https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1179

M'Mboga v Mahmud (Civil Appeal E019 of 2020) [2026] KECA 1179 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KECA 1179 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Appeal E019 of 2020 F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA June 19, 2026 Between Mercy Cassandra M'Mboga Appellant and Said Ahmed Mahmud Respondent (Being an appeal against the Ruling of the Environment and Land Court of Kenya at Mombasa (Olola, J.) delivered on 2nd October, 2020 in ELC Case No. 52 of 2014 Environment & Land Case 52 of 2014 ) Judgment 1.In a ruling dated 2nd October 2020, the subject of this appeal, Olola,J. held that:“As it were, I have no doubt in my mind that the professional undertaking given herein was enforceable. The documents used to register the Defendant were obtained on the undertaking that the balance of the purchase price was to be released upon successful registration. The Defendant had been residing on the property for about five years by the time of the registration of the transfer and the alleged structural defects had neither been brought to the attention of the Plaintiff earlier, made part of the undertaking nor had they been incorporated in the consent recorded by the parties in Court.” 2.The learned judge further found that Said Ahmed Mahmud (Said or the respondent) had transferred property known as Kilifi/Jimba/1323 (the suit property) to Mercy Cassandra M’Mbobo (Mercy or the appellant herein) and, therefore, the professional undertaking of 22nd May, 2015 given by Jacqueline Waihenya Maina advocate (the advocate) was enforceable. 3.In more convivial times, Said and Mercy had entered into a sale agreement dated 31st May 2011 in which Said sold a house to Mercy in Watamu erected on the suit property at a consideration of Kshs. 4,500,000/-. It is common ground that Mercy took possession of the suit property shortly after the sale agreement and paid a deposit of Kshs. 500,000/- and eventually a total sum of Kshs. 3,400,000/-, in instalments, towards the consideration. Later, a dispute arose regarding payment of the balance of the purchase price and Said commenced civil proceedings against Mercy, in Malindi ELC Case No. 82 of 2014 Said Ahmed Mahmud vs Mercy Cassandra M’Mboga in that respect. 4.It did not take long before the parties were able to reach some compromise reducing it into a consent recorded before Angote, J. on 21st April 2015 in the following terms:“By consent, the Defendant shall pay to the Plaintiff Ksh 1,742,038.75 comprising the principal amount plus interest at 14% per annum compounded between August 2012 and April 2015. The parties shall execute the following documents: (1) A Deed of variation of sale agreement (2) The Transfer (3) Application for land control board consent (4) The affidavit by the Plaintiff the confirmation of this name. (sic) The Plaintiff will provide the documents and consents as out in the Deed of variation. The Defendant will pay the decretal amount within 14 days of registration of the Transfer in her favour. The costs herein shall be agreed upon by the parties and in default of an agreement the cost shall be taxed by the taxing master” 5.Subsequent to the consent, the lawyers for Said released completion documents to Mercy’s advocate who acknowledged it by stating in writing:“We confirm that the aforesaid documents are released to us upon our professional undertaking to release the balance of the purchase price outlined in the deed of variation of (the) sale agreement upon successful registration of the transfer in our client’s favour.” 6.It is also common ground that the suit property was duly transferred to Mercy. In the letter of 28th September 2016 in which the advocate confirmed successful transfer of the property to her client (Mercy), the advocate stated that “…since we embarked on the registration process our client has encountered substantial challenges on the property and in particular relating to the structural integrity of the building in the property.” The advocate claimed a sum of Kshs.1,300,000 as costs incurred in repairing the building and sought to exercise a lien against Kshs.1,742,035/72 she was holding as a stakeholder being the balance of the purchase price. 7.This was the trigger for a chamber summons application dated 6thApril 2018 in which Said sought to enforce the undertaking. 8.In the replying affidavit to that application, the advocate further explained that she had on several occasions sought the vendor’s advocates bank details so as remit the uncontested amounts. The advocate contended that the terms of the Deed of Variation did not exempt the parties from fulfilling their obligation, including that the vendor would provide a structurally sound house to the purchaser. She also argued that the dispute resolution mechanism contemplated by the Deed of Variation of sale agreement at Clause 2.1.4 (page 6) was arbitration and therefore the matter ought to have been referred to arbitration in the first instance. This point, however, appears to have been abandoned at trial. She further informed court that the funds she held had been deposited with Chase Bank limited which went under receivership in the course of the transaction. 