Said Ahmed Mahmud v Mercy Cassandra M’Mboga [2020] KEELC 1241 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that an advocate's promise to release a purchase price balance after transfer registration is legally binding and must be honoured.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of an advocate's professional undertaking
The undertaking to release the balance of the purchase price upon successful registration was enforceable and the Respondent was ordered to honour it.
The court adopted Warsame J's description of an undertaking as a contract between advocates, an unequivocal declaration of intention on which reasonable reliance is placed. The completion documents were released on the strength of the Respondent's undertaking; registration of the transfer occurred; the balance therefore fell due. Alleged structural defects were raised late, were never part of the undertaking or the consent order, and could not justify a unilateral lien on the funds.
Whether alleged structural defects justified withholding the purchase price
No; the defects could not be introduced at that stage as new conditions.
The Defendant had occupied the property for about five years before registration; the alleged defects were never brought to the Plaintiff's attention earlier, were not made part of the undertaking, and were not incorporated in the consent recorded in court. Under Sections 7 and 43(2) of the Land Act, 2012 the transfer was completed by registration, so the Respondent could not impose new conditions on the basis of later instructions from the Defendant.
Legal principles established
#- A professional undertaking given by an advocate to release the balance of the purchase price upon successful registration of a transfer is enforceable and cannot be varied unilaterally
- An advocate cannot impose new conditions after registration where the alleged defects were not part of the undertaking or the consent order
- Refusal to honour undertakings undermines trust in professional undertakings in conveyancing
Court orders
#- 1.Jacqueline Waihenya Maina Advocate is directed to honour the undertaking referred to in the judgment within 30 days
- 2.The Respondent to meet the costs of the application
- Jurisdiction invoked
- Original civil jurisdiction over the suit and enforcement of an advocate's professional undertaking given in a consent recorded in the suit (consent order dated 21st April 2015 before Angote J)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Ahmed Mahmud v Mercy Cassandra M’Mboga [2020] KEELC 1241 (KLR)", Case Analysis (2020). Malindi ELC No. 52 of 2014 - Chamber Summons dated 6th April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1241/eng@2020-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.