https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8935

Wasanga & another v Ogwang t/a Kamau Lando Associates LLP (Civil Case E028 of 2025) [2026] KEHC 8935 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 8935 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Case E028 of 2025 KL Kandet, J June 24, 2026 Between Paul Masiuki Wasanga 1st Applicant Njeri Kariuki t/a Kiarie Kariukiassociates Advocates 2nd Applicant and Victor Lando Okoth Ogwang t/a Kamau Lando Associates Llp Respondent Ruling 1.On 24.6.2025, the Deputy Registrar of the High Court, Civil Division, adopted a consent dated 19.6.2025 signed by the firm of H Kago for the 2nd Applicant and the Respondent to this Application. 2.The effect of the said consent order was to compromise the Originating Summons dated 10.2.2025 which was marked as settled and the file closed. The terms of the consent order are as follows;a)That the Respondent, Victor Lando Okoth Ogwang does hereby release the certificate of title to the property known as NAIROBI/BLOCK 47/1126 to the 2nd Applicant Njeri Kariuki T/A, Kiarie, Kariuki Associates Advocates in accordance with the undertaking of 20.12.2020 forthwith but in any event within 14 days from the date hereof,b)That the 2nd Applicant Njeri Kariuki T/A Kiarie Kariuki Associates Advocates shall have custody of the said certificate of title to the property known as NAIROBI / BLOCK 47/1126 and shall not release it to any other person pending the hearing and determination of Nairobi ELC Appeal No E108 of 2022-Muthoki Brothers Company Limited -v- Paul Masiuki Wasanga.c)That parties be at liberty to apply andd)That each party shall bear its own costs of the suit. 3.By way of Notice of Motion dated 7th.10.2025, the Applicants have come back to court stating that the Respondent is in breach of the consent order issued by the court on 19th 6. 2025.They are seeking for orders;a)That this Honorable court be pleased to issue summons to victor Lando Okoth Ogwang t/a Kamau, Lando Associates LLP and Mumina Fidel to appear before this Honorable Court and show cause why they should not be cited for being in contempt of the consent order issued by this Honorable court on 19th.6.2025.b)That this Honourable Court be pleased to issue orders committing Victor Lando Okoth Ogwang t/a Kamau, Lando Associates LLP and Mumina Fidel to civil jail for being in contempt of the consent order dated 19th.6.2025.c)That, in furtherance of order (a) hereinabove, this Honourable Court be pleased to direct the alleged contemnors to forthwith purge the contempt by delivering the original title document for NAIROBI/BLOCK 47/1126 to Njeri Kariuki t/a Kiarie, Kariuki & Associates Advocates and in default the Deputy Registrar be directed to execute all requisite instruments and undertake all necessary actions to procure and deliver the said title as per the consent order.d)That this Honourable Court be pleased to grant such other further orders and/or directions as it may deem just and appropriate in the circumstances hereof.e)That the costs of this Application be provided for. 4.The Notice of Motion is supported by grounds on the face of it, the supporting affidavit sworn by Njeri Kariuki, Advocate on 7th.10.2025 and the annexures thereto. Also on record is a supplementary affidavit sworn by Paul Masiuki Wasanga,1st Applicant on 22nd.5.2026. 5.In opposing this Notice of Motion, the Respondent filed a Replying Affidavit dated 10th,11,2025. 6..On 9th.3.2026, the Court directed that the Notice of Motion be canvassed by way of written submissions. Subsequently, both parties filed their respective submissions. The 1st and 2nd Applicant’s submissions are dated 22.5.2026 while the Respondent’s submissions are dated 17.2.2025 7.Learned Counsel for the Applicants in his submissions cited the following authorities in support of the Application:a)Waruhiu K’Owade &Nganga Advocates V Mutune investment Limited where the Court of Appeal treated a professional undertaking as an unequivocal promise attracting personal responsibilityb)Harit Sheth t/a Harit Sheth Advocate V KS Osmond where it is stated that an advocate who gives an undertaking assumes a personal risk and cannot shift that burden to the client 8.I have carefully considered this Application in light of the grounds relied upon, the affidavit evidence filed by both parties and the submissions on record. I have also read the cited authorities in support and in opposition of the parties’ respective positions. 9.It is not in dispute that in a judgement delivered on 11.10.2022 in CMC ELC NO.993 of 2O2O, Paul Masiuki Wasanga was declared to be the bonafide purchaser of LR NO.7583/193, Karen. An appeal was preferred against this judgement at the Environment and Land Court. In a judgement delivered on 29.1.2026, the superior court upheld the decision of the Magistrate’s Court and thereby dismissed the appeal with costs. 