1. The plaintiff filed an Originating Summons under the provisions of Order 37, Order 52 Rule 7 and Rule 10 of the Civil Procedure Rules, 2010 and Sections 1A, 1B & 3A of the Civil Procedure Act, and any other enabling provisions of the law. The plaintiff prays for orders that-
1. The defendant do honour the terms of the professional undertaking issued to the plaintiff on 10th April 2023 to immediately refund or cause to be refunded the funds received by the firm and all monies paid by the plaintiff in the sum of United States Dollars Fifty Thousand (US$50,000.00) upon rescission of the Agreement between the plaintiff and Messers Four Front Global Group.
2. The Court does issue an order to enforce the terms of the professional undertaking issued by the defendant to the plaintiff on 10th April 2023 to immediately refund or cause to be refunded the funds received by the firm and all monies paid by the plaintiff in the sum of United States Dollars Fifty Thousand (US$50,000.00) upon the rescission of the Agreement between the plaintiff and Messers Four Front Global together with interest thereon at 14% per annum from 25th April 2023 until payment in full; and
3. The defendant bears the costs of this suit.
2. The Summons are supported by the affidavit of Mr. Dale Michael Thornhill sworn on 22nd September 2023 in which he states that he is the Managing Director of TGI-Tontine Group International – FZE, the plaintiff herein. He also stated that the said plaintiff is a gold and diamond trading company incorporated in both Ajman Free Zone in the United Arab Emirates, with a sister company incorporated in the State of Florida in the United States of America to carry out trading of precious metals globally.
3. Mr. Thornhill averred that sometime in April 2023, the plaintiff procured gold from the Central African Republic (CAR) and as the Managing Director (MD) of the plaintiff, he instructed Mr. Moussa Harsene to transport the said gold from CAR to the plaintiff‘s head office in Dubai through Nairobi, Kenya. That on 5th April 2023, Mr. Moussa called him and told him that he had left Bangui with the gold and that he was expecting to arrive at Jomo Kenyatta International Airport (JKIA) in Nairobi on the same date.
4. Mr. Thornhill deposed that he did not hear from Mr. Moussa later on the same day and learnt later that he was detained upon arrival at JKIA on an allegation of having failed to have proper documentation for carriage of the gold, and that he was held incommunicado for two days until 7th April, 2023 when he was allowed to contact the deponent who was his instructing principal.
5. The deponent went on to explain how a female Customs Officer advised Mr. Moussa that she knew of someone who would assist in processing the proper customs and exportation documents, to which he agreed due to distress after being held incommunicado for two days. The deponent averred that the said Customs Officer introduced Mr. Peterson Onyango of Four Front Global Group Limited who took possession of the gold which was secured by the use of a safe. That Mr. Onyango informed Mr. Moussa that he would put his company bond to secure the release (of the gold) from customs.
6. Mr. Thornhill deposed that he spoke to Mr. Onyango on telephone and they orally agreed that the plaintiff would need to pay Four Front Global Group Limited (Four Front Global) to enable it to transfer ownership of the gold involved and the requisite taxes to enable the plaintiff’s gold to be authorized to be exported from Kenya to Dubai. He stated that he travelled to Kenya on 9th April 2023 to actualize the informal discussions and returned to Dubai on 12th April 2023, after meeting Mr. Onyango in his office on 10th April 2023.
7. The deponent stated that he verified the contents of the safe and an Agreement was entered into requiring the plaintiff to pay USD 60,000.00 as the processing fees to Four Front Global which would ensure that all documents required were processed and that the gold consignment would be transported to Dubai. That in the said meeting, it was agreed that the plaintiff would engage the services of Advocate Maloba Conrad Anangwe of the law firm Conrad Law to hold the USD 50,000.00 in escrow pending Four Front Global processing all necessary documentation for exportation of the gold to Dubai.
8. Mr. Thornhill stated that the plaintiff proceeded to enter into a professional undertaking with Mr. Maloba Conrad Anangwe of the law firm of Conrad Law specifically for USD 50,000.00. That it was further agreed that the gold was to be airlifted by way of hand carriage from Nairobi to Dubai in two parts, and the deponent booked two air tickets in advance awaiting approval from Four Front Global so that once all documents were ready, the gold could be transported as agreed.
9. He deposed that USD 50,000.00 was deposited to Conrad Law through a wire transfer to the designated bank account. Mr. Thornhill contended that by 25th April 2023, the plaintiff was not in receipt of its consignment even after Four Front Global informed him that it had attained all requisite documents.
10. He stated that he wrote to Conrad Law indicating that the Agreement had not been honoured and sought a refund of the USD 50,000.00 as per the professional undertaking. That thereafter, he made a follow up through an email dated 26th April 2023 but neither Mr. Maloba Conrad Anangwe of Conrad Law nor Peterson Onyango of Four Front Global have delivered to date as per the Agreement.
11. He added that was even so, after instructing the law firm of TripleOKLaw LLP Advocates to write a demand letter, which Mr. Maloba Conrad Anangwe of Conrad Maloba & Associates Advocates has failed and/or neglected to respond to.
12. He contended that it was a term of the professional undertaking that where the Agreement between the plaintiff and Four Front Global was rescinded, Maloba Conrad Anangwe of Conrad Maloba & Associates Advocates would immediately refund the funds received by the firm, and all monies paid by the plaintiff in the sum of USD 50,000.00. He averred that the defendant has made numerous entreaties both on telephone and in writing for the defendants to honour the terms of the professional undertaking but it has failed, refused and/or neglected to refund the same, as a result of which the plaintiff has suffered loss in the sum of USD 50,000.00 and other ancillary expenses.
13. The defendant filed a defence and counter-claim and a replying affidavit sworn on 29th February, 2024. In the said defence, the defendant avers that he was contacted by Mr. Peterson Onyango of Four Front Global to create an escrow account where he would hold USD 50,000.00 for a transaction between Mr. Peterson Onyango & Mr. Dale Thornhill Michael the Director of the plaintiff, and he proceeded to issue a professional undertaking to the plaintiff, vide a letter dated 10th April 2023. That he received monies on the same day and sent a reply email to Mr. Dale Thornhill Michael to confirm receipt of the funds and their email correspondence.
14. In the said defence, the defendant averred that on 7th May 2023 he was summoned to DCI Headquarters at the Economic and Commercial Crimes Department in respect to an ongoing investigation regarding Mr. Bernard Ouma and Directors of Four Front Global.
15. The defendant also averred that he learnt from investigators at the Economic and Commercial Crimes Department that Interpol was investigating a syndicate that had smuggled gold from the Congo and the Central African Republic, and that the group was attempting to transit through Nairobi, Kenya. The defendant also averred that investigators from the Directorate of Criminal Investigations had initiated investigations by way of a requisition to compel attendance as per Section 52 of the National Police Service Act.
