Gakinya t/a Hari Gakinya & Company Advocates v Nondadhona Company Limited & 155 others & 3 others

without the authority of the administrators. This transaction triggered Nyeri HCCC No. 5 of 2005 in which the Court directed Abdi Aziz Ahmed and Nondahona Ranching Company to refund the monies that had been paid. 3. In 2012, the administrators of the deceased’s estate entered into fresh sale agreements with Nondahona Company Limited (the 1st respondent and Egeswa Company Limited (the 2nd respondent). Pursuant to the said agreement, the 1st and 2nd respondents agreed to purchase 200 acres of land out of the said title at consideration of Kshs.300,000/= per acre. Each of the said purchasers paid Kshs.3 million towards the purchase price. The completion date was initially xed for 31st March 2012 and was subsequently extended to 28th February 2013. 4. The purchasers did not complete payment of the purchase price, prompting the vendors vide plaint dated 27th March 2013 to institute Nakuru ELC No. 268 of 2013, seeking a permanent injunction restraining them from interfering with the suit property. In response, the purchasers led statements of defence disputing the claim and maintaining that they had enforceable rights as purchasers. 5. On 25th April 2013, the vendors were represented by the appellant's law rm, Hari Gakinya & Co. Advocates recorded a consent with the 2nd respondent (Egeswa Company Limited) acknowledged that the 2nd respondent had paid Kshs. 12,974,000/= and was to pay the balance of Kshs.5,026,000/= by the end of the year. The consent also stated that the 2nd respondent was to be shown its land within two weeks. 6. On 8th July 2015, a further consent was recorded before Sila, J. (as he then was), pursuant to which the appellant’s law rm furnished a professional undertaking to refund the purchase price to the 2nd and 3rd respondents upon disposal of the land by the vendors. This is the consent the subject of this appeal, therefore, it is important that we reproduce it verbatim. It reads: “ By consent 1. The rm of M/s Hari Gakinya & Company Advocates now gives a professional undertaking that the 2nd defendant and 1st interested party be refunded the purchase price by the plainti after disposal of the subject matter. 2. The issue of costs and interest on the purchase price to be agreed upon after payment of the purchase price. 3. The matter be mentioned to conrm payment of purchase price. Mr. Gakinya: I conrm Court: Order as agreed by parties as above to issue Munyao Sila, Judge. 7. The land was subsequently sold to a third party (Tumple Industries who purchased 400 acres), but no refunds were not made to the 2nd and 3rd respondents. This prompted the 2nd and 3rd respondents to le in court an application dated 22nd February 2017, seeking to enforce the consent and the professional undertaking issued by the appellant. Basically, the application sought to enforce the consent order of 25th April 2013 and the professional undertaking of 8th July 2015 compelling the appellant and his law rm to refund the purchase prices of Kshs. 12,974,000/= and Kshs.1,181,000/= respectively. In the dispositive paragraph, Sila, J stated: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2081/eng@2026-10-02 2

