P Ethics Edited Final

KENYA SCHOOL OF LAW
ADVOCATES TRAINING PROGRAM (ATP)
FIRM 12, CLASS A
ATP 105 PROFESSIONAL ETHICS

PROJECT WORK FOR ACADEMIC YEAR
2021/2022
COURSE INSTRUCTOR: MR. STEPHEN MALLOWAH
26th October 2021
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LIST OF FIRM 12 MEMBERS
GROUP MEMBERS REGISTRATION NO. SIGNATURE
NYAKWEBA WENDY MAGOMA 20210235
OMBEWA TRIZAH ATIENO 20210288
MITEI KIPKORIR TONY 20210294
WAMBOI JULIUS 20210584
LYDIA KAHIGA 20211082
WANGO ERIC WAMBUGU 20211272
LENA MUSINGO 20211329
CAREN UNITY 20211344
VICTOR KIPKEMBOI 20211523
NYAGAKA HESBON MATOKE 20211600
VERAH MURUNGA (Deferred) 20211638
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CLASS A FIRM 12 STUDENTS (Twelve & Tens Advocates) DECLARATION
We hereby declare that this research project paper is our original work and has not been
presented or submitted to any academic institution in its entirety or part or for any other
purpose other than The Kenya School of Law for academic credit for the year 2021/2022 to
the best of our knowledge. We have conferred other works and referred to a range of
sources in preparing this research paper which has accordingly been acknowledged.
CHAIRPERSON : …………….………... SECRETARY : ………………………
SIGNATURE : ……………………..... SIGNATURE : ……………………….
DATE : ………………………. DATE : ……………………….
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TABLE OF CONTENTS
CLASS A FIRM 12 STUDENTS (Twelve & Tens Advocates) DECLARATION iii
LIST OF ABBREVIATION vi
LIST OF LAWS vii
LIST OF CASES viii
A. LEGAL OPINION ON THE PROCESS OF TAKING OVER THE CONDUCT OF
THE MATTER, THE ACTIONS TO TAKE AGAINST ADVOCATE
KIMBELEMBELE, ADVOCATE PETER MACHACHARI AND PURCHASER 1
I. Introduction 1
II. Brief Facts 1
III. Issues 2
a. What is the process of taking over the conduct of the matter from Advocate Peter
Machachari? 2
b. What are the other issues arising and how will the firm deal with them? 4
IV. Conclusion on the issue of taking over the matter 5
B. WHAT ARE THE ACTIONS AGAINST ADVOCATE KIMBELEMBELE
WHO ISSUED THE PROFESSIONAL UNDERTAKING AND THE
PURCHASER 6
i. Against Advocate Kimbelembele 6
a. Lodge complaint at Advocates Complaint Commission 8
b.Advocates Disciplinary Tribunal 10
c. Court 11
ii. What are the actions he may take against the purchaser in default 12
a. Issue a Completion Notice to the Purchaser 12
b. Institute Civil Proceedings Against the Purchaser 13
c. The Right of Re-Entry Into The Property. 13
d. Register Caution Against the Land 13
C. WHAT ACTION HE MAY TAKE AGAINST HIS FORMER ADVOCATE
PETER MACHACHARI? 15
a. Advocates complaints commission 16
b.Disciplinary tribunal 17
c. Court 18
BIBLIOGRAPHY i
Books i
Online Journals/Articles i
ANNEXURES ii
SAMPLE OF DISCHARGE FORM ii
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SAMPLE OF NOTICE TO CHANGE ADVOCATES iii
SAMPLE OF NOTICE TO CHANGE ADVOCATES iv
SAMPLE OF COMPLAINT FORM v
SUMMARY OF A COMPLAINT AGAINST AN ADVOCATE v
SAMPLE PROFESSIONAL UNDERTAKING ENFORCEMENT APPLICATION
THROUGH THE COURT xi
SAMPLE OF COMPLETION NOTICE xvii
MEETINGS xviii
MEETING 1 xviii
MEETING 2 xx
MEETING 3 xxiii
MEETING 4 xxvi
MEETING 5 xxviii
MEETING 6 xxx
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LIST OF LAWS
1. Constitution of Kenya 2010
2. Advocates Act
3. Advocates (Remuneration) (Amendment) Order, 2014
4. Civil Procedure Rules 2010
5. The Law Society of Kenya Digest of Professional Conduct and Etiquette 2000
6. Law Society of Kenya, Conditions of Sale 2015
7. Law Society of Kenya, Conditions of Sale 1989
8. Law Society of Kenya Code of Standards of Professional Practice and Ethical
Conduct, June 2016
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LIST OF CASES
1. Arthur J.S. Hall vs Simmons[2000] 3 WLR 543

