https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12974

Mwananchi Credit Limited v Tobiko Njoroge & Company Advocates & another (Commercial Case E630 of 1000) [2026] KEHC 12974 (KLR) (Commercial and Tax) (13 August 2026) (Judgment) Neutral citation: [2026] KEHC 12974 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E630 of 1000 PM Mulwa, J August 13, 2026 Between Mwananchi Credit Limited Plaintiff and Tobiko Njoroge & Company Advocates Defendant and Co-operative Bank Kenya Limited Third party Judgment 1.By an Originating Summons dated 16th October 2024 and expressed to be brought under Section 1A, 1B and 3A of the Civil Procedure Act and Order 51, Rule 1 and Rule 52, Rule 7 of the Civil Procedure Rules. The Plaintiff sought orders that:i.The Honourable Court be pleased to order the Defendant to honour their Professional undertaking dated 3rd July 2017 to A.S. Kuloba & Wangila Advocates and remit the sum of Kshs.6,971,164.20/= with interest at court rates from 16th August 2017.ii.Costs be provided. 2.The Originating Summons is supported by the affidavit sworn by Saleh Jackline. She stated that on 24th April 2017, Theodore Apey Ayuk Oben applied for a Kshs. 7,800,000/= loan from the Plaintiff, secured by the title of Kiambu/Municipality Block 111/207, known as the suit property. The Plaintiff defaulted, and the loan arrears grew to Kshs. 10,337,442/=. In June 2017, Theodore Apey, through its lawyers, informed the Plaintiff that it had obtained financing from Co-operative Bank. By a letter dated 3rd July 2017, the Defendant provided a professional undertaking to the Plaintiff’s Advocate, A.S. Uloba & Wangila Advocates, promising to pay Kshs. 4 Million by 15th July 2017, and the remaining Kshs. 6,971,164.20 within 30 days after the first instalment. 3.Relying on this, the Plaintiff’s lawyer released the original title documents to the Defendant, who then discharged the charge on the suit property. The Defendant paid only the first instalment and failed to settle the remaining Kshs. 6,971,164.20 despite repeated demands. She also claims that the Defendant’s actions have caused significant prejudice to the Plaintiff, a microfinance institution. 4.The Defendant filed a Replying Affidavit, sworn by Mayiani Sankale, the managing partner. He deposed that, having received the title documents from the Plaintiff, the Defendant forwarded them to the Bank through the bank's advocates, M/s Mumo Mutoro & Co. Advocates, on 8th December 2017, and that a charge was registered in favour of the Bank on 4th January 2018. He avers that only a sum of Kshs. 4 million was paid and that the Bank failed to release the balance as per the undertaking, prompting the Defendant to call for the release of the title documents from the Bank. 5.He further contends that the Defendant’s instructions were only to secure the release of the title document from the Plaintiff to the Bank for purposes of registering a discharge in their favour and denies any liability on the part of the Defendant. 6.The Originating Summons was disposed of by way of written submissions. The Plaintiff's submissions are dated 16th January 2026, while the Defendant’s submissions are dated 4th March 2026. Analysis and determination 7.Having addressed my mind to the pleadings and submissions by the parties, what emerges is that it is not denied that the parties entered into a professional undertaking. The purpose of the undertaking as well as the terms and conditions thereof are also not denied. 8.The relevant legal provision that guides the issue of professional undertakings is Order 52 rule 7 of the Civil Procedure Rules which states:a.An application for an order for the enforcement of an undertaking given by an Advocate shall be made:i.If the undertaking was given in a suit in the High Court, by summons in chambers in that suit; orii.In any other case, by Originating Summons in the High Court.(b)Save for special reasons to be recorded by the Judge, the order shall in the first instance be that the Advocate shall honour his undertaking within a time fixed by the order, and only thereafter may an order in enforcement be made. 9.The Court of Appeal in relation to a conditional undertaking in Arthur K. Igeria t/a Igeria & Co. Advocates v Michael Ndaiga NRB CA Civil Appeal No.51 of 2008 [2017] eKLR stated as follows:“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 dubiety 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.” 10.The professional undertaking is a smooth and binding contract between the donor and the donee, who are the advocates, and which ought to be honoured. 11.In the present case, the Defendant's professional undertaking dated 3rd July 2017 was clear, unambiguous, and unequivocal. It bound the Defendant to pay the Plaintiff Kshs. 4 million on or before 15th July 2017 and the balance of Kshs. 6,971,164.20 within 30 days of the first instalment. There is no dispute that the undertaking was given by the Defendant in the course of their professional practice. 12.The Defendant's argument that they were only instructed to secure the release of the title documents from the Plaintiff to the bank is untenable. A professional undertaking is a personal obligation of the advocate who gives it and cannot be avoided by reference to the instructions of a client or a third party. 13.A breach of a professional undertaking occurs where the giver fails to fulfil his obligations under the undertaking. The Defendant's failure to pay the balance of Kshs. 6,971,164.20 within the stipulated timeframe constitutes a clear and unambiguous breach of the professional undertaking. 14.The Defendant's contention that they are not liable because the bank failed to release the balance is without merit. The Defendant gave a professional undertaking to the Plaintiff's advocates. The Defendant cannot avoid liability by pointing to a third party's failure to perform. The undertaking was not conditional upon the bank's performance. 15.The Plaintiff seeks interest at court rates from 16th August 2017. The professional undertaking provided that the balance was payable "within 30 days of the 1st instalment". The first instalment was payable on or before 15th July 2017. The balance therefore fell due on or before 16th August 2017. 16.The court has discretion to award interest on the amount due under a professional undertaking 17.I find it just and equitable to award interest at court rates on the outstanding sum of Kshs. 6,971,164.20 from 16th August 2017 until payment in full. 18.Accordingly, I make the following orders:a.The Defendant is hereby ordered to honour the professional undertaking dated 3rd July 2017 and pay to the Plaintiff the sum of Kshs. 6,971,164.20.b.The said sum shall attract interest at court rates from 16th August 2017 until payment in full.c.The Defendant shall bear the costs of this Originating Summons.It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF AUGUST 2026.PETER M. MULWAJUDGEIn the presence of:Mr. Bulowa for PlaintiffMr. Mukeli h/b for Mr. Sankale for DefendantMr. Njenga for Third PartyCourt Assistant: Sharon