https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7650

Ibrahim t/a Anqra Services Limited v Nyang t/a S.J. Nyang & Company Advocates (Civil Suit E163 of 2024) [2026] KEHC 7650 (KLR) (Civ) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7650 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Suit E163 of 2024 JN Mulwa, J June 4, 2026 N THE MATTER OF THE ADVOCATES ACT AND IN THE MATTER OF ENFORCEMENT OF A PROFESSIONAL UNDERTAKING Between Abshir Issack Ibrahim t/a Anqra Services Limited Plaintiff and Susan Nyang t/a S.J. Nyang & Company Advocates Defendant Ruling 1.Susan Nyang t/a Susan Nyang & Co Advocates, (hereafter the Applicant) by her Originating Summons dated 24/09/2025 filed as against Abshir Issack Ibrahim t/a Anqra Services Ltd pursuant to Section 1A, 1B, 3 & 3A of the Civil Procedure Act (CPA), Order 1 Rule 10(2), 12, 14 & 15 and Order 8 Rule 3(1), (2) & (5) the of the Civil Procedure Rules (CPR) seeking inter alia -:a.Spent.b.Spent.c.Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates be joined as Third Parties or 2nd and 3rd Defendant respectively to the suit herein.d.That the Applicant be granted leave to serve on the proposed Third Parties or 2nd and 3rd Defendant respectively herein with Third Party Notices annexed to the motion.e.Spent.f.Spent.g.Cost of the application be provided for. 2.The application is premised on grounds amplified in the supporting affidavit sworn by the Applicant on an even date who cites being counsel having conduct of the matter therefore competent to swear the affidavit. 3.Abshir Issack Ibrahim (hereafter the Respondent) opposes the motion by way of grounds of opposition dated 06/10/2025. 4.With leave of the Court, Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates (hereafter Intended Third Parties/Defendants) filed replying affidavits dated 16/10/2025 and 21/10/2025 respectively, in response to the Applicant’s motion. 5.Directions were thereafter taken on disposal of the Applicant’s motion by way of written submissions. The Applicant and Respondent duly complied. 6.That said, the Court has considered the rival affidavit material and submissions on record, and postulates the issues for determination thus: -a.Whether the Court ought to order joinder of Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates as Third Parties or co-defendants in the suit.b.Who ought to bear costs of instant motion? Whether the Court ought to order the joinder of Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates as Third Parties or Co-defendants in the suit. 7.In presenting the instant application, the Applicant relies on among others Section 3A of the CPA which specifically reserves “the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”, to wit, this Court’s inherent powers was judiciously addressed by the Court of Appeal in Rose Njoki Kingau & another v Shaba Trustees Limited & another [2010] KECA 87 (KLR) and requires no restatement. 8.Alongside the above provision, and relevant to the instant proceedings, the Applicant equally relies on Order 1 Rule 10(2) of the CPR which provides that-;The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 9.The power of the Court to enjoin or strike out a party from proceedings is generally donated by the latter provision, which serves the purpose of enabling the Court to effectively and completely adjudicate upon and settle all questions involved in the proceedings. Corollary to the latter provision, Order 1 Rule 9 provides that no suit shall be defeated by a mis-joinder or non-joinder of any party. To the foregoing end, in the case of Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999] 1 EA 55 it was stated that -;“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown.Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” 10.Meanwhile, in Civicon Limited v Kivuwatt Limited & 2 others [2015] KECA 588 (KLR) the Court of Appeal observed that-;“Again, the power given under the Rules is discretionary, which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings.Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order 1 rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.” 11.With the above in reserve, Applicant’s deposition is that there were three (3) firms of advocates involved by way of representing different administrators and beneficiaries of the estate of the late Hosea Sakwa, in respect of the sum of Kshs. 6,000,000/- she held as a stakeholder, that the Respondent now seeks a refund of. She admits that the said funds were paid to her account and used by the said advocates to pursue title deeds of a property. 12.That in light of the above, her firm alongside the intended defendants and or third parties discussed and agreed to apportion liability equally to the extent of Kshs. 2,000,000/- each, which consent was filed in Court. She confirms having settled her portion of the liability whereas the Respondent was at all material times aware of the aforestated consent therefore it would be necessary that all the relevant advocates be made a party to the instant suit. 13.On the part of the Respondent, the kernel of its opposition is that the Applicant issued a professional undertaking dated 28/10/2022 to his advocate, in respect of the sums in question and that the same was solely between the Applicant and Respondent’s advocates. That the intended defendants and or third parties cannot be bound by an undertaking they neither issued nor were privy to, therefore their joinder will only serve to complicate and delay the enforcement of the undertaking in question. 