16. The defendant averred that he was informed of an ongoing investigation due to his engagement with Mr. Dale Michael Thornhill and the investigators sought for orders to investigate his bank accounts with the intention to establish whether his firm Conrad Maloba & Associates Advocates was involved in possible criminal acts of money laundering and holding of proceeds of crime. He stated that he is yet to divulge any information due to Advocate-Client privilege until he receives formal Summons for criminal proceedings.
17. He stated that he has suffered mental stress and anguish due to being occasionally summoned to the Directorate of Criminal Investigation Headquarters, a process that has been time consuming. He also stated that his reputation as an Advocate has been affected since he currently has a pending case before the Advocates Disciplinary Tribunal and he is also being suspected of money laundering and holding funds suspected to be proceeds of crime.
18. In his counter-claim, the defendant (now plaintiff) claims for –
(i) General damages against the plaintiff (now defendant) for using his firm to advance criminal activities;
(ii) Costs of the suit and counter-claim;
(iii) Interest on (i) and (ii) above at Court rates; and
(iv) Any other relief that the Honourable Court may deem just and fit to grant.
19. The defendant also filed a replying affidavit sworn on 29th February 2024 to oppose the Originating Summons. He confirmed that he entered into a professional undertaking with the plaintiff on 10th April 2023 when Mr. Peterson Onyango an official of Four Front Global sought the defendant’s services. He deposed that the terms of the undertaking were anchored on the requirement that he was to open an escrow account to enable management and safe transition of the USD 50,000.00, which was to be paid upon successful payment of requisite taxes, transit fees and remittance of legal fees for opening the said escrow account of the gold consignment that was to be delivered by Four Front Global to the plaintiff.
20. The defendant asserted that he only received instructions to prepare the escrow account, which he did, and to ensure safe custody of the monies which were to be deposited in the client account as stipulated in the professional undertaking by the plaintiff.
21. He averred that they entered into an Agreement that legal fees emanating from the transaction would be subjected to the Advocates Remuneration Order and the funds would be held in the client account until performance of the contract.
22. The defendant contended that the professional undertaking in issue was complied with, but it is unenforceable to the extent that it refers to that which was not within his control. That he was to ensure that the money given and received on the strength of a professional undertaking was not utilized for any other purpose other than what it was intended for, which was to transmit it to Four Front Global upon successful performance of the contract.
23. He contended that he was not to step in for the parties and take over the performance of the contract on their behalf, such that liability for breach (if any) was to be incurred by himself. He stated that purporting that the alleged failure by Four Front Global to deliver the consignment should be shouldered by himself would lead to a travesty of justice as he shall have been made a party to the contractual Agreement and punished for their omissions yet he did not benefit from the alleged breach, nor was he a party to the contract.
24. He deposed that he issued the professional undertaking in his capacity as an Advocate hence his duty was limited to issuing legal counsel to his client in respect to its contractual obligations. He further deposed that his assignment involved opening an escrow account and remitting the monies upon performance of the contract to the Four Front Global, but he was not to ensure and confirm delivery of the consignment.
25. He contended that the plaintiff is seeking restitution against him, yet he was not privy to the contract and he was not holding the money in his account to be refunded in the case of any illegality.
26. He stated that the question of performance of the contract or its breach is strictly implied between Four Front Global, and that the professional undertaking ought not to be used to seek remedies for breach of contract arising from matters subject to any illegality.
27. He denied any wrong doing on his part since he was only required to refund the money paid if Mr. Dale Michael chose to rescind the contract. He contended that the monies received are linked to proceeds of crime and subject to an ongoing criminal investigation.
28. The rest of the averments in the defendant’s replying affidavit are similar to what I have already captured from his statement of defence and counter-claim of how he was summoned to the DCI Headquarters at the Economic and Commercial Crimes Department in respect investigations regarding Mr. Bernard Ouma and the Directors of Four Front Global.
29. Mr. Dale Michael Thornhill filed a supplementary affidavit sworn on 6th May, 2024 wherein he stated that the replying affidavit is full of false and untruthful statements by the defendant. He averred that the defendant bound himself to the terms of the professional undertaking which he was personally liable for, if they were not honoured. He further averred that the undertaking was clear, unambiguous, unequivocal and binding on the defendant.
30. Mr. Thornhill deposed that the defendant undertook to immediately refund the plaintiff in the event that it elected to rescind the Agreement, which it did, but the defendant has not refunded the funds to date.
31. The plaintiff denied that there was any illegality in the transaction and contended that the alleged criminal proceedings have no bearing to the matter before this Court and do not discharge the defendant’s duty to honour his obligations to the plaintiff.
32. He averred that his Advocate had advised him that a professional undertaking is a binding contract between a donor, who is the defendant herein, and that it is a separate Agreement from the contract between the plaintiff and Four Front Global.
33. The plaintiff also filed a reply to the defence and defence to the counter-claim dated 6th May, 2024. The plaintiff denied any allegation of illegality in the transaction and put the defendant to strict proof thereof. The plaintiff averred that the defendant has made a general allegation of illegality without providing particulars thereof as required under Order 2 Rule 10 of the Civil Procedure Rules, 2010.
34. The plaintiff averred that the defendant’s defence and counter-claim is poorly pleaded, consists of no triable issues, are mere denials, false and irrelevant statements.
35. The plaintiff denied that the defendant is entitled to any of the reliefs claimed under paragraph 11 and prayers (i), (ii), (iii) and (iv) of the defence and counter-claim. The plaintiff’s prayer is for the defendant’s entire suit to be dismissed with costs to the plaintiff.
36. The parties’ Advocates filed written submissions which were highlighted on 1st October 2024. The plaintiff’s submissions were filed by the law firm of TripleOKLaw LLP Advocates. The defendant’s submissions were filed by Mosota Abunga & Associates Advocates LLP.
37. In highlighting the said submissions, Mr. Njuguna, learned Counsel for the plaintiff stated that the plaintiff entered into an Agreement with a company known as Four Front Global for transportation of gold from Nairobi, Kenya to Dubai. He further stated that the plaintiff was to pay USD 50,000.00 to Four Front Global to be utilized by the plaintiff to secure various approvals for safe delivery of the gold. He submitted that the plaintiff instructed the defendant to issue a professional undertaking, which was issued by the defendant to the plaintiff, where the defendant undertook to receive various sums deposited in its account and if the Agreement between the plaintiff and Four Front Global was rescinded, the defendant would refund the money.