10.It is also not in dispute that on 3.12.2020, parties in CMC ELC NO.993 of 2O2O entered into a consent that required the 2nd Applicant to surrender the title document for LR NO.7583/66 upon receipt of an irrevocable undertaking from the Respondent and that after the conclusion of sub-division and/or processing of title for parcel No.LR NO.7583/193, the same would be returned to the 2nd Applicant. 11.The Respondent however failed, neglected and or refused to honour the said professional undertaking, hence the current suit. 12.The property in question was sub-divided after the lower court judgement. This resulted in a new parcel being NAIROBI/BLOCK 47/1126, which is the portion attributable to the lower court decree issued on 23.5.2023. 12.After the current suit was filed in this court and as stated hereinabove, the parties signed and filed a consent that closed the matter. The Respondent agreed to release the certificate of title to parcel NAIROBI/BLOCK 47/1126 to the 2nd Applicant in accordance with the undertaking of 7.12,2020 within 14 days. The consent dated 19.6.2025 was adopted by the court on 24.6.2025. 13..Since when the consent was adopted, the Respondent failed to release the Certificate of title to the 2nd Applicant, thereby frustrating compliance with the decree. 14.. The Applicant averred that one of the Directors of the Defendant (in the lower court matter) Muthoki Brothers Ltd a Mr. Mumina Fidel had written an email acknowledging the existence of the outstanding obligation to release the title document and admitted they were in possession of the certificate of title. The said Mr. Mumina also wrote an email indicating they will not comply with the consent order. The Applicants therefore filed the instant Application seeking for the orders enumerated above. 15..The Respondent in his Replying Affidavit admitted that indeed he signed the consent dated 19th.6.2025, between him and H. Kago Advocates. He added that the consent did not involve Kamau, Lando and Associates Advocates. 16.The Respondent, in an effort to justify non-compliance of the consent order stated that the subject consent was procured by fraudulent misrepresentation, ill-intent and material non-disclosure on the part of the Applicants and their Counsel. He averred that the consent order is no longer tenable or valid and that the court should declare so. The Respondent however failed to give particulars of the alleged fraud or misrepresentation or any evidence in support of those allegations. 17.The Respondent further stated that from the supporting affidavits of Njeri Kariuki, it is clear that the Applicant’s intention behind conclusion of the consent was to facilitate immediate registration and transfer of title to the 1st Applicant before hearing and determination of NAIROBI/ELC APPEAL NO. E108 of 2022 and that the Applicants if granted custody of the title will proceed to transfer it thus rendering the Appeal an academic exercise. This averment is in itself untenable as the case before the Environment and Land Court has since been concluded during pendency of this Application. 18.The Respondent also averred that it is not true that he refused to comply with the terms of the consent order dated 19th.6.2025. According to him the consent order was obtained with his client’s full concurrence. He wrote to the client to release the title document through the Director, a Mr. Mumina Fidel, for transmission to the 2nd Applicant. The said Mr. Mumina has to date not surrendered the said title. In the circumstance, the Respondent averred that it is for the Applicants to initiate proceedings against Mr. Mumina for recovery of the title. 19.It was also the Respondent’s contention that the Applicants are misusing this court to circumvent the Magistrate’s court and the Environment and Land Court proceedings. 20.The 1st Applicant in the supplementary affidavit dated 22.5.2026 largely reiterated the contents of the 2nd Applicant’s supporting affidavit to the Notice of Motion. He averred that the 2nd Applicant was to hold the title pending the hearing and determination of Nairobi ELC Appeal No. E108 of 2022. Judgement in the above matter was delivered on 29.1.2026. The Appeal was dismissed and Judgement in CMELC NO.993 of 2020 was upheld. He further added that there is no order of stay of execution in both the lower court and the ELC judgements. Accordingly, the contingency upon which the 2nd Applicant was to hold the title pending Appeal was exhausted upon delivery of the Appellate Court judgement and there remains no lawful basis for the continued withholding of the title. SUBMISSIONS 21.Both parties filed their respective submissions and identified the following issues for determination:a)Whether the professional undertaking issued by the Respondent to the 2nd Applicant dated 7.12.2020 is valid and enforceable.b)Whether the consent dated 19.6.2025 is valid and enforceablec)Whether the Respondent is in contempt of court.d)Whether the Applicants are entitled to the orders sought. 