[2018] KEHC 9922 (KLR)
The court found that the professional undertaking was admitted and its breach was not denied by the Respondents. The Respondents' release of the deposit to their client was done at their own risk and does not absolve them from liability under the undertaking. The court held that the professional undertaking is...
Source-derived case information.
- Citation
- [2018] KEHC 9922 (KLR)
- Parties
- Applicant: Sisule Musungu T/a Sisule & Associates Advocates; Respondent: Howard Okiror, Nick Omari & Kenneth Kamau T/a Howard, Nick & Kenneth Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 82 of 2018
- Procedural Posture
- Civil Application / Ruling
- Outcome
- Application allowed with costs to the Applicant.
- Judges
- BT Jaden
- Legal Topics
- Professional Undertakings, Advocate Liability, Enforcement of Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sisule Musungu T/a Sisule & Associates Advocates
Applicant
Howard Okiror, Nick Omari & Kenneth Kamau T/a Howard, Nick & Kenneth Advocates
Respondent
Procedural Posture
Civil Application / Ruling
Legal Issues
- 1 Whether the Respondents breached the professional undertaking to refund Ksh.4,000,000 to the Applicant.
- 2 Whether the professional undertaking is enforceable as a separate contract between advocates.
- 3 Whether the Respondents are liable to refund the deposit regardless of their client's actions.
Ratio Decidendi
The court found that the professional undertaking was admitted and its breach was not denied by the Respondents. The Respondents' release of the deposit to their client was done at their own risk and does not absolve them from liability under the undertaking. The court held that the professional undertaking is enforceable as a separate contract between advocates, and the Respondents are obligated to refund the Ksh.4,000,000 to the Applicant, together with interest at court rates from the date of demand until payment in full. The Respondents' difficulties in recovering the funds from their client or insurer do not affect their liability to the Applicant under the undertaking.
Court Disposition
Application allowed with costs to the Applicant.
Orders
- The Respondents shall refund the sum of Ksh.4,000,000 to the Applicant within 7 days.
- The professional undertaking dated February 16, 2018 is enforced as a decree of the court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 82 OF 2018
SISULE MUSUNGU..........................................................PLAINTIFF/APPLICANT
T/a SISULE & ASSOCIATES ADVOCATES
VERSUS
HOWARD OKIROR, NICK OMARIA &
KENNETH KAMAU T/a HOWARD,
NICK & KENNETH ADVOCATES.........................DEFENDANT/RESPONDENT
RULING
1. The originating summons dated 27th April, 2018 seeks order that:
1. Spent
2. Spent.
3. That an order be and is hereby issued directing the Defendants, Howard Okiror, Nick Omari and Kenneth Kamau T/a Howard, Nick & Kenneth Advocates to, within 7 days refund the entire sum of Ksh.4,000,000/= in terms of clause 4 of their professional undertaking issued on February, 16, 2018.
4. That an order do hereby issue for the enforcement of the Professional Undertaking dated February 16, 2018 against the Defendants, Howard Okiror, Nick Omari and Kenneth Kamau T/a Howard, Nick & Kenneth Advocates as a Decree of this Court.
5. That this honourable court do and hereby order the Defendants, Howard Okiror, Nick Omari and Kenneth Kamau T/a Howard, Nick & Kenneth Advocates to pay the Plaintiff interest on the deposit sum of Ksh.4,000,000/= at Court rates from March 14, 2018 until payment in full.
2. The application is predicated on the grounds stated therein and is supported by the affidavit sworn by Sisule Musungu. It is stated that all the parties herein are advocates. That sometimes in January, 2018 the Applicant and the Respondent were acting in their professional capacities as advocates for sands Investment Limited and landlord Holdings respectively in a transaction involving the lease of land reference LR No. 1/576 and 1/577 Kindaruma Road, Nairobi. That both advocates for the parties agreed to exchange professional undertakings. That the Respondent issued a professional undertaking that the head leases would be regularized within 21 days of receipt of a deposit of Ksh.4,000,000/=.
3. That following the receipt of the Respondent’s professional undertaking on 24th February, 2018, the Applicant’s paid to the Respondent’s bank Account Ksh.4,000,000/=. That the Respondent’s failed to regularize the lease within 21 days. That acting on their client’s instructions, the Applicant aborted the transaction on 14th March, 2018 and called for the deposit. The Applicant’s complaint is that the Respondent has failed to refund the Ksh.4,000,000/=.
4. In a replying affidavit sworn by Nick Omari, the professional undertaking between the Advocates is admitted. It is stated that Ksh.3,820,000/= out of the Ksh.4,000,000/= deposited was released for the registration/perfecting the leases. That, however, proof of registration of the lease was not forthcoming and the Applicant’s demanded for a refund of the deposit. That the purported lease turned out to be a fraud and a report was made to the police. That efforts to get a refund from their client have not yet born fruits. That the Respondent has now approached it’s insurer for professional indemnity. It is further stated that the Respondent is doing everything in it’s power to have the money in question released by it’s client. The court was implored to indulge the Respondent to recover the money as the firm is not able to raise the same.
5. I have considered the application, the response to the same and the submissions made by the respective counsels for the parties herein.
6. The professional undertaking entered into is not denied. The breach of the undertaking is also not denied. As stated in the persuasive case of Havi & Co Advocates v J. M. Njaga Advocates [2012] eKLR
“His (Advocates) undertaking stands as a separate contract between the Advocates, and is not contingent upon any terms of contract between his client and any other party.”
7. The Respondent’s released the deposit to their clients at their own risk as to consequences. Consequently, I allow the application with costs.
Date, signed and delivered at Nairobi this 13th day of Nov., 2018
B. THURANIRA JADEN
JUDGE