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ELCAllowedChamber Summons Application dated 2nd September, 2024· [2024] KEELC 7483 (KLR)

Muli v Wamugi & another (Environment & Land Case E026 of 2020) [2024] KEELC 7483 (KLR)

Environment and Land Court
7 November 2024
1,143 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered an advocate to personally pay Kshs. 6 million after he failed to honour a professional undertaking.

What this practically means

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Executive summary

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This was an unopposed Chamber Summons application dated 2nd September 2024 by the Plaintiff, Francis M. Kalwa of Kalwa & Co. Advocates, seeking to enforce an irrevocable professional undertaking given on 16th March 2023 by Nyangayo Vincent O, Advocate t/a Swan Advocates, to pay Kshs. 6,000,000 in settlement of a dispute. The Applicant contended that the Advocate issued a cheque for the sum which the bank declined to honour, and that he had since become elusive and failed to honour the undertaking. The Respondent, though duly served as evidenced by an Affidavit of Service, did not file a response; only the Applicant filed written submissions. The court framed a sole issue: whether an order should issue directing the Advocate to honour the undertaking. Relying on dictionary definitions of an undertaking, the Encyclopedia of Forms and Precedents and Halsbury's Laws of England on the summarily enforceable nature of a solicitor's personal professional undertaking, Clause 9 of the Code of Standards of Professional Practice and Ethical Conduct (Gazette Notice No. 5212 of 26th May 2017), and the Court of Appeal decision in Waruhiu K'owade & Ng'ang'a Advocates v Mutune Investment Limited, the court held the undertaking legal and binding. The application was allowed: the Advocate was ordered to pay Kshs. 6,000,000 within 30 days, failure of which execution would issue, with costs to the Applicant. Judgment delivered virtually at Machakos on 7th November 2024 by Christine Ochieng, Judge.

Key legal issues

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Whether the professional undertaking of 16th March 2023 to pay Kshs. 6,000,000 should be enforced against the Advocate

Holding

The application was unopposed; the undertaking was clear, personal and professional, and was held legal and binding and ordered to be honoured within 30 days, failing which execution would issue.

Reasoning

The court adopted the definition of a professional undertaking from the Encyclopedia of Forms and Precedents and Halsbury's Laws of England, noting the requirements that the undertaking be given personally, in a professional capacity, and be clear in its terms. Clause 9 of the Code of Standards of Professional Practice and Ethical Conduct imposes a duty to honour undertakings, and the Court of Appeal in Waruhiu K'owade & Ng'ang'a Advocates described such undertakings as binding contracts to be observed with a standard of ethics higher than that of the market place. The applicant showed the Advocate issued a dishonoured cheque and had become elusive; the application was unopposed.

p. 3

Legal principles established

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  • A professional undertaking given by an advocate in the course of practice is legal, binding and enforceable summarily by the Court
  • An advocate has a professional duty to honour undertakings granted in the course of practice

Court orders

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  1. 1.An order directing Nyangayo Vincent O. t/a Swan Advocates to honour his irrevocable professional undertaking to Kalwa & Co. Advocates by paying Kshs. 6,000,000 within 30 days from the date of the order
  2. 2.In default of payment, execution to issue against the Advocate
  3. 3.Costs of the Application awarded to the Applicant

Authorities

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Legislation

  • Code of Standards of Professional Practice and Ethical Conduct (Kenya Gazette Notice No. 5212 of 26th May 2017)Clause 9

Cases cited (2)

  • Diamond Star General Trading LLC vs Ambrose D.O Rachier carrying on business as Rachier & Amollo Advocates
    [2017] eKLR
  • Waruhiu K'owade & Ng'ang'a Advocates v Mutune Investment Limited
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction to enforce a professional undertaking given by an advocate in the course of practice

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muli v Wamugi & another (Environment & Land Case E026 of 2020) [2024] KEELC 7483 (KLR)", Case Analysis (2024). Chamber Summons Application dated 2nd September, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7483/eng@2024-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.