M'Mboga v Mahmud (Civil Appeal E019 of 2020) [2026] KECA 1179 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an advocate's undertaking to release a property purchase balance after transfer is binding, and buyers cannot retroactively deduct unproven repair costs.
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 Deed of Variation saved the provisions of the sale agreement regarding the obligation of Said to 'satisfactorily' complete the building and, if so, whether that obligation remained unfulfilled or in issue
- 2.Whether the trial judge impermissibly re-wrote the parties' agreement
- 3.Whether compliance with Rule 15 of the Law Society of Kenya Digest of Professional Conduct and Etiquette is a condition precedent before an advocate can invoke a counterpart's professional undertaking
- 4.Whether provision of a bank account or other means of payment is mandatory before the balance of the purchase price falls due under the professional undertaking
- 5.Whether the appellant was entitled to costs in the High Court and on appeal
Key legal issues
#Whether the trial judge re-wrote the parties' agreement
No; the judge correctly held the professional undertaking enforceable. The Deed of Variation preserved the other terms of the original agreement, but the appellant's claim for repairs was not supported by the contract because the building was never alleged to be incomplete and the defects claim was an afterthought raised only after registration.
Clause F of the Deed of Variation kept all other terms of the original agreement intact, including Clause 5 (vendor to satisfactorily complete an incomplete building) and Clause 7 (vendor's indemnity for third-party claims). However, the appellant was in possession for over four years before registration without raising structural defects, never asserted the building was incomplete to engage Clause 5, and never demonstrated how the Kshs. 1,300,000 was arrived at or which third parties were paid. The lien claim therefore failed.
Whether withholding of bank account details excused performance of the professional undertaking
No; the respondent's advocates were entitled to insist on payment of the full balance before providing account details, because there was no lawful basis for the appellant's advocate to withhold any portion of the funds.
Having found the lien claim to be an afterthought, the Court held there was no justification for the appellant's advocate to withhold any sums from the balance. The respondent's advocates' deliberate refusal to provide bank details was reasonable and lawful because providing details would have facilitated the appellant's unilateral deduction of unproven repair costs. The subsidiary grounds of appeal accordingly fell away.
Competency objection based on absence of a certified order in the record of appeal
The objection failed because a certified copy of the order of 15th December 2020 was included in the Supplementary Record of Appeal and served on the respondent's counsel.
The respondent argued under rule 89(1) of the Court of Appeal Rules that a certified decree or order was a mandatory jurisdictional requirement, citing MacFoy v United Africa Co Ltd. The Court noted the certified order was part of the Supplementary Record of Appeal dated 16th December 2020, duly served, and confirmed it had seen the certified copy, ending the controversy.
Legal principles established
#- A professional undertaking given to release the balance of the purchase price upon successful registration of a transfer is enforceable once registration occurs, and an advocate cannot unilaterally withhold the balance by asserting a lien for unagreed repair costs
- Where a deed of variation expressly preserves the other terms of the original agreement, those terms remain binding, but an unraised claim of structural defects after years of possession cannot found a lien over the purchase price
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Environment and Land Court, Malindi)
- Malindi ELC Case No. 82 of 2014 (Said Ahmed Mahmud v Mercy Cassandra M'Mboga); ruling of 2nd October 2020 under appeal
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's appellate powers (matters of law arising from the High Court ruling); no specific constitutional provision invoked
Relief refused
#Setting aside of the High Court ruling declaring the professional undertaking enforceable
The claim of a lien for alleged structural repairs was an afterthought; the property had been in the appellant's possession for over four years without any complaint of structural defects, and the amount claimed was not demonstrated
Finding that the respondent's advocates were obliged to provide bank account details for partial payment
There was no justification for withholding any sums from the balance due, so insistence on payment of the full amount was reasonable and lawful
Costs of the High Court and of the appeal
The appeal was dismissed with costs to the respondents
Costs
The appeal dismissed in its entirety with costs to the respondents
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.
As it were, I have no doubt in my mind that the professional undertaking given herein was enforceable. The documents used to register the Defendant were obtained on the undertaking that the balance of the purchase price was to be released upon successful registration.
In view of the foregoing, we hereby dismiss the appeal in its entirety with costs to the respondents.
These considered together leads to the inevitable conclusion that the claim of a lien was an afterthought, and we have no dificulty endorsing the trial judge's holding set out at the beginning of our decision.
other than varying the terms of the original agreement regarding the method and timing of payment of the purchase price, and the provision relating to the Land Control Board consent, the other terms of the agreement remained unchanged and binding.
Issues in the judgment
#The judgment states the Deed of Variation was dated 12th May 2025, which is inconsistent with the chronology of the transaction (sale agreement 2011, consent 21st April 2015, Deed of Variation 15th May 2015 referred to elsewhere); this appears to be an internal date error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'Mboga v Mahmud (Civil Appeal E019 of 2020) [2026] KECA 1179 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1179/eng@2026-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.