1. Both the parties in this matter are practicing Advocates, and what is sought is enforcement of an Advocate’s professional undertaking under the provisions of Order 52 Rule 7 of the Civil Procedure Rules , arising from a gold-purchase deal in which the Applicant’s client is said to have been the “ buyer ” while the Respondent’s client was the “ seller ”.
2. This Ruling is in respect to a challenge raised against this Court’s jurisdiction, based on the ground of existence of an arbitration clause in the primary Agreement relating to this matter.
3. The matter was commenced by way of the Originating Summons dated 8/08/2023, in which the Applicant sought orders that the Respondent be compelled to pay to the Applicant a sum of USD 75,000 in enforcement of the Professional Undertaking dated 26/04/2021, and also a sum of USD 43,118.94, being additional amount paid to the seller’s shipping agent, together with interest thereon. The Application is supported by the lengthy 46-paragraph Affidavit sworn by the Applicant, and also the 36-paragraph Affidavit sworn by a representative of the Applicant’s said client (buyer).
4. In his Affidavit, the Applicant, in summary, deponed that his client, Quantaurum (UK & Wales) Limited (buyer), a company based in the United Kingdom, and the Respondent's client, Dashe Logistics (Uganda) Limited (seller), a company based in Uganda, entered into the Agreement dated 22/04/2021 for the Sale and Purchase of Au Gold, and that as a condition for release of upfront funds under the Agreement, the Respondent personally issued to him the letter of professional undertaking dated 26/04/2021. It was deponed that in the letter, the Respondent guaranteed “successful compliance with the contract by [his] clients” and admitted “full and unequivocal liability” for the proper application of the funds.” The Applicant deponed further that relying on that undertaking, his client (buyer) paid out the total sum of USD 118,118.94 upfront, but that the gold consignment was never delivered, and the Respondent has also failed to honour the undertaking. The above matters were reiterated in the second Affidavit sworn by the buyer’s representative as aforesaid
5. The Respondent, in opposition, through Messrs Mosota Abunga & Associates Advocates , filed the Replying Affidavit he swore on 14/12/2023, in which he basically denied liability.
6. The suit was thereafter referred to Court-Annexed Mediation which however turned out unsuccessful and the case returned for determination by the Court.
7. Subsequently, the Respondent, now represented by Messrs AVA Law LLP , filed a Notice of Preliminary Objection and also a Notice of Motion, both dated 9/10/2025, contending that the Court lacks jurisdiction, by dint of Section 6 of the Arbitration Act as read with the arbitration clause in the Agreement. It was also contended that the Applicant lacks the locus standi to institute this matter.
8. In opposition, the Applicant filed the Grounds of Opposition dated 12/06/2026, basically, contending that the Respondent’s said Notice of Motion is incompetent for want of compliance with Section 6(1) of the Arbitration Act . Regarding the challenge on locus , it was asserted that there is no privity between the parties to the suit and the forum-of-choice clause in the Agreement; and also that the Application is only calculated to delay this matter.
9. The parties were then granted leave to file written Submissions but only the Applicant appears to have filed the Submissions dated 12/06/2025.
10. In the Submissions, the Applicant, in response to the challenge on locus , urged that his cause of action is founded, not on the Agreement for Sale and Purchase of gold entered into by the clients, but on the independent professional undertaking given by the Respondent, in his capacity as an Advocate. He asserted that as such, no privity subsists between the Respondent and the arbitration clause relied upon. According to him therefore, the cause of action is independent and distinct from the contractual obligations arising from the Agreement, and that the Respondent’s liability arises from the undertaking, not from the Agreement. He also pointed out that the Applicant is not seeking any order of specific performance of the Agreement. On the challenge on jurisdiction or choice of forum, he contended that, in any event, the Respondent failed to invoke Section 6(1) of the Arbitration Act at the earliest opportunity as that provision, read together with Section 10 thereof, requires, taking of no steps in the proceedings before raising the objection. He also asserted that Section 6(1) does not contemplate a scenario where a Preliminary Objection is raised in challenging jurisdiction but rather, filing of an Application seeking stay of proceedings and referral of the dispute to Arbitration, which has not been done here.
