Muasa Kioko v Geoffrey Mutuku Munyao [2018] KEELC 2161 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 273 OF 2017

MUASA KIOKO..............................................PLAINTIFF

VERSUS

GEOFFREY MUTUKU MUNYAO...........DEFENDANT

RULING

1.  In the Application dated 6th February, 2018, the Defendant is seeking for order restraining the law firm of L.N. Ngolya & Company Advocates from acting for the Defendant in this suit.

2.  The Application is premised on the grounds that the Sale Agreement of 16th November, 2016 between the Plaintiff and the Defendant for the sale of 5 acres which were to be excised from plot number 2734 was drawn by the firm of L.N. Ngolya & Company advocates; that the L.N. Ngolya advocate witnessed the execution of the said agreement and is therefore a potential witness in this matter and that on that ground alone, Mr. L.N. Ngolya or his firm should be restrained from acting for the Plaintiff.

3.  In response to the Application, the Defendant’s advocate deponed that the Plaintiff has admitted that he entered into the agreement of 16th November, 2016; that no conflict of interest has been demonstrated or pointed out by the Plaintiff and that the Plaintiff has not pointed out how he stands to suffer injustice if he continues acting for the Defendant in the matter.

4.  The Plaintiff’s counsel submitted that Mr. Ngolya witnessed the signing of the agreement dated 16th November, 2016 between the Plaintiff and the Defendant; that there exists a contractual relationship between the Plaintiff, the Defendant and the firm of Mr. Ngolya and that the said advocate is privy to confidential information that passed between the parties prior to and during the drawing and execution of the agreement of 16th November, 2016.  Counsel relied on the provision of Section 9 of the Advocates Practice Rules and the case of Douglas Msamali Agoi vs. Jane Mwanjeh Manasseh & 7 others (2017) eKLR.  The Defendant’s advocate did not file submissions.

5.  The suit by the Plaintiff is in respect to a parcel of land known as Plot No. 2734.  According to the Plaintiff, he entered into an agreement dated 16th January, 2014 with the Defendant in which he agreed to sell to him the suit land for Kshs. 2,550,000; that the purchase price was to be paid in instalments and that the Defendant did not pay up the balance of the purchase price as agreed.

6.  According to the Plaintiff, the Defendant’s purported actions of banking the balance of the purchase price outside the stipulated time was null and void; that the agreement was also null and void for want of the consent of the Land Control Board and that the said agreement should be invalidated by the court.

7.  The Plaintiff has admitted that he entered into the agreement of 16th November, 2016 with the Defendant.  The Plaintiff is seeking to nullify the agreement on the basis that the Defendant did not pay up the purchase price within the stipulated time and that the consent of the Land Control Board was never issued.

8.  The Plaintiff having admitted that he signed the agreement, and in view of the grounds on which he seeks to nullify the agreement, I do not see the basis upon which the advocate who drew and witnessed the execution of the agreement will be a potential witness. Indeed, none of the parties is contesting that the said agreement ever existed or that the advocate who drew the agreement was put in funds of the purchase price.

9.  The Applicant did not inform this court the kind of evidence or information that the advocate who drew the impugned agreement ought to give as a witness. Indeed, as I have stated above, the issue between the parties is not so much about the contents of the agreement, but rather, whether the said agreement should be rescinded or not.

10. In the circumstances, I find that the Application dated 6th February, 2018 has no merit and I dismiss it with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 31ST DAY OF JULY, 2018.

O.A. ANGOTE

JUDGE