38. In reference to the defence and counter-claim filed by the defendant, Mr. Njuguna contended that it does not meet the requirements of the Civil Procedure Rules, 2010 as the defendant in the counter-claim did not particularize the claim.
39. As to whether there was breach of the professional undertaking, Counsel indicated that Clause 3 provides that in case of rescission of the contract between the plaintiff and Four Front Global, the money would be refunded.
40. Mr. Njuguna stated that the USD 50,000.00 was deposited with the defendant but the Agreement between the plaintiff and Four Front Global was rescinded and the information was communicated to the defendant, who was requested to refund the money which had been deposited with him, but it has never been refunded.
41. Counsel contended that there was breach of the professional undertaking. He relied on the case of Warui K’Owade & Ng’ang’a Advocates v Mutune Investments Ltd [2016] eKLR, which set out an Advocate’s obligations under a professional undertaking.
42. Counsel also cited the case of Arthur K. Igeria T/a Igeria & Co. Advocates v Michael Ndaiga [2017] eKLR, on the requirements that a Court should consider so as to enforce a professional undertaking, and that such an undertaking must be clear, unambiguous and capable of being performed.
43. Mr. Njuguna submitted that in this instance, the test has been met because the undertaking was clear, and especially under Clause 2 of the undertaking, it is capable of being performed. He stated that what is required is a refund of the money as the event that was envisioned being rescission of the contract had occurred.
44. He contended that the responses filed by the defendant only introduce two new aspects such as the defendant not being privy to the contract between the plaintiff and Four Front Global and that the contract was illegal, which issues Mr. Kariuki indicated they had responded to in their supplementary affidavit.
45. He asserted that a professional undertaking serves the purpose of making a transaction easier, and that it is only part and parcel of the larger transaction. He stated that one cannot avoid a transaction on the basis of privity of contract.
46. Mr. Njuguna referred to the Summons mentioned by the defendant requiring Mr. Conrad Maloba Advocate to appear before the DCI, and contended that was not proof of an illegality, and that even when an illegality has been disclosed, that does not preclude an Advocate from honouring a professional undertaking.
47. On her part, Ms Moenga, learned Counsel for the defendant indicated that the defendant was not denying that he issued a professional undertaking dated 10th April 2023 to the plaintiff after being contacted by Mr. Peterson of Four Front Global.
48. Counsel stated that the defendant was required to hold the money and wait for instructions from the plaintiff on when to pay it to Four Front Global. She indicated that the defendant has been holding the money in an escrow account for the plaintiff.
49. Ms Moenga referred to two requisitions dated 10th July 2023 and 2nd October 2023 from the DCI sent to Conrad Maloba summoning him to DCI Headquarters. She stated that when he received them, he was informed that Mr. Dale Michael Thornhill was being investigated for money laundering and smuggling of illegal minerals through Kenya.
50. She further stated that Mr. Maloba was informed that the police had realized that there was continuous communication between him and Mr. Dale. She contended that after receipt of the Summons, the defendant is not in a position to remove the money from the account. She stated that the defendant informed her that the DCI was still investigating and they allege that the money is illegal proceeds of crime, but Mr. Maloba divulged nothing to the DCI due to Client/Advocate confidentiality. She indicated that she did not know if Mr. Dale had been charged with any offence.
51. Counsel relied on the case of Kenya Anti-Corruption Commission v Stanley Mombo Amuti (supra), in submitting that the plaintiff should first allow the Investigating Officers to conduct their investigations on the issue of the illegal funds and possible acts of money laundering before claiming a refund of the money, and if it is found that the money is not proceeds of crime, then the defendant will honour the undertaking.
52. Ms Moenga submitted that the defendants counter-claim is on the defendant’s reputation as he has a case filed by the plaintiff before the Advocates. Disciplinary Tribunal about the money in issue. She urged this Court to grant the defendant general damages for using his firm to advance criminal activities. She contended that the plaintiff filed the suit herein with unclean hands when knowing that he was being investigated for money laundering. She stated that the defendant has been occasioned mental stress due to the transaction with the plaintiff and prays for damages.
53. In a rejoinder, Mr. Njuguna pointed out that the justification for not honouring the professional undertaking had been given due to ongoing investigations, but contended that the requisitions from the DCI exhibited by the defendant made no reference to the plaintiff and there was no way of ascertaining if they relate to the money being held by the defendant. He stated that professional undertaking is governed by the Advocates code of standards of professional practice and ethical conduct published vide Gazette Notice 5212 of 26th May, 2017.
54. He submitted that a professional undertaking has to be performed, released or excused, but none of the three requirements have been satisfied by the defendant. Counsel posited that the carrying out of investigations does not fall under the said requirements.
ANALYSIS AND DETERMINATION
55. I have read the Originating Summons, the supporting affidavit, the replying affidavit, and the supplementary affidavit filed by the parties. I have also read the defence and counter-claim and the reply to the defence and the defence to the counter-claim. I have also read the submissions filed by Counsel for the parties. The issues for determination are -
(i) If the defendant should be compelled to honour the professional undertaking dated 10th April 2023; and
(ii) If the defendant is entitled to the remedies sought in his counter-claim.
56. Order 52 Rule 7 of the Civil Procedure Rules, 2010 makes provisions governing professional undertakings. The said provisions state as follows-
1) An application for an order of 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) …………………………….
2) Save for resolutions 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. (Emphasis added).
57. In the case of Harit Sheth t/a Harit Sheth Advocate v K Osmond Advocates [2011] eKLR (Civil Appeal No. 276 of 2001), the Court defined a professional undertaking in the following words -
A professional undertaking is a bond by 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 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 someone else should shoulder the responsibility of recovering the debt from his own client. A professional undertaking is a bond 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 if only to protect his own reputation as an officer of the Court.
58. In the case of Waruhiu K’Owade & Ng’ang’a Advocates v Mutune Investment Limited (supra), the Court held as follows on an Advocate’s obligations on professional undertakings –
Our answer is that a professional undertaking is an unequivocal promise made by a party to another either to do or to refrain from doing something or acting in a manner which may prejudice the right of the opposite party, to which liability may attach. See Equip Agencies Limited v Credit Bank Limited [2008] 2 E.A. 115 (HFCK).
Generally speaking, professional undertakings are given by Advocates in order to make transactions easier, faster and more convenient. Where an Advocate breaches a professional undertaking, the Court has jurisdiction to order the enforcement of that undertaking. In enforcing undertakings, the Court is guided not by considerations of contract, or of securing the legal rights of parties, but mainly by ensuring the honesty of Advocates.