2. David Karanja Thuo vs. Njage Waweru HCC No.209 of 2008 (OS)
3. Fidelity Commercial Bank Limited v Onesmus Githinji &Company Advocate [2013]
eKLR.
4. KCB vs Mohammed Muigai [2003] eklr
5. Kimani Ng’ondu Mburu v Catherine Waithira Mwangi T/A Waithira Mwangi & Co.
Advocates [2013] eKLR
6. Mohammed Ashraf Sadique & another v Matthew Oseko t/a Oseko And Company
Advocates[2009] eKLR
7. Omwoyo vs AH & P Co. limited [2002] 1KLR 68
8. Patrick S.K. Kimiti v John Ngugi Gachau & another [2015] eKLR
9. Law Society of British Columbia v Heringa [2004] 195 B.C.A.C. 198 (CA).
10. Reid Rondel V Worsely [1969] AC 193
11. Re Hilliard[1845]2 Dowl. &L. 919.
12. Republic v Advocates Disciplinary Tribunal & 2 others Ex parte Mpuko Nahason
Mwiti [2015] eKLR
13. Republic vs. Law Society of Kenya disciplinary tribunal & Another Ex-Parte:
Leonard Gethoi Kamweti [2015] eKLR
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TWELVE & TENS ADVOCATES
COMMISSIONER OF OATHS
TSS TOWERS TEL/FAX: 0520-7891236
FIFTH FLOOR, Suite 4 MOBILE: +254708063571
MOI AVENUE, Email: info@twelveandten.co.ke
P.O BOX 80961 – 40100 KENYA
KISUMU
OUR REF: 29/LO/2021 YOUR REF: TBA DATE: 25th July, 2021
Mr. Kawigula,
P.O BOX 4529-40100, Advance by email: kawigulasenior@yahoo.com
KISUMU.
Dear Mr. Kawigula,
RE: LEGAL OPINION ON THE PROCESS OF TAKING OVER THE CONDUCT OF

THE MATTER, THE ACTIONS TO TAKE AGAINST ADVOCATE
KIMBELEMBELE, ADVOCATE PETER MACHACHARI AND PURCHASER
I. Introduction
Thank you for entrusting our firm to advise you on the process of taking over your matter
from Advocate Peter Machachari to ourselves.
II. Brief Facts

You instructed Advocate Peter Machachari to represent you in a conveyance transaction
between yourself and Ms. Tayari (purchaser) involving the sale of your land. Your Advocate
received kshs 600,000/= as the initial payment for the sale and a balance of kshs 5,400,000/=
was due. The purchaser’s Advocate undertook to pay the remaining balance within 14 days
after successful registration of your land to Ms. Tayari. The purchaser’s Advocate proceeded
and registered the land in Ms. Tayari’s name. Ms. Tayari’s Advocate received the remaining
balance but failed to release it to your Advocate. You faulted your Advocate for being unable
to complete the transaction and requested us to advise you on how to transfer the matter to
ourselves.
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III. Issues
The issues that arise are as follows:
1. What is the process of taking over the conduct of the matter from Advocate Peter
Machachari?
2. Whether there are other issues arising and how the firm will deal with them?
3. What are actions he may take against the purchaser and her Advocate Kimbelembele
who issued the professional undertaking?
4. What are the actions he may take against his former Advocate Peter Machachari?
a. What is the process of taking over the conduct of the matter from Advocate
Peter Machachari?
The Law Society of Kenya Conditions of Sale of land allows a party to a sale transaction to
change an advocate by giving notice.1 One may also change an advocate by requesting his/her
file subject to payment of the advocate’s fees.2 As a consumer of the services of the
Advocate,3 you have a right at any time to withdraw the instructions and the Advocate is
required to facilitate the client with this choice. 4 In order to transfer the conduct of your
matter to our firm, you will be required to do as follows;
You have the option of either giving notice to your Advocate informing him that you no
longer wish to be represented by him or request him to supply you with your file subject to
payment of his fees. Whichever option you choose to take, it's good practice to pay advocates
fees to avoid confrontations unless there is a genuine reason for not doing so.5
With regards to payment of your Advocates fees, this will depend on whether you signed a
fee agreement. In case you did not, the purchase price will be subjected to the Advocate
remuneration order 2014 scale one in the first schedule in which your Advocate will be paid
one hundred and fifteen thousand Kenya shillings (Ksh 115, 000). 6 However, this is not the
1 Law Society of Kenya, Conditions of Sale, Condition 21.5.

