the suit property herein.   The plaintiff intends to challenge the allegations made by the defendants in the statements of defence and/or the main suit herein.

Section 2 of the Advocates Act, defines “client” to include:-

“Any person who, as a principal or on behalf of another, or as a trustee personal representative, or in any other capacity, has power, express or implies to retain or employ, and retains or employs, or is about to retain or employ advocate and any person who is or may be liable to pay to an advocate as costs”.

There is no contention as to whether the said Advocate and/or firm of advocate acted for the defendants in an advocate – client relationship.  There was clearly an advocate client relationship in a series of transactions where the said Advocate/firm of advocates acted variously for the defendants.

The applicant submitted that the issues raised by the plaintiff are contentious issues.  The aforesaid advocate/firm of advocates will be required to testify on very contentious issues raised by the plaintiff in the plaint, and especially instances where the said advocate has written letters to the Land Registrar to have caveats placed on the subject property hastily removed and the notice asking the plaintiff to remove the caution being sent to the plaintiff’s Kenya Postal Address notwithstanding the 1st defendant’s full knowledge that the plaintiff did not reside in the country at that time.

The plaintiff has clearly set out the instances of involvement of the Firm/Advocates on record for the 1st, 2nd, 3rd and 4th defendants in the matter and in a series of transactions which directly touch on property title Number Kakamega/Municipality Block 1/28 which property forms the substratum of this suit.  The same are clear in the instant application and the plaint filed before this court.

Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo Company Advocates being the advocate/firm who advised the parties and drew the subject sale agreement and charge instrument is therefore a potential witness in the matter and the plaintiff intended to have him put to the witness stand at the trial hereof. That as such Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & company Advocate, cannot purport to act for the 1st, 2nd, 3rd and 4th defendants, and/or any party herein against the plaintiff and at the same time appear a witness in the same matter without conflict of interest. Further Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates will use confidential information that may have passed between him and the defendants and/or the plaintiff and the defendants to the detriment of the plaintiff.

It is trite law that an advocate cannot advice or represent both sides of a dispute and cannot act or continue to act in a matter when there is a conflicting interest, and/or where such an advocate may be required to appear as a witness in regard to issues arising in the matter.  In the Court of appeal decision of Uhuru Highway Development Ltd & 3 others  vs  Central Bank of Kenya & 4 others [2003] eKLR, the court stated as follows:-

“............ again, the bar to the counsel appearing as a possible witness was not subjective but governed by rule 9 of the Advocates (Practice) Rules.”

There is clear proof that the plaintiff will suffer a miscarriage of justice if the aforesaid Firm of Advocates is allowed to represent the 1st, 2nd, 3rd and 4th defendants and/or any other party in this matter.

The plaintiff laid a basis as to why he would wish to cross examine the advocate for the 1st, 2nd, 3rd and 4th defendants in relation to the transaction culminating in the transfer and consequent charging of property held in trust for the benefit of the beneficiaries of the estate of the late Thomas Ganira Lung’aho where the 1st and 2nd defendants are administrators of the estate of the late Thomas Ganira Lung’aho. It is therefore manifest to them that there will be likelihood of a mischief or real prejudice against the plaintiff resulting in Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates continued acting for the 1st, 2nd, 3rd and 4th defendants.

That the plaintiff will suffer prejudice if the said advocate and or firm of advocates continues to appear for the 1st, 2nd, 3rd and 4th defendants and or any other party in this matter as he is a potential witness in the matter as to contentious issues arising in the matter.

The 1st, 2nd, 3rd and 4th defendant’s filed written submissions in opposing the plaintiff’s application dated 1st July 2017 and stated that it is in contravention of section 55 of the Advocates Act Cap 16 of the Laws of Kenya. The applicant’s application is in manifest breach of the courts Oxygen Principle:

a.  In terms of the applicant’s court attendance on the 3/4/2017.

b.  In terms of the court’s directions issued on the 11/5/2017.

c.  In terms of the provisions of Order 40 rule 6 of the Civil Procedure Rules.