Determination
11. Since the Respondent filed both a formal Application and a Notice of Preliminary raising the same matters, I will treat the latter as subsumed in the Application.
12. In the circumstances, the issues for determination in this matter, at this stage, are the following:
i) Whether this Court lacks jurisdiction, by dint of Section 6 of the Arbitration Act, to hear and determine this matter.
ii) Whether the Applicant possesses the necessary locus standi to institute the matter.
13. Regarding the 1 st issue, it must also be recalled that jurisdiction is a foundational issue that a Court must ascertain before proceeding to the merits, and this, in turn, is because if the Court upholds the objection, then that would be the death-bed of the entire proceedings, the Court having lost the mandate to venture into the merits of the dispute. As affirmed in several cases, ranging from the Court of Appeal locus classicus case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR , to the Supreme Court decision in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR , “jurisdiction is everything. Without it, a court has no power to make one more step” , and “a court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
14. Section 6(1) of the Arbitration Act which the Respondent relies on to allege the absence of jurisdiction provides as follows:
(1) A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—
(a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.
(2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.
(3) If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.
15. The wording of the above provision aligns with the Applicant’s submission that Section 6(1) is not about jurisdiction but choice of forum. Those are two different things in law. Section 6(1) does not therefore contemplate a scenario where an objection is raised in respect of jurisdiction as done by the Respondent in this case, but rather, it contemplates the filing of a formal Application seeking referral of the dispute to Arbitration. To this extent, since no such Application has been filed by the Respondent, the objection against jurisdiction is clearly misconceived and hopelessly fails at this very first hurdle.
16. Further, it is necessary to recognize that the footing upon which the Applicant’s cause action, and by extension, this Court’s jurisdiction thereon arises, is founded upon Order 52 Rule 7 of the Civil Procedure Rules . It is that provision that anchors the right to apply for enforcement of a professional undertaking given by an Advocate, where, as herein, the undertaking was not given in a pending suit. It also stipulates that the Application is to be brought by way of an Originating Summons filed in the High Court, which is precisely what the Applicant has done. This position has been asserted in many cases, for instance, in the case of Waruhiu K’owade & Ng’ang’a Advocates v Mutune Investment Limited [2016] eKLR , in which the Court of Appeal cited with approval the following statement made in the earlier case of Patel v Kairu [1999] 2 EA 297 (CAK) :
“the jurisdiction of the Court in an application for enforcement of a professional undertaking [is] a summary jurisdiction over advocates which should be exercised only in a clear case. It [is] an inherent jurisdiction which the Court [has] over advocates who [are] officials of the Court, not for the purposes of enforcing legal rights, but for purposes of enforcing honourable conduct on the part of the Court’s own officials.”
17. To the above extent therefore, the procedure invoked herein is the proper one, and the challenge against jurisdiction is therefore misconceived.
18. Regarding the challenge on the Applicant’s locus to bring this case, it is important to recognize that enforcement of a professional undertaking given by an Advocate is a jurisdiction of an entirely different character from the one contemplated by an arbitration clause between commercial parties, and it is against that backdrop that the Respondent’s challenge on locus must be tested. Section 6(1) of the Arbitration Act speaks to precisely that different footing as it gives the Court the power “in a matter which is the subject of an arbitration agreement” to stay those proceedings and refer the parties to arbitration. In this case, the dispute brought to Court by the Applicant cannot obviously qualify as “ a matter which is the subject of ” the Arbitration Agreement cited herein. I say so because the primary Agreement containing the arbitral clause is distinct and strictly between the “ Seller ”, and the “ Buyer ” - the corporate principals to the underlying gold sale and/or purchase transaction. Neither the Applicant nor the Respondent, who simply happen to be respective Advocates for the “ Seller ” and the “ Buyer ”, is a party to that Agreement in his personal capacity, or at all. The Respondent does even not feature in the Agreement at all, and the Applicant only appears as having witnessed appending of the signatures of his client’s representatives thereon.
