REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. OF 2024(O.S)
BRANDON CHEBIEGO T/A
CHEBIEGO & ASSOCIATES ADVOCATES ...............APPLICANT
VERSUS
IBRAHIM YUSSUF ABDINOOR T/A
IBRAHIM DAYIB & COMPANY ADVOCATES………RESPONDENT
JUDGMENT
Before me is the Originating Summons brought under Order 52 Rule 7 of the Civil Procedure Rules . The applicant seeks orders that :
1 . The honourable court be pleased to order the Respondent to honor the professionall undertaking dated 7th May, 2024 and be compelled to pay the balance of Kenya Shillings Eighty-Nine Thousand Nine Hundred and Ninety-Nine and Fifty Cent (Kshs. 89,999.50/), with interest calculated at court rates from 22nd May 2024 until payment in full, being balance of the purchase price for the property L.R. No. 209/8294 (I.R 29350).
2. The said undertaking be honored within Seven (7) days from the date of the Order therein and the aforesaid monies in prayer one above to be paid to the Applicant.
3. Costs of the suit
The grounds for the Summons are on the face of the summons and the supporting affidavit of Brandon Chebiego sworn on the 11 th December 2024 and the annexures therewith. The summons is opposed vide the affidavit of Ibrahim Yussuf Abdinoor sworn on 6 th January 2025 together with the annexures. Brandon Chebiego also filed a further affidavit.
Parties file submissions which counsel highlighted.
The basis for this matter is that there was a Sale Agreement dated 30th April 2024, between Inter Continental Collections Limited the Vendor and Siratho Mohamed Abdi the Purchaser for the sale and purchase of property known as L.R. No. 209/8294/310 (I.R 29350 The firm of Ibrahim Dayib & Company Advocates acted for the Purchaser whilst the firm of Chebiego & Associates Advocates acted for the Vendor.By a Professional Undertaking dated 7th May 2024, the firm of Ibrahim Dayib & Company Advocates undertook to hold the balance of the Purchase Price of Kenya Shillings Kshs. 1,277,477.50 which they undertook to release to the Applicant within Seven (7) days of the successful transfer and registration of the subject property in their client’s name. However, upon successful transfer of the property in favour of the Purchaser on 22nd May 2024, the Respondent failed to transfer the balance of the Purchase Price to the Applicant as per their Professional Undertaking. By a letter dated 29th August 2024 the applicant demanded the release of the balance of the Purchase Price On 4th October 2024, the Respondent released Kshs. 1,187,477.50 Kshs. 89,999.50. A demand for the release of the balance was made vide letter dated 24th October 2024. It is the position of the applicant that the failure to release the balance is in breach of the terms of the professional undertaking and amounts to professional misconduct hence the need for the orders sought to compel the firm of Ibrahim Dayib & Company Advocates to remit the balance together with interest
According to the respondent the said Professional Undertaking was conditional on the fulfillment of some of the terms of the Agreement for Sale dated 30th April 2024 by the Vendor, including but not limited to a ttimely grant of vacant possession of the subject property to the Purchaser; and Full and accurate disclosure of any defects or encumbrances affecting the subject property.
Parties filed written submissions and their counsel highlighted the same.
I have considered the OS, the rival affidavits and the annexures by each party, and the submissions.
The issues for determination are whether there is a professional undertaking? Whether the same was vitiated by the alleged conduct of the respondent’s client and become unenforceable.? What orders call out to be made?
On whether there is a professional undertaking.
It is common ground that a Professional undertaking was given by the firm of Ibrahim Dayib & Company Advocates dated 7 th May 2024
In the letter to Chebiego &Co Associates, Advocates, the firm of Ibrahim Dayib wrote as follows;
This refers to the above matter in which we are acting for ‘SIRATHO MOHAMED ABDI ( Thereinafter referred to as ‘The Purchaser’)
We wish to address you as hereunder .
Pursuant to the agreement for the sale dated 30 th of April 2024 between our client and your client
We hereby give you our irrevocable Professional undertaking that we shall hold the balance of the purchase price being the sum of Ksh 1,277,477.50 which we undertake to release to yourselves within 7 days after the successful transfer and registration of the subject property in our client’s name . Time shall be of the essence in respect of all the aforesaid obligations and this undertaking will remain in force until such a time that you shall expressly release to us from the same which release shall be granted upon our full compliance with the terms herein. (Emphasis added)
It is not disputed that the transfer was effected on 22 nd May 2024 hence the undertaking ought to have been honored on or before the 29 th May 2024.
