https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7460

Ngobu v Lucheli Musundi & Company Advocates & another (Miscellaneous Application E268 of 2025) [2026] KEHC 7460 (KLR) (Civ) (7 May 2026) (Judgment) Neutral citation: [2026] KEHC 7460 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application E268 of 2025 SN Mutuku, J May 7, 2026 Between Maina Ngobu Applicant and Lucheli Musundi & Company Advocates 1st Respondent Cedrick Chikamai Nandi 2nd Respondent Judgment Background 1.Maina Ngobu (the Applicant) files Originating Summons dated 28/09/2025 (the Summons) seeking the following orders against Lucheli Musundi & Co. Advocates and Cedrick Chikamai Nandi (the 1st and 2nd Respondents):i.Spent.ii.THAT this Honourable Court be pleased to order the Respondents to honour their written professional undertaking dated 25th June 2024 and remit to the Applicant, the sum of Kshs. 437,000 within seven (7) days.iii.THAT the Respondents be ordered to pay the Applicant interest on the sum of Kshs. 437,000 at courts rates.iv.THAT in default of payment as per orders 2) and 3) above, execution do issue against the Respondents.v.THAT the Respondents bear the costs of this application. 2.The Summons are anchored on Sections 1A, 1B, 3A and 63 of the Civil Procedure Act (CPA); Order 37 and Order 52, Rule 7 and 8 of the Civil Procedure Rules (CPR). They are supported by the grounds presented on the face of the Summons and in the Supporting Affidavit sworn by the Applicant. 3.The Applicant has presented a case that sometimes in late November, 2023 he engaged the services of one Reuben Mutiso Muinduko (Mutiso) to construct of a modern kitchen for the Applicant at his (Applicant’s) home. Mutiso took the necessary measurements and informed the Applicant that the construction works would cost Kshs. 426,000/- which sum was thereafter paid by the Applicant. 4.However, despite receiving the abovementioned sum, Mutiso failed to undertake the construction works, therefore forcing the Applicant to lodge a complaint at DCI Kangari Police Station. Mutiso was arrested and charged with the offence of defrauding the Applicant, at Kigumo Law Courts, in Kigumo Criminal Case No. E60 of 2024 (R v Reuben Mutiso Muinduko) (the criminal case). Mutiso was at all material times represented by the 2nd Respondent in that criminal case. 5.During the pendency of the criminal case, Mutiso through the 2nd Respondent, approached the Applicant with a proposal to refund the sum of Kshs. 426,000/- plus a nominal charge of Kshs. 11,000/- totaling a sum of Kshs. 437,000/- within a period of three (3) months. The Applicant was agreeable to the said proposal. He requested the 2nd Respondent to issue a professional undertaking to that effect. 6.Consequently, the 2nd Respondent through the 1st Respondent, drafted and executed a written professional undertaking in the form of a debt settlement agreement dated 25/04/2024 to effect payment of the sum of Kshs. 437,000/- upon the Applicant on or before 6/09/2024. On the basis of the executed professional undertaking, a settlement agreement was entered into between him and Mutiso, resulting in the withdrawal of the criminal case and release of Mutiso from custody at Murang’a Prison. 7.The above turn of events notwithstanding, Mutiso failed to make the necessary payment, while the Respondents herein have to date, failed and/or neglected to honour their professional undertaking and/or to assume liability thereunder, despite demand. Replying Affidavits 8.The 1st and 2nd Respondents filed separate Replying Affidavits to oppose the Summons. The 1st Respondent’s Replying Affidavit was sworn by its sole proprietor, Edwin Lucheli Musundi, on 24/11/2025. It is deposed, in that Replying Affidavit, that no justifiable claim exists against the 1st Respondent since no professional undertaking was ever issued by him whether personally or on behalf of the 1st Respondent, in favour of the Applicant; that upon inquiry, the 2nd Respondent who is employed by the 1st Respondent in the capacity of associate advocate, equally denied ever issuing a professional undertaking to the Applicant in the manner purported or at all; that upon contacting the Applicant’s advocate (Mr. Gachiengo Gitau), the deponent was able to confirm that the telephone contacts purportedly used in discussing the alleged professional undertaking do not belong to the 2nd Respondent, rather, they are registered in the name of one Brown Malanga (a third party) who is neither an advocate by profession nor an employee of the 1st Respondent. 9.It was deposed, further, that the official stamp on the alleged professional undertaking is a forgery and does not belong to the 1st Respondent and that the Applicant is involved in acts of fraud, perjury and a deliberate concealment of material facts and is not entitled to the reliefs sought in the Summons. 