2 The Law Society of Kenya Digest of Professional Conduct and Etiquette 2000 , Rule 12 and Law Society of
Kenya Code of Standards of Professional Practice and Ethical Conduct June 2016, para 85.
3 Constitution of Kenya 2010, art 46.
4 Law Society of Kenya Code of Standard of Professional Practice and Ethical Conduct, June 2016 para 59.
5 ibid.
6 The Advocates (Remuneration) (Amendment) Order, 2014 Schedule 1. First Scale, Advocates (Remuneration)
Order 1962, s 18(a).
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only amount you pay your advocate as your advocate may also charge for drawing documents
and other disbursements.
In instances where the client changes an advocate for reasons such as negligence, improper
delay, or other conduct on the part of the advocate affording the client reasonable ground for
changing his advocate the court will look at the circumstances of the case. If satisfied, then
the client will not have to pay the full amount. 7 In the case in question, Peter Machachari will
receive part of 115,000 for the work done.
Upon clearing his fees, your advocate may require you to sign a discharge form (Annexure 1)
indicating that you have received your file. The discharge form will signify that your
advocate has stopped acting for you in the matter. Upon your advocate discharging you, he
will perform obligations such as delivering papers to you, ensuring that you have material
information about the sale, accounting for all the funds that were utilized in pursuit of the
case, refunding remunerations that were not earned and cooperating with ourselves to ensure
that the transition of the case or transaction is smooth.8
Upon successful discharge by your advocate, we will require you to instruct us in writing or
sign a memorandum of agreement to enable us to represent you.9 Before accepting your
instruction, we will have to ensure that all the monies owed to advocate Machachari are paid.
However, an outstanding account should not prevent ourselves from acting for you in case
there is a trial.10
We shall then inform your advocate (Annexure 2) and the purchaser's advocate (Annexures 3)
that you have instructed us to act for you in the matter. 11 Further, we shall request your
advocate to release Kenya Shillings Six Hundred Thousand (Kshs. 600,000/=) received
from the purchaser to us. The money will be deposited in our client's account. We shall hold
the money as stakeholders.
That will mark the process of taking over the matter from your advocate.
In regards to the costs in the case where there is a change of advocate, the advocate in record
is mandated to prepare and draw a single bill for all matters handled by the former and
7 Advocates Act s 45(5).

8 Law Society of Kenya, Code of Standards of Professional Practice and Ethical Conduct 2016, para 53.
11 Law Society of Kenya, Conditions of Sale, Condition 21.5.
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current advocate and it shall be accompanied by a certificate that sets out the dates during
which all the advocates acted and whether the client paid them in full to also guide the taxing
officer when taxing the bill.12
b. What are the other issues arising and how will the firm deal with them?
Before accepting to act for you in your matter, we will first need to establish if there is any
conflict of interest or potential conflict of interest arising from representing you. If such
conflict is present, it shall be made in writing and be recorded on the file of the matter 13 and
we will not be obligated to act for you.
We will be required to sign a written fee agreement after the initial client interview which
will involve both the advocate and the client fixing the advocate's remuneration. 14 This will
be guided by the Advocates Remuneration Order and shall not be highly overcharged or
undercut as the latter shall amount to professional misconduct. 15 The Agreement shall only be
valid and binding if it is put down in writing and duly signed by you or your authorized
agent.16
We shall then open the client File or as provided in the LSK law firm management manual
which shall entail:
i. The name of the previous advocate and the practice or law firm’s name
ii. The reasons why the client has transferred the matter
iii. If there were any issues with the previous practice, the outcome of the consideration
of those issues in relation to, for example, instructions on outstanding complaints.17
Once the letter of engagement and the terms and conditions as stated are accepted by the
client, then all such obligations to the client will be held by our firm and shall begin
representation upholding all the statutory and fiduciary duties towards our client Mr.
Kawigula.
IV. Conclusion on the issue of taking over the matter

In conclusion, we recommended that you transfer the matter to us since your advocate has
been negligent in performing the conveyancing transaction. However, you should know that
12 Advocates (Remuneration) Order 1962 (Rev. 2017), Order 62A.