When the demand was made to comply with the professional undertaking the counsel for the purchaser refused to comply arguing that the professional undertaking had become unenforceable because the vendor had not complied with certain conditions to wit; grant of vacant possession was delayed; there were defects on the property that were not disclosed ; that the purchaser had incurred financial loss because of that. It was further argued that the vendor had not complied with the conditions of clause 12 of the sale agreement.
Order 52, rule 7 of the CPR provides for that Application for an order for enforcement of an undertaking. It states
( 1) An application for an order for the enforcement of an undertaking given by an advocate shall be made—
(a) if the undertaking was given in a suit in the High Court, by summons in chambers in that suit; or
(b) in any other case, by originating summons in the High Court.
(2) 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.
This one falls under Order 52 Rule 7(1)(b)
The applicant relies on STG Muhia t/a S Thuo Muhia & Company Advocates vs J M Chege T/A Thuo Muhia &Co Advocates vs J M Chege t/A J M Chege & Co Advocates [2009]eKLR where the court cited the meaning of undertaking in Halsbury’s Laws of England 4 th Edition vol 44(1) pg. 223 where it states :
An unequivocal declaration of intention addressed to someone who reasonably places reliance on it and made by
( i) a solicitor or a member of staff in the course of practice or
(2) a solicitor but not in the course of practice whereby the solicitor becomes personally bound
There was a professional undertaking.
Was it vitiated by the alleged conduct of the vendor? Has it become unenforceable?
On enforcement of the undertaking both parties relied on Arthur K Igeria t/a Igeria & Co Advocates vs Michael Ndaiga [2017]eKLR where the CoA had this to say:
For the court to enforce a professional undertaking, it must be satisfied that the undertaking is clear in its terms and there is no dubiety or ambiguity 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 .
The respondent argues that the undertaking cannot be enforced because it would be inequitable because the applicant’s client has come to equity with unclean hands, having breached the terms of the sale agreement.
The question becomes- what were the terms of the undertaking? Counsel undertook
1. to hold the balance of the purchase price being the sum of Ksh 1,277,477.50
2. to release it to Counsel for the vendor within 7 days after the successful transfer and registration of the subject property in the purchaser’s name.
It is not in dispute that the sum of Ksh 1,187,477/50 was released leaving the balance of Ksh 89,999/50 which is the sum that is now being demanded by the applicant.
The respondent counsel avers and submits that the purchaser has incurred greater losses: Ksh 220,000 in terms of rent incurred due to delay of the granting of vacant possession, the sum of ksh1,325,000being repairs for restoring the property to a habitable standard, total, over Ksh1.5M.
In the circumstances the respondent counsel’s position is that this court should decline the application and direct inter alia that the sum be withheld pending the resolution of the respondent’s client’s claims against the applicant’s client’s breach of the sale agreement.
From the foregoing it is my view, with respect that the respondent is mixing two issues here: the professional undertaking and the sale agreement. One involves both counsel and the other involves the parties to the sale agreement. There are terms in the sale agreement for dealing with breach of the sale agreement; The alleged breaches are contentions between the parties to the sale agreement. The parties are expected go fall back to that sale agreement to sort ought any alleged breaches.
The professional undertaking is binding on the respondent advocate personally, and must be honored . Failure to do so may amount to professional misconduct. See Naphtali Paul Radiel vs David Njogu Gachanja t/a D Njogu & Co Advocates [2006]eKLR
Following Igeria it is clear to me that the terms of the undertaking are clear ; the undertaking is to hold and release money upon the happening of an event; the event is the transfer into the name of the buyer. That event happened and nothing stands between the respondent and the honoring of the undertaking.
All these other issues being raised by the respondent are not part of the conditions contingent to the performance of the undertaking. They cannot render the undertaking unenforceable because they are not part of the undertaking. The only condition was the transfer of the property to the name of the buyer. That was done. Had it been intended that the issues raised by counsel would be part of the professional undertaking, they would have been expressed therein. Having not done that , this court can only consider the terms of the undertaking and whether they were fulfilled. It is clear that those terms are clear and the condition upon which the undertaking stood has been fulfilled. The vendor has complied. Respondent ought to have honored the undertaking on or before 29 th May 2024.
In my view the application has merit and is allowed as prayed.
What orders to size?
i. The Respondent be and is hereby ordered to honor the professional undertaking dated 7 th May 2024 within 7 days from 21 st January 2026, that is; pay the balance of the purchase price for the property LR 209/8294 (IR 29350) of Ksh 89,999/50 plus interest at court rates from 29 th May 2024.
ii. The applicant will have the costs of this suit
iii. Orders accordingly
Dated, signed and delivered via CTS this 20 th January 2025.