10.The 2nd Respondent’s Replying Affidavit was sworn on 24/11/2025. He has denied the claim that he issued a professional undertaking to the Applicant and/or his advocates. He deposed that on 28/05/2024 he received a call from the abovenamed third party, who introduced himself as a friend of Mutiso. The third party conveyed Mutiso’s wishes to enter into a settlement agreement with the Applicant. The 2nd Respondent therefore reached out to the Applicant’s advocate Mr. Gachiengo Gitau and conveyed the above request. Subsequently, the 2nd Respondent proceeded to draft an agreement to that effect which he then forwarded to the Applicant’s advocate for review and execution. The said advocate proceeded to amend and execute the agreement without his involvement before forwarding it to the 2nd Respondent’s email address. 11.The 2nd Respondent stated that, upon further follow-ups by the Applicant’s advocate on 7/06/2024 and 12/06/2024, the 2nd Respondent indicated that he had no instructions in the matter and would therefore not assume any liability arising therefrom and tat since then, he never received any further correspondences or communication from the Applicant’s advocate. 12.He stated that he was taken aback when he was served with summons in respect of SCCCOMM/E98956/2025 Maina Ngobu v Lucheli Musundi & Co Advocates and Cedrick Chikamai Nandi claiming that he had issued a professional undertaking to the Applicant in his name and on behalf of the 1st Respondent and that in any event, he does not have the legal mandate to issue a professional undertaking on behalf of the 1st Respondent. 13.The 2nd Respondent has associated himself with the averments of the 1st Respondent, that the communications shared by way of screenshots indicate phone contacts that do not belong to him and further, that the signature contained in the professional undertaking similarly does not belong to him and that the official stamp contained in the said professional undertaking is fake and does not represent the 1st Respondent’s true official rubberstamp. 14.The 2nd Respondent termed the Applicant’s suit as being founded on fraud, falsehoods and a misrepresentation of the facts. The Evidence 15.During oral hearing of the Summons, the Applicant adopted his signed affidavit dated 28/09/2025 as his evidence-in-chief. he testified that he paid the Mutiso the sum indicated in exchange for undertaking construction works on his kitchen but that Mutiso did not honour his obligations under the said agreement; that following the arrest and charging of Mutiso, a professional undertaking was given for the assurance of payment of a sum of Kshs. 437,000/- to the Applicant and that settlement agreement dated 25/06/2024 (‘MN-5’) signed by the respective parties as well as the advocate was entered into. The said agreement was produced as “Exh. 1.” 16.The Applicant testified that he had also paid his personal lawyer a sum of Kshs. 11,000/- as legal fees for representing him in the criminal case. He tendered a receipt dated 4/06/2024 annexed as ‘MN-6’ to his affidavit, as “Exh. 2” to that effect. 17.On cross-examination, the Applicant stated that prior to engaging his personal lawyer, Mr. Gachiengo, in the criminal case, the 2nd Respondent approached him and indicated that he was acting for the accused person, in relation to the criminal case; that upon engaging Mr. Gachiengo to represent him, the Applicant ceased communicating with the 2nd Respondent, but that Mr. Gachiengo thereafter continued corresponding with the 2nd Respondent, as seen in the emails marked as ‘MN-1’ and that subsequently, the 1st and 2nd Respondents gave the professional undertaking for payment of the agreed sum, upon which Mutiso 18.The Applicant further stated that following issuance of the professional undertaking, Mutiso was released from custody and a settlement agreement was entered into and signed by and on behalf of the 1st and 2nd Respondents and the Applicant. 19.In re-examination, the Applicant maintained that it is the Respondents herein who gave an undertaking on behalf of Mutiso, which formed the basis upon which the criminal trial magistrate made an order for release of Mutiso. 20.The 1st Respondent, through its Managing Director, Edwin Lucheli Musundi, relied on the Replying Affidavit sworn on 24/11/2025 as part of his evidence-in-chief. He testified that upon receipt of summons to enter appearance in Small Claims Court Case No. E98956 of 2025 (the Small Claims matter) he contacted the drafter of the summons, Mr. Gachiengo, to follow up on the matter and that he discovered that the professional undertaking which formed the subject matter before the Small Claims Court, had been drafted by a person purportedly acting on behalf of the 1st Respondent; that upon further inquiry, he was provided with the mobile number details of the purported impersonator and that a search conducted thereon disclosed that the same belonged to one Brown Malanga, the third party herein, who is not an advocate and was unknown to the Respondents. 