Tysons Limited v Jw Wambumbugu & In Gitere T/A Wacira Wambugu & Co Advocates

1. Nairobi Civil Appeal No. 134 Of 2017; Kamal Bhushan & 3 Others v Wambugu Motende & Co. Advocates was compromised on 30.1.2023. 2. Prior to the settlement of the said suit, the defendant's client owed the plaintiff valuation fees of Kshs. 850,000/= for services rendered on L.R. NO. 209/3574 (Nine Plants Apartments Kabarnet Gardens Nairobi). 3. Vide letter dated 2.7.2012, the defendants issued a professional undertaking to settle the said valuation fee once the matters in dispute are resolved. 4. The defendants have since defaulted and/or failed to keep their professional undertaking occasioning the present application. 5. The OS ought to be allowed in the interest of justice. 5. The plaintiff deposed that it issued a demand note dated 9.8.2012 to the defendants demanding payment of the valuation fees. It also issued a subsequent letter dated 27.10.2015 demanding payment. 6. On 22.3.2024, the plaintiff wrote to the Deputy Registrar of the Court of Appeal seeking to know the status of the matter as the defendants were relying on to settle the outstanding valuation fees. 7. The Deputy Registrar via email of 27.3.2024 replied informing the plaintiff that the matter was marked as settled. 8. On 11.4.2024, the plaintiff sent an email to the defendants requesting them to honour their professional undertaking. Submissions 9. The OS was canvassed through written submissions. 10. The plaintiff and the defendants filed written submissions dated 3.12.2025 and 12.2.2026 respectively. 11. The plaintiff relied on Diamond Star General Trading LLC v Ambrose D.O Rachier carrying on business as Rachier & Amollo Advocates [2017] eKLR where the court discussed the meaning and effect of a professional undertaking. 12. The plaintiff also relied on Equip Agencies Limited V Credit Bank Limited [2007] KEHC 666 (KLR) where the court held that an undertaking by an advocate is personally binding; that failure to honour it is prima facie evidence of professional misconduct and the court has power to enforce it. 13. The plaintiff submitted that the defendant's continued failure to honour the professional undertaking is not only a breach of contract between advocates but also a breach of professional ethics, contrary to the expectations of the Advocates Act and the LSK Code of Conduct and Ethics. 14. The plaintiff urged the court to: 1. Issue an order compelling the Defendant to honour the professional undertaking dated 2.7.2012 with interest on the valuation as from the date of the undertaking until payment in full. 2. Direct That compliance be effected within a specified period. 3. Award costs to the Plaintiff. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7095/eng@2026-04-30 2

