Hutheifa Haji Ahmed & 3 others (suing as the administrators of the estate of Haji Ahmed Sheikh Ali) v Nondahona Company Limited & 158 others [2017] KEELC 2812 (KLR)
The bottom line
#A Nakuru court ordered a land seller and its advocates' firm to refund over Kshs. 14 million after agreed refund conditions were met.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of the consent of 25 April 2013 and the professional undertaking of 8 July 2015
The application to enforce the consent and undertaking succeeds; the plaintiffs and the advocate's firm are jointly and severally obligated to make the refund
The consent of 25 April 2013 acknowledged payment of Kshs. 12,974,000/- by the 2nd defendant. The subsequent consent of 8 July 2015 promised a refund once the subject matter was disposed of, with a professional undertaking from M/s Hari Gakinya & Company Advocates. The plaintiffs' own advocate confirmed the land has been sold. The condition precedent for the refund was therefore satisfied, and the court found no bona fide dispute on the amounts. Both the plaintiffs and the firm gave the promise and are jointly and severally bound to honour it.
Whether there is a genuine dispute over the sums payable
No dispute exists as to the sums; Kshs. 12,974,000/- for the 2nd defendant and Kshs. 1,181,000/- for the interested party are fixed by the consent and uncontroverted affidavit evidence
The court held that the consent of 25 April 2013 clearly fixed the 2nd defendant's payment at Kshs. 12,974,000/-. As regards the interested party, who deponed that he paid Kshs. 1,181,000/- for 23 acres, neither a replying affidavit from the plaintiffs nor Mr. Gakinya's replying affidavit disputed that figure. In the absence of refuting evidence, the sums stand as claimed and must be refunded as agreed.
Legal principles established
#- Once conditions attached to a consent/undertaking to refund (here, disposal of the subject land) are fulfilled, the obligation to refund crystallises and is enforceable, including against the advocate who gave a professional undertaking
- Parties are bound by what they have agreed in a consent and cannot resile from it
Court orders
#- 1.The plaintiffs and the law firm of M/s Hari Gakinya & Company Advocates to ensure that the 2nd defendant is refunded the sum of Kshs. 12,974,000/- and the interested party is refunded the sum of Kshs. 1,181,000/- within 14 days from the date of the order
- 2.If no refund is made within the stipulated period, the applicants are at liberty to execute for these monies jointly and/or severally against the plaintiffs and the proprietor/s of the law firm of M/s Hari Gakinya & Company Advocates
- 3.The applicants shall have the costs of the application
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land LR No. 6577/1; enforcement of consent orders recorded in the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hutheifa Haji Ahmed & 3 others (suing as the administrators of the estate of Haji Ahmed Sheikh Ali) v Nondahona Company Limited & 158 others [2017] KEELC 2812 (KLR)", Case Analysis (2017). Notice of Motion dated 22 February 2017 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2812/eng@2017-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.