21.It is the testimony by the witness that the Applicant is unknown to him. He denied the allegation that he issued a professional undertaking in favour of the Applicant, whether personally or through the 2nd Respondent; that the official stamp appended on the settlement agreement does not belong to the 1st Respondent and that the matter has been reported to both the police authorities and the Law Society of Kenya (LSK). 22.In cross-examination, the witness confirmed the 2nd Respondent’s employment with the 1st Respondent and stated that the official stamp appended on the agreement appears similar to the one belonging to the 1st Respondent and bears its name and that the address indicated therein is also similar to that of the 1st Respondent. 23.The witness testified that upon discovering a forgery in the agreement, he instructed his colleague to report the matter to the police, though he could not recall the exact date on which the report was made, and that investigations on the matter are ongoing. He denied that the signature appended on the agreement belongs to him. 24.In re-examination, the witness testified that he is the custodian of all official stamps belonging to the 1st Respondent and that he is the one mandated to execute documents on behalf of the 1st Respondent. 25.The 2nd Respondent relied on his Replying Affidavit sworn on 24/11/2025 together with the annexures thereto as part of his evidence-in-chief. He denied issuing the professional undertaking referenced herein. 26.The 2nd Respondent testified that he received a call from the third party claiming to be a friend of Mutiso, requesting his assistance in communicating with the Applicant’s advocate regarding the criminal case Mutiso’s willingness to settle the sum owed; that he reached out to Mr. Gachiengo who agreed to having the request put in writing and that the 2nd Respondent therefore wrote an official email to Mr. Gachiengo conveying the accused person’s willingness to pay the said sum to the Applicant in exchange for his release from custody and settlement of the criminal case. 27.He testified that, thereafter, Mr. Gachiengo sought to have the agreement amended which request was declined for want of instructions. He referred to ‘CNN2’ and ‘CNN3’, being a copy of the draft agreement and copies of the emails mentioned above and stated that despite several email correspondences from Mr. Gachiengo, the 2nd Respondent declined to proceed any further in the absence of any instructions. He testified that he was never in direct contact with Mutiso and that he had specifically clarified to Mr. Gachiengo that he would not assume any liability on behalf of Mutiso. 28.The 2nd Respondent denied ever acting for Mutiso in the criminal case or at all or that he ever issued the Applicant with a professional undertaking or executed the agreement as purported by the Applicant. He stated that the stamp appended on the said agreement does not belong to the 1st Respondent. 29.In cross-examination, the 2nd Respondent stated that the email correspondences availed by the Applicant and marked as ‘MN-2’ & ‘MN-3’ are a true reflection of his email address details as well as the communications held between himself and Mr. Gachiengo; that it is the third party who contacted him on behalf of the accused person, requesting his assistance in the matter and that the agreement in question entailed a civil debt and not a criminal matter per se. 30.The 2nd Respondent testified further that the documents purportedly executed by himself and bearing the official stamp of the 1st Respondent are a forgery and that the matter was reported to the police and entered into the Occurrence Book (OB). He stated that the signature contained in his Replying Affidavit as well as the decree tendered as part of his evidence, constitute his true signature. Submissions 31.Parties filed submissions. The Applicant has anchored his submissions on various authorities including Diamond Star General Trading LLC v Ambrose D.O. Rachier carrying on business as Rachier & Amollo Advocates [2017] KEHC 5377 (KLR) where the court set out the characteristics of what constitutes a professional undertaking, and on the Code of Standards of Professional Practice and Ethical Conduct (SOPPEC) developed by the Law Society of Kenya (LSK) where a professional undertaking was defined as:“…a formal promise whose effect is to make the person giving it responsible for the fulfillment of the obligations in respect to which it is given. An Advocate’s undertaking is a personal promise as well as a professional and legal obligation. It is based on the concept of the legal professional as an honourable profession and the expectation that an honourable person will honour his/her word. In legal practice professional undertakings are a standard method of mediating transactions. Without such undertakings there would be much difficulty and inconvenience suffered by clients.” 