Imperial Bank Limited v Moses Waweru Ndungu & another t/a Omondi Waweru & Co. Advocates [2016] KEELC 1049 (KLR)
The bottom line
#The Environment and Land Court refused to overturn orders enforcing a lawyer's professional undertaking, holding advocates cannot back out of an unconditional promise.
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 were properly served with the application dated 8th May 2014 before the exparte rulings of 19th and 25th March 2015
- 2.Whether the Respondents gave reasonable explanation for failing to file a response to the application dated 8th May 2014
- 3.Whether the ruling and orders of 19th and 25th March 2015 should be set aside and leave granted to file a response and be heard
Key legal issues
#Whether the exparte orders of 19th and 25th March 2015 should be set aside for want of a hearing
The application to set aside was dismissed; the Respondents were served and never filed any response despite counsel holding brief on several dates.
The court traced the history of the application dated 8th May 2014: counsel for the Respondents appeared and sought adjournments on 17th September 2014, 4th November 2014 and 9th December 2014, yet never filed a replying affidavit, submissions or any document to come on record. The Respondents' own affidavit acknowledged receipt of the application and instruction of Mwamu & Co Advocates. Mwamu's participation could at best be holding brief. Order 51 Rule 14 required the filing of a response, which was never done, so the Respondents had no reasonable response to offer.
The enforceability and nature of a professional undertaking
The professional undertaking given by the Respondents was unequivocal, unconditional and enforceable; a party cannot resile from it on account of a pre-existing dispute between the parties.
Relying on Kenya Reinsurance Corporation v E. Muguku and In the matter of Section 50(1) of the Advocates Act v Muriu Mungai & Co. Advocates, the court affirmed that a professional undertaking is not dependent on the performance of the underlying contract and cannot be qualified by accounting disputes between the parties. The Respondents' claim that the undertaking was conditional on other transactions that never materialized was rejected. The earlier ruling of 19th March 2015 had already found the undertaking was given and dishonoured.
Whether the Respondents' blame of their instructed counsel justified setting aside the orders
No. The draft replying affidavit (MWN 4) was dated 2015 and could not have been intended for filing in 2014; a client's remedy lies against a negligent advocate, not in setting aside the orders.
The court found it unclear whether the Respondents had given Mwamu & Co Advocates full instructions to come on record and file a response in 2014. The Respondents, themselves a firm of advocates knowledgeable in court procedure, showed no evidence of following up on their matter beyond a letter of 22nd September 2014. Following Bi-Mach Engineers Ltd v James Kahoro Mwangi, the court held that counsel's inaction is not an excusable mistake and the client has a remedy against such an advocate.
Legal principles established
#- A party wishing to oppose an interlocutory application must file a notice of preliminary objection, replying affidavit and/or statement of grounds of opposition under Order 51 Rule 14 of the Civil Procedure Rules.
- A professional undertaking is a separate contract between the advocate giving it and the person to whom it is given, and is not conditional on the underlying transaction or any pre-existing dispute between the parties.
- A client has a remedy against an advocate whose inaction causes default, and such inaction is not an excusable mistake the court will excuse with sympathy.
Court orders
#- 1.Prayer 2 of the notice of motion granted by consent on 13th May 2015 (interim stay), later vacated
- 2.Notice of motion dated 20th April 2015 dismissed with costs to the Applicant
- 3.Interim order of 13th May 2015 vacated
- 4.30 (thirty) days stay granted on the court's own ruling
- 5.Leave to appeal to the Court of Appeal granted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over an application to set aside its own ruling and orders enforcing a professional undertaking
Relief refused
#Stay of execution of the rulings and orders of 19th March 2015 and 25th March 2015
No reasonable grounds laid before the court to justify exercise of discretion in the Respondents' favour
Setting aside of the ruling and orders of 19th March 2015 and 25th March 2015
Respondents were served, never filed a response despite counsel holding brief, and setting aside would occasion further injustice to the Applicant
Leave to file a response to the application dated 8th May 2014 and be heard
The Respondents had no reasonable response or submission to file; the failure of their counsel is not an excusable mistake
Costs
The Respondent's notice of motion dated 20th April 2015 is dismissed with costs to the Applicant.
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 having come to the above findings, the Respondent's notice of motion dated 20th April 2015 is without merit and is dismissed with costs to the Applicant. The interim order of 13th May 2015 is hereby vacated.
A professional undertaking is not a contract, it is a promise. But the undertaker can only renege on it on pain of some nasty legal consequences.
It is trite that a professional undertaking is a separate contract between the advocate giving the undertaking and the person to whom the undertaking is given.
that is not an excusable mistake which the court may consider with some sympathy. The client has some remedy against such an advocate.
B/C 30 (thirty) days stay granted. Leave to appeal also granted.
Issues in the judgment
#Internal date inconsistencies in the judgment: the supporting affidavit refers to a hearing 'slated for 17th September 2015 (sic)' while the court record shows the hearing date was 17th September 2014; the court also writes 'application dated 8th May 20124' and '2nd February 20125', apparent typographical errors.
The court records on 9th December 2014 that 'Mwamu advocate informed the court that Defendant had filed their submission' while elsewhere finding that no submissions were ever filed by the Respondent, a contradiction in the record as narrated.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- National Land Commission v Afrison Export Import Limited & 10 others [2019] KEELC 4569 (KLR)[2019] KEELC 4569 (KLR)1 Feb 2019applied
Cite this brief
#Cite this brief
Caselaw, "Imperial Bank Limited v Moses Waweru Ndungu & another t/a Omondi Waweru & Co. Advocates [2016] KEELC 1049 (KLR)", Case Analysis (2016). Elc 687 of 2013 (Notice of Motion dated 20th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1049/eng@2016-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.