13 Law Society of Kenya Law Firm Management Manual (Law Africa, 2018) 67.
15 Law Society of Kenya, Code of Standards of Professional Practice and Ethical Conduct 2016, para. 65.
16 Advocates Act 2014 (Rev. 2017), s 45.
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we cannot enforce the undertaking because we are not a party to it as required by Principle 3
of Guidance on Professional Undertakings and the case of David Karanja Thuo vs.
Njage Waweru HCC No.209 Of 2008 (OS) where it was held that only the advocates who
are parties in the professional undertaking can enforce it.
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B. WHAT ARE THE ACTIONS AGAINST ADVOCATE KIMBELEMBELE
WHO ISSUED THE PROFESSIONAL UNDERTAKING AND THE PURCHASER
i. Against Advocate Kimbelembele

An undertaking is a formal promise whose effect is to make the person giving it responsible
for the fulfilment of the obligations in respect to which it is given. 18 The Encyclopaedia of
Forms and Precedents defines a professional undertaking as any unequivocal declaration by a
professional, for instance, an advocate or a member of the advocate’s staff in the course of
practice to someone who reasonably places reliance on it. In the case of Law Society of
British Columbia v Heringa,19 It was held that undertakings are solemn promises provided
by one lawyer to another, and must be accorded the most urgent and diligent attention
possible in all circumstances.
A professional undertaking is binding and entails an obligation that must be maintained at the
risk of civil, disciplinary, costs and penal sanctions. Therefore, an advocate needs to operate
within the prescribed code of conduct in order to avoid breach because a breach of a
professional undertaking adversely affects the advocate's reputation and trustworthiness of
the legal profession.20 In this case, Mr. Kimbelembele acted contrary to the provisions of the
Code of Conduct, this is also a setback to his integrity as an officer of the court.
Undertakings do facilitate legal transactions and they are necessary in that without it
transactions would be badly hampered. The effectiveness of professional undertakings
depends on the integrity of the legal profession hence where an undertaking is given orally or
in writing, it is sacrosanct and must be honoured. 21 While handling professional undertaking
matters, the court aims at securing the honesty of the officers, it is a test of an advocate’s
integrity rather than the considerations of a contract in question. Mr. Kimbelembele failed to
honour the undertaking by receiving the remainder purchase price and not communicating the
same to the vendor’s advocate.
There are basic principles that an advocate needs to take into consideration and observe in
giving an undertaking, they include the following:22
18 Law Society of Kenya, Code of Standards of Professional Practice and Ethical Conduct, 2016, para 134.
19 [2004] 195 B.C.A.C. 198 (CA).
22 Law Society of Kenya, Code of Standards of Professional Practice and Ethical Conduct, 2016, para 136
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1) Get the client's direct authority to give it;
2) Give the undertakings in writing, and where given orally, to reduce it into writing as
soon as reasonably practical in order to avoid misunderstanding as regards to
interpretation to be given in an undertaking;
3) Only give an undertaking that an advocate is capable of handling and fulfilling it, an
undertaking that is reasonable and with legal basis in that it's achievable under the
law;
4) Neither give nor accept an undertaking, which to the advocate's knowledge, has no
means with which to fulfill it, if an advocate knows that he has no proper way of
fulfilling an undertaking then there is no need of taking it;
5) Where an advocate does not intend to accept personal responsibility for the fulfillment
of the undertaking make this clear in the terms of the undertaking given; and
6) Exercise diligence when accepting an undertaking from an advocate. One should not
carelessly accept an undertaking and should always carry out due diligence before
accepting.
The above principles must be adhered to anytime while giving or accepting an undertaking.
The rationale behind an undertaking is that they are a necessary part of practice that keeps the
transaction moving towards a conclusion and must be based on the trust of the advocates. In
Re Hilliard,23 it was held that parties to a transaction are both beneficiaries to undertakings
therefore it would be a great injustice in letting the Advocate lose from them after the other
party has foregone the advantage or paid the consideration. The Advocate is not compelled to
give an undertaking. However, should he enter into one he must be taken to know the
consequences of his act.
A professional undertaking creates an obligation to an advocate accepting or giving it. Once

an advocate accepts, he is not in a position to decide which elements of an undertaking will
be performed and he must take all steps to ensure that his client corporates in honouring an
undertaking.
Failure to honour obligations created by professional undertakings amounts to professional

misconduct.24 In this case, advocate Kimbelembele failed to honour his undertaking by failure
to pay the balance and therefore liable. In Fidelity Commercial Bank Limited v Onesmus
23 [1845]2 Dowl. &L. 919.