59. In this case, the Managing Partner of Conrad Maloba & Associates Advocates gave a professional undertaking dated 10th April 2023 for management of clients funds at the request of the plaintiff herein. The said undertaking reads in part as follows:
“In consideration of you transferring and releasing to our clients account the said sums, we hereby issue you our professional undertaking as follows;-
1) THAT this firm undertakes and guarantees performance of the Terms of Engagement between you and the firm.
2) THAT we will hold the funds received on your behalf in trust as directed under the terms of any instructions expressly issued to us to your order unless otherwise expressly instructed.
3) THAT in the event that you elect to rescind the Agreement and upon such rescission we hereby undertake to immediately refund or cause to be refunded the funds received by the firm and all the monies paid by you or your associates and/or assigns to this firm on your behalf.
4) …………………………………..
5) …………………………………..
6) We acknowledge that unless and until we complete any transaction expressly instructed by you on the distribution and utilization of funds in our custody received on your behalf and held by us as stakeholders under the terms herein, we shall not be discharged from this undertaking and obligations herein and you shall be at liberty to exercise all rights as contained in our undertaking to you.”
60. The above professional undertaking was a solemn covenant that bound the defendant to honour the said undertaking. It was clear, unequivocal, unambiguous and left nothing to speculation. In the defence and counter-claim filed and the replying affidavit, the defendant claims that it is being dragged into the non-performance of the contract between the plaintiff and Four Front Global, to which it was not privy to. Having combed through the documents filed by the plaintiff, nowhere in the Originating Summons or affidavits did I see the plaintiff blaming the defendant for the non-transportation of the gold in issue from Nairobi, Kenya to Dubai, or breach of contract between the plaintiff and Four Front Global.
61. The plaintiff’s pleadings are succinct that it is seeking to have the defendant ordered to honour the professional undertaking he gave to the plaintiff. The plaintiff’s pleadings and averments leave no doubt that the plaintiff entered into a contract with Four Front Global on one hand, and a separate contract with the defendant on the other hand. The professional undertaking was meant to protect funds meant to facilitate Four Front Global in payment of taxes and obtaining approvals for transportation of the gold to Dubai, from Nairobi, Kenya and actual transportation of the said gold.
62. The defendant did not deny having received a transfer of USD 50,000.00 from Dale Thornhill on 10th April 2023, sent by wire transfer. Following the failure by Four Front Global to deliver the plaintiff’s cargo of gold to Dubai, on 25th April 2023, Mr. Dale Thornhill sent an email to Conrad Maloba Advocate of the defendant law firm wherein he requested for the sum for USD 50,000.00 to be refunded to him. Mr. Thornhill gave his bank account details in the said email.
63. The said email was followed by a letter dated 19th May 2023 addressed to the defendant by the law firm of TripleOKLaw LLP Advocates on the instructions of the plaintiff. In the said letter, a demand was made for the immediate repayment of the sum of USD 50,000.00 to their client’s account.
64. The email by Mr. Thornhill and the letter by TripleOKLaw LLP Advocates seems not to have elicited any response and the plaintiff proceeded to file this suit.
65. In the counter-claim, the defendant contends that he has not released the USD 50,000.00 to the plaintiff because the DCI is investigating Mr. Dale Thornhill for smuggling of precious metals and money laundering. The defendant asserts that until investigations are complete, he cannot part with the said money.
66. A perusal of the documents annexed to the defendant’s replying affidavit do not show that since the demand for the refund of USD 50,000.00 was made, which is more than 1 year and 8 months ago, Mr. Dale Thornhill has been charged with any criminal offence(s) and that a Court of law has frozen the USD 50,000.00 in the defendant’s bank account due to the defendant being suspected of being involved in money laundering activities. The two documents exhibited by the defendant in his replying affidavit cannot pass muster, as the Summons requiring Mr. Conrad Maloba to visit the DCI Headquarters for inquiries for the offence of money laundering and conspiracy to commit a felony, cannot be equated to an investigation process that has been finalized leading to charging of a suspect and conviction. As it stands, Messers Dale Thornhill and Conrad Maloba have not been charged and convicted of any criminal offence(s) arising from the plaintiff’s deposit of the USD 50,000.00 with the defendant under the professional undertaking. The allegation that the USD 50,000.00 was tainted with illegality is unsupported by any evidence. For the said reason, the defendant has no colour of right to withhold the USD 50,000.00 from the plaintiff.
67. I therefore come to the conclusion that the defendant has a legal obligation to honour the terms of the professional undertaking dated 10th April 2023 following the rescission of the Agreement between the plaintiff and Four Front Global Group.
68. Having found that the plaintiff’s Managing Director, Mr. Dale Thornhill has not been charged and convicted of any criminal offence(s), the prayer sought in the counter-claim against the plaintiff to the effect that the plaintiff used his firm to advance criminal activities fall by the wayside. If anything, the defendant’s claim as per the counter-claim was filed prematurely. I agree with Mr. Njuguna that the allegation of illegality was not particularized as required. It is my finding that the counter-claim does not disclose any enforceable cause of action. As a result, I hereby dismiss it with costs to the plaintiff in the main suit.
1. The plaintiff prays for interest on the amount of USD 50,000.00 which has been kept away from it. Courts have held that amounts due from professional undertakings attract interest. See the case of Nelson Andayi Havi t/a Havi & Company Advocates v Jane Muthoni Njage t/a J.M Njage & Company Advocates [2015] eKLR, where the Court held as follows –
It may be said that, conduct such as being complicit in or deliberately withholding Plaintiff’s money would earn the advocate penalty in form of interest for having denied the Plaintiff his money. See the case of Naphatali Paul Radier v David Njogu Gachanja HCCC No.582 of 2003 (OS) where Justice H.P.G Waweru held as follows:-
“The Defendant has withheld the Plaintiff’s money from August 2002. Justice demands that he pays it with interest. As no particular rate of interest was contracted, I shall award at court rates”.
69. The plaintiff prays for enforcement of the professional undertaking. The issue of enforcement will only arise if the plaintiff fails to honour the professional undertaking.
70. The final orders are –
(i) That the defendant is hereby ordered to honour the terms of the professional undertaking issued to the plaintiff on 10th April 2023 and to refund within seven (7) working days the funds received by the firm of Conrad Maloba & Associates Advocates in the sum of USD 50,000.00 following rescission of the Agreement between the plaintiff and Four Front Global Group Limited;
(ii) The defendant shall pay interest on the sum of USD 50,000.00 with effect from 25th April 2023 being the date when the first demand for refund of the said amount was made by the plaintiff. Interest will be at Court rates;
(iii) Costs of the main suit are awarded to the plaintiff; and
(iv) Costs of the counter-claim are awarded to the plaintiff in the main suit, TGI-Tontine Group International FZE.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 14th day of February, 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Moenga for the applicant
No appearance for the respondent
Ms B. Wokabi – Court Assistant.
