CONVEYANCING CLASS ASSIGNMENT

Case summary: ​Lalchand Fulchand Shah and Another v. I & M Bank Limited. Civil Suit

Number 2533 of 1997. ​The main issue before the Court in this matter was whether the firm of

Walter Kontos Advocates should be disqualified from acting for the Defendants due to the

allegations of fraud leveled against them in their involvement in drafting and registering the

charge documents. The Court, in dismissing the Application stated that the Applicants had

not adduced any evidence to support the fraud allegations made against the Defendant’s

advocates and that they cannot merely ask for disqualification of the Advocates as this will

contravene Article 50 of the Constitution on the right to representation. Thus this paper

therefore, seeks to analyze the issues raised in the above Application and the rationale of the

judgment using Statute and case law where applicable.

1
Conveyancing refers to a legal process through which an interest in land is transferred.

However a conveyance has been defined in the case of ​Graveland vs Porter, as an instrument

conveying an interest in land from one person to another. Therefore an advocate under
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section 34, plays a pivotal role in preparing conveyancing instruments between the Vendor

and the Purchaser so as to ensure a smooth transfer of the necessary interests in land. In

carrying out this duty however, an advocate may sometimes draft and register such

instruments for both the vendor and the purchaser like was the situation in the case under

study. Which thus brought into play the contentious ethical and Professional issues that arose

from the above case, at the core however, was the issue whether an advocate who drafts and

registers a conveyance for both the vendor and the Purchaser, lender and borrower, can later

on purport to act for one of the parties in that transaction in future, in a matter concerning the

1
​See Tom O. Ojienda, Principles of Conveyancing in Kenya; A Practical Approach (
2
​See Advocates Act Cap 16 Laws of Kenya.
conveyance he drafted and registered. When the court was faced with a similar matter in

Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd & another
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vs. M/s Kaplan & Straton Advocates, the court held that an advocate ought not to act where

there’s a likelihood of conflict of interest. The rationale for this decision was premised on the
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provisions of section 134 (1) of the evidence Act, that provides for privilege of Advocates

which requires the advocate not to divulge any information from the client without clients

consent. In ​Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4
5
others, in this matter George Oraro Esquire, advocate while practising in the Firm of Oraro

and Rachier, now Oraro and Company Advocates acted for the first defendant Central Bank

of Kenya (CBK) and the first and second plaintiffs (Uhuru Highway Development ltd and

Pattni). As a consequence of intimidation, threats and undue influence exerted upon the 2​nd

plaintiff during occasions in which the said counsel played an active part the first plaintiff

was forced to give a purported charge of its property known as LR No 209/9514 registered in

the land Titles Registry as IR 36755/17 to the first defendant. Counsel for and on behalf of

the firm, then Oraro and Rachier Advocates acting a common advocate for both the 1​st

defendant and 1​st and 2​nd plaintiffs prepared the said charge. The plaintiff prayer before court

was that the advocate having acted for both parties in the preparation of the charge, he may

not act for one against the other as this was in breach of the counsels duty in acting for both

in the same transactions. The court held that

We have no doubt whatsoever in our minds that in the particular circumstances of this case, mainly due

to the role played by the counsel in bringing about the 1st and the 2nd plaintiffs to agree to sign the

3
See ​Civil Appeal NO 55 of​ 1
​ 993, eKLR.
4
​See Cap 80, Laws of Kenya.
5
​See ​[2003] eKLR
 charge, he may consciously or unconsciously or even inadvertently use the confidential information

acquired during the preparation of the charge. There will no doubt be prejudice.

In ​ALLIANCE MEDIA KENYA LIMITED vs MONIER 2000 LIMITED & another, ​the court

relied on the test for bias in holding that “it must be noted that disqualification cannot be

automatic upon mere complaint by a party especially by an arbitrator. I say so because the

test and or standard for the disqualification of an arbitrator is higher than an ordinary

disqualification of a judge or magistrate. It is essential to appreciate that the procedure of

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appointing an arbitrator is by consent or mutual agreement by parties to the dispute.

Thus in conclusion as firm we tend to rely on the court’s decision in the case of ​CHARLES

GITONGA KARIUKI vs AKUISI FARMERS CO. LTD t​ hat it is trite law that an advocate

cannot act for and against a client in a suit or in a subsequent suits where he could utilize the

information that he acquired in the course of his work as an advocate to the detriment of that
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client. Also for purposes of emphasis Rule 8, that provides thus;

No advocate may appear as such before any Court or tribunal on 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 by 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 non-contentious matters of fact in any matter which he acts or
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appears.

We also hold a firm belief that even though the learned judge was of the opinion that

disqualification of the Advocates will contravene Article 50 of the Constitution on the right to

representation, we argue further that the spirit of article 50 (1) (2) of the Constitution of

6
​See ​[2007] eKLR.
7
​See [​ 2007] eKLR.
8
​See Advocates (Practice) Rules, 1966.
Kenya, 2010 is not merely to ensure representation but to ensure that that representation

meets the ends of justice that is a fair hearing which in this circumstances may be defeated by

the fact that the advocate having acted for both parties in the case at one point holds

information that may be detrimental to the right to a fair hearing by the disadvantaged party

in the Civil suit No 2533 of 1997. Which can only be cured by the disqualification of the

advocate on that point of law alone.