9.The summons was determined in the ruling of 2nd October 2020 under challenge in this appeal. Mercy has couched her grievances around three issues, consistent with the grounds of appeal filed. She poses the questions:i.Can the Honourable court re-write the parties agreement herein?ii.Whether compliance with Rule 15 of the Law Society of Kenya Digest of Professional Conduct and Etiquette (as at 1st January INTRO 2000) is a condition precedent before an Advocate can invoke a counterpart’s professional undertaking.iii.Whether the provision of a bank account or other discernible means of payment is mandatory within the legal transactional process such as the conveyance herein.iv.Whether the appellant is entitled to costs herein and the High Court. 10.At the plenary hearing, learned counsel Ms. Waihenya represented the appellant while learned counsel Mr. Likimani appeared for the respondent. 11.In addressing whether the court can re-write the agreement, Mercy argued that the superior court had fundamentally misapprehended the terms of the contract by failing to recognize that the Deed of Variation primarily altered only the payment terms and the method of payment to Real-Time Gross Settlement (RTGS). She contended that this variation did not interfere with the parties’ original contract upon which she considered herself entitled to recover the outlay. She interpreted the original indemnity provisions contained in the sale agreement as allowing for the recovery of Kshs. 1,300,000.00 spent rectifying structural defects. It was her position that under Clause 5 as read together with Clause 7, costs of completing the building were to Said. She contended that the trial judge's failure to give effect to these express contractual terms amounted to an impermissible re- writing of the parties' agreement, as courts were generally prohibited from varying terms unless coercion, fraud, or undue influence were pleaded and proved. To support this, she relied on the case of Langat v Co-operative Bank of Kenya Ltd (Civil Appeal 48 of 2015) [2017] KECA 152 (KLR), which emphasized that parties are bound by the terms of their own contracts. 12.Regarding whether provision of bank details was a condition precedent to honouring the undertaking, she submitted that it was a mandatory requirement to facilitate the RTGS payment contemplated in the Deed of Variation as per Clause 1.2. She argued that RTGS was mandatory for transactions exceeding Kshs. 1,000,000.00 in accordance with Central Bank of Kenya (CBK) Regulations per CBK Value Capping with effect from 1st October 2009. She contended that the respondent’s advocates had deliberately failed, neglected, or refused to provide these details despite at least five different letters of request (dated 28th September, 7th October, 17th October, 26th October and 7th November 2016), maintaining that this lack of cooperation effectively frustrated her ability to comply with the professional undertaking. 13.On whether compliance with Rule 15 of the Law Society of Kenya (LSK) Digest of Professional Conduct and Etiquette is a condition precedent before an Advocate can invoke a counterpart’s professional undertaking, Mercy asserted that the Said’s counsel had a professional duty to reply to correspondence with minimum delay. She argued that the deliberate refusal to provide bank details, which counsel later admitted was a strategic choice, amounted to professional misconduct under Rule 15(b) of the Digest. She cited Prof. Tom Ojienda SC’s article Professional Ethics: An Advocate’s relationship with other Advocates (2021) which observed that amongst the areas of possible Advocate-Advocate conflict are oral and written correspondence between advocates and professional undertakings made by an advocate. She further contended that the failure of the advocates for Said to provide the required details was the proximate cause of her inability to remit the balance of the purchase price, and that a party could not legally invoke a professional undertaking while simultaneously breaching the rules of professional etiquette. She cited In re Estate of Jared Kimithi Gathiaka (Deceased) [2020] KEHC 4262 (KLR) to argue that Said should not be allowed to profit from his own deliberate failures or gain an advantage through his own wrong. 