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15. The defendants submitted that the letter of 2.7.2012 was not a professional undertaking as it was addressed to a non-advocate. It was contended that a professional undertaking is between two advocates and a professional undertaking cannot be purported to be issued to a layman or other institution other than a law firm. 16. In this regard, the defendants relied on David Karanja Thuo t/a (Practising as DK Thuo Co Advocates) v Njagi Wanjeru (Practising as Njagi Wanjeru Co Advocates) [2010] KEHC 1822 (KLR), S. T. G. Muhia t/a S. Thuo Muhia & CO. Advocates v J. M. CHEGE t/a J. M. Chege & CO. Advocates [2009] KEHC 3583 (KLR), Equip Agencies Limited v Credit Bank Limited [2007] KEHC 666 (KLR). 17. The defendants acknowledged that the professional undertaking in question was issued by the firm of Wambugu Motende & Company Advocates to the plaintiff on 2.7.2012. 18. However, the defendants submitted that there is no nexus between Wambugu Motende & Coompany Advocates and Wacira Wambugu & Co. Advocates LLP which purportedly issued the undertaking. It was submitted that the two law firms are separate legal entities and should not be treated as one. 19. The defendants submitted that there is also no nexus between Mr. J. W. Wambugu and the subject professional undertaking. They highlighted that by an order of the Advocates Disciplinary Tribunal in 2020, Mr. J. W. Wambugu was struck out of the roll of advocates and ceased to practice as such. 20. The defendants stated that Mr. Wambugu subsequently resigned from the firm of Wacira Wambugu & Co. Advocates 31.12.2021 therefore ceased to act for or on behalf of the firm of Wacira Wambugu & Co. Advocates LLP in the capacity of an Advocate or a Partner. 21. The defendants relied on Hussein v Gedi; Adan (Interested Party) (Environment & Land Case E009 of 2024) [2025] KEELC 931 (KLR) and Julian Adoyo Ongunga & Another v Francis Kiberenge Bendera (suing as Administraor of the Estate of Fanuel Evans Amudavi Deceased) (2016) eKLR on locus standi. 22. The defendants submitted that there was a contract between them and the plaintiff and that the plaintiff has not proven performance of contract in terms of proving that the assigned assignment was completed. The contended that the invoices and correspondences produced as proof of performance are insufficient. 23. The defendants further contended that the claim is barred by Section 4(1) of the Limitation of Actions Act which requires institution of claims for breach of contract within 6 years from the date on which the breach of contract accrued. This is because the subject professional undertaking was issued in 2012 and the claim has been instituted over 9 years after. 24. In support of this point, the defendants relied on Mehta vs Shah (1965) E.A 321 and Ngari & another v Muia & another (Environment and Land Case E004 of 2024) [2025] eKLR and Iga vs Makerere University (1972) EA. 25. On the claim for interest from the date the undertaking was issued, the defendants asserted that applicable interest rate which has overtime been applied by courts is one that is reasonable in nature and which is at Court rates from the date of filing. In this respect, they relied on Akanga v Capital Markets Authority (Employment and Labour Relations Cause 1187 of 2014) [2025] KEELRC 1359 (KLR). Analysis and Determination 26. The central issue is whether the OS is merited. 27. There is no contest that the firm of Wambugu Motende & Company Advocates issued the letter dated 2.7.2012. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7095/eng@2026-04-30 3

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28. The letter reads in part: “ RE: VALUATION OVER L. R. NO. 209/3574, NAIROBI Kindly prepare a valuation report on the above property as at 6th April 2009 when the Ninety (90) apartments were substantially complete. …. We undertake to pay your professional fees together with disbursements once the matters in dispute are resolved.” Is this letter a professional undertaking? 29. In Naphatali Paul Radier v David Njogu Gachanja D. Njogu & Company Advocates [2006] KEHC 2797 (KLR), the court considered the meaning of a professional undertaking: “ The Encyclopedia of Forms and Precedents”, 5th Edition, Volume 39, defines it as follows:“An undertaking is any 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; ora solicitor as “solicitor”, but not in the course of his practice,under which the solicitor (or in the case of a member of his staff, his employer) becomes personally bound. An undertaking is therefore a promise made by a solicitor, or on his behalf by a member of his staff, to do or to reframe from doing, something. In practice undertakings are frequently given by solicitors in order to smooth the path of a transaction, or to hasten its progress and are a convenient method by which some otherwise problematical areas of practice can be circumvented.” The same definition is to be found in “The Guide to the Professional Conduct of Solicitors”, 7th Edition.” 30. The defendants argued that the subject letter is not a professional undertaking but a contract. 31. However, the court’s considered view is that the letter dated 2.7.2012 fits the definition of a professional undertaking. It was issued by the law firm of Wambugu Motende & Company Advocates in its professional capacity. It contains an undertaking to pay the valuers fees for the preparation of a valuation report once the matters in the dispute are resolved. The defendants’ objection that the letter of 2.7.2012 was not a professional undertaking therefore fails. Enforcement of a professional undertaking 32. The court has power to enforce a professional undertaking summarily upon application to the court. 33. In Halsbury’s Laws of England, 4th Edition by Lord Hailsham of St. Marylebone, Vol. 44(1) it is provided as follows at para 354: “ Where a solicitor who is acting professionally for a client gives his personal undertaking in that character to the client or to a third person, or gives an undertaking to the Court in the course of proceedings, that undertaking may be enforced summarily upon application to the Court. It must be shown that the undertaking was given by the solicitor personally, and Not merely as agent on behalf of his client. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7095/eng@2026-04-30 4