32.Having laid out the background above, the Applicant argued that the debt settlement agreement dated 25/06/2024 and executed by the Respondents herein falls within the definition offered above and thus amounts to a professional undertaking. 33.In particular, the Applicant has argued that the material on record coupled with the respective testimonies, are a confirmation that the 2nd Respondent was acting for Mutiso in the criminal case, at all material times; that the 2nd Respondent put in writing the proposal by Mutiso on payment of the owed sum, thereby forming an agreement; that the agreement contains the address details and official stamp of the 1st Respondent, thereby confirming that it was drafted and executed by the Respondents and that, the said agreement was presented before the criminal court, as a result of which the Criminal case was withdrawn and Mutiso released from custody. 34.It is the submission by the Applicant that the third party mentioned in these proceedings is known to the 2nd Respondent and that it has been demonstrated that the third party contacted the 2nd Respondent on behalf of Mutiso, thereby putting in motion the events that have led to this suit, that for all the above reasons, it has been proved that the Respondents issued a professional undertaking on behalf of Mutiso and in favour of the Applicant, which was not honoured and therefore, the Applicant is entitled to the reliefs sought in the Summons. 35.The Respondents filed joint submissions dated 20/02/2026 in which they have denied the existence of any professional undertaking in favour of the Applicant or his then advocate. They submitted that the 2nd Respondent clearly communicated to the Applicant’s then advocate, vide an email dated 12/06/2024, that he did not have instructions to issue any undertakings. 36.The Respondents reiterated their earlier averments that sufficient evidence has been tendered to demonstrate that the official stamp and signature appended on the purported agreement are a forgery; that the Proprietor of the 1st Respondent has at all material times been the custodian of its official stamp and that the same could not have been used in the purported agreement. 37.The Respondents submitted, further, that the agreement in question does not meet the threshold of what constitutes a professional undertaking since the same is unclear and equivocal; that it remains unclear who issued the alleged agreement, that no obligations and time frames are set out therein, and that the agreement was strictly between the Applicant and Mutiso, with no involvement of the Respondents. 38.The Respondents contented that the exhibits tendered by the Applicant were fraudulently obtained, in the absence of a certificate of electronic evidence and ought to be disregarded by the court and faulted the Applicant for failing to call his then advocate, Mr. Gachiengo, as a witness. They argued that the Applicant’s case is marred with fraud, forgeries and a misrepresentation of key facts. Analysis and determination 39.I have considered the pleadings, the evidence and the rival submissions on record. I have noted the issue raised by the Respondents regarding the annexures/exhibits produced by the Applicant. They faulted the said evidence for contravening Section 106B of the Evidence Act. It is not lost to me that this issue was not raised in the pleadings but during submissions’ stage. 40.The law is settled that submissions do not constitute evidence and hence a party cannot be heard to raise new issues or arguments through his or her submissions. This was the finding of the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR where that Court stated that:“Submissions cannot take the place of evidence…Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all.” 41.It is my finding therefore that the Respondents cannot be heard to challenge the competency of the Applicants’ documents so late in these proceedings, especially at the submissions stage. In the circumstances, I decline to delve into the merits of that particular issue. 