Benson W Millimo & another v Samuel Gakuru p/a Gakuru & Co Advocates [2021] KEELC 1302 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled an advocate's promise to pay Kshs. 24 million is personally binding and must be honoured with interest, regardless of client disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the professional undertaking dated 3rd May, 2013 was binding and enforceable against the Respondent
The undertaking was binding on the Respondent and he was ordered to honour it by remitting Kshs. 24,000,000 with interest at court rates from 16th August, 2013 until payment in full
The court found the Respondent, an advocate, gave an unequivocal undertaking confirmed in his letter of 3rd May, 2013, and admitted on oath in his replying affidavit (paragraph 19) that the balance would be paid. He never denied holding the purchase price. His later claim that the Applicant breached the undertaking by not furnishing completion documents was rejected; ambiguities are construed against the giver of an undertaking and no terms are implied.
Whether the Respondent was entitled to interest on the withheld purchase price
Interest was awarded at court rates from 16th August, 2013 (the date the Respondent promised to pay) until payment in full, rather than the 2% above commercial rates sought
The Respondent admitted in his letter of 7th January, 2013 that his firm received and was holding the entire purchase price of Kshs. 24,000,000. Following the decision in Naphtali Paul Radier v David Njogu Gachanja, justice demands that withheld money be paid with interest from the date payment was promised.
Whether the title of the purchaser Martha Muthoni Mburu should be cancelled and the register rectified
The court declined to determine the cancellation/rectification limb and directed the Applicant to file a separate suit against the purchaser
The purchaser was not a party to the proceedings, and under the Land Registration Act title can only be revoked where acquired by fraud, misrepresentation, illegally, unprocedurally or through a corrupt scheme. The Applicant had also failed to follow the proper legal procedure for seeking cancellation, though it could still do so in a properly constituted suit.
Legal principles established
#- A professional undertaking given by an advocate is personally binding on him and must be honoured regardless of whether it constitutes a legal contract, and any ambiguity is construed against the giver of the undertaking
- An advocate must honour his undertaking regardless of whether his client reimburses him, and third parties need not be joined for enforcement
- Where a party admits holding money due and withholds it, justice demands payment with interest
Court orders
#- 1.Messrs Samuel Gakuru Advocate, practising as Gakuru & Co. Advocates directed to honour his professional undertaking given on 3rd May, 2013 to Messrs Benson W. Millimo and Stephen M. Muthomi practising as Millimo, Muthomi & Company Advocates
- 2.Respondent to remit the balance of the purchase price of Kshs. 24,000,000 within twenty one (21) days of the order, plus interest at court rates from 16th August, 2013 until payment in full
- 3.Costs of the Originating Summons awarded to the Applicant
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act and Order 37 (including Order 52 Rule 7) of the Civil Procedure Rules, by Originating Summons for enforcement of a professional undertaking
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson W Millimo & another v Samuel Gakuru p/a Gakuru & Co Advocates [2021] KEELC 1302 (KLR)", Case Analysis (2021). ELC. Case No. 69 of 2019 (OS) (Formerly Nairobi ELC. No. 1218 of 2014 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1302/eng@2021-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.