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“15. I am persuaded that this application must succeed, at least in so far as it seeks to enforce the promise to refund the applicants. The promise to pay was made by both plaintis and the rm of M/s Hari Gakinya & Company Advocates. Both of them are jointly and severally obligated to ensure that the refund is made. I now order the plaintis and the law rm of M/s Hari Gakinya & Company Advocates to ensure that the 2nd defendant is refunded the sum of Kshs. 12, 974,000/= and the interested party is refunded the sum of Kshs. 1, 181,000/= within 14 days from the date hereof. If no refund is forthcoming within the stipulated period, the applicants are at liberty to execute for these monies jointly and/or severally against the plaintis and the proprietor/s of the law rm of M/s Hari Gakinya & Company Advocates. 16. The applicants shall have the costs of this application.” 8. Dissatised with the above verdict, the appellant lodged this appeal citing 7 grounds, which may, for the sake of brevity, be condensed into three broad grounds, namely; (a) whether the professional undertaking was enforceable; (b) whether the appellant was liable to refund the purchase price to the respondents, and, (c) whether the award of interests was merited. 9. During the virtual hearing of this appeal on 18th May 2026, learned counsel Mr. Gakinya represented himself and his rm. Learned counsel Mr. Ogeto appeared for the 2nd and 3rd respondents. The 1st respondent did not participate in the appeal. 10. Mr. Gakinya did not le written submissions despite clear court’s directions requiring both parties to le submissions. Nevertheless, the Court asked him to submit orally, which he did. He faulted the trial judge for ordering that the money be recovered from himself and his law rm despite the fact that before the judge was a land dispute where the respondents claimed to have purchased the land. Counsel argued that for a professional undertaking to be enforceable, it must be in writing and signed by both parties. He maintained that the undertaking in question was not made in writing. Further, the amounts payable to the 2nd respondent plus interests and costs were to be agreed upon, while the amount ordered to be paid to the 2nd respondent was not part of the consent. 11. Learned counsel Mr. Ogeto led written submissions dated 23rd June 2023 on behalf of the 2nd and 3rd respondents. He maintained that the appellant had given a professional undertaking which he breached. Further, before the trial court, the appellant never challenged the existence of the professional undertaking. Counsel referred to page 363 of the record where Mr. Katihi holding brief for Mr. Gakinya stated “I am advised that the money is there but Mr. Gakinya and Mr. Ogeto have not been able to agree on the money payable.” Further, before the trial court, the legality of the professional undertaking was not raised. Counsel maintained that the undertaking was absolute, contrary to the appellant’s assertion that it was not. Further, at page 366 of the record, the appellant clearly stated that the land had already been sold to 3rd parties. It was his submission that a professional undertaking is unequivocal in nature and every advocate has a duty to honour any undertaking given in the course of his professional duty, and failure to honour amounts to professional misconduct. Further, a professional undertaking given by an advocate is subject to court’s supervision. Counsel cited several authorities, but, none has citations. To our mind, an advocate has a strict ethical and professional duty to provide accurate veried citations for authorities cited. 12. A useful starting point in this determination is to observe that there is no dispute that the consent was recorded in court as clearly documented at paragraph 6 above. In any event, a properly certied court record is presumed to be prima facie accurate, meaning it is accepted as a true and correct reection of what transpired during the proceedings unless evidence to the contrary is presented. We nd no evidence to the contrary negating the accuracy of the proceedings. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2081/eng@2026-10-02 3

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13. Equally important is the fact that an advocate occupies a dual role, he is a representative of his client and, fundamentally, an ocer of the court. When an advocate records a consent order and gives a professional undertaking, especially one involving the payment of money, the law imposes an exacting duciary and ethical duty. A professional undertaking given by an advocate, including one recorded as a consent order, is treated with the highest degree of gravity. This Court has repeatedly held that such undertakings are personally binding, legally enforceable and that a breach of them constitutes professional misconduct. 14. Because advocates are ocers of the court under Section 55 of the Advocates Act, the court enforces undertakings not through standard principles of contract law, but via its inherent punitive jurisdiction to secure the honesty and integrity of its ocers. This Court in Kenya Commercial Bank vs. Adala [1983] KLR 467, a foundational locus classicus regarding the enforcement of professional undertakings by Kenyan courts held that courts possess inherent, summary jurisdiction to hold an advocate personally accountable for breaching an undertaking. The court exercises this punitive power to enforce honorable conduct among its ocers, separate from the client’s underlying legal rights. 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. The failure to perform is a direct prima facie case of professional misconduct. 15. This Court in Peter Ng’ang’a Muiruri vs. Credit Bank & Charles Ayako Nyachae t/a Nyachae & Co. Advocates [2006] eKLR reiterated the absolute sanctity of an advocate's commitment. An advocate’s commitment when issuing a professional undertaking whether to the court, an opposite party or a colleague is treated as an absolute, sacred, and non-negotiable obligation. The legal profession is viewed not as a mere business but as a noble calling, where the personal integrity of an advocate is indispensable to the administration of justice. 16. The appellant argued that the undertaking in this matter was not in writing and it is not signed by the parties. This argument collapses, not on one, but two fronts. First, this argument is being raised before this Court for the rst time. It was not raised, argued and determined before the trial court. This Court has consistently held that 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. An appellate court is restricted to reviewing how the trial court determined the issues properly presented before it. Raising a fresh matter deprives the lower court of the opportunity to pronounce itself on the issue and catches the opposing party by surprise. 17. This Court in Airtel Networks Kenya Limited vs. Nyutu Agrovet Limited [2011] eKLR emphasized that the jurisdiction of an appellate bench is invoked to review the correctness or incorrectness of a lower court’s decision. If an issue was not raised, argued or determined by the court below, there is technically no “ decision" on that issue for the Court of Appeal to review. Allowing a party to present a new case at the apex of litigation compromises the principles of a fair trial. 18. In any event, this Court has rmly established that an advocate's professional undertaking does not strictly have to be in writing and signed to be legally binding and enforceable. Because a professional undertaking is grounded in the inherent summary jurisdiction of the court to supervise its ocers and ensure professional honesty, rather than strict statutory or contract law formalities, oral undertakings carry identical ethical and legal weight. In seminal decisions like Waruhiu K'owade & Ng'ang'a Advocates vs. Mutune Investment Limited [2016], this Court emphasized that an undertaking is a matter of professional honor and an "acid test on the honesty of the advocate". Following the common https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2081/eng@2026-10-02 4

