Francis Kimani & 2 others (suing for and on behalf of Super Mind Development Self Help Group v Gachiri Kariuki & another t/a Gachiri Kariuki & Kiai Advocates [2014] KEELC 40 (KLR)
The bottom line
#The High Court dismissed a bid to force an advocate to fix a defective land transfer, ruling he had already fulfilled his professional undertaking.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant gave an undertaking to the Plaintiffs and whether it should be enforced
The undertaking dated 20th May 2005 was given, but the Defendant fulfilled it by providing the original grant and a duly executed but undated transfer naming the purchaser in the sale agreement; no breach was proved
The court adopted the definition of an undertaking from The Encyclopedia of Forms and Precedents and the enforcement conditions in Halsbury's Laws of England. Although the undertaking was not annexed, the Court found it on the court file attached to the 2008 originating summons. The undertaking required delivery of an executed but undated transfer in favour of the purchaser named in the sale agreement, which was Supermind Development Self Help Group. Since no different purchaser's details were supplied, the Defendant performed the undertaking and the Plaintiffs' advocates shared blame for failing to scrutinise the transfer.
Legal principles established
#- An advocate's professional undertaking must be clear in terms, given personally in a professional capacity, capable of performance, and relied upon, before it can be enforced summarily
- An advocate who provides completion documents in accordance with the sale agreement and undertaking is not in breach even if registration particulars later prove defective
Court orders
#- 1.The prayers in the Plaintiffs' Notice of Motion dated 22nd May 2014 are denied
- 2.The Plaintiffs shall bear the costs of the said Notice of Motion
- Jurisdiction invoked
- Enforcement of an advocate's professional undertaking in the first instance (originating summons); court's supervisory/disciplinary powers over advocates invoked under section 57 of the Advocates Act by the Plaintiffs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kimani & 2 others (suing for and on behalf of Super Mind Development Self Help Group v Gachiri Kariuki & another t/a Gachiri Kariuki & Kiai Advocates [2014] KEELC 40 (KLR)", Case Analysis (2014). Notice of Motion dated 22nd May 2014 (arising from Originating Summons dated 7th July 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/40/eng@2014-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.