19. Indeed, in the said case of Waruhiu K’Owade case (supra) , the Court of Appeal further stated that:
“In enforcing undertakings, the court is guided not by the considerations of contract, or of securing the legal rights of parties, but mainly by ensuring the honesty of advocates,” ,
20. Further, what the Originating Summons simply calls upon the Court to determine is whether the Respondent, in his capacity as an Advocate, gave a professional undertaking to the Applicant, and if so, whether he (Respondent) should be compelled to honour it. The issue in this case is therefore not about specific performance of the primary Agreement between the respective clients for sale and/or purchase of the gold, which is a separate contract between the clients. This position was affirmed by the Court of Appeal in the case of Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates v Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates [2019] eKLR .
21. The above position was also construed by the Court of Appeal in the case of Waruhiu K’Owade in terms of the doctrine of privity of contract, which the Court then applied in the context of a professional undertaking: This is what the Court stated:
“the doctrine of privity demands that only parties to a contract may be affected by the rights and duties that arise out of a contract... a person cannot acquire rights or be subject to liabilities arising under a contract to which he or she is not a party.”
22. The Court of Appeal, in the case of Harit Sheth t/a Harit Sheth Advocate v K. Osmond Advocates [2011] eKLR , also stated that:
“One last point we need to comment on is the submission by Mrs. Rashid, that the appellant and his client should have followed the debtor, meaning Banita Sisal Estate Ltd., to recover the money it owes. In her view this case is peculiar and the Court should depart from the usual practice of enforcing professional undertakings. With due respect to the learned counsel, a professional undertaking is given to an advocate on the authority of his client. It is based on the relationship which exists between the advocate and his client. An advocate who gives such a professional undertaking takes a risk. The risk is his own and he should not be heard to complain that it is too burdensome and that some one else should shoulder the responsibility of recovering the debt from his own client. A professional undertaking is a bond by an advocate to conduct himself as expected of him by the court to which he is an officer. No matter how painful it might be to honour it, the advocate is obliged to honour it if only to protect his own reputation as an officer of the court. The law gives him the right to sue his client to recover whatever sums of money he has incurred in honouring a professional undertaking. He cannot however sue to recover that amount unless he has first honoured his professional undertaking.”
23. Just as the Advocate in that case was not allowed to hide behind the client’s separate contractual debt to justify withholding funds held on a professional undertaking, the Respondent here cannot similarly invoke the distinct and separate dispute-resolution clause between the clients to defeat a claim targeted at his own personal undertaking. In short, there is no privity between the Applicant and the Respondent, on one hand, suit and the arbitration clause relied upon, on the other. The letter of undertaking was evidently given by an Advocate, in terms of a first-person personal guarantee, in his professional capacity, not merely as an agent for his client. This position was also affirmed by A. Mshila J in the case of Taib A. Taib Advocates v Firoz Nurali Hirji & Another; Housing Finance Company of Kenya (Third Party ) [2022] KEHC 15303 (KLR) , in which she held that a person who is not a party to an Agreement, cannot be bound to an arbitration clause appearing in that Agreement since as a general rule, a contract affects only the parties to it, and as such, cannot be enforced by, or against a person who is not a party thereto.
24. In this case, the Applicant sues as the direct and named beneficiary of the letter of professional undertaking dated 26/04/2021, which the Respondent has not denied issuing to the Applicant personally. A party in whose favour an Advocate’s undertaking is given, and who claims that it has been breached, plainly has sufficient interest in its enforcement. The claim by the Respondent that the Applicant lacks the locus standi to sue upon the undertaking cannot therefore be a serious one. Consequently, this second limb of the challenge raised by the Respondent must also fail.