They submit that, under Section 55 of the Advocates Act, every advocate and every person otherwise entitled to act as an advocate shall be an office of the court and shall be subject to the jurisdiction thereof and, subject to this Act, to the jurisdiction of the Disciplinary Committee: Advocates are officers of the court.  An officer of the court; is any person who has an obligation to promote justice and effective operation of the judicial system, including honourable judges, advocates who appear in court, clerks, and others. As officers of the court lawyers have an absolute ethical duty to tell the honourable courts the truth, including avoiding dishonesty or evasion on matters related to conduct of the courts. As an officers of the court his primary duty and loyalty lies with the court.  The essence of this is that the advocate is in a unique position because the duty to his or her client is subject to the advocate’s overriding duty to the court.  This duty may require the advocate to act to the disadvantage of the client’s case, even if the client instructs to the contrary.

The applicant/plaintiff brought this matter to court vide a plaint dated 15th March 2017.  In the said plaint, the plaintiff is aware of the transactions involving sale of Kakamega Municipality/Block 1/28.  The plaintiff is also aware that it is the firm of Abok Odhiambo & Company advocates who handled the said sale transactions.   Other than filing the plaint, the plaintiff also filed an application dated 15th March 2017 which application was brought by way of a certificate of urgency.

When the said plaintiff’s application dated 15th March 2017, came up for hearing on 3rd April 2017, the respondents and more so, the firm of Abok Odhiambo &Company Advocate (for the 1st, 2nd, 3rd and 4th defendants) readily gave the plaintiff a consent and allowed the said application.  This was done so as to easily facilitate the speedy conclusion of this matter and they submit that the same was done with utmost good faith by or the 1st, 2nd, 3rd and 4th defendants.  This matter was thereafter referred to the registry for purposes of fixing a hearing date. The plaintiff’s advocate is not being candid.  The plaintiff’s application is meant to delay the conclusion of this matter at the detriment of the 1st, 2nd, 3rd and 4th defendants.  The said application is brought after the plaintiff obtained injunctive orders by consent which orders will adversely affect the 1st, 2nd, 3rd and 4th defendants if this matter is not concluded expeditiously.

The plaintiff’s advocate does not address the honourable  court in his instant application of what would become of the consent he was given and the pleadings and documents filed by the firm of Abok Odhiambo & Company Advocates.  He also fails to state why he could not raise such issue or bring such an application the first time when this matter came up for hearing. The upshot of the above is that that the plaintiff’s application is contravention of section 55 of the Advocates Act Cap 16 of the Laws of Kenya and submit that his application be disallowed.

They further submitted that, the application dated 1st July, 2017 is in contravention of Article 159 (2) of the constitution of Kenya. The applicant was not a party to the sale agreement dated 17th November 2016 and the charge herein. Article 159 (2) in exercising judicial authority, the courts and tribunals shall be guided by the following principles –

a. Justice shall be done to all, irrespective of status;

b. Justice shall not be delayed;

c. Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);

d. Justice shall be administered without undue regard to procedural technicalities; and

e. The purpose and principles of this Constitution shall be protected and promoted.

The plaintiff is not a party to the charge instrument dated 30th November, 2016.  The premise of the plaint filed herein is an acknowledgement of the existence of the charge instrument dated 30th November, 2016.  There is no dispute on the terms to the charge instrument as from the plaint.  This suit mainly relates to the legality of the transfer process resulting to the certificate of lease to property registration number Kakamega Municipality Block 1/28.  This application seeks to interfere with the purpose and principles of the constitution of administering justice without undue delay and to that end, the plaintiff/applicant seeks to protract litigation despite the consent being recorded in court on the 3rd April 2017 in favour of the plaintiff’s application dated 15th March 2017.

The application dated 1st July, 2017 is in contravention of Order 19 rule 3 of the Civil Procedure Rules 2010. Application dated 1st July, 2017 is in contravention of Order 7 Rules 5 (b) of the Civil Procedure Rules 2010. Order 7, rule 5, the defence and counterclaim filed under rule 1 and 2 shall be accompanied by:-

(b) a list of witnesses to be called at the trial.

Order 19 Rule 3 (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove:  provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof. Order 19 Rule 3 the costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same.

