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Conflict of interest: Court bars lawyer from acting against former client in the same case
A post-judgment application in a long-running land dispute has brought into sharp focus the strict ethical boundaries governing legal practice in Kenya, particularly the rule against conflict of interest.
A decision by the Environment and Land Court in Kilgoris to strike out a post-judgment application in a long-running land dispute has once again brought into sharp focus the strict ethical boundaries governing legal practice in Kenya, particularly the rule against conflict of interest.
At the heart of the ruling was a question that goes beyond procedure: can a lawyer who once acted for a client later participate in the same matter on the opposing side? The court’s answer, in a ruling, was a firm ‘no’.
The dispute stems from land case in which Everline Rosa is suing Catherine Koriko and three others — Benja Koriko, Daniel Koriko and Felix Koriko — over a protracted land disagreement that has survived multiple transfers between courts.
The contested application, dated April 28, 2026, was challenged on the basis that it had been drawn by an advocate who had previously acted for one of the parties in the same case. The opposing side argued that this amounted to a breach of confidentiality and a violation of the advocate-client relationship.
In addition, a separate application dated May 29, 2026 sought to have the law firm disqualified entirely from representing the defendants and to strike out the disputed motion.
When the matter came up for directions on June 4, 2026, the court was informed that there had been a change of advocates, with another lawyer taking over conduct of the case. This prompted an argument that the application had been overtaken by events.
But lawyer Everline, disagreed. She told the court that the issue of conflict of interest could not be wished away simply because of a change of counsel. She maintained that the integrity of the process still needed to be addressed, especially given that the case was now in the post-judgment stage.
With no response filed by the affected party despite proper service, the court proceeded on the basis of unchallenged allegations.
In his ruling, the judge acknowledged that the main dispute had already been concluded and what remained was post-judgment proceedings. However, he stressed that the conclusion of a case does not extinguish professional ethical duties owed by advocates.
The court found that the advocate in question had previously acted for one of the parties and therefore had access to privileged and confidential information. This, the judge said, created a real risk of conflict of interest if the same advocate was associated with a position adverse to a former client in the same matter.
“In such circumstances, an advocate should not accept instructions where there is a conflict of interest between clients,” the court noted.
The judge further clarified that while the change of advocates made one of the prayers unnecessary, the core issue — whether the April 28 application could stand — remained unresolved and required determination.
Ultimately, the court struck out the application, finding that it had been drawn by a lawyer who previously acted in the same matter, thereby creating a potential conflict of interest that undermined its validity.
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