Gakinya t/a Hari Gakinya & Company Advocates v Nondadhona Company Limited & 155 others & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that an advocate's oral undertaking given in open court is fully binding, and the advocate must personally refund the money.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the professional undertaking was enforceable
- 2.Whether the appellant was liable to refund the purchase price to the respondents
- 3.Whether the award of interests was merited
Key legal issues
#Enforceability of the professional undertaking
The undertaking was enforceable; it was recorded in court and need not be in writing or signed.
The consent and undertaking were recorded in open court and documented in the certified record, which is presumed accurate. An undertaking is an unequivocal declaration of intention, oral or written, grounded in the court's inherent summary jurisdiction over its officers rather than contract formalities. Reliance by the other party, not signature, is the binding factor. The argument that it was not in writing was raised for the first time on appeal and could not be entertained.
Personal liability of the appellant to refund the purchase price
The appellant, having given the undertaking, is personally and jointly liable with the plaintiffs to refund the purchase price.
Advocates are officers of the court under the Advocates Act; undertakings are enforced through the court's inherent punitive jurisdiction, not ordinary contract principles. An advocate recorded as giving a consent-order undertaking cannot escape liability by claiming to have acted merely for a client. Failure to perform is a prima facie case of professional misconduct, and the court may order execution against the advocate personally.
Award of interest on monies held under the undertaking
The trial court's award of interest was within its powers and not faulted.
The power to award interest on monies held pursuant to an advocate's undertaking stems from the court's inherent supervisory and disciplinary jurisdiction over advocates as officers of the court, paired with statutory civil procedure provisions. The court awards interest to fulfil the demands of justice, restore the aggrieved party, and maintain the honour of the profession, and may order release of the principal plus interest where funds are wrongfully withheld.
Legal principles established
#- An advocate's professional undertaking need not be in writing or signed to be binding and enforceable; an undertaking recorded orally in open court is valid and binding.
- An advocate who records a consent order and gives a professional undertaking is personally bound; breach constitutes professional misconduct enforceable through the court's inherent summary jurisdiction.
- A party cannot raise a new issue on appeal that was never pleaded, raised or determined before the trial court.
- A properly certified court record is presumed prima facie accurate unless evidence to the contrary is presented.
Court orders
#- 1.The ruling of the Environment and Land Court at Nakuru dated 31st May 2017 in ELC Case No. 268 of 2013 is affirmed
- 2.The appeal is dismissed with costs to the 2nd and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Nakuru
- ELC Case No. 268 of 2013
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the Environment and Land Court (first appellate review of a ruling)
Relief refused
#Setting aside of the trial court's ruling enforcing the consent and professional undertaking
The appeal was found devoid of merit; the undertaking was enforceable and the appellant liable
Costs
Appeal dismissed with costs to the 2nd and 3rd respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we affirm the said ruling and dismiss this appeal with costs to the 2nd and 3rd respondents.
an advocate's professional undertaking does not strictly have to be in writing and signed to be legally binding and enforceable
an oral consent or undertaking given by an advocate in open court is completely valid, sufficient, and binding
it is an abuse of court process and functionally impermissible for an appellant to raise a completely new issue, ground or argument on appeal that was never pleaded, raised or determined before the trial court
When an undertaking is recorded as a consent order, the advocate cannot escape liability by claiming they were merely acting on behalf of a client.
Issues in the judgment
#Trial judge's name appears inconsistently as 'S. Munyao, J.' in the header and 'Sila, J.' in the body
Advocates Act section cited inconsistently for the same proposition (Section 55 then Section 57)
Third judge signed as 'AHMED ISSACK' though coram lists 'AI HASSAN'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakinya t/a Hari Gakinya & Company Advocates v Nondadhona Company Limited & 155 others & 3 others", Case Analysis (2026). Civil Appeal E094 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2081/eng@2026-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.