[2007] KEHC 3602 (KLR)
The court found that the defendant advocate gave a clear professional undertaking to pay Ksh.3,102,874.20 to the plaintiff's advocates in relation to a land transaction. The defendant failed to honour this undertaking despite repeated promises and correspondence. No defence was filed or argued. The court held that...
Source-derived case information.
- Citation
- [2007] KEHC 3602 (KLR)
- Parties
- Plaintiff: Skywhite Properties Limited; Defendant: Ramesh Patel t/a Ramesh K. Patel Advocate
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1172 of 2003
- Procedural Posture
- Civil Case / Ruling on Originating Summons for Enforcement of Professional Undertaking
- Outcome
- Judgment for the plaintiff with interest and costs.
- Legal Topics
- Professional Undertakings, Advocate Liability, Land Transactions, Interest on Judgment Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Skywhite Properties Limited
Plaintiff
Ramesh Patel t/a Ramesh K. Patel Advocate
Defendant
Procedural Posture
Civil Case / Ruling on Originating Summons for Enforcement of Professional Undertaking
Legal Issues
- 1 Whether the defendant advocate is liable to honour the professional undertaking given in respect of the land transaction.
- 2 Whether the plaintiff is entitled to judgment for the sum claimed and interest thereon.
- 3 What is the appropriate rate of interest to be awarded on the unpaid sum.
Ratio Decidendi
The court found that the defendant advocate gave a clear professional undertaking to pay Ksh.3,102,874.20 to the plaintiff's advocates in relation to a land transaction. The defendant failed to honour this undertaking despite repeated promises and correspondence. No defence was filed or argued. The court held that professional undertakings by advocates are enforceable and that the defendant was liable for the sum undertaken. The court awarded judgment for the principal sum with interest at 12% per annum from 6 November 1998, rejecting the applicant's claim for 25% interest as excessive and not in line with court rates. Costs were also awarded to the applicant.
Court Disposition
Judgment for the plaintiff with interest and costs.
Orders
- Judgment entered against the defendant for Ksh.3,102,874.
- Interest at 12% per annum from 6 November 1998 until payment in full.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1172 of 2003
. Land and Environmental Law Division
2. Subject of main suit:-i) Professional undertaking by an advocate of the High
Court of Kenya on a Land transaction LR209/12908, Nairobi
ii) Order LII Civil Procedure Rules direction order LII r 10 Civil Procedure Rules
iii) Professional undertaking made on 21 October 1998 to pay sum of Ksh.3,117,782/20 being refund amount from the Commissioner of Lands towards intended purchase of LR 209/12908,Nairobi
iv) Advocate failed to pay.
v) Memo of appearance but failed to appear attend court through his advocate.
3. Arguments by applicant
i) Advocate failed to pay
ii) Requests judgment together with 25% interest
4. Held:
Order advocate to honour professional undertaking.
Judgment be and is duly entered against him with 12% interest rate and not 25% interest rate.
5. Case law – nil
6. Advocates:
M. Billing of Guram & Co. Advocates for the plaintiff/applicant
Musyoka Annan & Co. Advocates for the defendant/respondent-absent
SKYWHITE PROPERTIES LIMITED.................................……………PLAITNFIF
VERSUS
RAMESH PATEL t/a RAMESH K. PATEL ADVOCATE…………DEFENDANT
RULING
I: Application under order LII Civil Procedure Rules Advocates Professional undertaking.
A: Background of application.
1: M/s Skywhite Properties Limited are the plaintiffs in the Originating Summons brought under order LII rule 6 a Civil Procedure Rules Cap.21 Laws of Kenya and under the advocates Act Cap.16 Laws of Kenya.
2. Ramesh K. Patel an advocate of the High Court of Kenya and trading as Ramesh K. Patel Advocate gave a professional undertaking to M/s Ndungu & Njoroge and Kwach advocate that he will remit to them a sum of Ksh.3,102,874. 20 on or before 6 November 1998.
3. He in the meantime paid 3,102,874/- through a cheque of 319989. This was sometime on 21 October 1998. The funds was as a result of refund made to him by the Commissioner of Lands towards an intended purchase of property LR 209/12908 Nairobi for Ksh.3,102,874. According to the plaintiff this remained unpaid.
4. A suit was filed on 14 November 2003 by way of an Originating Summons. The defendant entered appearance through M/s Musyoka-Annan and Co. Advocate who failed to attend court.
5. Directions under Order LII r 10 Civil Procedure Rules was taken and a date fixed for hearing.
6. At the time of hearing the defendant failed to attend court and the hearing proceeded by way of submissions under Order IXb r 3 (a) Civil Procedure Rules.
II: Findings
7. The plaintiff has annexed the letter of undertaking and amount to be paid to Ndungu Njoroge & Kwach dated 21 October 1998. The correspondence thereafter show the promises and attempts by the advocate to make payments but has failed to do so. There is in effect no defence.
8. I hereby find that judgment against the said advocate Ramesh K. Patel be accordingly entered for the sum of Ksh.3,102,874/- of being the sum undertaken to pay. I further order that the interest rate to this sum be at 12%. There are the courts rates and would have the said interest rate be computed with effect from 6 November 1998 for almost ten years ago.
9. I award costs to the applicant.
Dated this 11th day of October 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
M. Billing of Guram & Co. Advocates for the plaintiff/applicant
Musyoka Annan & Co. Advocates for the defendant/respondent-absent