24 Law Society of Kenya, Code of Standards of Professional Practice and Ethical Conduct, 2016, para 136 pg
14.
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Githinji &Company Advocate, 25it was held that an undertaking given by an Advocate is
personally binding on him and must be honoured and failure to honour the same is prima
facie evidence of professional misconduct and the council of the Law Society would require
an undertaking to be honoured as a matter of conduct.
Having established that the actions of Mr. Kimbembele amounted to professional

misconduct, you can take the following actions:
a. Lodge complaint at Advocates Complaint Commission

Section 53 of the Advocates Act establishes a Complaints Commission which is responsible
for enquiring into complaints against an advocate, firm of advocates, or any member or
employees thereof.26 The law allows any person who is aggrieved by a conduct of an
advocate, firm of advocates, or any member or employee thereof to lodge a complaint at the
Commission it for the purpose of investigation and settlement. 27 This is done by filling the
help form (Annexure 2) with the details of the complainant and the complaint.28
Once an individual lodges a complaint, the commission delves into the substance of the issue.
It investigates the matter fully by summoning and examining witnesses, going through the
evidence and any documents as it may deem necessary, and all such steps as it may consider
proper and necessary for its inquiry.29 Where the commission finds no substance in a claim at
first instance or after investigation, the complaint is rejected 30
After hearing, the Commission can then proceed to give orders or awards in accordance with
the law.31 The commission can give orders or awards such as:
i. Compensation or reimbursement of not more than one hundred thousand shillings

where it’s determined that the advocate’s conduct has caused the complainant loss or
damage.32
25 [2013] eKLR.
26 Advocates Act, s 53(1).
28 Advocates Complaints Commission - the State law Office and Department of Justice website
https://statelaw.go.ke/services-to-the-public/receipt-of-advocate-complaints/ accessed 3rd September 2021.
29 Advocates Act, s 53(4) (d).
30 Advocates Act, s 53(4) (b).
31 Advocates Act, s 53 (4) (d).
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ii. Surrender of all refunds or property which the advocate does not dispute where the
matter relates to surrendering of funds or property by an advocate to a client as the
case herein.33
iii. Issue a warrant for the levy of the amount of any sum ordered to be paid on the
immovable and movable property of the person or firm by whom the compensation is
ordered to be paid by distress and sale under warrant.34
The orders of the commission are registered in court, therefore bear the same power and
make them enforceable as orders of the Court. 35 A party that is aggrieved by a decision or
order of the Commission is allowed to appeal to the High Court and the determination of the
High Court is final.36
Alternatively, where before or after investigation, the Commission is satisfied that the matter
complained of is a disciplinary offence it refers the matter to the Disciplinary Committee for
appropriate action.37
The Commission can also refer a matter to the courts for appropriate redress where the
complaint is substantial but does not amount to a disciplinary offence which can be handled
by the Commission or Disciplinary Committee.38
In this case, having that Advocate Kimbelembele failed to honour a professional undertaking
this amounts to professional misconduct, you therefore lodge a complaint at the Advocates
Complaints Commission for appropriate settlement of the issue as provided in section 53 of
the Advocates Act.
The Commission also promotes alternative dispute resolution methods where it considers the
case is not serious or aggravated in nature. 39 The commission facilitates the dispute resolution
process and once the parties agree on the terms of the settlement the matter is marked as
settled.40 Failure of a party to keep the terms of the agreement, the matter is referred to the
Tribunal for prosecution.41
33 Advocates Act, s 53(6) (b).

35 Advocates Act, s 53 (6A).
37 Advocates Act, s 53(4) (c).
38 Advocates Act, s 53(4) (e).
39 Advocates Act, s 53(5)
40 ibid.
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b. Advocates Disciplinary Tribunal
You have an option of approaching the Advocates Disciplinary Tribunal which is established
under Section 57 of the Advocate Act. 42 It hears complaints against advocates on matters
relating to professional misconduct.43Further Section 58A of the Advocates Act establishes
Regional Disciplinary Committees’ which have concurrent jurisdiction with the Advocate
Disciplinary Tribunal to hear and determine regional complaints.
The Tribunal hears and determines any complaint against an advocate, a firm of advocates or
employees that is made by the Advocate’s Complaint Commission or the Law Society of
Kenya, or any person who has a complaint against an advocate. 44 The proceedings are chaired
by the Attorney General or Solicitor General or any other person appointed by the Attorney
General or appointed by the committee.45
Section 60 (3) of the Advocates Act deals with complaints against advocates and may be filed
by any person by way of an affidavit detailed with the alleged act of misconduct. Where the
complaint lacks merit, it is dismissed preliminarily, but where it has merit, the disciplinary
committee should issue a hearing. Upon receipt of the complaint, the advocate in question
will adequately be served with the same and accorded an opportunity to appear before the
disciplinary committee.46
During the hearing process, if the advocate is found liable he or she under section 60(4) of the
Advocates Act, the advocate can be; admonished, suspend for a period, not more than five
years, the name struck out in the roll of advocates and compensation, payment of fine not
exceeding one million shillings and compensating the aggrieved party with a sum amount not
exceeding five million shillings.47 The decision of the tribunal or disciplinary tribunal is
enforceable within a court system and for approval is with the High Court of Kenya.48
c. Court
Another option is whether the Court can enforce the said Professional Undertaking by
Ordering the payment of kshs 5,400,000/= issued by advocate Kimbelembele.
41 Advocates Complaints Commission - the State law Office and Department of Justice website
https://statelaw.go.ke/services-to-the-public/receipt-of-advocate-complaints/ accessed 3rd September 2021.
42 Advocates Act, s 57.
46 Advocate Act, s 60(3).
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Order 52 Rule 7 of the Civil Procedure Rules49 provides for enforcement of professional
undertaking by the Court. It provides that;
(a) “An application for an order for the enforcement of an undertaking given by an
Advocate shall be made:
(i) If the undertaking was given in a suit in the High Court, by summons in chambers in
that suit; or
(ii) In any other case, by Originating Summons in the High Court
(b) Save for special reasons to be recorded by the Judge, the order shall in the first
instance be that the Advocate shall honour his undertaking within a time fixed by the
order, and only thereafter may an order in enforcement be made.”
Enforcement of profession undertaking provided for under Order 52 rule 7 of the Civil
Procedure Rules.50 The order of the court must first prescribe a fixed time frame for the
advocate to honour his undertaking, and only thereafter may an order of enforcement be
made.51 The thumb rule is that the Court may order for enforcement after affording to the
advocate to honour the undertaking.
However, in David Karanja Thuo vs. Njage Waweru,52 the Court held that a professional
undertaking is only between advocates and not the respective clients. Therefore, only the
advocates as the parties in the undertaking can enforce it.
Guided by the above-cited authorities, we find that advocate Kimbelembele indeed breached