14.As for costs, Mercy urged the Court to follow the general rule that costs follow the event as provided under section 27(1) of the Civil Procedure Act. Her advocates and her had been put on the defensive due to a substantial failure of procedure and professional courtesy by Said’s advocate and she was therefore entitled to costs both in the High Court and for this appeal. She relied on the principle affirmed in Rai & 3 others v Rai & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR), pressing that while costs are at the discretion of the court, they should be awarded to reimburse a successful party for the trouble and expense of prosecuting or defending a suit. 15.In response, Said argued that the appeal was incurably defective and incompetent because there was no appeal against the findings of the judge on the preliminary objection, and that the order issued following the hearing of the Chamber Summons dated 6th April 2018 does not form part of the record of appeal. In addition, the appellant had failed to extract and include a certified copy of the formal order appealed against in the record of appeal, it being submitted that under rule 89(1) of the Court of Appeal Rules 2010, the inclusion of a "certified decree or order" was a mandatory jurisdictional requirement. He argued that, in the absence of such a foundational document, this Court lacked a clear basis to determine the specific decision being challenged or to exercise its jurisdiction effectively. He cited the English case of MacFoy v. United Africa Co. Ltd. (1961) 3 All ER 1169 to support the proposition that an act which is a nullity is incurably bad, and that every proceeding founded upon it must also fail. 16.On the substantive issues, Said contends that the issues raised in the submissions made in support of the appeal can be summarized to whether the appellant had fulfilled her part of the bargain as outlined in both the consent filed in court and the professional undertaking given to facilitate the realization of the consent and, if not, whether Mercy was entitled to move the court to enforce the said undertaking in the manner she did in the chamber summons dated 6th April 2018. 17.With regard to whether the trial judge attempted to re-write the agreement of the parties, it was submitted, for Said, that once the transfer was registered in favour of Mercy, nothing remained to be done in the agreement other than payment of the balance of the purchase price and the settlement costs and only the consent order and the undertaking remained to be enforced. Thus, by revisiting the agreement, Mercy was seeking to reopen negotiations and relitigate issues that had been compromised by the consent order filed in court as reference to the deed of variation was purely for the purpose of ascertaining the sum remaining unpaid only. He submitted that the trial judge had correctly outlined each party's case in paragraphs 10 through 14 of the ruling. He contended that the judge had accurately detailed the sequence of steps that led to the recording of the consent before the court and the subsequent professional undertakings that were made to further the implementation of that consent. 18.Regarding the enforcement of the professional undertaking, Said emphasized that it was common ground that the suit property had been registered in the name of Mercy based on completion documents released by his counsel. He argued that these documents were released specifically on the strength of the professional undertaking, and that the trial judge, after correctly rejecting the allegations of structural defects as an afterthought, was right to find the undertaking enforceable. 19.As to the refusal to provide bank details, Said admitted that the refusal to provide account information was a deliberate act. However, he argued that this was done because providing such information would aid Mercy in realizing her afterthought of unilaterally deducting costs for alleged repairs from the purchase price. He further argued that the trial judge correctly rejected these allegations of structural defects and found that the professional undertaking remained enforceable as originally recorded in the consent and subsequent correspondence. 20.Further, Said contended that by seeking to introduce new conditions for the settlement of the balance and costs, Mercy was effectively seeking to unilaterally amend the consent order and the professional undertaking. He asserted that he would not have agreed to the consent had these preconditions been a term thereof, noting that Mercy had already been in possession of the premises for over five years at the time the consent was entered. He further maintained that any legitimate defects, such as those concerning the roof, should have been raised much earlier to allow him to repair them or for Mercy to avoid the purchase. 21.Said also asked us to consider the substantive submissions he had made before the superior court below. As for costs, he agreed with the authorities cited by Mercy and the general principle that costs should follow the event. 22.Said provided a digest of cases emphasizing the court's role in maintaining the honour of its officers including: Kenya Commercial Bank v Adala [1979] KEHC 47 (KLR), affirming the court’s inherent power to discipline officers of the court and, if necessary, commit advocates to civil jail for breaching professional undertakings; and Nelson Andayi Havi t/a Havi & Company Advocates v Jane Muthoni Njage t/a J.M Njage & Company Advocates [2015] KEHC 7027 (KLR) to argue that conduct such as deliberately withholding a plaintiff’s money should be met with an interest penalty, as professional undertakings are the noble purpose of conveyancing transactions. 23.In rejoinder, Mercy pointed out that the certified order issued on 15thDecember 2020 was part of the Supplementary Record of Appeal dated 16th December 2020, which was duly served upon the Said’s counsel on 26th January 2021. We have seen the certified copy of the order, and that ends the controversy. 