Mumbua T Matheka
Judge
Judgment HCCOMM/E011/ 2025 Page 2 of 2
IN THE HIGH COURT AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. OF 2024(O.S)
BRANDON CHEBIEGO T/A
CHEBIEGO & ASSOCIATES ADVOCATES ...............APPLICANT
VERSUS
IBRAHIM YUSSUF ABDINOOR T/A
IBRAHIM DAYIB & COMPANY ADVOCATES………RESPONDENT
JUDGMENT
Before me is the Originating Summons brought under Order 52 Rule 7 of the Civil Procedure Rules . The applicant seeks orders that :
1 . The honourable court be pleased to order the Respondent to honor the professionall undertaking dated 7th May, 2024 and be compelled to pay the balance of Kenya Shillings Eighty-Nine Thousand Nine Hundred and Ninety-Nine and Fifty Cent (Kshs. 89,999.50/), with interest calculated at court rates from 22nd May 2024 until payment in full, being balance of the purchase price for the property L.R. No. 209/8294 (I.R 29350).
2. The said undertaking be honored within Seven (7) days from the date of the Order therein and the aforesaid monies in prayer one above to be paid to the Applicant.
3. Costs of the suit
The grounds for the Summons are on the face of the summons and the supporting affidavit of Brandon Chebiego sworn on the 11 th December 2024 and the annexures therewith. The summons is opposed vide the affidavit of Ibrahim Yussuf Abdinoor sworn on 6 th January 2025 together with the annexures. Brandon Chebiego also filed a further affidavit.
Parties file submissions which counsel highlighted.
The basis for this matter is that there was a Sale Agreement dated 30th April 2024, between Inter Continental Collections Limited the Vendor and Siratho Mohamed Abdi the Purchaser for the sale and purchase of property known as L.R. No. 209/8294/310 (I.R 29350 The firm of Ibrahim Dayib & Company Advocates acted for the Purchaser whilst the firm of Chebiego & Associates Advocates acted for the Vendor.By a Professional Undertaking dated 7th May 2024, the firm of Ibrahim Dayib & Company Advocates undertook to hold the balance of the Purchase Price of Kenya Shillings Kshs. 1,277,477.50 which they undertook to release to the Applicant within Seven (7) days of the successful transfer and registration of the subject property in their client’s name. However, upon successful transfer of the property in favour of the Purchaser on 22nd May 2024, the Respondent failed to transfer the balance of the Purchase Price to the Applicant as per their Professional Undertaking. By a letter dated 29th August 2024 the applicant demanded the release of the balance of the Purchase Price On 4th October 2024, the Respondent released Kshs. 1,187,477.50 Kshs. 89,999.50. A demand for the release of the balance was made vide letter dated 24th October 2024. It is the position of the applicant that the failure to release the balance is in breach of the terms of the professional undertaking and amounts to professional misconduct hence the need for the orders sought to compel the firm of Ibrahim Dayib & Company Advocates to remit the balance together with interest
According to the respondent the said Professional Undertaking was conditional on the fulfillment of some of the terms of the Agreement for Sale dated 30th April 2024 by the Vendor, including but not limited to a ttimely grant of vacant possession of the subject property to the Purchaser; and Full and accurate disclosure of any defects or encumbrances affecting the subject property.
Parties filed written submissions and their counsel highlighted the same.
I have considered the OS, the rival affidavits and the annexures by each party, and the submissions.
The issues for determination are whether there is a professional undertaking? Whether the same was vitiated by the alleged conduct of the respondent’s client and become unenforceable.? What orders call out to be made?
On whether there is a professional undertaking.
It is common ground that a Professional undertaking was given by the firm of Ibrahim Dayib & Company Advocates dated 7 th May 2024
In the letter to Chebiego &Co Associates, Advocates, the firm of Ibrahim Dayib wrote as follows;
This refers to the above matter in which we are acting for ‘SIRATHO MOHAMED ABDI ( Thereinafter referred to as ‘The Purchaser’)
We wish to address you as hereunder .
Pursuant to the agreement for the sale dated 30 th of April 2024 between our client and your client
We hereby give you our irrevocable Professional undertaking that we shall hold the balance of the purchase price being the sum of Ksh 1,277,477.50 which we undertake to release to yourselves within 7 days after the successful transfer and registration of the subject property in our client’s name . Time shall be of the essence in respect of all the aforesaid obligations and this undertaking will remain in force until such a time that you shall expressly release to us from the same which release shall be granted upon our full compliance with the terms herein. (Emphasis added)
It is not disputed that the transfer was effected on 22 nd May 2024 hence the undertaking ought to have been honored on or before the 29 th May 2024.