the professional undertaking that can be enforced in court. However, the enforcement
proceedings under Order 52 Rule 7 of the Civil Procedure Rule can only be undertaken by
advocate Peter Machachari who was a party to the professional undertaking and not you
directly as you lack the locus standi.
However in the case of KCB vs Mohammed Muigai53 where the court held that Undertakings
can be enforced even if one is not the recipient. Based on this authority our firm will
undertake to enforce the professional undertaking given to Advocate Peter Machachari. The
49 Civil Procedure Rules 2010

50 Republic v Advocates Disciplinary Tribunal & 2 others Ex parte Mpuko Nahason Mwiti [2015] eKLR.
51 ibid.
52 [2010]eKLR.
53 [2003] eKLR.
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firm will approach the High Court through Originating summons (Annexure 5) to honour the
professional undertaking.
ii. What are the actions he may take against the purchaser in default
Advocate Mr. Kimbelembele after being issued with the completion documents to transfer
the property to Ms. Tayari's name. He fails to forward the purchase price to Mr. Machachari
and as result, the vendor suffers loss. Mr.Kawigula has the following options to take against
the purchaser:
i. Issue a completion notice to the purchaser

ii. Institute civil proceedings against the purchaser
iii. The right of re-entry into the property.
iv. Register a caution against the disputed property now in Ms. Tayari’s name to force
her to follow up the matter with her advocate
a. Issue a Completion Notice to the Purchaser

The Law Society of Kenya Conditions of sale provides that when a purchaser fails to
complete a purchase the Vendor Advocate is required to serve the Purchaser or Purchaser’s
advocate with a completion notice.54 In case the purchaser complies with the notice,
(Annexure 6- completion notice served to the purchaser) she will be required to pay the
purchase price as well as the compensation for late completion. 55 The compensation shall
accrue at the rate of 20% after the expiry of the completion period.
If the Purchaser fails to complete the purchase after the completion notice has been served,
the Vendor may rescind the agreement and without prejudice to his rights in law and equity:
declare the property forfeited and keep the deposit of 10% of the purchase price, sell the
property and any contents to the third party, and/or claim damages from purchaser.56
Additionally, the purchaser will be required to return the certificate of title and documents in
his possession that belong to the Vendor and at his own expense procure the cancellation of
any entry relating to the Agreement in any register.57
54 Law Society of Kenya Conditions of Sale 2015, Condition 13.4.1

55 Law Society of Kenya Conditions of Sale 2015, Condition 13.2.1.
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b. Institute Civil Proceedings Against the Purchaser
The sale agreement is a legally binding contract and failure by either party to meet their
obligations under the contract leads to that party being held in breach of the Contract. Mr.
Kawigula can institute civil proceedings for the actions claiming specific performance.
However, if the vendor goes for specific performance he is precluded from forfeiting the
deposit.58 The vendor may claim damages and mesne profits for the breach of contract for
sale entered between the purchaser and the vendor.59
c. The Right of Re-Entry into the Property.