1. The defendant do honour the terms of the professional undertaking issued to the plaintiff on 10th April 2023 to immediately refund or cause to be refunded the funds received by the firm and all monies paid by the plaintiff in the sum of United States Dollars Fifty Thousand (US$50,000.00) upon rescission of the Agreement between the plaintiff and Messers Four Front Global Group.
2. The Court does issue an order to enforce the terms of the professional undertaking issued by the defendant to the plaintiff on 10th April 2023 to immediately refund or cause to be refunded the funds received by the firm and all monies paid by the plaintiff in the sum of United States Dollars Fifty Thousand (US$50,000.00) upon the rescission of the Agreement between the plaintiff and Messers Four Front Global together with interest thereon at 14% per annum from 25th April 2023 until payment in full; and
3. The defendant bears the costs of this suit.
2. The Summons are supported by the affidavit of Mr. Dale Michael Thornhill sworn on 22nd September 2023 in which he states that he is the Managing Director of TGI-Tontine Group International – FZE, the plaintiff herein. He also stated that the said plaintiff is a gold and diamond trading company incorporated in both Ajman Free Zone in the United Arab Emirates, with a sister company incorporated in the State of Florida in the United States of America to carry out trading of precious metals globally.
3. Mr. Thornhill averred that sometime in April 2023, the plaintiff procured gold from the Central African Republic (CAR) and as the Managing Director (MD) of the plaintiff, he instructed Mr. Moussa Harsene to transport the said gold from CAR to the plaintiff‘s head office in Dubai through Nairobi, Kenya. That on 5th April 2023, Mr. Moussa called him and told him that he had left Bangui with the gold and that he was expecting to arrive at Jomo Kenyatta International Airport (JKIA) in Nairobi on the same date.
4. Mr. Thornhill deposed that he did not hear from Mr. Moussa later on the same day and learnt later that he was detained upon arrival at JKIA on an allegation of having failed to have proper documentation for carriage of the gold, and that he was held incommunicado for two days until 7th April, 2023 when he was allowed to contact the deponent who was his instructing principal.
5. The deponent went on to explain how a female Customs Officer advised Mr. Moussa that she knew of someone who would assist in processing the proper customs and exportation documents, to which he agreed due to distress after being held incommunicado for two days. The deponent averred that the said Customs Officer introduced Mr. Peterson Onyango of Four Front Global Group Limited who took possession of the gold which was secured by the use of a safe. That Mr. Onyango informed Mr. Moussa that he would put his company bond to secure the release (of the gold) from customs.
6. Mr. Thornhill deposed that he spoke to Mr. Onyango on telephone and they orally agreed that the plaintiff would need to pay Four Front Global Group Limited (Four Front Global) to enable it to transfer ownership of the gold involved and the requisite taxes to enable the plaintiff’s gold to be authorized to be exported from Kenya to Dubai. He stated that he travelled to Kenya on 9th April 2023 to actualize the informal discussions and returned to Dubai on 12th April 2023, after meeting Mr. Onyango in his office on 10th April 2023.
7. The deponent stated that he verified the contents of the safe and an Agreement was entered into requiring the plaintiff to pay USD 60,000.00 as the processing fees to Four Front Global which would ensure that all documents required were processed and that the gold consignment would be transported to Dubai. That in the said meeting, it was agreed that the plaintiff would engage the services of Advocate Maloba Conrad Anangwe of the law firm Conrad Law to hold the USD 50,000.00 in escrow pending Four Front Global processing all necessary documentation for exportation of the gold to Dubai.
8. Mr. Thornhill stated that the plaintiff proceeded to enter into a professional undertaking with Mr. Maloba Conrad Anangwe of the law firm of Conrad Law specifically for USD 50,000.00. That it was further agreed that the gold was to be airlifted by way of hand carriage from Nairobi to Dubai in two parts, and the deponent booked two air tickets in advance awaiting approval from Four Front Global so that once all documents were ready, the gold could be transported as agreed.
9. He deposed that USD 50,000.00 was deposited to Conrad Law through a wire transfer to the designated bank account. Mr. Thornhill contended that by 25th April 2023, the plaintiff was not in receipt of its consignment even after Four Front Global informed him that it had attained all requisite documents.
10. He stated that he wrote to Conrad Law indicating that the Agreement had not been honoured and sought a refund of the USD 50,000.00 as per the professional undertaking. That thereafter, he made a follow up through an email dated 26th April 2023 but neither Mr. Maloba Conrad Anangwe of Conrad Law nor Peterson Onyango of Four Front Global have delivered to date as per the Agreement.
11. He added that was even so, after instructing the law firm of TripleOKLaw LLP Advocates to write a demand letter, which Mr. Maloba Conrad Anangwe of Conrad Maloba & Associates Advocates has failed and/or neglected to respond to.
12. He contended that it was a term of the professional undertaking that where the Agreement between the plaintiff and Four Front Global was rescinded, Maloba Conrad Anangwe of Conrad Maloba & Associates Advocates would immediately refund the funds received by the firm, and all monies paid by the plaintiff in the sum of USD 50,000.00. He averred that the defendant has made numerous entreaties both on telephone and in writing for the defendants to honour the terms of the professional undertaking but it has failed, refused and/or neglected to refund the same, as a result of which the plaintiff has suffered loss in the sum of USD 50,000.00 and other ancillary expenses.
13. The defendant filed a defence and counter-claim and a replying affidavit sworn on 29th February, 2024. In the said defence, the defendant avers that he was contacted by Mr. Peterson Onyango of Four Front Global to create an escrow account where he would hold USD 50,000.00 for a transaction between Mr. Peterson Onyango & Mr. Dale Thornhill Michael the Director of the plaintiff, and he proceeded to issue a professional undertaking to the plaintiff, vide a letter dated 10th April 2023. That he received monies on the same day and sent a reply email to Mr. Dale Thornhill Michael to confirm receipt of the funds and their email correspondence.
14. In the said defence, the defendant averred that on 7th May 2023 he was summoned to DCI Headquarters at the Economic and Commercial Crimes Department in respect to an ongoing investigation regarding Mr. Bernard Ouma and Directors of Four Front Global.
15. The defendant also averred that he learnt from investigators at the Economic and Commercial Crimes Department that Interpol was investigating a syndicate that had smuggled gold from the Congo and the Central African Republic, and that the group was attempting to transit through Nairobi, Kenya. The defendant also averred that investigators from the Directorate of Criminal Investigations had initiated investigations by way of a requisition to compel attendance as per Section 52 of the National Police Service Act.