42.In respect of the merits of the Summons, I have identified the following as constituting the key issues arising for determination in this matter:a.Whether the 1st and 2nd Respondents gave a professional undertaking in favour of the Applicant;b.If so, whether the 1st and 2nd Respondents honoured the professional undertaking; andc.Whether the Applicant is entitled to the reliefs sought in the Summons. 43.In respect of the first issue, I have considered the Applicant’s case as pleaded and argued in court. The case is simply that one Reuben Mutiso owed him Kshs Kshs 437,000 made up of Kshs 426,000 paid to Mutiso to construct a modern kitchen for the Applicant. He also seeks Kshs 11,000 being legal fees paid to his lawyer. Mr. Mutiso failed to pay him leading to a criminal case No. E60 of 2024 Republic v Reuben Mutiso Muinduko at Kigumo Law Courts. The Applicant has presented a case that the 1st and 2nd Respondents, being advocates for Mutiso, issued a professional undertaking in his favour, to pay him a sum of Kshs. 437,000/- owed by Mutiso. 44.The Respondents, on the other hand, have denied giving any undertaking, arguing that the purported agreement dated 25/04/2024 is neither unequivocal nor unambiguous and cannot therefore have constituted a professional undertaking. They have presented a case that the 2nd Respondent prepared a draft agreement which was presented to Mr. Gachiengo, counsel for the Applicant to confirm; that the said counsel insisted that the Respondents were required to give a professional undertaking that should Mutiso fail to pay the debt, they will pay on his behalf; that Mr. Gachiengo communicated with the 2nd Respondent that his client, the Applicant, was insisting on an undertaking from the Respondents to which the 2nd Respondent stated that he did not have instructions to give an undertaking. 45.This begs the questions: What constitutes a professional undertaking? The Encyclopedia of Forms and Precedents, 5th Edition at page 581 defines a professional undertaking as:“An equivocal declaration of intention addressed to someone who reasonably places reliance on it and made by a solicitor or member of the solicitor's staff in the course of practice. An undertaking is therefore a promise made by a solicitor or on his behalf by a member of his staff, to do or refrain from doing something” 46.The Encyclopedia goes on to state that where a professional undertaking is given by an employer’s member of staff or employee, such undertaking causes the employer in question to be personally bound. 47.To my understanding, this means that, if indeed the 2nd Respondent gave an undertaking as alleged, then the 1st Respondent, by virtue of being the 2nd Respondent’s employer, was bound by it. 48.In the case of Harit Sheth t/a Harit Sheth Advocate v K. H. Osmond t/a K. H. Osmond Advocate [2011] KECA 286 (KLR) the Court of Appeal offered the following definition:“A professional undertaking is a bond by an advocate to conduct himself as expected of him by the court to which he is an officer. No matter how painful it might be to honour it, the advocate is obliged to honour it if only to protect his own reputation as an officer of the court. The law gives him the right to sue his client to recover whatever sums of money he has incurred in honouring a Professional Undertaking. He cannot however sue to recover that amount unless he has first honoured his Professional Undertaking.” 49.Further, the Court of Appeal in the case of Arthur K. Igeria t/a Igeria & Co. Advocates v Michael Ndaiga [2017] KECA 709 (KLR) pronounced itself thus:“For the court to enforce a professional undertaking, it must be satisfied that the undertaking is clear in its terms and that there is no dubity or ambiguity as to what the advocate has professionally undertaken. Secondly, that what is undertaken is capable of being performed. Thirdly, that if the undertaking is contingent on the happening or occurrence of an event, such event has occurred or happened.” 50.With these authorities in mind, it is my duty to examine the evidence presented before this court and make a finding as to whether there exists a valid undertaking by the Respondents. 