25. In any event, even if the Court were to be persuaded that the arbitration clause could somehow be construed to apply as between the Applicant and the Respondent, the challenge on choice of forum, which the Respondent erroneously equates to being a challenge on jurisdiction, would still fail for want of timeous action by the Respondent. I say so because Section 6(1) of the Arbitration Act requires that an Application for referral to arbitration be made “ not later than the time when that party enters appearance ” or otherwise acknowledges the claim. This timing requirement is not a mere technicality; it is explicit, and must be strictly enforced. Indeed, the Court of Appeal, in the case of Eunice Soko Mlagui v Suresh Parmar & 4 others [2017] KECA 736 (KLR) , in holding that a party seeking a referral to Arbitration must apply so at the earliest opportunity, stated that:
“………….., the provision still requires a party to apply for referral of the dispute to arbitration at the time of entering appearance or before acknowledging the claim in question. In our minds, filing a defence constitutes acknowledgement of a claim within the meaning of the provision ... As this Court explained in Charles Njogu Lofty v Bedouin Enterprises Ltd (supra) and Niazons (K) Ltd v China Road & Bridge Corporation Kenya (supra), section 6(1) of the Arbitration Act obliges the party desiring referral of the dispute to arbitration to make the application promptly and at the earliest stage of the proceedings.”
26. Filing a defence, or otherwise substantively engaging with the suit on its merits constitutes acknowledgment of the claim within the meaning of Section 6(1) . That proviso, while promoting arbitration, also guards against delay, forum shopping, and a belated change of forum after a party has elected to litigate or has tested the Court process. A party cannot await the outcome of the litigation it has engaged with, and then invoke arbitration only when it suits it to do so.
27. In this case, the Respondent’s Advocates came on record about 3/10/2023, and thereafter, on or about 14/12/2023, filed a Replying Affidavit, substantively responding to the Applicant’s claim on merits – an unequivocal acknowledgment of the claim within the meaning of Section 6(1) . The matter was thereafter referred to Court Annexed Mediation, with the full participation of the Respondent’s Advocates, and a Mediator was then duly appointed around July 2024, but, unfortunately, the Mediation was not successful and the dispute was returned to Court. It was not until 9/10/2025, over 2 years after this matter was instituted, and more than a year after the Respondent had already filed the substantive Replying Affidavit, that the Respondent raised the purported jurisdictional challenge. The period contemplated by Section 6(1) had, by then, evidently already lapsed, and the right to apply for referral to Arbitration long lost.
Final Orders
28. In the circumstances, the Respondent’s Notice of Motion, and the Notice of Preliminary Objection, both dated 9/10/2025, are dismissed with costs to the Applicant.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18 TH DAY OF SEPTEMBER 2026
...........................................
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Ms. Eyase h/b for Dr. Alutalala for the Applicant in the main Application
N/A for the Respondent
Court Assistant: Amos Boso
2. This Ruling is in respect to a challenge raised against this Court’s jurisdiction, based on the ground of existence of an arbitration clause in the primary Agreement relating to this matter.
3. The matter was commenced by way of the Originating Summons dated 8/08/2023, in which the Applicant sought orders that the Respondent be compelled to pay to the Applicant a sum of USD 75,000 in enforcement of the Professional Undertaking dated 26/04/2021, and also a sum of USD 43,118.94, being additional amount paid to the seller’s shipping agent, together with interest thereon. The Application is supported by the lengthy 46-paragraph Affidavit sworn by the Applicant, and also the 36-paragraph Affidavit sworn by a representative of the Applicant’s said client (buyer).
4. In his Affidavit, the Applicant, in summary, deponed that his client, Quantaurum (UK & Wales) Limited (buyer), a company based in the United Kingdom, and the Respondent's client, Dashe Logistics (Uganda) Limited (seller), a company based in Uganda, entered into the Agreement dated 22/04/2021 for the Sale and Purchase of Au Gold, and that as a condition for release of upfront funds under the Agreement, the Respondent personally issued to him the letter of professional undertaking dated 26/04/2021. It was deponed that in the letter, the Respondent guaranteed “successful compliance with the contract by [his] clients” and admitted “full and unequivocal liability” for the proper application of the funds.” The Applicant deponed further that relying on that undertaking, his client (buyer) paid out the total sum of USD 118,118.94 upfront, but that the gold consignment was never delivered, and the Respondent has also failed to honour the undertaking. The above matters were reiterated in the second Affidavit sworn by the buyer’s representative as aforesaid
5. The Respondent, in opposition, through Messrs Mosota Abunga & Associates Advocates , filed the Replying Affidavit he swore on 14/12/2023, in which he basically denied liability.
6. The suit was thereafter referred to Court-Annexed Mediation which however turned out unsuccessful and the case returned for determination by the Court.