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It must also be given by the solicitor, Not as an individual, but in his professional capacity as a solicitor. The undertaking must be clear in its terms. The whole of the agreement to which it relates must be before the Court, and the undertaking must be one which is Not impossible ab initio for the solicitor to perform. If the undertaking is conditional, the condition must be fulfilled before the undertaking will be enforced.” Ndung’u v Koskei Joel Kipkurui Monda Ombori Rogers & E.J Ruto t/a Koskei Monda & Company Advocates [2023] KECA 1381 (KLR) 34. There are two major objections raised against the enforcement of the professional undertaking, namely: 1. Time-barred 2. It was issued to a non-advocate 3. It was issued by the firm of Wambugu Motende & Company Advocates which no longer exists. Time-barred? 35. The defendants contended that the claim is barred by Section 4(1) of the Limitation of Actions Act which requires institution of claims for breach of contract within 6 years from the date on which the breach of contract accrued. The basis for this objection is that the subject professional undertaking was issued in 2012 and the claim has been instituted over 9 years after. 36. The plaintiff’s claim that enforcement of a professional undertaking is time-barred, should be seen within the framing of the law that; the obligation to honour a professional undertaking remains until the undertaking is performed, released, or excused. Ndung’u v Koskei Joel Kipkurui Monda Ombori Rogers & E.J Ruto t/a Koskei Monda & Company Advocates [supra] 37. Thus, the contention that the claim is time barred fails. Issued to a non-advocate 38. The defendants contended that a professional undertaking is between two advocates and a professional undertaking cannot be purported to be issued to a layman or other institution other than a law firm. 39. From the definition of a professional undertaking at paragraph 29 above and from Halsbury’s passage at paragraph 33 above, a professional undertaking is not restricted to between advocates only; it could be issued to a client or a third person. 40. Hence, the proposition that a professional undertaking cannot be issued to a layman or other institution other than a law firm is unfounded. It therefore fails. No nexus 41. The defendants submitted that the subject letter was issued by the firm of Wambugu Motende & Company Advocates which no longer exists. 42. The defendants argued that there is no nexus between the law firms of Wambugu Motende & Company Advocates and the named defendants J.W. Wambugu & I. N. Gitere T/A Wacira Wambugu & Co Advocates LLP. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7095/eng@2026-04-30 5

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43. The defendants previously sought that the name J. W. Wambugu T/A Wacira Wambugu & Co Advocates LLP be struck out of the suit on the premise that he is improperly joined as a party to this suit by the plaintiff. He claimed that at all material times to this suit he did not run a business or trade under the name and style of Wacira Wambugu & Co. Advocates LLP or at all with the plaintiff. He deposed that the firm Wacira Wambugu & Co Advocates LLP was incorporated on 28.1.2019 and did not exist as of 2.7.2012 when the letter of professional undertaking was issued. 44. In the ruling of 8.5.2025, the court noted that: - 45. “ 13. The plaintiff ... also produced a letter dated 16th December 2016 by Wacira Wambugu & Company Advocates indicating that the monies claimed are held jointly in Kenya Commercial Bank but it had not received payments as the Court of Appeal was seized of the matter. 14. The defendant did not deny that he was a partner in the law firm of Wambugu Motende & Company Advocates as of 2nd July, 2012, when the undertaking was issued. 15. The defendant also claimed that at the time of filing this suit, he had ceased to be an advocate and partner at Wacira Wambugu & Co Advocates LLP. However, an undertaking given by an advocate is personally binding on him. It only ceases to be enforceable where it is performed or discharged or where the beneficiary waives it totally. Naphtali Paul Radier v David Njogu Gachanja T/A Njogu & Co. Advocates – Milimani Commercial Courts Civil Case No. 582 of 2003 (OS) 16. Thus, a professional undertaking can be enforced against a person who has ceased to be an advocate or partner in the firm concerned. Hence, J. W. Wambugu T/A Wacira Wambugu & Co Advocates LLP is a necessary party for the court to determine the issues of whether there was a professional undertaking capable of being enforced and whether the defendant should honour it.” From the above, there is a nexus between Wambugu Motende & Company Advocates and the named defendants J.W. Wambugu & I. N. Gitere T/A Wacira Wambugu & Co Advocates LLP. Mr. J. W. Wambugu was a partner of both entities. Subsequent disbarment 46. The defendants highlighted that Mr. J. W. Wambugu was disbarred in 2020 and that he resigned as a partner of the firm of Wacira Wambugu & Co Advocates LLP on 31.12.2021. 47. I should think that rules on such partnerships would also shape the scope of liability of members on an undertaking by the firm. 48. In my considered view, the subsequent disbarment of Mr. J. W. Wambugu does not absolve him from his obligation to honour the professional undertaking in question. What matters is that at the time when the professional undertaking was issued, he was a practicing advocate and his name was on the roll of advocates. 49. The guiding principle here is that a professional undertaking binds personally the advocate who issues it. Harit Sheth t/a Harit Sheth Advocate v K. H. Osmond t/a K. H. Osmond Advocate [2011] KECA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7095/eng@2026-04-30 6