51.I have read, fully, the court record. I have understood the case for each party. This is a civil matter. The mover of the court is the Applicant. As the mover of the Summons before the court, he has certain obligations under the law, over and above those of the Respondents. The law governing the issue of who carries the burden of proof is the Evidence Act. The applicable provisions under that Act are sections 107, 108 and 109. Section 107 (1) and (2) provide that:(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 52.Section 108 of the Evidence Act provides that:The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 53.Further section 109 of the Evidence Act places theThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 54.The Court of Appeal in the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, addressed the issue of the burden of proof as follows:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 55.Further, in Patrick Lumumba Kimuyu v Prime Fuels (K) Limited [2018] KECA 198 (KLR), the Court of Appeal affirmed that the burden remains on the claimant unless shifted by credible evidence:“Except where expressly provided under statute, the burden of proof in civil cases is always cast on the party who alleges (see. Sections 107-109 of the Evidence Act Cap 80 Laws of Kenya). It is for the party that alleges a fact to be true to prove the existence and veracity of that fact. This is under the basic principle of Evidence that ‘he who asserts must prove’ (see. Jennifer Nyambura Kamau v Humphrey Mbaka Nandi NYR CA Civil Appeal No. 342 of 2010 [2013] eKLR).” 56.With the authorities in mind, it is my duty to analyse the evidence on record and make a finding whether there existed an undertaking by the Respondents to settle the debt to the Applicant on behalf of Mutiso. 57.It is not disputed that Mutiso faced a criminal charge at Kigumo Law Courts. It is not disputed that the reason for that criminal charge was allegations of a debt of Kshs 437,000 owed by Mutiso to the Applicant. It is not disputed that the 2nd Respondent was representing Mutiso in the criminal case. 58.The issue arises from the allegations that the 2nd Respondent, and by extension the 1st Respondent who was the 2nd Respondent’s employer, gave an undertaking to pay the debt on behalf of Mutiso. The evidence shows that it is on the strength of that undertaking that Mutiso was released from custody. 59.I have read the undertaking. It is contained in Clause 3 of the Debt Settlement Agreement. That agreement is dated 25th June 2024. The agreement is between the Applicant and Mutiso. The agreement is said to have been drawn by the Respondents, or the 2nd Respondent. It bears three signatures said to belong to Reuben Mutiso Muinduko, the debtor; the firm of Lucheli Musundi & Co. Advocates, the 1st Respondent and Maina Ngobu, the creditor who is the Applicant. 60.The agreement is denied by the Respondents. The signature and the stamp alleged to belong to someone from the 1st Respondent is denied. Mr. Edwin Lucheli Musundi, the proprietor of the 1st Respondent testified that he is the custodian of the 1st Respondent’s rubber stamp and that he did not execute the alleged agreement nor did he sign the same. Mr. Cedrick Chikamai Nandi, the 2nd Respondent denied drawing or signing the agreement. 61.None of the parties called a document examiner to testify on the signatures appended on the agreement. From a naked eye, it is clear that the signatures of Mr, Musundi and Mr. Nandi appearing on their Replying Affidavits do not resemble the signature appearing on the agreement where the 1st Respondent or someone from that office signed. The Applicant did not tell the court, who, between Mr. Musundi and Mr. Nandi signed the agreement. 62.Secondly, from the naked eye, the stamp appended on the agreement, which was denied by the Respondents, bears differences from the stamp appended on a copy of the Respondents execution proceedings marked ‘ELM2’. The stamp on ‘ELM2’ reads: LUCHELI MUSUNDI & COMPANY ADVOCATES. P.O. BOX 24455-00100, NAIROBI, while the stamp on the alleged agreement reads: LUCHELI MUSUNDI & CO. ADVOCATES, P. O. Box 24455-00100, NAIROBI. The differences on the two stamps were not explained by the Applicant given that the Respondents have denied that the stamp on the agreement is their stamp. 63.Thirdly, I have read, carefully, the email correspondences exchanged between the parties. The evidence of the 2nd Respondent is clear. He told the court that he received a call from one Brown Malanga on telephone number +254 723 019 328 on 28th May, 2024; that Brown Malanga introduced himself as a friend of Mutiso Muinduko; that Mr. Brown Malanga sought help from the 2nd Respondent to reach out to the advocate for the Applicant and request for an agreement with the Applicant to have Mutiso released from custody in order to access his bank and settle the Applicant’s debt. 64.The 2nd Respondent reached out to Mr, Gachiengo the then advocate for the Applicant through his personal official number 0711806403 and they agreed to reduce Mutiso’s request in writing; that the 2nd Respondent drafted an agreement and forwarded it to Mr. Gachiengo to review and execute. This draft has been annexed to 2nd Respondent’s Replying Affidavit as annexure ‘CCN3’; that Mr. Gachiengo communicated that the draft did not contain an undertaking from the 2nd Respondent or the 1st Respondent to settle the debt on behalf of Mutiso; that Mr. Gachiengo amended the agreement as shown in CCN4 without involving the Respondents and wrote to the 2nd Respondent asking for instructions on the amended agreement to which the 2nd Respondent stated that he had not been instructed by Mutiso to give that undertaking and that after the email communication of 12th June 2024, th 2nd Respondent did not communicate on the matter further with Mr. Gachiengo. 