7. Subsequently, the Respondent, now represented by Messrs AVA Law LLP , filed a Notice of Preliminary Objection and also a Notice of Motion, both dated 9/10/2025, contending that the Court lacks jurisdiction, by dint of Section 6 of the Arbitration Act as read with the arbitration clause in the Agreement. It was also contended that the Applicant lacks the locus standi to institute this matter.
8. In opposition, the Applicant filed the Grounds of Opposition dated 12/06/2026, basically, contending that the Respondent’s said Notice of Motion is incompetent for want of compliance with Section 6(1) of the Arbitration Act . Regarding the challenge on locus , it was asserted that there is no privity between the parties to the suit and the forum-of-choice clause in the Agreement; and also that the Application is only calculated to delay this matter.
9. The parties were then granted leave to file written Submissions but only the Applicant appears to have filed the Submissions dated 12/06/2025.
10. In the Submissions, the Applicant, in response to the challenge on locus , urged that his cause of action is founded, not on the Agreement for Sale and Purchase of gold entered into by the clients, but on the independent professional undertaking given by the Respondent, in his capacity as an Advocate. He asserted that as such, no privity subsists between the Respondent and the arbitration clause relied upon. According to him therefore, the cause of action is independent and distinct from the contractual obligations arising from the Agreement, and that the Respondent’s liability arises from the undertaking, not from the Agreement. He also pointed out that the Applicant is not seeking any order of specific performance of the Agreement. On the challenge on jurisdiction or choice of forum, he contended that, in any event, the Respondent failed to invoke Section 6(1) of the Arbitration Act at the earliest opportunity as that provision, read together with Section 10 thereof, requires, taking of no steps in the proceedings before raising the objection. He also asserted that Section 6(1) does not contemplate a scenario where a Preliminary Objection is raised in challenging jurisdiction but rather, filing of an Application seeking stay of proceedings and referral of the dispute to Arbitration, which has not been done here.
Determination
11. Since the Respondent filed both a formal Application and a Notice of Preliminary raising the same matters, I will treat the latter as subsumed in the Application.
12. In the circumstances, the issues for determination in this matter, at this stage, are the following:
i) Whether this Court lacks jurisdiction, by dint of Section 6 of the Arbitration Act, to hear and determine this matter.
ii) Whether the Applicant possesses the necessary locus standi to institute the matter.
13. Regarding the 1 st issue, it must also be recalled that jurisdiction is a foundational issue that a Court must ascertain before proceeding to the merits, and this, in turn, is because if the Court upholds the objection, then that would be the death-bed of the entire proceedings, the Court having lost the mandate to venture into the merits of the dispute. As affirmed in several cases, ranging from the Court of Appeal locus classicus case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR , to the Supreme Court decision in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR , “jurisdiction is everything. Without it, a court has no power to make one more step” , and “a court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
14. Section 6(1) of the Arbitration Act which the Respondent relies on to allege the absence of jurisdiction provides as follows:
(1) A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—
(a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.
(2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.
(3) If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.
15. The wording of the above provision aligns with the Applicant’s submission that Section 6(1) is not about jurisdiction but choice of forum. Those are two different things in law. Section 6(1) does not therefore contemplate a scenario where an objection is raised in respect of jurisdiction as done by the Respondent in this case, but rather, it contemplates the filing of a formal Application seeking referral of the dispute to Arbitration. To this extent, since no such Application has been filed by the Respondent, the objection against jurisdiction is clearly misconceived and hopelessly fails at this very first hurdle.
16. Further, it is necessary to recognize that the footing upon which the Applicant’s cause action, and by extension, this Court’s jurisdiction thereon arises, is founded upon Order 52 Rule 7 of the Civil Procedure Rules . It is that provision that anchors the right to apply for enforcement of a professional undertaking given by an Advocate, where, as herein, the undertaking was not given in a pending suit. It also stipulates that the Application is to be brought by way of an Originating Summons filed in the High Court, which is precisely what the Applicant has done. This position has been asserted in many cases, for instance, in the case of Waruhiu K’owade & Ng’ang’a Advocates v Mutune Investment Limited [2016] eKLR , in which the Court of Appeal cited with approval the following statement made in the earlier case of Patel v Kairu [1999] 2 EA 297 (CAK) :
“the jurisdiction of the Court in an application for enforcement of a professional undertaking [is] a summary jurisdiction over advocates which should be exercised only in a clear case. It [is] an inherent jurisdiction which the Court [has] over advocates who [are] officials of the Court, not for the purposes of enforcing legal rights, but for purposes of enforcing honourable conduct on the part of the Court’s own officials.”