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286 (KLR) and Claytown Valuers Limited v Joe M. Nzioka t/a Nzioka & Company Advocates & 2 others [2017] KEHC 10013 (KLR) Threshold for enforcement 50. Through the letter dated 2.7.2012 Wambugu Motende & Company Advocates instructed the plaintiff to prepare a valuation report to over L. R. No. 209/3574, Nairobi as at 6.4.2009 when the Ninety (90) apartments were substantially complete. 51. The law firm undertook to pay the plaintiff’s professional fees together with disbursements once the matters in dispute are resolved. 52. In the letter of 16.12.2016, the defendants wrote to the plaintiff in response to a letter dated 24.11.2016 following up the payment of its fees. The defendants indicated that they had not received payments in relation to Civil Application No. Nai 207 of 2015 pending before the Court of Appeal. The caption of this letter is: - Outstanding Valuation Fees Of KSHS. 850,000/- ON L. R. NO. 209/3574 Nine Plants Apartments Kabarnet Gardens, Nairobi Owed To Tysons Limited. 53. The plaintiff exhibited an email dated 27.3.2024from the Deputy Registrar of the Court of Appeal confirming that the appeal was marked as settled on 30.1.2023. 54. The defendants undertook to pay the plaintiff’s professional fees together with disbursements once the matters in dispute are resolved. 55. As captured above, “if the undertaking is conditional, the condition must be fulfilled before the undertaking will be enforced.” 56. The evidence confirms that the dispute has been resolved and the condition for the undertaking to be enforced has been fulfilled. 57. Therefore, the court finds that the plaintiff has established that the defendants have a duty to honour their professional undertaking to pay its fees of Kshs. 850,000/-. 58. Accordingly, the defendants must be compelled to honour their professional undertaking. Interest 59. The plaintiff sought interest at commercial rates as from the date of the said professional undertaking until payment in full. 60. The defendants argued that the interests should be charged from the date of the judgment. 61. On the question of interest, the court is guided by section 26 of the Civil Procedure Act and the principles discussed in Jane Wanjiku Wambu v Anthony Kigamba Hato & 3 others [2018] eKLR. 62. A trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. As to the period before the filing of the suit, section 26 of the Civil Procedure Act has no application. Instead, interest prior to the date of the suit is a matter of substantive law and is only claimable where under an agreement there is stipulation for the rate of interest (contractual rate of interest) or where there is no stipulation, but interest is allowed by mercantile usage (which must be pleaded and proved) or where there is statutory right to interest or where an agreement to pay interest can be implied from the course of dealing between the parties. 63. In this case, the plaintiff has not established any agreement to pay interest prior to the date of filing the suit. The undertaking, the demand note and the follow up letter are all silent as to interest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7095/eng@2026-04-30 7

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64. Therefore, the plaintiff’s prayer for interest from the date of the professional undertaking fails. 65. In conclusion, the plaintiff’s OS dated 15.8.2024 is allowed in the following terms: 1. Judgment is entered for the plaintiff against the defendants jointly and severally for: a. Kshs. 850,000/- b. Interest at court rates on (a) above from the date of filing of the OS until payment in full. c. Costs of the suit and interest at court rates. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 30TH DAY OF APRIL, 2026 ------------F. GIKONYO M JUDGE In the presence of: Kamau for defendant Wandago for Plaintiff CA – Ivan/Aggrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7095/eng@2026-04-30 8

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