The High court in Nairobi has dismissed an application by Imperial Bank Ltd seeking the removal of two law firms from the Ksh45 billion fraud case. Coulson Harney Advocates, and Ahmednasir Abdikadir & Co will continue representing the bank’s directors after the court declined to grant the orders sought by Lawyer Philip Murgor, who is representing the Kenya Deposit Insurance Corporation (KDIC).
Justice Fred Ochieng’, while delivering the ruling on behalf of Judge Francis Tuiyot today, said if a party objects to the participation of an advocate on the other side then this should be brought to the attention at the earliest opportunity.
“It is good practice that should counsel be aware of any misconduct by another one then he or she should disclose this to court at the earliest opportunity,” said Justice Ochieng’.
Murgor filed an application last year seeking the removal of the two lawyers, claiming that they were acting in conflict of interest given that they have been legal advisors of the lender and have represented it in the past.
But the directors’ lawyers protested, saying it was a tactic to further delay the hearing of a case which it (KDIC) had filed under a certificate of urgency. Judge Ochieng’ added that the applicant has not demonstrated what confidential information could possibly have passed from the bank to the firm in such circumstances.
KDIC also wanted lawyer Njoroge Nani Mungai of Muriu Mungai & Co Advocates prohibited from acting as lead counsels to lawyer Terry Mwango. “We also seek orders that all documents filed by the firms of Coulson Harney Advocates, and Ahmednasir Abdikadir & Co Advocates be expunged from the court records,” argued Murgor.
The law firms had been criticized for failing to make full disclosure of the extent of their involvement with Imperial Bank.
It was contended that the two firms were conflicted and they hold confidential information of the Bank which may utilized to its prejudice.
The court had been informed that the said firms are the potential witnesses in the suit and therefore cannot act as advocates against their former client Imperial Bank. “An application seeking to bar counsel should be made at the beginning of the proceedings or as soon as the circumstances giving rise to the objection are known to the applying party,” said Ochieng’.
The judge said that although there is no general rule that an advocate cannot act for one party in a manner and then act for the opposite party in subsequent litigation, that conduct must pass the test that has been established by the courts over time.
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He added that the instance that a court will not bar counsel unless it is satisfied that real mischief and real prejudice is rightly anticipated is an acknowledgement that barring counsel from acting for a party may deny the parties right to fair representation of his choice.
The judge added that the firm of Harney Coulson advocates admits that it is still on the panel of advocates of the bank but maintains that it has not undertaken any work for the bank post-receivership.
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