When the demand was made to comply with the professional undertaking the counsel for the purchaser refused to comply arguing that the professional undertaking had become unenforceable because the vendor had not complied with certain conditions to wit; grant of vacant possession was delayed; there were defects on the property that were not disclosed ; that the purchaser had incurred financial loss because of that. It was further argued that the vendor had not complied with the conditions of clause 12 of the sale agreement.
Order 52, rule 7 of the CPR provides for that Application for an order for enforcement of an undertaking. It states
( 1) An application for an order for the enforcement of an undertaking given by an advocate shall be made—
(a) if the undertaking was given in a suit in the High Court, by summons in chambers in that suit; or
(b) in any other case, by originating summons in the High Court.
(2) 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.
This one falls under Order 52 Rule 7(1)(b)
The applicant relies on STG Muhia t/a S Thuo Muhia & Company Advocates vs J M Chege T/A Thuo Muhia &Co Advocates vs J M Chege t/A J M Chege & Co Advocates [2009]eKLR where the court cited the meaning of undertaking in Halsbury’s Laws of England 4 th Edition vol 44(1) pg. 223 where it states :
An unequivocal declaration of intention addressed to someone who reasonably places reliance on it and made by
( i) a solicitor or a member of staff in the course of practice or
(2) a solicitor but not in the course of practice whereby the solicitor becomes personally bound
There was a professional undertaking.
Was it vitiated by the alleged conduct of the vendor? Has it become unenforceable?
On enforcement of the undertaking both parties relied on Arthur K Igeria t/a Igeria & Co Advocates vs Michael Ndaiga [2017]eKLR where the CoA had this to say:
For the court to enforce a professional undertaking, it must be satisfied that the undertaking is clear in its terms and there is no dubiety or ambiguity 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 .
The respondent argues that the undertaking cannot be enforced because it would be inequitable because the applicant’s client has come to equity with unclean hands, having breached the terms of the sale agreement.
The question becomes- what were the terms of the undertaking? Counsel undertook
1. to hold the balance of the purchase price being the sum of Ksh 1,277,477.50
2. to release it to Counsel for the vendor within 7 days after the successful transfer and registration of the subject property in the purchaser’s name.
It is not in dispute that the sum of Ksh 1,187,477/50 was released leaving the balance of Ksh 89,999/50 which is the sum that is now being demanded by the applicant.
The respondent counsel avers and submits that the purchaser has incurred greater losses: Ksh 220,000 in terms of rent incurred due to delay of the granting of vacant possession, the sum of ksh1,325,000being repairs for restoring the property to a habitable standard, total, over Ksh1.5M.
In the circumstances the respondent counsel’s position is that this court should decline the application and direct inter alia that the sum be withheld pending the resolution of the respondent’s client’s claims against the applicant’s client’s breach of the sale agreement.
From the foregoing it is my view, with respect that the respondent is mixing two issues here: the professional undertaking and the sale agreement. One involves both counsel and the other involves the parties to the sale agreement. There are terms in the sale agreement for dealing with breach of the sale agreement; The alleged breaches are contentions between the parties to the sale agreement. The parties are expected go fall back to that sale agreement to sort ought any alleged breaches.
The professional undertaking is binding on the respondent advocate personally, and must be honored . Failure to do so may amount to professional misconduct. See Naphtali Paul Radiel vs David Njogu Gachanja t/a D Njogu & Co Advocates [2006]eKLR
Following Igeria it is clear to me that the terms of the undertaking are clear ; the undertaking is to hold and release money upon the happening of an event; the event is the transfer into the name of the buyer. That event happened and nothing stands between the respondent and the honoring of the undertaking.
All these other issues being raised by the respondent are not part of the conditions contingent to the performance of the undertaking. They cannot render the undertaking unenforceable because they are not part of the undertaking. The only condition was the transfer of the property to the name of the buyer. That was done. Had it been intended that the issues raised by counsel would be part of the professional undertaking, they would have been expressed therein. Having not done that , this court can only consider the terms of the undertaking and whether they were fulfilled. It is clear that those terms are clear and the condition upon which the undertaking stood has been fulfilled. The vendor has complied. Respondent ought to have honored the undertaking on or before 29 th May 2024.
In my view the application has merit and is allowed as prayed.
What orders to size?
i. The Respondent be and is hereby ordered to honor the professional undertaking dated 7 th May 2024 within 7 days from 21 st January 2026, that is; pay the balance of the purchase price for the property LR 209/8294 (IR 29350) of Ksh 89,999/50 plus interest at court rates from 29 th May 2024.
ii. The applicant will have the costs of this suit
iii. Orders accordingly
Dated, signed and delivered via CTS this 20 th January 2025.
Mumbua T Matheka
Judge
Judgment HCCOMM/E011/ 2025 Page 2 of 2