David Mereka T/A Mereka & Company Advocates v Nganga Mbugua T/A Mbugua Nganga & Company Advocates

P&A No. 917 of 2008, while the respondent acted for Mr. Allan Rubia Ng’ang’a. He deposed that on 10th November 2017, the respondent requested for the Title to all that property known as L.R. No. 1159/41, Karen, Nairobi to facilitate registration of an Assent in favour of his client, pursuant to a confirmed grant issued on 20th March 2013. 3. Mr. Mereka stated that on 27th February 2018, the applicant released the Title to the aforesaid property to the respondent on condition that it would be returned. That on 5th March 2018, the respondent acknowledged receipt of the Title and undertook to use it solely for purposes of registering the Assent. He however contended that the respondent failed to honour this undertaking by refusing to return the Title despite repeated requests, and forwarded the Title to a third party, Amolo & Gachoka Advocates, without the applicant’s consent, and failed to respond to follow-up correspondence. The applicant asserted that this Court has the requisite jurisdiction to grant the relief being sought, which relates to High Court P&A No. 917 of 2008. 4. In opposition to the application, the respondent filed a replying affidavit sworn on 24th April 2025 by Mr. George Ng’ang’a Mbugua, an Advocate of the High Court of Kenya and the respondent herein. Mr. Mbugua averred that the applicant acts for three Administrators of the Estate of Humphrey Rubia Ng’ang’a, while the law firm of Amolo & Gachoka Advocates represented a Co-administrator, Nancy Wamoro Ng’ang’a. He stated that his client was allocated 2.49 acres out of all that parcel of land known as L.R. No. 1159/41 Karen under a rectified Certificate of Confirmation of Grant issued on 20th March 2013. He deposed that after subdivision and issuance of a deed plan, his client solely financed the subdivision at a cost of Kshs.2,143,500/=, owing to the applicant’s clients’ lack of cooperation. 5. He averred that he received the original Title of the aforesaid suit property from the applicant on 5th March 2018 solely for purposes of registering a Deed of Assent for his client’s portion, which he could not accomplish because the Administrators refused to sign the Assent, despite repeated requests. He deposed that his client moved the Succession Court in January 2019, resulting in a Ruling delivered on 5th March 2020 directing inter alia, execution of the Assent and refund of subdivision costs. He noted that while partial refunds were made, the applicant’s clients did not sign the Assent nor remit the full amounts ordered. Mr. Mbugua contended that the applicant has suppressed material facts and failed to disclose that the succession process remains uncompleted due to the Administrators’ failure to execute the Assent, which has made it impossible for him to fulfil the undertaking. 6. He asserted that the Title to the aforesaid parcel of land was lawfully released to the law firm of Amolo & Gachoka Advocates to facilitate registration of Nancy Wamoro Ng’ang’a’s portion, and that the applicant was aware and raised no objection. He denied breaching any professional undertaking, arguing that performance of the undertaking is contingent upon execution of the Assent, a step the applicant’s clients have refused to take for over seven (7) years. He stated that the applicant previously sought similar reliefs in the Succession Cause, which were not granted, thus the instant application is an attempt to re-litigate issues already litigated and declined. He maintained that the applicant stands to suffer no prejudice in the event that the application herein is not allowed, as the Title to the suit property is an Estate asset held by a Co-administrator for purposes of distribution. 7. In a rejoinder, the applicant filed a further affidavit sworn on 7th May 2025 by Mr. David Mukii Mereka, an Advocate of the High Court of Kenya practising in the name and style of the applicant law firm. Mr. Mereka deposed that the applicant’s clients could not execute the relevant forms because the respondent moved the Succession Court in Cause No. 917 of 2008 and obtained orders on 5th March 2020, later reaffirmed in the Ruling of 23rd August 2024, which the respondent failed to comply with and even appealed against. He asserted that if the undertaking was conditional upon execution https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18220/eng@2025-11-28 2