If Ms. Tayari has entered into the property then Mr. Kawigula has the right to re-enter into
the property by assuming possession of the property peacefully or obtaining an order of the
court.60 He however has to serve a notice to the purchaser stating
I. nature and extent of the breach complained of
II. Whether the breach can be remedied by paying the amount owing in the contract,
III. The period in which the purchaser shall remedy the breach if the vendor considers the
breach can be remedied,
IV. The consequences are where the purchaser fails to remedy the breach.
If the vendor considers that the breach cannot be remedied the vendor will seek an order from
the court to possess the land and rescind the agreement. 61 The vendor can also apply to court
after re-entry onto land for relief against rescission of the contract either in proceeding for an
order for possession or proceedings brought by the purchaser.
d. Register Caution Against the Land

A caution is a notice in the form of a register to the effect that no action of a specified nature
in relation to the land in respect of which the notice has been entered may be taken without
first informing the person who gave the notice.62 The caution will ensure that Ms. Tayari does
not transact upon the land until the dispute is settled.
Before lodging the caution, Mr. Kawigula will be required to fill the prescribed form (LRA
67) supported by statutory declaration explaining your interest in the land, produce a copy of
58 Tom Ojienda, ‘The Principles of Conveyancing: A Practical Approach’ ( First published May 2007).
59 Land Act s 40.
60 Land Act s 39.
61 Land Act, s 41.
62 Land Registration Act, s 2.
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the title and pay the prescribed fee.63 The lodging of caution will put pressure on Ms. Tayari
to ensure her advocate releases the balance of the purchase price funds.
63 Land Registration Act s 71.

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C. WHAT ACTION HE MAY TAKE AGAINST HIS FORMER ADVOCATE PETER
MACHACHARI?
There is an Advocate-client relationship between Mr. Kawigula and Advocate Peter

Machachari. The client-advocate relationship is established where a client seeks legal
assistance and the Advocate agrees to offer the service. Mr. Kawigula instructed advocate
Peter to represent him in the land transaction where he was the vendor. While it is evident as
illustrated that there was a previous representation of Mr. Kawigula by Advocate Peter
Machachari hence it is practically reasonable for Mr. Kawigula to believe that there is an
advocate-client relationship.
Therefore, Advocate Peter Machachari owed him a duty of care and should have protected
and acted in the best interest of the client. Breach of the fiduciary duty by the advocate
warrants a legal consequence.64 In proving professional negligence the three elements must be
proven against the advocate as raised in the case of Kimani Ng’ondu Mburu v Catherine
Waithira Mwangi T/A Waithira Mwangi & Co. Advocates65 including:
i. The existence of a duty of care;

ii. The breach of that duty;
iii. The loss suffered therefrom.
The Law Society Conditions of Sale 1989 outline that time is of the essence in respect to the
completion date of a transaction. The agreement of sale in the land transaction stipulated that
it would be completed within the stipulated 42 days. The client was dissatisfied by the failure
of the advocate to ensure that the transaction was completed within the agreed time. Upon the
end of completion date where one party has failed to fulfill part of their duty in the
transaction then a completion notice may be issued by the other party. The notice becomes
part of the contract term that the transaction shall be completed within twenty-one days from
the time of issue in respect to such period. 66
Advocate Peter Machachari failed to exercise a reasonable degree of care in the particular
circumstance he did not issue any notice within 30 days from the date of the completion of
the sale agreement. Further, there is an indication he failed to take reasonable care where he
64 Ojwang, J., & Salter, D. (1990). The Legal Profession in Kenya. Journal of African Law, 34(1),
https://www.cambridge.org/core/journals/journal-of-african-law/article/abs/legal-profession-in-kenya/
0E127CC80925F9571B1827AD83D36C83> Accessed 29 September 2021
65 [2013] eKLR
66 Law Society of Kenya Conditions of Sale (1989) Condition 4(7c)
Page | 15
goes on to conduct a search over sixty days after the date of completion which led to an
inconvenience suffered by the client.67 Here are prescribed timelines as stipulated under the
LSK conditions of sale 1989 edition;
Date of agreement- 1st October 2014

Completion date- 12th November 2014 (30 days for registration)
Expiry of completion notice- 12th December 2014 (not more than 30days)
Final completion day-11th January 2015
The sale of land was to raise school fees for the children hence time was indeed of essence.
The delay in following up the completion of the transaction by the advocate led to delayed
payment of the children’s fees hence an inconvenience on his client who was a parent. This
being a clear indication of loss suffered due to the advocates conduct.
The court in Patrick S.K. Kimiti v John Ngugi Gachau & another 68 found the appellant in
conducting that conveyance on behalf of his clients owed them a greater duty of care. The
learned Judge explained the advocate owed a duty of care and skill to his clients, who
relied on his professional knowledge for advice on conducting and concluding a land
transaction on their behalf. The advocate was therefore duty-bound to consider all aspects of
the client/respondents' interests, taking such reasonable care and skill in advising, as a
reasonably competent professional would.
Having established professional negligence on the part of advocate Peter Machachari, we
would recommend Mr. Kawigula to lodge his complaints with the Advocate's Complaints
Commission, the Disciplinary Tribunal or court.
a. Advocates complaints commission