17. To the above extent therefore, the procedure invoked herein is the proper one, and the challenge against jurisdiction is therefore misconceived.
18. Regarding the challenge on the Applicant’s locus to bring this case, it is important to recognize that enforcement of a professional undertaking given by an Advocate is a jurisdiction of an entirely different character from the one contemplated by an arbitration clause between commercial parties, and it is against that backdrop that the Respondent’s challenge on locus must be tested. Section 6(1) of the Arbitration Act speaks to precisely that different footing as it gives the Court the power “in a matter which is the subject of an arbitration agreement” to stay those proceedings and refer the parties to arbitration. In this case, the dispute brought to Court by the Applicant cannot obviously qualify as “ a matter which is the subject of ” the Arbitration Agreement cited herein. I say so because the primary Agreement containing the arbitral clause is distinct and strictly between the “ Seller ”, and the “ Buyer ” - the corporate principals to the underlying gold sale and/or purchase transaction. Neither the Applicant nor the Respondent, who simply happen to be respective Advocates for the “ Seller ” and the “ Buyer ”, is a party to that Agreement in his personal capacity, or at all. The Respondent does even not feature in the Agreement at all, and the Applicant only appears as having witnessed appending of the signatures of his client’s representatives thereon.
19. Indeed, in the said case of Waruhiu K’Owade case (supra) , the Court of Appeal further stated that:
“In enforcing undertakings, the court is guided not by the considerations of contract, or of securing the legal rights of parties, but mainly by ensuring the honesty of advocates,” ,
20. Further, what the Originating Summons simply calls upon the Court to determine is whether the Respondent, in his capacity as an Advocate, gave a professional undertaking to the Applicant, and if so, whether he (Respondent) should be compelled to honour it. The issue in this case is therefore not about specific performance of the primary Agreement between the respective clients for sale and/or purchase of the gold, which is a separate contract between the clients. This position was affirmed by the Court of Appeal in the case of Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates v Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates [2019] eKLR .
21. The above position was also construed by the Court of Appeal in the case of Waruhiu K’Owade in terms of the doctrine of privity of contract, which the Court then applied in the context of a professional undertaking: This is what the Court stated:
“the doctrine of privity demands that only parties to a contract may be affected by the rights and duties that arise out of a contract... a person cannot acquire rights or be subject to liabilities arising under a contract to which he or she is not a party.”
22. The Court of Appeal, in the case of Harit Sheth t/a Harit Sheth Advocate v K. Osmond Advocates [2011] eKLR , also stated that:
“One last point we need to comment on is the submission by Mrs. Rashid, that the appellant and his client should have followed the debtor, meaning Banita Sisal Estate Ltd., to recover the money it owes. In her view this case is peculiar and the Court should depart from the usual practice of enforcing professional undertakings. With due respect to the learned counsel, a professional undertaking is given to an advocate on the authority of his client. It is based on the relationship which exists between the advocate and his client. An advocate who gives such a professional undertaking takes a risk. The risk is his own and he should not be heard to complain that it is too burdensome and that some one else should shoulder the responsibility of recovering the debt from his own client. A professional undertaking is a bond by an advocate to conduct himself as expected of him by the court to which he is an officer. No matter how painful it might be to honour it, the advocate is obliged to honour it if only to protect his own reputation as an officer of the court. The law gives him the right to sue his client to recover whatever sums of money he has incurred in honouring a professional undertaking. He cannot however sue to recover that amount unless he has first honoured his professional undertaking.”
