A land transaction can involve more than the seller and buyer. The people preparing the agreement, handling succession and receiving instructions may become important if the sale later breaks down.
In Alweny v Opande [2026] KEELC 857 (KLR), the disputed issue on appeal was whether a firm that had acted for both parties could subsequently represent one against the other. The court barred that representation. It did not decide whether the buyer should receive the claimed refund or whether the sale was ultimately enforceable.
The Environment and Land Court at Kisumu delivered the judgment on 17 February 2026, in Environment and Land Appeal E020 of 2025.
The sale depended on a succession process
The agreement concerned Kisumu/Buoye/5164, registered in the name of the seller's deceased husband. The agreed price was KSh 2.55 million, and the transaction was subject to the seller obtaining a grant of letters of administration.
The same firm prepared the agreement for both parties and acted for the seller in the succession cause. A grant was subsequently issued, but the sale was not completed.
The judgment's paragraphs 1-4 set out that background. The buyer sought repayment and other sums in a separate suit. Those were claims awaiting determination, not amounts awarded in this appeal.
The seller challenged both the agreement's legality and the firm's ability to represent the buyer in the dispute.
Who paid the fee was not the whole question
The buyer opposed disqualification and relied on the history of the firm's representation, including an explanation that joint representation had been arranged at the seller's request.
The court examined the actual professional relationship. The agreement described the firm as acting for the parties, and its involvement in the succession cause was also material.
Paragraph 12 explains the appellate court's reasoning: acting for the seller required receiving instructions, and those communications were confidential. On these facts, the seller did not have to disclose the particular confidential instructions in order to establish the risk of prejudice.
That is not a finding that confidential information had already been misused. The decision addressed the conflict and risk created by the proposed representation.
The advocates could also become witnesses
The firm had prepared the agreement, and an advocate from it had witnessed execution. Because the dispute involved the agreement's legality and enforceability, the court regarded the relevant advocates as potential witnesses.
Paragraphs 12-14 therefore identify two connected problems: confidential information from the former representation and the possibility of giving evidence on contested matters.
The decision does not mean that every shared conveyancing arrangement automatically results in disqualification in every later proceeding. The actual relationship, dispute and applicable professional rules must be examined.
The buyer had already changed advocates
By the time the appeal was argued, a different firm had taken over the buyer's representation. Paragraph 10 records that development.
The appellate court nevertheless allowed the appeal, set aside the lower court's refusal of disqualification dated 12 February 2025 and barred the former firm from representing the buyer in Kisumu MCELC E089 of 2024. Because the buyer had already appointed another firm, the seller received half the appeal costs (paragraph 15).
This was not an ownership award, refund judgment or final determination that the sale agreement was invalid.
Questions to settle before the transaction becomes contentious
Clarify whom each adviser represents and the scope of the engagement. Do not assume that paying the fee, introducing the lawyer or signing a shared agreement answers every question about professional duties.
Where succession is involved, distinguish the grant, the authority needed for the proposed dealing and any outstanding completion conditions. A promise to obtain authority is not the same document as authority already established.
If a dispute emerges, obtain advice about representation before assuming that the original conveyancing firm can act on either side. Preserve the transaction documents, but do not casually circulate privileged communications.
ArdhiScore supports enquiry, not the choice of legal representative
ArdhiScore can help organise available parcel references, dated evidence, source citations and unresolved authority questions. Deciding who can provide independent legal advice remains a matter for the parties and their advocates.
Explore ArdhiScore screening and its limits. Screening does not certify representation arrangements or replace confidential legal advice. The judgment and scoped later-history searches were read on 11 September 2026; the eventual result of the refund suit was not verified.