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Introduction

A Professional Undertaking is an unequivocal declaration of intention addressed to someone who reasonably places reliance on it and made by an advocate or a member of an advocate’s staff in the course of practice. The undertaking facilitates legal transactions which may include payment of purchase monies, loan funds, discharge of obligations or accounting to the other party for documents in return.

The court in the case of Diamond Star General Trading LLC –vs- Ambrose D. O. Rachier carrying on business as Rachier & Amollo advocates [2017] eKLR cited the following definition of professional undertakings as stated in Black Laws Dictionary as follows:

“The Black Law Dictionarydefines an undertaking as a “promise, engagement, or stipulation.” It states that an “undertaking” is frequently used in special sense of a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtain some concession for the court or opposing party.

Equally, Clause 131 of the Law Society of Kenya Code of Standards of Practice and Ethical Conduct, states;

“An undertaking is a formal promise whose effect is to make the person giving it responsible for the fulfillment of the obligations in respect to which it is given. An Advocate’s undertaking is a personal promise as well as a professional and legal obligation. It is based on the concept of the legal professional as an honourable profession and the expectation that an honourable person will honour his/her word. In legal practice professional undertakings are a standard method of mediating transactions. Without such undertakings there would be much difficulty and inconvenience suffered by clients.”

Ingredients of a Professional Undertaking

  1. a) Unequivocal declaration of intention;
  2. b) Addressed to someone; and
  3. c) The other party places reliance on it.

Relevance of Professional Undertakings in the Legal practice

In the course of most conveyancing transactions, it is common for advocates to enter into written agreements to do or refrain from doing certain things. These are generally called professional undertakings. These agreements not only help speed up the process of conveyancing but also circumvent problematic areas. From a viewpoint of a professional it should be noted that:

  1. An undertaking creates a legal obligation upon the advocate which is enforceable by Courts by way of mandatory injunctions and Court orders: Order 52, Rule 7 of the Civil Procedure Rules, 2010 and the Advocates Act, Cap 16 expressly allow the Court to enforce an undertaking and make such orders as it deems appropriate e.g., order a fine, jail term, etc.
  2. The giving of a professional undertaking by an advocate place on him an ethical obligation to comply with the same: The undertakings are sacrosanct and must be honoured. The LSK is usually the body concerned with ethical conduct of an advocate and this ethical side of undertakings gives the undertaking its value. LSK can, if it finds an advocate guilty of breaching an undertaking, fine or, suspend, or even strike an advocate’s name off the Roll of Advocates.
  3. The obligation to honour professional undertaking remains: until the undertaking is performed, released or excused.

Nature of Professional Undertakings

  1. It is in writing even though nothing, in principle, prevents it from being oral.
  2. It places both a legal and ethical obligation on the giver.
  3. Once it is given, it cannot unilaterally be withdrawn if it has been relied upon by the recipient.
  4. Once given, it transcends the mere transaction and assumes the character of an acid test on the honesty of the advocate. In Peter Ng’anga Muiruri v. Credit Bank and Charles Ayako Nyachae t/a Nyachae & Co. Advocates, the Court of Appeal Nairobi held that a professional undertaking is a solemn thing. In enforcing an undertaking, the Court is not guided by considerations of contract but, the Court aims at securing the honesty of its officers.
  5. An undertaking once given cannot be watered down by way of reference to collateral issues.
  6. The giver and recipient don’t have to be in an advocate/client relationship.
  7. To fail to honour an undertaking is a professional misconduct.

Archetypal examples of Professional Undertakings

Some of the standard examples of Professional Undertakings are where the undertaking involves settlements such as:

  1. payment of purchase monies, loan funds, discharge of obligations and accounting to the other party for documents in return.
  2. In conveyancing transactions, it may be noted in any of the following instances;
  3. Vendor’s advocates undertaking not to release the purchase price to vendor pending actual registration of the Transfer;
  4. Purchaser’s advocate undertaking to hold completion documents to vendor’s order pending payment of the purchase price; or
  • Purchaser’s or purchaser’s financier’s undertaking to pay the secured balance of the purchase price within a specified period of receipt of the registered security (charge or mortgage) documents.

Consequences following breach of a Professional Undertaking

Advocate’s failure to honour a Professional Undertaking undermines the trust bestowed between parties and is detrimental to the client’s interests. It can also jeopardize critical legal transactions.

In the event of con-compliance with a Professional Undertaking by the giver, the recipient may opt to perform any of the following to trigger enforcement;

  1. Demand compliance in writing.
  2. Cooperate with the undertaking party e.g., seek to extend time.
  3. Institute a Court action under Order 52 of Civil Procedure Rules, 2010 through an Originating Summons.

– In United Mining and Finance Corporation Ltd v. Beecher & Naftali Paul Radier v. David Njogu Gachanja t/a D. Njogu & Co. Advocates, [2006] KEHC 2797 (KLR) it was held that the Court will grant an order to enforce a professional undertaking where the undertaking is clear, unambiguous, certain and without any conditions precedents.

  1. Report the matter to LSK for disciplinary action.

-Failure by an Advocate to honour the terms of a professional undertaking is prima facie evidence of professional misconduct. Consequently, the Society will require its implementation as a matter of conduct. The Society however has no power to order payment of compensation or to procure the specified performance of an undertaking if an Advocate declines to implement it. The Society will proceed by way of disciplinary action for failure to honour the undertaking

It is also important to note that a Professional Undertaking can be enforced even if one is not the recipient but is instead a beneficiary.

The decision in Kenya Commercial Bank (KCB) v Mohammed Muigai Advocates (HCC 757 of 2003) establishes the principle that a professional undertaking given by an advocate is binding and enforceable even if the beneficiary of the undertaking is the client and the advocate is unable to enforce it themselves, as cited in a legal document.

Disclaimer:

The information contained in this article should neither be construed as legal advice from JRO ADVOCATES LLP and/or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter.

At JRO ADVOCATES LLP we continue to monitor the implementation of the law and provide first hand and prompt feedback. For more information or queries, please contact our team of experienced advocates for any clarifications or appointments through +254113230047 or via email through info@jroadvocatesllp.co.ke.


Author
Trevor Oduor