23. Just as the Advocate in that case was not allowed to hide behind the client’s separate contractual debt to justify withholding funds held on a professional undertaking, the Respondent here cannot similarly invoke the distinct and separate dispute-resolution clause between the clients to defeat a claim targeted at his own personal undertaking. In short, there is no privity between the Applicant and the Respondent, on one hand, suit and the arbitration clause relied upon, on the other. The letter of undertaking was evidently given by an Advocate, in terms of a first-person personal guarantee, in his professional capacity, not merely as an agent for his client. This position was also affirmed by A. Mshila J in the case of Taib A. Taib Advocates v Firoz Nurali Hirji & Another; Housing Finance Company of Kenya (Third Party ) [2022] KEHC 15303 (KLR) , in which she held that a person who is not a party to an Agreement, cannot be bound to an arbitration clause appearing in that Agreement since as a general rule, a contract affects only the parties to it, and as such, cannot be enforced by, or against a person who is not a party thereto.
24. In this case, the Applicant sues as the direct and named beneficiary of the letter of professional undertaking dated 26/04/2021, which the Respondent has not denied issuing to the Applicant personally. A party in whose favour an Advocate’s undertaking is given, and who claims that it has been breached, plainly has sufficient interest in its enforcement. The claim by the Respondent that the Applicant lacks the locus standi to sue upon the undertaking cannot therefore be a serious one. Consequently, this second limb of the challenge raised by the Respondent must also fail.
25. In any event, even if the Court were to be persuaded that the arbitration clause could somehow be construed to apply as between the Applicant and the Respondent, the challenge on choice of forum, which the Respondent erroneously equates to being a challenge on jurisdiction, would still fail for want of timeous action by the Respondent. I say so because Section 6(1) of the Arbitration Act requires that an Application for referral to arbitration be made “ not later than the time when that party enters appearance ” or otherwise acknowledges the claim. This timing requirement is not a mere technicality; it is explicit, and must be strictly enforced. Indeed, the Court of Appeal, in the case of Eunice Soko Mlagui v Suresh Parmar & 4 others [2017] KECA 736 (KLR) , in holding that a party seeking a referral to Arbitration must apply so at the earliest opportunity, stated that:
“………….., the provision still requires a party to apply for referral of the dispute to arbitration at the time of entering appearance or before acknowledging the claim in question. In our minds, filing a defence constitutes acknowledgement of a claim within the meaning of the provision ... As this Court explained in Charles Njogu Lofty v Bedouin Enterprises Ltd (supra) and Niazons (K) Ltd v China Road & Bridge Corporation Kenya (supra), section 6(1) of the Arbitration Act obliges the party desiring referral of the dispute to arbitration to make the application promptly and at the earliest stage of the proceedings.”
26. Filing a defence, or otherwise substantively engaging with the suit on its merits constitutes acknowledgment of the claim within the meaning of Section 6(1) . That proviso, while promoting arbitration, also guards against delay, forum shopping, and a belated change of forum after a party has elected to litigate or has tested the Court process. A party cannot await the outcome of the litigation it has engaged with, and then invoke arbitration only when it suits it to do so.
27. In this case, the Respondent’s Advocates came on record about 3/10/2023, and thereafter, on or about 14/12/2023, filed a Replying Affidavit, substantively responding to the Applicant’s claim on merits – an unequivocal acknowledgment of the claim within the meaning of Section 6(1) . The matter was thereafter referred to Court Annexed Mediation, with the full participation of the Respondent’s Advocates, and a Mediator was then duly appointed around July 2024, but, unfortunately, the Mediation was not successful and the dispute was returned to Court. It was not until 9/10/2025, over 2 years after this matter was instituted, and more than a year after the Respondent had already filed the substantive Replying Affidavit, that the Respondent raised the purported jurisdictional challenge. The period contemplated by Section 6(1) had, by then, evidently already lapsed, and the right to apply for referral to Arbitration long lost.
Final Orders
28. In the circumstances, the Respondent’s Notice of Motion, and the Notice of Preliminary Objection, both dated 9/10/2025, are dismissed with costs to the Applicant.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18 TH DAY OF SEPTEMBER 2026
...........................................
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Ms. Eyase h/b for Dr. Alutalala for the Applicant in the main Application
N/A for the Respondent
Court Assistant: Amos Boso