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of the Assent, which has never occurred, the respondent should simply have returned the Title to the applicant. 8. Mr. Mereka maintained that the respondent cannot avoid responsibility for his professional undertaking by claiming the Title is now held by a Co-administrator. He claimed that the respondent cannot blame him for the stalled registration process because the respondent and his client have themselves failed to comply with Court orders, including paying their Kshs.8,000,000/= contribution into the joint account established for the construction of the access road to the satisfaction of Nairobi City County under PPA2 approval of 24th September 2013, which was necessary before subdivision approval could be issued, while the applicant’s clients paid their Kshs.12,000,000/=. Mr. Mereka therefore averred that it is fair and just to compel the respondent to return the Title to all that property known as L.R. No. 1159/41. He stated that the respondent’s conduct amounts to a breach of his professional undertaking. 9. The Summons herein were canvassed by way of written submissions. The applicant’s submissions were filed by the law firm of Mereka & Company Advocates on 7th May 2025, whereas the respondent’s submissions were filed on 3rd July 2025 by the law firm of Mbugua Ng’ang’a & Company Advocates. 10. Mr. Mereka, learned Counsel for the applicant relied on the cases of Conrad Masinde Nyukuri & another v Robson Harris & another [2021] KEHC 6246 (KLR) and Kariuki v Bill Simbah & Associates Advocates [2023] KEHC 4076 (KLR), and submitted that a professional undertaking is an unequivocal binding promise by an Advocate, grounded in honour, personal responsibility, and enforceability by the Court. He deposed that such undertakings must be honoured strictly, remain binding until performed or released, and that failure to honour them amounts to professional misconduct. 11. Applying the said principles, Mr. Mereka submitted that the respondent received the original Title to all that property known as L.R. No. 1159/41 Karen under a professional undertaking dated 5th March 2018, but failed to comply with the orders of Justice Ali Aroni issued on 5th March 2020 directing registration of the Assent, but instead, improperly forwarded the Title to a third law firm, Amolo & Gachoka Advocates, without the authority or knowledge of the applicant. Counsel contended that this conduct amounted to a breach of the respondent’s professional undertaking and failure in his duty as an Officer of the Court. 12. Mr. Mbugua, learned Counsel for the respondent submitted that the enforcement sought is premature, as the professional undertaking in question was expressly contingent upon the execution of a Deed of Assent by the applicant’s clients, an event that has admittedly never occurred. Counsel relied on the Court of Appeal case of Arthur K. Igeria t/a Igeria & Co. Advocates v Michael Ndaiga [2017] KECA 709 (KLR) and further submitted that an undertaking contingent on the occurrence of an event cannot be enforced unless that event has taken place. He stated that it was not disputed that the original Title for L.R. No. 1159/41 was released to the respondent on 5th March 2018 solely to facilitate registration of his client's 2.49-acre portion pursuant to the rectified Certificate of Confirmation of Grant in Succession Cause No. 917 of 2008. 13. Counsel contended that the respondent prepared and circulated the Deed of Assent to all Administrators, including the applicant's clients, who have persistently refused to sign it for over eight (8) years, thereby frustrating the very process the undertaking contemplated. He argued that the applicant cannot claim breach of an undertaking whose performance has been rendered impossible by his own clients’ failure to execute the requisite documents. Mr. Mbugua clarified that the Title to the suit property was not improperly released to a third party as it was forwarded to Amolo & https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18220/eng@2025-11-28 3

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Gachoka Advocates, who represent Nancy Wamoro Ng’ang’a, a Co-administrator and beneficiary lawfully entitled to her portion of the Estate. 14. He stated that similar attempts by the applicant to compel return of the Title had been rejected by the Succession Court, thus the instant application amounts to an impermissible collateral attack on that Court’s authority. Mr. Mbugua asserted that this Court, sitting as a Commercial Division, lacks jurisdiction to revisit issues arising directly from the succession proceedings. He maintained that he has always been willing to honour the undertaking, and that execution of the Deed of Assent, an act solely within the applicant’s clients’ control, is the only impediment to completing registration and returning the Title. Analysis And Determination. 15. Upon consideration of the Originating Summons filed herein, the affidavits filed in support thereof, the replying affidavit by the respondent and the written submissions by Counsel for the parties, the issue that arises for determination is whether the respondent should be compelled to honour the professional undertaking dated 5th March 2018. 16. From the letter dated 5th March 2018, it is clear that the applicant released the original Certificate of Title for L.R. No. 1159/41, Karen, Nairobi, to the respondent solely for the purpose of facilitating registration of a Deed of Assent in favour of the respondent’s client pursuant to the Certificate of Confirmation of Grant issued on 20th March 2013 in Succession Cause No. 917 of 2008. It is undisputed that the registration could only proceed upon execution of the Deed of Assent by all Administrators of the Estate, which has not yet occurred. It is further undisputed that the respondent released the Title to the law firm of Amolo & Gachoka Advocates, a party not bound by the undertaking dated 5th March 2018. 17. Although the applicant contended that this was done without its knowledge or consent, the respondent maintained that the Title to the suit property was lawfully released to the law firm of Amolo & Gachoka Advocates to facilitate registration of Nancy Wamoro Ng’ang’a’s portion, and that the applicant was aware and raised no objection. Upon perusal of the documents annexed to the respondent’s replying affidavit, no evidence was tendered to support the said assertion. 18. To the contrary, on perusal of the email sent on 6th April 2022 by the law firm of Amolo & Gachoka Advocates, relied upon by the respondent to demonstrate that the applicant was fully aware that the Title to the suit property was released to the law firm of Amolo & Gachoka Advocates, it is evident that the said law firm was under the impression that the applicant was in possession of the Title of the suit property since they indicated that it was the applicant law firm that was to release the said Title to facilitate registration of the transfer by assent in favour of Nancy Wamoro Ng’ang’a. 19. The respondent challenged this Court’s jurisdiction to enforce the professional undertaking in issue, on grounds that a similar application that had been made before the Succession Court and declined. On perusal of the application dated 8th March 2024 filed by the applicant’s clients in the Succession Court, it is clear that prayer No. 3 sought an order compelling the respondent and his client to deliver the original Titles to properties known as L.R. No. 1159/41 Karen & L.R. No. 209/4931/12 to the applicant law firm. No evidence has been adduced to demonstrate that the said application was heard and determined by the Succession Court and that the said Court ultimately denied to grant the said order. 20. Nevertheless, unlike the reliefs sought in the application dated 8th March 2024, the one before this Court seeks to enforce a professional undertaking issued by the respondent to the applicant vide a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18220/eng@2025-11-28 4