22..On the first issue concerning the validity and enforcement of the professional undertaking issued by the Respondent to the 2nd Applicant, the Applicants submitted that the professional undertaking given by the Respondent was clear, unequivocal and personal. The Applicants also submitted that the position taken by the Respondent is contrary to the law and to the Respondent’s own subsequent conduct in entering the consent on 19.6.2025. The Respondent on his part, submitted that the said undertaking was discharged upon delivery of judgement in Milimani CMELC NO. 993 of 2020. 23..The undertaking dated 7.12.2020 and subject of this Application was given by the Respondent and addressed to Kiarie, Kariuki & Associates Advocates. It states in part:“We hereby give our irrevocable professional undertaking that we shall only use the title documents to L.R NO.7583/66 KAREN in the name of Muthoki Brothers Company Ltd for purposes of processing a sub-division of the sold property and that our client shall undertake the conclusion of the sub-division and/or processing of the title for the parcel of land known as L.R NO.7583/193 within 60 days and upon processing the said title for LR NO.7583/193 return the resultant title to your firm”.The Respondent requested the 2nd Applicant’s firm to release the title document for parcel LR NO.7583/66 as per the Order of the Court in Milimani ELC Case No, 993 of 2020, dated 3 .12.2020. 24..In the consent order dated 16.7.2020, parties inter alia agreed that the firm of Kiarie, Kariuki & Associates Advocates will hold the title document for LR NO.7583/193 upon return by the Respondent, as stakeholders pending the hearing and determination of the suit pending before the Chief Magistrate Court. Judgment in that matter was delivered on 11.10.2022 in favour of the 1st Applicant against the Respondent’s clients, Mothuki Brothers Limited. 25..In the instant case, there is no dispute that the Respondent gave a professional undertaking to return the title document for LR NO.7583/943 upon sub-division of LR NO 7593/66 to the 2nd Applicant’s firm. The 2nd Applicant placed reliance on that undertaking. This was repeated when the consent order dated19th .6.2025 was recorded and adopted by this court. The expectation was that both parties, acting in good faith, will comply noting that the commitments were adopted as court orders. 26..It is not in dispute that since the undertaking was issued on 7.12.2020, the Respondent has not complied. The title document for parcel LR NO.7583/943 has never been returned to the 2nd Applicant. The judgement in CM ELC 993/2020 was delivered on 11.10.2022. I however note from the express terms of the consent order dated 16.7.2020 and by extension the undertaking given by the Respondent, that the 2nd Applicant’s firm was to have custody of the title document until the hearing and determination of CM ELC 993/2020. Although there was no compliance by the Respondent with respect to the undertaking, there is nothing placed before this court to demonstrate that the 2nd Applicant ever demanded for compliance up until the judgement was delivered. No attempts were made to enforce the undertaking during pendency of the lower court matter. I find that the said undertaking was tied to the hearing and determination of the said lower court matter. Once judgment was delivered, the undertaking would be deemed overtaken by events. Indeed, the court in the judgment delivered on11.10.2022 proceeded to make final determinations on the rights of the parties, including giving express terms with regard to parcel known as LR NO.7483/193. In any event compliance with sub-division was to be within a period of 60 days from the consent order dated 16.7. 2020.I find in the circumstances that this undertaking had been overtaken by events in as much as the Respondent was in clear breach. 