Paragraph 7 of the supporting affidavit to the application, states that the plaintiff intended to call Hezron Abok Advocate as a witness but the plaintiff’s list of witnesses dated 15th March, 2017 is silent on this fact.  Currently, no party intends to prefer Hezron Abok Advocate as a witness or at all.  The plaintiff at paragraph 18 of the plaint acknowledges the existence of the charge instrument to which the substratum of the suit does not negate this fact.

The application dated 1st July, 2017 is in contravention of Order 7 rule 17 of the Civil Procedure Rules 2010. Order 7, rule 17.

1.  A plaintiff shall be entitled to file a reply within fourteen days after the defence or the last of the defences has been served on to him, unless the time is extended.

2. No pleading subsequent to the reply shall be pleaded without leave of the court, and then shall be pleaded only upon such terms as the court thinks fit.

3. Where a counterclaim is pleaded, a defence thereto shall be subject to the rules applicable to defence.

Paragraph 6 of the supporting affidavit states that the plaintiff intends to challenge the allegations made by the defendants in their statement of defence.  Nothing turns on this fact on the basis that, the plaintiff has never traversed the facts established in the defence as necessary.

The applicant’s affidavit does not establish any prejudice or any likelihood of bias to be suffered by the applicant. The application does not meet the requirements upon which it is alleged to be brought. With no doubt, Advocate – client confidentiality arises on the basis that the same is codified by section 134 of the Evidence Act Cap 80 of the Laws of Kenya.  Despite this confidentiality, a party who was not part to a transaction is question, has a limited scope in alleging the potential existence of any conflict of interest. On these two issues, they relied on the precedents as and per their list of documents filed on the 18th July, 2017 and served upon the plaintiff’s advocate on the 19th July, 2017.

This court has considered the applicant’s and the respondent’s submissions, authorities, affidavits and annextures herein.The plaintiff filed the instant application dated 1st July, 2017 seeking the following orders:-

1. This honourable court be pleased to order that this application be heard priority to any pending application before court.

2. This honourable court do order that the firm of Abok Odhiambo & Company Advocates appearing for the 1st, 2nd, 3rd and 4th defendants and/or any other party in this matter, to cease to appear or continue to appear for the 1st, 2nd, 3rd and 4th defendants and/or any party in this suit; and/or

3. This honourable court do stay the representation by the firm of Abok Odhiambo & Company Advocates for the 1st, 2nd, 3rd and 4th defendants, and or any other party and/or

4. The firm of Abok Odhiambo & Company Advocates be restrained whether themselves, their partners, servants or agents from representing the 1st, 2nd, 3rd and 4th defendants and or any other party in this action.

5. This honourable court do issue such or consequential orders as it may deem fit.

6. That the costs of this application be provided for.

The issues for determination are one, whether there is manifest conflict of interest arising from the representation of the 1st, 2nd, 3rd and 4th defendants by the firm of Abok Odhiambo & Company Advocates and two, whether in the circumstances the firm of Abok Odhiambo & Company Advocate should cease to appear or continue to appear for the 1st, 2nd, 3rd and 4th defendant and/or any other party in this suit.

The instant application is brought under Rule 9 of the Advocates, (Practice) Rules, Section 134 and 136 of the Evidence Act Cap 80 Laws of Kenya and all other enabling Provisions of the Law.)

Rule 9 of the Advocates, (Practice) Rules provides as follows:-

“No advocate may appear as such before any court or tribunal in any matter which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if , while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear;  Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or no contentious matter of fact in any matter in which he acts or appears.”

