Abraham Kibet Chepkonga t/a A. K. Chepkonga & Company Advocates v Paul Gicheru t/a Gicheru & Company Advocates [2017] KEELC 396 (KLR)
The bottom line
#A Kenyan court ordered an advocate to honour his firm's written promise to pay Kshs. 3.325 million, ruling firms cannot escape undertakings issued under their letterhead.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court to enforce a professional undertaking
The court found it had jurisdiction because the dispute centred on title to land held as security for a debt.
The defendant argued the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act does not cover enforcement of professional undertakings. The court reviewed Section 13(2), which confers power over disputes relating to title and instruments granting enforceable interests in land, and held that since the suit revolved on the title held as security for a debt as well as the undertaking, jurisdiction existed.
Whether the letter of 18th November 2014 constituted a binding professional undertaking
The court found the letter was a professional undertaking by the firm of Gicheru & Company Advocates to pay Kshs. 3 million within 14 days after successful registration of the charge, and it bound the defendant.
The plaintiff relied on authorities establishing that an undertaking is an unequivocal declaration of intention made in the course of practice, personally binding on the advocate, and enforceable independent of the underlying transaction. The court perused the letter of 18.11.2014 and found it amounted to a professional undertaking binding the defendant.
Whether the defendant, as sole proprietor, could disown an undertaking issued by an advocate in his firm
The defendant was bound by the undertaking issued on the firm's letterhead notwithstanding his assertion that he personally did not issue it.
The defendant contended that only the person who issues an undertaking can be held accountable. The plaintiff argued the undertaking was issued under the defendant's letterhead and that the defendant could not be allowed to argue he was not the one who issued it. The court found the letter bound the defendant.
Whether the later agreement of 23rd January 2015 superseded the undertaking
The court did not accept the defendant's argument that the suit had been overtaken by events, and found the respondent must be compelled to honour the undertaking.
The defendant argued that the beneficiaries entered into an agreement on 23rd January 2015 settling the outstanding sum at Kshs.700,000, superseding the undertaking. The court, having found the undertaking valid and binding and non-compliance established, held that in the interests of justice the respondent must be compelled to honour it.
Legal principles established
#- A letter constituting a professional undertaking by a firm of advocates binds the defendant firm and its proprietor
- The Environment and Land Court has jurisdiction over a dispute where the title under dispute was held as security for a debt and the suit revolves on both an undertaking and the issue of title
- A professional undertaking by an advocate is enforceable independently of the underlying transaction
Court orders
#- 1.The defendant do pay the plaintiff Kshs.3,325,000/=
- 2.In the alternative, the defendant to deliver original title in respect of the suit land
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya 2010 and Sections 12 and 13 of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abraham Kibet Chepkonga t/a A. K. Chepkonga & Company Advocates v Paul Gicheru t/a Gicheru & Company Advocates [2017] KEELC 396 (KLR)", Case Analysis (2017). Originating Summons dated 23rd June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/396/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.