A High Court judge has ordered three city lawyers to refund a total of Sh18 million they were paid on behalf of a land seller in November 2023.
A High Court judge has ordered three city lawyers to refund a total of Sh18 million they were paid on behalf of a land seller in November 2023.
Justice Josephine Mong'are said lawyers Samuel Githinji Kariko, Abdulhakim Abdullahi and Morris Kaburu— who trade as Githinji & Associates Advocates — made a professional undertaking which they later breached.
The judge ruled that the undertaking was clear and unambiguous in respect of its terms and was predicated upon the purchaser's advocates paying the deposit of Sh18 million and the seller vacating the two properties in Ruiru, Kiambu County.
"Since the undertaking was clear and unequivocal and the underlying condition of granting vacant possession had not been fulfilled, I do not see why the court should not enforce it," ruled the judge.
Justice Mong'are said the defendant advocates (Githinji & Associates Advocates) were bound by the undertaking and had a duty to refund the total amount of the deposit.
CM Advocates LLP moved to court saying it represented Safwan Energy Limited, who intended to purchase two properties in Ruiru.
In the deal, Githinji & Associates Advocates acted for the seller, Ms Margaret Mwihaki Wanyoike, in the transaction.
A sale agreement was executed on September 18, 2023 and pursuant to the deal, an initial deposit of Sh18 million was released to Githinji & Associates Advocates' client account and on the strength of a professional undertaking made on the same date.
In the agreement, the deposit would be held by the law firm on a stakeholder basis and that the vendor would grant the purchaser vacant possession within 24 hours of release of the deposit.
The undertaking further provided that in the event that vacant possession of the properties was not granted to the purchaser, Githinji & Associates Advocates would refund the deposit within five days of receiving a written demand.
The terms of the undertaking were to remain binding upon the advocates until such a time that CM Advocates would expressly release them from the terms, the court was told.
CM Advocates stated that the seller did not vacate the properties, forcing them to seek a refund of the sums paid.
The purchaser's lawyers accused Githinji & Associates Advocates of neglecting or ignoring to perform its part of the bargain and the court should declare the move a breach of terms of the agreement.
Opposing the case, the defendant advocates stated that the undertaking was re-negotiated and altered when the CM Advocates consented to the release of part of the deposit held by the firm.
Githinji & Associates Advocates said the firm was ready to refund the balance of the deposit of Sh12 million back to CM Advocates and the vendor’s representatives were ready to refund Sh4 million already used.
The court was told that CM Advocates approved withdrawals of the deposit pursuant to the correspondences exchanged between the parties.
The said letters include that of January 30, 2024 where Githinji & Associates Advocates sought Sh4 million from the deposit, which was granted.
The letter, Githinji & Associates Advocates said, was immediately followed up by a letter on February 1, 2024 where the purchaser's advocates rescinded their initial consent and demanded a refund of the entire deposit.
The firm added that the family of the vendor was ready and willing to refund Sh3 million that had been released to them, a move that CM Advocates has allegedly acknowledged.
But the judge said the default has not been disputed and in fact, has been admitted by Githinji & Associates Advocates who stated that they were in the process of refunding the total deposit.
"The defendant advocates can only be discharged from the undertaking once they refund the entire Shs18,000,000," said the judge, adding that the position remained Githinji Associates Advocates were to hold the deposit on a stakeholder basis until the purchaser was granted vacant possession of the properties.
Justice Mong'are said the sole reason Githinji Associates Advocates issued the undertaking was to guarantee the CM Advocates that vacant possession would be granted and that the money would not be released until this happened.