16. The defendant averred that he was informed of an ongoing investigation due to his engagement with Mr. Dale Michael Thornhill and the investigators sought for orders to investigate his bank accounts with the intention to establish whether his firm Conrad Maloba & Associates Advocates was involved in possible criminal acts of money laundering and holding of proceeds of crime. He stated that he is yet to divulge any information due to Advocate-Client privilege until he receives formal Summons for criminal proceedings.
17. He stated that he has suffered mental stress and anguish due to being occasionally summoned to the Directorate of Criminal Investigation Headquarters, a process that has been time consuming. He also stated that his reputation as an Advocate has been affected since he currently has a pending case before the Advocates Disciplinary Tribunal and he is also being suspected of money laundering and holding funds suspected to be proceeds of crime.
18. In his counter-claim, the defendant (now plaintiff) claims for –
(i) General damages against the plaintiff (now defendant) for using his firm to advance criminal activities;
(ii) Costs of the suit and counter-claim;
(iii) Interest on (i) and (ii) above at Court rates; and
(iv) Any other relief that the Honourable Court may deem just and fit to grant.
19. The defendant also filed a replying affidavit sworn on 29th February 2024 to oppose the Originating Summons. He confirmed that he entered into a professional undertaking with the plaintiff on 10th April 2023 when Mr. Peterson Onyango an official of Four Front Global sought the defendant’s services. He deposed that the terms of the undertaking were anchored on the requirement that he was to open an escrow account to enable management and safe transition of the USD 50,000.00, which was to be paid upon successful payment of requisite taxes, transit fees and remittance of legal fees for opening the said escrow account of the gold consignment that was to be delivered by Four Front Global to the plaintiff.
20. The defendant asserted that he only received instructions to prepare the escrow account, which he did, and to ensure safe custody of the monies which were to be deposited in the client account as stipulated in the professional undertaking by the plaintiff.
21. He averred that they entered into an Agreement that legal fees emanating from the transaction would be subjected to the Advocates Remuneration Order and the funds would be held in the client account until performance of the contract.
22. The defendant contended that the professional undertaking in issue was complied with, but it is unenforceable to the extent that it refers to that which was not within his control. That he was to ensure that the money given and received on the strength of a professional undertaking was not utilized for any other purpose other than what it was intended for, which was to transmit it to Four Front Global upon successful performance of the contract.
23. He contended that he was not to step in for the parties and take over the performance of the contract on their behalf, such that liability for breach (if any) was to be incurred by himself. He stated that purporting that the alleged failure by Four Front Global to deliver the consignment should be shouldered by himself would lead to a travesty of justice as he shall have been made a party to the contractual Agreement and punished for their omissions yet he did not benefit from the alleged breach, nor was he a party to the contract.
24. He deposed that he issued the professional undertaking in his capacity as an Advocate hence his duty was limited to issuing legal counsel to his client in respect to its contractual obligations. He further deposed that his assignment involved opening an escrow account and remitting the monies upon performance of the contract to the Four Front Global, but he was not to ensure and confirm delivery of the consignment.
25. He contended that the plaintiff is seeking restitution against him, yet he was not privy to the contract and he was not holding the money in his account to be refunded in the case of any illegality.
26. He stated that the question of performance of the contract or its breach is strictly implied between Four Front Global, and that the professional undertaking ought not to be used to seek remedies for breach of contract arising from matters subject to any illegality.
27. He denied any wrong doing on his part since he was only required to refund the money paid if Mr. Dale Michael chose to rescind the contract. He contended that the monies received are linked to proceeds of crime and subject to an ongoing criminal investigation.
28. The rest of the averments in the defendant’s replying affidavit are similar to what I have already captured from his statement of defence and counter-claim of how he was summoned to the DCI Headquarters at the Economic and Commercial Crimes Department in respect investigations regarding Mr. Bernard Ouma and the Directors of Four Front Global.
29. Mr. Dale Michael Thornhill filed a supplementary affidavit sworn on 6th May, 2024 wherein he stated that the replying affidavit is full of false and untruthful statements by the defendant. He averred that the defendant bound himself to the terms of the professional undertaking which he was personally liable for, if they were not honoured. He further averred that the undertaking was clear, unambiguous, unequivocal and binding on the defendant.
30. Mr. Thornhill deposed that the defendant undertook to immediately refund the plaintiff in the event that it elected to rescind the Agreement, which it did, but the defendant has not refunded the funds to date.
31. The plaintiff denied that there was any illegality in the transaction and contended that the alleged criminal proceedings have no bearing to the matter before this Court and do not discharge the defendant’s duty to honour his obligations to the plaintiff.
32. He averred that his Advocate had advised him that a professional undertaking is a binding contract between a donor, who is the defendant herein, and that it is a separate Agreement from the contract between the plaintiff and Four Front Global.
33. The plaintiff also filed a reply to the defence and defence to the counter-claim dated 6th May, 2024. The plaintiff denied any allegation of illegality in the transaction and put the defendant to strict proof thereof. The plaintiff averred that the defendant has made a general allegation of illegality without providing particulars thereof as required under Order 2 Rule 10 of the Civil Procedure Rules, 2010.
34. The plaintiff averred that the defendant’s defence and counter-claim is poorly pleaded, consists of no triable issues, are mere denials, false and irrelevant statements.
35. The plaintiff denied that the defendant is entitled to any of the reliefs claimed under paragraph 11 and prayers (i), (ii), (iii) and (iv) of the defence and counter-claim. The plaintiff’s prayer is for the defendant’s entire suit to be dismissed with costs to the plaintiff.
36. The parties’ Advocates filed written submissions which were highlighted on 1st October 2024. The plaintiff’s submissions were filed by the law firm of TripleOKLaw LLP Advocates. The defendant’s submissions were filed by Mosota Abunga & Associates Advocates LLP.
37. In highlighting the said submissions, Mr. Njuguna, learned Counsel for the plaintiff stated that the plaintiff entered into an Agreement with a company known as Four Front Global for transportation of gold from Nairobi, Kenya to Dubai. He further stated that the plaintiff was to pay USD 50,000.00 to Four Front Global to be utilized by the plaintiff to secure various approvals for safe delivery of the gold. He submitted that the plaintiff instructed the defendant to issue a professional undertaking, which was issued by the defendant to the plaintiff, where the defendant undertook to receive various sums deposited in its account and if the Agreement between the plaintiff and Four Front Global was rescinded, the defendant would refund the money.
38. In reference to the defence and counter-claim filed by the defendant, Mr. Njuguna contended that it does not meet the requirements of the Civil Procedure Rules, 2010 as the defendant in the counter-claim did not particularize the claim.