27..On the consent dated 19.6,2025, the Respondent agreed to deliver the title for parcel LR No. NAIROBI/BLOCK 47/1126 to the 2nd Applicant within 14 days, in terms of the undertaking, effectively re igniting the commitment given by the Respondent in the lower court matter. Again, the Respondent failed to comply. The 2nd Applicant was to hold the title document pending hearing and determination of ELC Civil Appeal No. E108 of 2022 against the lower court decision. The said matter was determined and judgement delivered on 28.1.2026. The Respondent ought to have complied with the terms of the consent within 14 days from 19.6.2025. The last day for release of the subject title document to the 2nd Applicant was on 4.7.2025. From 5.7.2025, the Respondent was and remained in breach of the consent order. What comes out clearly is a pattern where the Respondent would readily commit to surrender the title document but fails to comply. 29.The above notwithstanding, it is significant to note that the 2nd Applicant was to have custody of the title document until determination of the Appeal that the Respondent’s client preferred in the Environment and Land Court. Ideally, the Application for contempt and particularly on the enforcement of the terms of the consent ought to have been heard and determined before the Environment and Land Court delivered its judgement. 30.Since the compliance of the consent was agreed to be within 14 days from 19.6.2025, the Respondent was in breach. However, the agreed period for the 2nd Applicant to hold the title document was pegged on the determination of the ELC matter. Now that the judgement was delivered on 29.1.2026, I find that the terms of the consent expired upon delivery of the ELC judgment and therefore overtaken by events. 31..In response to the current application, the Respondent in his replying affidavit has made effort to demonstrate that he engaged his client, Muthoki Brothers Ltd through their Director Mr. Fidel Mumina to release the title document for onward transmission to the 2nd Applicant. He attached to his replying affidavit a copy of an email correspondence with the said Mr. Fidel Mumina to that effect. Despite his best efforts, the said Mr. Mumina has to date not surrendered the said title for onward transmission to the firm of Kiarie Kariuki Advocates. According to the Respondent, the correct procedure is to initiate proceedings against the client for recovery of the title document. This proposition is not correct for the reason that the undertaking given by the Respondent and the subsequent consent recorded by the court, binds the Respondent as an Advocate personally. As held in Harit Sheth t/a Harit Sheth Advocate V K H Osmond, and as rightly submitted by Counsel for the Applicants, an advocate who gives an undertaking assumes a personal risk and cannot shift that burden to the client. The Respondent in the instant application gave the undertaking in his professional capacity and is presumed to have been in a position to deliver the title document precisely according to the terms of the undertaking and without shifting blame. 32..In the foregoing, I find that indeed there was a consent order entered into by the Applicants and the Respondent in his professional capacity to deliver the title document. The duty to comply on the part of the Respondent crystalized immediately upon signing and adoption of the consent dated 19th.6.2025. 37.In Diamond Star General Trading LLC v Ambrose DO Rachier carrying out business as Rachier & Amollo Adovates [2017] eKLR it was observed;‘that for a professional undertaking it must be shown that the undertaking was given by the solicitor personally, and not merely as agent on behalf of his client, it must also be given by the solicitor, not as an individual, but in his professional capacity as a solicitor, the undertaking must be clear in its terms. 33..From the above, it is clear that the Respondent herein gave an undertaking in his professional capacity. Such professional undertaking was characterized by an unequivocal declaration of intention to return the title document to the 2nd Applicant who in turn placed reliance on it. 34.The other issue for determination in this Application is the impact of the judgement in CM ELC case No.993 of 2020 and which was confirmed on appeal by the judgment in ELC case No. E127 of 2024, on the specific performance of the terms of the consent entered on 19th .6. 2025.As stated elsewhere in this Ruling, and as indicated in the body of the consent, the 2nd Applicant was to hold the title document until the ELC Judgement is delivered. That judgement was delivered on 29.1. 2026.The appeal against the lower court judgement was dismissed, the effect of which the decree dated 11.10.2022 became enforceable. In that final determination, the court ordered under clause 2 and 3 of the decree as follows;… (2)THAT the Defendant does subdivide the parcel known as LR NO.7583/66 KAREN and acquire title for a portion measuring 1 acre known as LR NO.7383/193.