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law denitions adopted by Kenyan courts, an undertaking is dened as an unequivocal declaration of intention which may be given orally or in writing, and it does not even need to explicitly include the word "undertake." The binding factor is not the signature, but whether another party reasonably placed reliance upon the advocate's unequivocal promise in the course of their legal practice. 19. Secondly, the undertaking was recorded in Court. There are numerous decisions of this Court rmly establishing that an oral consent or undertaking given by an advocate in open court is completely valid, sucient, and binding. (See Peter Ng'ang'a Muiruri vs. Credit Bank & Charles Ayako Nyachae t/a Nyachae & Co. Advocates (Civil Appeal No. 263 of 1998)). This principle is echoed by the Law Society of Kenya (LSK) Digest of Professional Conduct and Etiquette and armed judicially: an unequivocal declaration of intention made by an advocate in the course of practice, upon which the court or an opposing party places reliance, is fully enforceable. The fact that it was recorded orally in open court rather than signed as a formal written document does not absolve the advocate or the client. Therefore, arising from our analysis and the law in the foregoing paragraphs, we have no reason not to nd that the undertaking given by the appellant was enforceable. 20. The appellant is questioning the award of interests. The power of a court to award interests on monies held pursuant to an advocate’s professional undertaking stems from the court's inherent supervisory jurisdiction over its ocers, paired with statutory provisions governing civil procedure. This authority to award interest stems from the court's supervisory, punitive and disciplinary jurisdiction over advocates as ocers of the court under Section 57 of the Advocates Act. Rather than being strictly conned by standard commercial contract law, the court awards interest to fulll the demands of justice, restore the aggrieved party, and maintain the honor of the legal profession. Because the court prioritizes enforcing the honesty of its ocers over strict contractual doctrines, it possesses broad equitable and statutory powers to penalize non-compliance, including ordering the payment of interest on withheld funds. If an advocate wrongfully holds onto funds, the court has the power to order the immediate release of the principal sum plus interest to restore the aggrieved party to the position they would have been had the undertaking been timeously honored. Accordingly, we nd no reason to fault the award of interests by the trial court. 21. We have said more than enough to demonstrate that this appeal is devoid of merit and it is a candidate for dismissal. The upshot is that, we nd no reason at all to disturb the Ruling of the Environment and Land Court of Kenya at Nakuru delivered by Sila J, (as he then was) dated 31st May 2017 in ELC Case No. 268 of 2013. Accordingly, we arm the said ruling and dismiss this appeal with costs to the 2nd and 3rd respondents. DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF OCTOBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2081/eng@2026-10-02 5

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I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2081/eng@2026-10-02 6

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