CONFLICT OF INTEREST
Advocates have a duty to always ensure that their client’s interests do not conflict with those of
another or former client, a third party or the advocate’s own interests by avoiding representing
both clients in the same matter1.
Though an advocate might get a go ahead from both clients to act for them in the same matter,
the advocate must desist if they establish that the interests of one client are directly adverse to
those of the other client. Again, the advocate must also not represent both clients where in
representing one client would materially limit the advocate’s responsibilities to another or
former client, third party or the advocate’s personal interests. Lastly, the advocate must ask
themselves whether in acting for one client would risk using the other client’s information to
their disadvantage. If so, they should recurse themselves from so acting. Mr. Chuki should avoid
representing Mr. Nguyo in instances he finds out the concealed information brings about
conflict of interest.
Justice A. Ombwayo in the case of Serve in Love Africa (SILA) Trust vs David Kipsang Kipyego and
72 others referred to the test for conflict of interest laid out by Justice Cozens Hardy MR in
England Court of Appeal case3 where the learned justice stated that a court must be satisfied
that there is real mischief and real prejudice will, in all human probability, if the solicitor is
allowed to act. As a general rule, the court will only intervene where mischief is rightly
anticipated.
THE RIGHT TO REPRESENTATION
The cab rank rule places a duty on advocates to provide legal representation to clients on a first
come first serve bases without bias. Advocates must be guided by Article 50 4 which not only
provides for the right of representation to the accused persons but further provides for the
same right to victims of crime. It is a duty of an advocate to voice out the grievances of his
client. The case of Lord Balmerina vs Forrester5 where an advocate who had refused to act was
compelled to act for the Lord of Session clearly portrays this legal duty. A recent case is the case
of R vs Ulcay6 where the court said counsels could neither choose nor refuse to accept client’s
instructions on basis of the reputation and character of the accused or nature of the charge
confirms this duty. However, this duty is limited by conflict of interest, personal moral
1
SOPPECT 6; Rule 9 of Advocates Practice Rules.
2
Eldoret E&L Case No. 21 of 2018.
3
Rakusen vs. Ellis Munday and Clarke [1912]1 Ch. 831 ALL ER Rep 81.
4
Constitution of Kenya 2010.
5
[1605] Moh 341.
6
[2008] 1 WLR 1209
reservations, limited resources, lack of time and lack of expertise in the area of law. On the
case at hand Chuki could recurse from acting for Mr. Nguyo as he has limited resources in
terms of information as Mr. Nguyo has failed to disclose the relevant information he needs to
use to properly represent him.