14.The Respondent contends that in the event that the Applicant believes she has contributory claims as against the intended defendants and or third parties, she is at liberty to pursue them separately without hindering the Respondent’s claim. While the Respondent acknowledges executing the consent between the three (3) advocates, it maintains that the said consent was never intended to extinguish or replace the professional undertaking issued by the Applicant, which still remains in force and undischarged. That any part payment by the Applicant constitutes acknowledgment of indebtedness and as it stands the latter is in default of the professional undertaking and consent thus by the instant application she is seeking to evade liability through diversion tactics. 15.The intended defendants and or third parties’, on their part, admit having represented or acted for different administrators and beneficiaries of the estate of the late Hosea Sakwa wherein they agreed to the sum of Kshs. 6,000,000/- being held by the Applicant as a stakeholder. That they later entered into a consent agreement with Applicant wherein liability in respect of the aforestated sum was apportioned equally to the extent of Kshs. 2,000,000/- each. They confirm liability towards paying the Respondent’s advocates, the above sum, meanwhile acknowledge that the Applicant has since settled her part of the bargain and thus ought to be discharged. 16.In conclusion, they state that the consent supersedes any other agreement therefore the Applicant’s motion ought to be allowed. 17.From the record, the instant matter was commenced by way of Originating Summons by the Respondent as against the Applicant, in respect of a professional undertaking dated 28/10/2022 seeking payment of Kshs. 6,000,000/-. As rightly deposed by the Respondent, the said professional undertaking was specifically between his counsel and the Applicant. (See Annexure AII-1). 18.As to the nature of a professional undertaking, the same was succinctly discussed in case of Waruhiu K’owade & Ng’ang’a Advocates v Mutune Investment Limited [2016] KECA 835 (KLR) wherein the Court observed that a professional undertaking is given by advocates in order to make transactions easier, faster and more convenient. Meanwhile, where an advocate breaches a professional undertaking, the Court has jurisdiction to order the enforcement of that undertaking. That in enforcing an undertaking, the Court is guided not by the considerations of contract, or of securing the legal rights of parties, but mainly by ensuring the honesty of advocates. 19.With the above in mind, the dispute herein is mainly between the Applicant and the Respondent. Whereas I am inclined to agree with the Respondent that by dint of Annexure AII-1, the intended defendants and or third parties’ neither issued nor were privy to the professional undertaking, nevertheless, it can further be garnered from the affidavit material before me that the said professional undertaking was issued towards making the transaction relating to the sale and purchase of LR. No. 36/1/878 easier, faster and more convenient. Notably, the said transaction involved other parties being administrators and beneficiaries of the estate of the late Hosea Sakwa, who at the time were represented by the intended defendants and or third parties. 20.The parties hereto also concede that an agreement and consent towards payment of the Kshs. 6,000,000/- was entered into between the Applicant, Respondent and intended defendants and or third parties (See Annexure SN-1, SN-2 & SN-3), while at the same time also noting that the Applicant appears to have settled her share of the above amount to the tune of Kshs. 2,000,000/-, as per the consent and or agreement. 21.Therefore, though the Respondent’s claim can only attach as against the Applicant by dint of the professional undertaking dated 28/10/2022, the latter’s claim can only attach upon Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates, by dint of the consent and or agreement executed between them. 22.It is palpable that, in respect of the whole sum of Kshs. 6,000,000/- the participation of Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates are pertinent, but only as third parties and not defendants for reasons earlier highlighted. On the latter, I concur with rendition of Gikonyo, J, in Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] KEHC 8144 (KLR) wherein he observed that-;In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 Rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues and triable only between the third party and the Defendant, and cannot be a bona fide issue triable between the Defendant and the Plaintiff. 23.Consequently, I do not agree with the Respondent’s position that the participation of Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates serve to complicate and delay the enforcement of the undertaking and that the Applicant’s has recourse to pursue them separately without hindering his claim. It is obvious that their participation would serve to enable the Court to effectually and completely adjudicate upon the real issues in controversy while avoiding any protraction, inconvenience and avoid multiplicity of proceedings. 24.In the end, the Court is convinced that the Applicant has reasonably demonstrated the necessity towards the joinder of Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates as third parties to the instant proceedings. As such the Applicant’s motion is therefore allowed in the following terms-;a.The firms of Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates are enjoined as Third Parties to this suit.b.Leave is granted to Applicant, to serve Third Party Notices upon Sheila K. Amani t/a S.K Amani & Associates Advocates and David B. Wati t/a D.B Wati & Co. Advocates, within ten (10) days of this ruling.c.The Third Parties are equally granted corresponding leave to file responses to the suit, within ten (14) days of service of the Third Party Notice, if necessary. 25.Applying my mind to the provisions of Section 27 of the Civil Procedure Act (CPA), I award costs of the motion to the Respondent, to abide by the outcome of the suit. Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026.……………………….JANET MULWA.JUDGE