Walker Kontos Advocates v S. Mwirigi M'inoti & Company Advocates [1997] KECA 341 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that lawyers who accept documents against a professional undertaking must honour its full terms, including interest, or return the documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' professional undertaking of 12th June 1995 incorporated the full terms of the appellants' letter of 16th May 1995, including payment of interest accruing on the sum due, or was limited to the specific figures of Kshs.599,632.50 and Kshs.60,799.20
- 2.Whether the learned judge of the High Court erred in interpreting the undertaking by reading the respondents' letter of 12th June 1995 in isolation
Key legal issues
#Scope and enforceability of a professional undertaking given by conveyancing advocates
The respondents' undertaking of 12th June 1995, given in terms of the appellants' letter of 16th May 1995 save only as to VAT and disbursements, incorporated the obligation to pay the outstanding sum together with interest accruing at 28% per annum until repayment.
The court held that the appellants' letter of 16th May 1995 was specific and admitted of no two interpretations: it sought an undertaking to pay the sum due with interest at 28% per annum and to hold the title documents to the appellants' order. The respondents queried only VAT and disbursements, not interest, and having accepted the documents they were bound by the full undertaking. Their later letter specifying figures could not dilute the solemn undertaking.
Whether the High Court judge erred in his interpretation of the correspondence
The learned judge erred by reading the respondents' letter of 12th June 1995 in isolation and giving it a simplistic interpretation, without considering the effect of paragraphs (a) and (b) of the appellants' letter of 16th May 1995.
The court found that the part of the letter of 12th June 1995 relied on by the respondents could not be read in isolation so as to discharge the undertaking. The judge went 'simply and literally' by that part of the letter without analysing the earlier correspondence imposing the full terms, and this constituted an error warranting reversal of his ruling.
Legal principles established
#- An advocate who accepts title documents against a professional undertaking in the terms proposed by the requesting party is bound by the full terms of that undertaking, including accruing interest, and cannot water it down by later reference to specific figures.
- An advocate who does not accept the undertakings proposed to be imposed on him must return the documents to the party who sent them.
Court orders
#- 1.The appeal is allowed
- 2.The ruling and order of the learned judge dated 9th October 1996 is set aside
- 3.The advocates (respondents) are ordered to pay the appellants a sum of shs.51,688/60 with interest thereon at 28% per annum from 12th August 1995 until date of payment in full
- 4.The appellants are awarded the costs of this appeal and the costs of the proceedings in the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No. 1717 of 1996 (O.S)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Kenyan appellate framework (provision not stated in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That solemn undertaking cannot be watered down by reference to specific figures.
If the advocates did not accept the undertakings proposed to be imposed on them by the appellants they were obliged to return the documents to the appellants.
The upshot of all this is that this appeal is allowed and the ruling and order of the learned judge, dated 9th October, 1996 is set aside.
The advocates are ordered to pay (to leave no room for doubt) to the appellants a sum of shs.51,688/60 with interest thereon at 28% per annum from 12th August, 1995 until date of payment in full.
Issues in the judgment
#The judgment inconsistently dates the appellants' letter of 16th May 1995, referring to it elsewhere as a letter of 16th May 1997.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walker Kontos Advocates v S. Mwirigi M'inoti & Company Advocates [1997] KECA 341 (KLR)", Case Analysis (1997). Civil Appeal No. 20 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/341/eng@1997-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.