24.As for the ruling dated 26th June 2019, in which Olola J. dismissed her Preliminary Objection, she did not appeal the ruling and opted instead to pursue the substantive application which culminated in the instant appeal, the said ruling is not the subject of this appeal. 25.Although as a first appellate court, our remit is to re-evaluate the evidence afresh and to draw our own conclusion, this appeal raises matters of law only. As we see it, in the main, is the question whether the Deed of Variation saved the provisions of the sale agreement regarding the obligation of Said to ‘satisfactorily’ complete the building and, if so, whether that obligation remained unfulfilled or in issue? 26.For its importance to the matter at hand, we reproduce the consent of 21st April 2015 compromising the claim by Said:“By consent, the Defendant shall pay to the Plaintiff Ksh 1,742,038.75 comprising the principal amount plus interest at 14% per annum compounded between August 2012 and April 2015.The parties shall execute the following documents. (1)A Deed of variation of sale agreement (2) The Transfer (3) Application for land control board consent (4) The affidavit by the Plaintiff. the confirmation of this name.(sic) The Plaintiff will provide the documents and consents as out in the Deed of variation. The Defendant will pay the decretal amount within 14 days of registration of the Transfer in her favour. The costs herein shall be agreed upon by the parties and in default of an agreement the cost shall be taxed by the taxing master” 27.The consent had several components to it, not in the least, an obligation by the parties to enter a Deed of Variation. This, the parties did in the Deed dated 12th May 2025. 28.Clause E of the Deed expressly provided that the parties wished to vary the terms of the original agreement with regard to the method and timing of payment of the purchase price and the provision relating to the Land Control Board consent. Then Clause F provided:“In all other respects the terms of the original agreement to remain the same.”It is this Clause F that Mercy places considerable premium. 29.We agree with Mercy in that respect. It is clear to us that other than varying the terms of the original agreement regarding the method and timing of payment of the purchase price, and the provision relating to the Land Control Board consent, the other terms of the agreement remained unchanged and binding. One of the terms would be Clause 5 which reads:“The building developed on the said parcel of land if not completed shall be completed by the vendor satisfactorily on his own account.” 30.In addition is Clause 7 which placed the following obligation on Said:“The vendor hereby fully indemnifies the purchaser with regard to any third party or other party claims that may be there or may arise with regard to the said property and undertakes to settle the same.” 31.In setting up a claim for Kshs.1,300,000/- the advocate representing Mercy explained that ‘…since we embarked on the registration process our client has encountered substantial challenge on the property and in particular relating to the structural integrity of the building on the property’. The registration process would be in the period after 15th May 2015 when the Deed of Variation was entered. It however must be borne in mind that Mercy had been in possession of the property for over 4 years by that time and had never raised the issue of structural defects to the building. Importantly, it was not her assertion that the building was incomplete so as to come under the contemplation of the provisions of Clause 5. In addition, Mercy did not demonstrate how this amount was arrived at and which third parties were paid. These considered together leads to the inevitable conclusion that the claim of a lien was an afterthought, and we have no difficulty endorsing the trial judge’s holding set out at the beginning of our decision. 32.We find no merit on the main ground of this appeal and it would be needless to consider Mercy’s other grievance that Said was to blame because of his advocate failing to provide account details into which the balance less the amount supposedly held under lien would be paid. This is because we have found that there was no justification for Mercy’s advocate to withhold any sums from the balance due and the insistence by the advocates for Said for payment of the full amount was reasonable and lawful. The latter advocates had no reason to provide details of their account for payment of only a portion of the balance of the purchase price. 33.In view of the foregoing, we hereby dismiss the appeal in its entirety with costs to the respondents. DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF JUNE, 2026.F. TUIYOTT.........................................JUDGE OF APPEALDR. K. I. LAIBUTA, CArb FCIArb..........................................JUDGE OF APPEALG. W. NGENYE-MACHARIA.........................................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR