Garo Co-operative Savings Credit Society Ltd v J D Murimi t/a Murimi& Co Advocates [2015] KEELC 115 (KLR)
The bottom line
#Kenya's High Court allowed a property buyer to join a lawsuit over an advocate's undertaking, confirming that 'vacant possession' means the seller must clear utility bills.
What this practically means
#Executive summary
#Key legal issues
#Whether an interested party should be joined to a suit seeking enforcement of an advocate's professional undertaking
Joinder allowed; the purchaser's claim on the outstanding water bill is co-related to the question whether the undertaking was breached
The applicant instructed the defendant advocates and furnished funds for the undertaking. Whether the advocates breached the undertaking by withholding the balance depends on whether the vendor left an outstanding water bill, i.e. whether the vendor complied with obligations on outgoings. That question cannot be completely adjudicated without the purchaser. Order 1 Rule 10(2) empowers the court to join a necessary party.
Whether an advocate's undertaking can be defeated by extraneous disputes between the client and the other party
The authorities relied on by the Plaintiff that an undertaking is independent are good law, but the intention of the particular undertaking must be ascertained from its words and the underlying sale agreement
The court accepted the Plaintiff's authorities as persuasive and binding, holding an undertaking is a separate agreement independent of the transaction. However, it held the undertaking is given upon an intention, to be ascertained by construing the undertaking itself and the sale agreement, under which vacant possession required settlement of outgoings save rates and rents.
Legal principles established
#- An advocate's professional undertaking must be enforced according to its plain and literal meaning, with every word given the meaning intended
- Vacant possession in a sale of land includes payment of all encumbrances save as provided in the agreement
Court orders
#- 1.The Applicant is joined to the proceedings as an interested party
- 2.The Plaintiff is at liberty to amend its pleadings accordingly, if need be, within 14 days from the date of the ruling
- 3.The Defendant and Interested Party to file responses within 14 days from the date of receipt of service
- 4.Costs of the application be in the cause
- Jurisdiction invoked
- Not expressly stated; court exercised jurisdiction to join a party under Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Garo Co-operative Savings Credit Society Ltd v J D Murimi t/a Murimi& Co Advocates [2015] KEELC 115 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/115/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.