It is clear that Rule 9 of the Advocates (Practice Rules) prevents an advocate appearing as advocate in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contentious issues before the court. This rule has been subject to various decisions some of which have been relied upon by counsels in this matter. In the case of Kings Wollen Mills (formerly known as Manchester Outfitters Suiting Division Limited) Vs Kaplan & Stratton (1993) eKLR, the firm of M/s Kaplan & Stratton had prepared various instruments which were the subject of litigation which the law firm appeared for one of the parties. The application seeking to have the said law firm disqualified was upheld. So also in the case of Uhuru Highway Development Ltd & 3 Others Vs  Central Bank of Kenya & 4 Others [2003] eKLR.However, it is not in all cases that an advocate cannot appear for a party simply because he drew the instrument that may be the subject of litigation. In the case of Delphis Bank Vs Channan Singh Chatthe & 6 Others (2005) eKLR, the issue that arose was that the counsel there ought not to appear in the matter as he had drawn various instruments which were in issue in the matter. The Court of Appeal held that there is no general rule that an advocate cannot act for one party in a matter and then act for the opposite party in subsequent litigation. It held that the test which has been laid down is whether real mischief or real prejudice will in all human probability result. In the case of Murigu Wanyoike Vs. Dyno Holdings Limited (2014) eKLR, the court held that;

“………each case must turn on its own facts. It is therefore the duty of each court, faced with an application of this nature, to determine whether on the facts of the particular case, it would be prejudicial for a particular advocate or law firm to appear in the matter”.

The basis of the application before me is that Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates being the advocate/firm in record for the 1st, 2nd, 3rd and 4th defendants in this matter acted in a series of transactions which directly touch on property title number Kakamega Municipality Block 1/28 which property forms the substratum of this suit, and that the said advocate is a potential witness in the matter. In the Court of Appeal decision of Uhuru Highway Development Ltd & 3 others  vs  Central Bank of Kenya & 4 others [2003] eKLR, the court stated as follows:-

“............ Again, the bar to the counsel appearing as a possible witness was not subjective but governed by rule 9 of the Advocates (Practice) Rules.”

The instant application is grounded upon the annexed affidavit of Paul Elkingon and states that Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates acted for the 1st and 3rd defendants herein in taking instructions, drawing and witnessing the execution of the sale agreement dated 17th November, 2016 in relation to property title Number Kakamega/Municipality Block 1/28 which forms the substratum of the suit herein. The said firm of Abok Odhiambo & Company Advocates also acted for the 3rd and 4th defendants herein in taking instructions, drawing and witnessing the execution of the charge instrument dated 30th November, 2016 in relation to property Title Number Kakamega/Municipality Block 1/28, which is purportedly a charge over property Title Number Kakamega/Municipality Block 1/28, the suit property herein. Further, the said Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates commissioned the affidavit of consent of spouse sworn by one Naomi Wairimu Muchunu on 30th November, 2016 in relation to the aforesaid charge instrument dated 30th November, 2016 all the above are fact which have not been disputed.

In view of the foregoing, I find that the said firm was privy to confidential information passing between parties prior and during the drawing and execution of the aforesaid sale agreement and charge instrument relating to the suit property herein. The plaintiff intends to challenge the allegations made by the defendants in their statements of defence and/or the main suit herein. Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates being the advocate/firm who advised the parties and drew the subject sale agreement and charge instrument is therefore a potential witness in this matter and the plaintiff submits that he intended to have him put to the witness stand at the trial. I find that as such Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates, cannot  act for the 1st, 2nd, 3rd and 4th defendants, and/or any party herein against the plaintiff and at the same time appear as a witness in the same matter without conflict of interest. Further Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates may use confidential information that may have passed on between him and the defendants and/or the plaintiff and the defendants to the detriment of the plaintiff. It is therefore clear in the court’s mind that there will be likelihood of a mischief or real prejudice against the plaintiff resulting if Mr. Hezron Abok Advocate trading in the name and style of Abok Odhiambo & Company Advocates continued acting for the 1st, 2nd, 3rd and 4th defendants.   It is therefore in the interest of justice that the said firm of advocates be restrained from acting for the defendants.   In the spirit of fairness and justice this court ought to grant prayers sought herein. I find this application is merited and grant the following prayers;

1. This court orders that the firm of Abok Odhiambo & Company Advocates to cease appearing or continue to appear for the 1st, 2nd, 3rd and 4th Defendants and/or any other party in this suit and/or;

2. The firm of Abok Odhiambo & Company advocates be restrained whether by themselves, their partners, servants or agents from representing the 1st, 2nd, 3rd and 4th defendants, and or any other party in this action.

3. That the costs of this application be in the cause.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 13THDAY OF DECEMBER 2017.

N.A. MATHEKA

JUDGE