39. As to whether there was breach of the professional undertaking, Counsel indicated that Clause 3 provides that in case of rescission of the contract between the plaintiff and Four Front Global, the money would be refunded.
40. Mr. Njuguna stated that the USD 50,000.00 was deposited with the defendant but the Agreement between the plaintiff and Four Front Global was rescinded and the information was communicated to the defendant, who was requested to refund the money which had been deposited with him, but it has never been refunded.
41. Counsel contended that there was breach of the professional undertaking. He relied on the case of Warui K’Owade & Ng’ang’a Advocates v Mutune Investments Ltd [2016] eKLR, which set out an Advocate’s obligations under a professional undertaking.
42. Counsel also cited the case of Arthur K. Igeria T/a Igeria & Co. Advocates v Michael Ndaiga [2017] eKLR, on the requirements that a Court should consider so as to enforce a professional undertaking, and that such an undertaking must be clear, unambiguous and capable of being performed.
43. Mr. Njuguna submitted that in this instance, the test has been met because the undertaking was clear, and especially under Clause 2 of the undertaking, it is capable of being performed. He stated that what is required is a refund of the money as the event that was envisioned being rescission of the contract had occurred.
44. He contended that the responses filed by the defendant only introduce two new aspects such as the defendant not being privy to the contract between the plaintiff and Four Front Global and that the contract was illegal, which issues Mr. Kariuki indicated they had responded to in their supplementary affidavit.
45. He asserted that a professional undertaking serves the purpose of making a transaction easier, and that it is only part and parcel of the larger transaction. He stated that one cannot avoid a transaction on the basis of privity of contract.
46. Mr. Njuguna referred to the Summons mentioned by the defendant requiring Mr. Conrad Maloba Advocate to appear before the DCI, and contended that was not proof of an illegality, and that even when an illegality has been disclosed, that does not preclude an Advocate from honouring a professional undertaking.
47. On her part, Ms Moenga, learned Counsel for the defendant indicated that the defendant was not denying that he issued a professional undertaking dated 10th April 2023 to the plaintiff after being contacted by Mr. Peterson of Four Front Global.
48. Counsel stated that the defendant was required to hold the money and wait for instructions from the plaintiff on when to pay it to Four Front Global. She indicated that the defendant has been holding the money in an escrow account for the plaintiff.
49. Ms Moenga referred to two requisitions dated 10th July 2023 and 2nd October 2023 from the DCI sent to Conrad Maloba summoning him to DCI Headquarters. She stated that when he received them, he was informed that Mr. Dale Michael Thornhill was being investigated for money laundering and smuggling of illegal minerals through Kenya.
50. She further stated that Mr. Maloba was informed that the police had realized that there was continuous communication between him and Mr. Dale. She contended that after receipt of the Summons, the defendant is not in a position to remove the money from the account. She stated that the defendant informed her that the DCI was still investigating and they allege that the money is illegal proceeds of crime, but Mr. Maloba divulged nothing to the DCI due to Client/Advocate confidentiality. She indicated that she did not know if Mr. Dale had been charged with any offence.
51. Counsel relied on the case of Kenya Anti-Corruption Commission v Stanley Mombo Amuti (supra), in submitting that the plaintiff should first allow the Investigating Officers to conduct their investigations on the issue of the illegal funds and possible acts of money laundering before claiming a refund of the money, and if it is found that the money is not proceeds of crime, then the defendant will honour the undertaking.
52. Ms Moenga submitted that the defendants counter-claim is on the defendant’s reputation as he has a case filed by the plaintiff before the Advocates. Disciplinary Tribunal about the money in issue. She urged this Court to grant the defendant general damages for using his firm to advance criminal activities. She contended that the plaintiff filed the suit herein with unclean hands when knowing that he was being investigated for money laundering. She stated that the defendant has been occasioned mental stress due to the transaction with the plaintiff and prays for damages.
53. In a rejoinder, Mr. Njuguna pointed out that the justification for not honouring the professional undertaking had been given due to ongoing investigations, but contended that the requisitions from the DCI exhibited by the defendant made no reference to the plaintiff and there was no way of ascertaining if they relate to the money being held by the defendant. He stated that professional undertaking is governed by the Advocates code of standards of professional practice and ethical conduct published vide Gazette Notice 5212 of 26th May, 2017.
54. He submitted that a professional undertaking has to be performed, released or excused, but none of the three requirements have been satisfied by the defendant. Counsel posited that the carrying out of investigations does not fall under the said requirements.
ANALYSIS AND DETERMINATION
55. I have read the Originating Summons, the supporting affidavit, the replying affidavit, and the supplementary affidavit filed by the parties. I have also read the defence and counter-claim and the reply to the defence and the defence to the counter-claim. I have also read the submissions filed by Counsel for the parties. The issues for determination are -
(i) If the defendant should be compelled to honour the professional undertaking dated 10th April 2023; and
(ii) If the defendant is entitled to the remedies sought in his counter-claim.
56. Order 52 Rule 7 of the Civil Procedure Rules, 2010 makes provisions governing professional undertakings. The said provisions state as follows-
1) An application for an order of 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) …………………………….
2) Save for resolutions 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. (Emphasis added).
57. In the case of Harit Sheth t/a Harit Sheth Advocate v K Osmond Advocates [2011] eKLR (Civil Appeal No. 276 of 2001), the Court defined a professional undertaking in the following words -
A professional undertaking is a bond by 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 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 someone else should shoulder the responsibility of recovering the debt from his own client. A professional undertaking is a bond 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 if only to protect his own reputation as an officer of the Court.
58. In the case of Waruhiu K’Owade & Ng’ang’a Advocates v Mutune Investment Limited (supra), the Court held as follows on an Advocate’s obligations on professional undertakings –
Our answer is that a professional undertaking is an unequivocal promise made by a party to another either to do or to refrain from doing something or acting in a manner which may prejudice the right of the opposite party, to which liability may attach. See Equip Agencies Limited v Credit Bank Limited [2008] 2 E.A. 115 (HFCK).
Generally speaking, professional undertakings are given by Advocates in order to make transactions easier, faster and more convenient. Where an Advocate breaches a professional undertaking, the Court has jurisdiction to order the enforcement of that undertaking. In enforcing undertakings, the Court is guided not by considerations of contract, or of securing the legal rights of parties, but mainly by ensuring the honesty of Advocates.
59. In this case, the Managing Partner of Conrad Maloba & Associates Advocates gave a professional undertaking dated 10th April 2023 for management of clients funds at the request of the plaintiff herein. The said undertaking reads in part as follows:
“In consideration of you transferring and releasing to our clients account the said sums, we hereby issue you our professional undertaking as follows;-
1) THAT this firm undertakes and guarantees performance of the Terms of Engagement between you and the firm.