65.I have confirmed from the exchanged email correspondences between the 2nd Respondent and Mr. Danil Gachiengo that indeed such exchanges as stated by the 2nd Respondent occurred from 28th May 2024 to 12th June 2024. The email thread does not show any further communication between the two advocates after 12th June 2024. The email sent by the 2nd Respondent on 12th June 2024 categorically states that the Respondents had no further instructions to act in the matter and take no liability on behalf of Reuben Mutiso Muinduko in respect of the criminal matter. 66.Having examined the evidence tendered by both parties and subjecting that evidence to the law, it is my considered view that the Applicants case has serious gaps that require clarification. Firstly, there are several key persons who did not testify to enable the court receive evidence on the pertinent issues raised in this matter. Mutiso, the other party to the alleged agreement, did not testify. There is a third person named as Brown Malanga. The Applicant did not call him to testify. 67.There is Mr. Gachiengo said to be the Applicant’s advocate. He did not testify. The WhatsApp messages between the 2nd Respondent and the said Gachiengo show telephone number +254 723 019 328, said to have been used in communication with the 2nd Respondent and said to belong to the person who identified himself as Brown Malanga, is the same number used on WhatsApp communication with the 2nd Respondent. The evidence of Mr. Gachiengo is crucial to the Applicant’s case. 68.In view of all the foregoing circumstances therefore, I am satisfied that the Applicant has not proved to the required standard, that the 1st and 2nd Respondents issued a professional undertaking in his favour. 69.Further, I have compared the draft agreement (CCN2) sent to Mr. Gachiengo through the email dated 28th May 2024. The email is specific and states that:“In line with our previous communication as pertains to this matter, attached herewith kindly find an agreement showing commitment from our client Mr. Mutiso that h will settle the money owing to your client Maina. Kindly go through the same and have your client execute to enable our client to execute on the terms thereof once agreeable. Kindly revert with an executed copy of the agreement.” 70.The draft dated 28th May 2024 does not contain an undertaking by the Respondents. There followed other exchanges on the agreement until 12th June 2024. The Applicant is relying on the agreement dated 25th June 2024. This agreement contains an undertaking clause alleged to have been given by the Respondents to settle the debt on behalf of Mutiso. The evidence from the 2nd Respondent shows that there was no communication with Mr. Gachiengo after 12th June 2024. This evidence has not been controverted. 71.The totality of all the evidence from the Applicant is that it is flawed due to the existing gaps. The Applicant is required by the law to prove his case on a balance of probabilities. He has presented one probability. The onus is on him as the mover of the court to prove his case to the required standard. The Respondents have also presented their case. Given the loopholes and gaps existing in the Applicant’s case, it is my considered view that the Applicant has failed to prove, on a balance of probabilities, that the 1st and 2nd Respondents, or any of them, gave an undertaking to settle his debt should Mutiso fail to do so. 72.Having settled the issue as shown above, it is my finding that the 2nd and 3rd issues need not be considered for the reason that they ride on the 1st issue. Having found that there is no evidence to show that the Respondents gave an undertaking to pay the Applicant, then it follows that the Respondents cannot be expected to honour an undertaking that was not proved to have been given by them. consequently, the Applicant has failed to prove that he is entitled to any reliefs as claimed. 73.In conclusion, the outcome of this determination can only result in the dismissal of the Applicant’s claim, and therefore the Originating Summons dated 28th September 2025 is hereby dismissed with costs to the Respondents. 74.It is so ordered. DATED, SIGNED AND DELIVERED THIS 7TH MAY 2026.S. N. MUTUKUJUDGE