(3)That the defendant does deliver the completion documents to the plaintiff. 35..The decree in the lower court became active for execution from 29.1.2026 being the date of delivery of the judgement of the Environment and Land Court (Appellate Court). The said judgement was delivered during the pendency of this Application. The above presents two scenarios:a)The existence of a decree from the trial court directing the Defendant in CM ELC to deliver the title documents to the 1st Applicant herein with respect to LR NO.7383/193, andb)The existence of a consent order signed by the Deputy Registrar of this court where the Respondent herein agreed to deliver the same title document to the 2nd Applicant in terms of the undertaking issued on 7.12.2020. 36..The existence of these two scenarios may potentially cause confusion with regard to post judgement activities on a concluded matter. This court is of the considered view that the decree in force which finally determined the rights of the parties to the dispute must take priority. This is not to say that the Respondent was not in breach of the consent order. 37..In the circumstances, I find that the appropriate thing to do with regard to the title document subject of this Application, is for the parties to pursue the same in line with the contents of the decree dated 11.10.2022. 38.As for the issue of citing the Respondents for contempt, I have already found that he is in breach of the consent order. I also find that the Respondent failed to take immediate steps to inform the court that his client failed to surrender the title document to enable him comply with the consent order. However, I have seen email correspondence between the Respondent and his client where he called for the title documents. The client was however not a party to these proceedings. 39..The above notwithstanding, the 2nd Applicant was to hold the title document until judgement in the ELC matter was delivered. The consent does not allow the 2nd Applicant to do any other thing with the title document. Considering that the judgement in ELC Civil Appeal No E108 of 2022 was delivered 29.1.2026, it is only appropriate that any dealing with the subject title document shall be undertaken in compliance with the contents of the lower court decree dated 11th 10.2022 and which was confirmed on appeal by the ELC superior court in ELC Civil Appeal No. 108 of 2022. The consent order was pegged on the Appellate Court delivering its judgement. 40..For the above reasons, this court reluctantly declines to summon the Respondent as prayed for, noting that this application was heard long after the ELC courts (Superior and lower) had made determinations in the matter. This court would have taken a different view had the application been prosecuted before the final determination of the matter at the Environment and Land Court on appeal 41..On costs of the Application, Section 27 of the Civil Procedure Act (Cap21) provides as follows,‘Subject to such conditions and limitation s as may be prescribed and to the provisions of any law for the time being in force, the costs of and incident alto all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to by whom and out of what property and to what extend such costs are to be paid, and to give all necessary directions for the purposes aforesaid’In UAP Insurance Company V Toiyoi investment Limited [2020] eKLR ,the court observed that:‘The law in designing the legal phrase that ‘costs follow the event’was driven by the fact that there could be no ‘one size-fits-all’ situation on the matter’ 42..Considering the special circumstances of this Application and while guided by the principle that ends of justices must be met and having found that the Respondent freely entered into a consent without the intention to comply with his commitment, this court in exercise of its discretion would order the Respondent to bear costs of this application. Indeed, the instant Application was filed out of the Respondent’s failure to act with speed and in good faith to comply with his professional undertaking within the agreed timelines. Final Orders 43.(a)The instant Application as drawn fails for reasons it has been over taken by events.(b)That any further dealings with respect to the parcel of land subject of this application shall be pursued at the Environment and Land Court pursuant to the decree drawn in CM ELC 993/2020.(c)The Respondent shall pay thrown away costs to the Applicants which the Court assesses at Ksh.20,000/-. DATED SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JUNE,2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGE.In the presence of:Kago For The ApplicantsThe Respondent In PersonCourt Assistant: Aggrey Ochieng