2) THAT we will hold the funds received on your behalf in trust as directed under the terms of any instructions expressly issued to us to your order unless otherwise expressly instructed.
3) THAT in the event that you elect to rescind the Agreement and upon such rescission we hereby undertake to immediately refund or cause to be refunded the funds received by the firm and all the monies paid by you or your associates and/or assigns to this firm on your behalf.
4) …………………………………..
5) …………………………………..
6) We acknowledge that unless and until we complete any transaction expressly instructed by you on the distribution and utilization of funds in our custody received on your behalf and held by us as stakeholders under the terms herein, we shall not be discharged from this undertaking and obligations herein and you shall be at liberty to exercise all rights as contained in our undertaking to you.”
60. The above professional undertaking was a solemn covenant that bound the defendant to honour the said undertaking. It was clear, unequivocal, unambiguous and left nothing to speculation. In the defence and counter-claim filed and the replying affidavit, the defendant claims that it is being dragged into the non-performance of the contract between the plaintiff and Four Front Global, to which it was not privy to. Having combed through the documents filed by the plaintiff, nowhere in the Originating Summons or affidavits did I see the plaintiff blaming the defendant for the non-transportation of the gold in issue from Nairobi, Kenya to Dubai, or breach of contract between the plaintiff and Four Front Global.
61. The plaintiff’s pleadings are succinct that it is seeking to have the defendant ordered to honour the professional undertaking he gave to the plaintiff. The plaintiff’s pleadings and averments leave no doubt that the plaintiff entered into a contract with Four Front Global on one hand, and a separate contract with the defendant on the other hand. The professional undertaking was meant to protect funds meant to facilitate Four Front Global in payment of taxes and obtaining approvals for transportation of the gold to Dubai, from Nairobi, Kenya and actual transportation of the said gold.
62. The defendant did not deny having received a transfer of USD 50,000.00 from Dale Thornhill on 10th April 2023, sent by wire transfer. Following the failure by Four Front Global to deliver the plaintiff’s cargo of gold to Dubai, on 25th April 2023, Mr. Dale Thornhill sent an email to Conrad Maloba Advocate of the defendant law firm wherein he requested for the sum for USD 50,000.00 to be refunded to him. Mr. Thornhill gave his bank account details in the said email.
63. The said email was followed by a letter dated 19th May 2023 addressed to the defendant by the law firm of TripleOKLaw LLP Advocates on the instructions of the plaintiff. In the said letter, a demand was made for the immediate repayment of the sum of USD 50,000.00 to their client’s account.
64. The email by Mr. Thornhill and the letter by TripleOKLaw LLP Advocates seems not to have elicited any response and the plaintiff proceeded to file this suit.
65. In the counter-claim, the defendant contends that he has not released the USD 50,000.00 to the plaintiff because the DCI is investigating Mr. Dale Thornhill for smuggling of precious metals and money laundering. The defendant asserts that until investigations are complete, he cannot part with the said money.
66. A perusal of the documents annexed to the defendant’s replying affidavit do not show that since the demand for the refund of USD 50,000.00 was made, which is more than 1 year and 8 months ago, Mr. Dale Thornhill has been charged with any criminal offence(s) and that a Court of law has frozen the USD 50,000.00 in the defendant’s bank account due to the defendant being suspected of being involved in money laundering activities. The two documents exhibited by the defendant in his replying affidavit cannot pass muster, as the Summons requiring Mr. Conrad Maloba to visit the DCI Headquarters for inquiries for the offence of money laundering and conspiracy to commit a felony, cannot be equated to an investigation process that has been finalized leading to charging of a suspect and conviction. As it stands, Messers Dale Thornhill and Conrad Maloba have not been charged and convicted of any criminal offence(s) arising from the plaintiff’s deposit of the USD 50,000.00 with the defendant under the professional undertaking. The allegation that the USD 50,000.00 was tainted with illegality is unsupported by any evidence. For the said reason, the defendant has no colour of right to withhold the USD 50,000.00 from the plaintiff.
67. I therefore come to the conclusion that the defendant has a legal obligation to honour the terms of the professional undertaking dated 10th April 2023 following the rescission of the Agreement between the plaintiff and Four Front Global Group.
68. Having found that the plaintiff’s Managing Director, Mr. Dale Thornhill has not been charged and convicted of any criminal offence(s), the prayer sought in the counter-claim against the plaintiff to the effect that the plaintiff used his firm to advance criminal activities fall by the wayside. If anything, the defendant’s claim as per the counter-claim was filed prematurely. I agree with Mr. Njuguna that the allegation of illegality was not particularized as required. It is my finding that the counter-claim does not disclose any enforceable cause of action. As a result, I hereby dismiss it with costs to the plaintiff in the main suit.
1. The plaintiff prays for interest on the amount of USD 50,000.00 which has been kept away from it. Courts have held that amounts due from professional undertakings attract interest. See the case of Nelson Andayi Havi t/a Havi & Company Advocates v Jane Muthoni Njage t/a J.M Njage & Company Advocates [2015] eKLR, where the Court held as follows –
It may be said that, conduct such as being complicit in or deliberately withholding Plaintiff’s money would earn the advocate penalty in form of interest for having denied the Plaintiff his money. See the case of Naphatali Paul Radier v David Njogu Gachanja HCCC No.582 of 2003 (OS) where Justice H.P.G Waweru held as follows:-
“The Defendant has withheld the Plaintiff’s money from August 2002. Justice demands that he pays it with interest. As no particular rate of interest was contracted, I shall award at court rates”.
69. The plaintiff prays for enforcement of the professional undertaking. The issue of enforcement will only arise if the plaintiff fails to honour the professional undertaking.
70. The final orders are –
(i) That the defendant is hereby ordered to honour the terms of the professional undertaking issued to the plaintiff on 10th April 2023 and to refund within seven (7) working days the funds received by the firm of Conrad Maloba & Associates Advocates in the sum of USD 50,000.00 following rescission of the Agreement between the plaintiff and Four Front Global Group Limited;
(ii) The defendant shall pay interest on the sum of USD 50,000.00 with effect from 25th April 2023 being the date when the first demand for refund of the said amount was made by the plaintiff. Interest will be at Court rates;
(iii) Costs of the main suit are awarded to the plaintiff; and
(iv) Costs of the counter-claim are awarded to the plaintiff in the main suit, TGI-Tontine Group International FZE.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 14th day of February, 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Moenga for the applicant
No appearance for the respondent
Ms B. Wokabi – Court Assistant.