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letter dated 5th March 2018. The said undertaking was neither the subject of determination before the Succession Court, nor has it ever been the subject of litigation in any other Court. 21. This Court’s jurisdiction to enforce a professional undertaking is derived from the provisions of Order 52 Rule 7 of the Civil Procedure Rules, 2010 which states the following – 1. 2. 22. An application for an order for the enforcement of an undertaking given by an advocate shall be madea. if the undertaking was given in a suit in the High Court, by summons in chambers in that suit; or b. in any other case, by originating summons in the High Court. Save for special reasons to be recorded by the judge, the order shall in the first instance be that the advocate shall honour his undertaking within a time fixed by the order, and only thereafter may an order in enforcement be made. A professional undertaking was defined by the Court in the case of David Karanja Thuo T/a D.K Thuo & Company Advocates v Ishvinder Kaur Kalsi Marwa t/a Kaisi & Company Advocates [2019] eKLR as follows – An undertaking is an unequivocal declaration of intention addressed to someone who reasonably places reliance on it and made by a Solicitor in the course of his practice, either personally or by a member of his staff; or a Solicitor as “solicitor”. but not in the course of his practice, under which the Solicitor…becomes personally bound. An undertaking is therefore a promise made by a solicitor….to do or refrain from doing something. In practice, undertakings are frequently by Solicitors in order to smooth the path of a transaction, or hasten its progress and are convenient methods by which some otherwise problematic areas of practice can be circumvented. 23. On perusal of the letter dated 5th March 2018, addressed to the applicant by the respondent, it stated that – We acknowledge receipt of the original Certificate of Title for L.R. No. 1159/41 which we shall hold on our undertaking to deal with it solely for the purposes of registration of the Assent and deed plan for our client’s bequest. We shall prepare the requisite forms to be executed by the administrators (Emphasis added). 24. It is evident from the above correspondence that the respondent acknowledged receipt of the Title, undertook to prepare the necessary forms for execution by the Administrators, and undertook to handle the Title solely for registering the Assent and deed plan for the portion of the property intended for its client. It is noteworthy that although the applicant’s clients have not yet executed the forms necessary for the aforesaid registration, the respondent has not shown any authority to release the Title of the suit property to the law firm of Amolo & Gachoka Advocates to facilitate registration of Nancy Wamoro Ng’ang’a’s portion. 25. The professional undertaking issued by the respondent to the applicant reproduced above herein was clear and limited. The respondent was to hold the Title only for the purpose of registering the Assent and deed plan in respect of its client’s portion. Therefore, this Court is of the finding that the applicant’s clients’ delay in executing the forms does not justify the action of the respondent in releasing the Title to a third party without the applicant’s consent or a Court order directing the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18220/eng@2025-11-28 5

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The respondent and/or his client was and is still always at liberty to approach the Succession Court for orders compelling the applicant’s clients to execute the requisite forms to facilitate registering the Assent and deed plan in respect of the respondent’s client’s portion. Further, if the said orders have already been issued and the applicant’s clients have refused and/or neglected to comply with them, the respondent can always cite them for contempt of Court orders. 26. On the totality of the evidence adduced, this Court is persuaded that by acting outside the scope of the limited mandate granted to it by the professional undertaking, the respondent breached his professional undertaking and fiduciary obligation owed to the applicant’s clients, the Administrators of the Estate of the late Humphrey Rubia Ng’ang’a, thereby entitling the applicant to the orders being sought herein. 27. In the result, this Court finds that the application herein is merited. It is allowed in the following termsi. The respondent is hereby compelled to honour the professional undertaking dated 5th March 2018 by releasing the Title to all that property known as LR No. 1159, Karen Nairobi to the applicant within thirty (30) days from today. ii. Costs of the application are awarded to the applicant. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 28TH DAY OF NOVEMBER 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. NJOKI MWANGI JUDGE In the presence of:Ms Njoroge h/b for Mr Mereka for the applicant Mr. Orenge h/b for Shammah for the respondent Ms B. Wokabi – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18220/eng@2025-11-28 6

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