The commission provides a remedy with which clients that are not satisfied with the services
offered by their advocates may lodge complaints and the commission is empowered to
receive complaints from the public, summon and examine witnesses under oath for purposes
of investigations into a complaint. The commission may further compel advocates to produce
relevant documents regarding the complaints received.69
67 “Duty of Care & Negligence” <https://www.lsc.qld.gov.au/__data/assets/pdf_file/0008/655829/negligence-

july-2020.pdf> Accessed on 23 August 2021.
68 [2015] eKLR.
69 Advocates Act s 53(d).
Page | 16
Upon the jurisdiction of the commission was clarified in the case of Republic vs. Law
Society of Kenya disciplinary tribunal & Another Ex-Parte: Leonard Gethoi Kamweti 70
the court in its ruling recognized the power of the commission and stated that “it is therefore
clear that the power to refer complaints to the disciplinary tribunal solely rests with the
complaints commission”
The case at hand is that of breach of duty of care through negligence by advocate Machachari
in his capacity as the vendor’s advocate. The commission will be the first institution to be
approached by Mr. Kawigula who may lodge a complaint seeking redress. The commission
shall investigate Mr. Kawigula’s claim and determine whether indeed the actions of advocate
Machachari amounted to professional misconduct. The commission shall determine whether
to handle the matter or forward it to the disciplinary tribunal through its discretion.
The Advocate’s Disciplinary Commission itself may also redirect Mr. Kawigula to the courts
of law. This is in the event that the commission finds that the complaint before it is not that of
a disciplinary matter. The Act requires the commission to refer matters that are not of
disciplinary nature to a court of law.71
Professional misconduct is a shameful act that is inconsistent with the status of an

advocate.72The complaint is made to the tribunal by any person. 73Mr. Kiwagula should
prepare an affidavit stating the allegations and attach evidence of the complaint, 74 pay the
relevant fee and lodge a complaint to the tribunal.75
b. Disciplinary tribunal
The disciplinary tribunal shall hear the advocate and consider the evidence adduced by the
advocate and if it establishes that the offence is a professional misconduct it will have power
to: to warn an advocate,76 suspend advocate practicing certificate for not more than 5 years,77
70 [2015] eKLR.
71 Advocates Act s 53(4) (e).
72 Advocates Act s 60 (1).
73 ibid.
75 ibid.
76 Advocates Act s 60 (4) (a).
77 Advocates Act s 60 (4) (b).
Page | 17
have an advocate’s name struck of the roll, 78fine an advocate not more than kshs. 1 million,79
award damages to Mr. Kiwagula of not kshs. 5 million.80
Process of the disciplinary tribunal
The Tribunal after being issued with a copy of the complaint shall issue it to the advocate and
allow them to appear before the tribunal with any evidence in support. 81The Tribunal shall
give Peter Machachari an opportunity of inspecting any relevant document for not less than
seven days before the date fixed for the hearing.82
Outcome
Upon the Tribunal receiving the notice, there are 3 outcomes: If Peter Machachari appears
and successfully defends himself the case is dismissed, if he fails to appear before the
tribunal; the tribunal can choose to exercise its powers. Peter Machachari can appear before
the tribunal and unsuccessfully defend himself hence the tribunal can exercise a combination
of its powers.
Appeals
Peter Machachari can appeal the Tribunal’s order if they are not satisfied with the
results.83The court shall give Peter Machachari a twenty-one (21) day notice of the date of
hearing of the appeal.84
c. Court
Mr. Kawigula may also seek further redress from the courts if not satisfied with the outcome
of the Disciplinary Tribunal, the Act allows appealing to the High Court 85 and the court of
appeal86 if not satisfied with the high court’s ruling. In Mohammed Ashraf Sadique &
another v Matthew Oseko t/a Oseko And Company Advocates 87 Onyancha J emphasized
that the power of the court under section 56 of the Advocates deals with matters arising out of
78 Advocates Act s 60 (4) (c).

79 Advocates Act s 60 (4) (d).
80 Advocates Act s 60 (4) (e).
82 ibid.
85 Advocates Act s 62.
86 Advocates Act. s 67.
87 [2009] eKLR.
Page | 18
misconduct of an advocate thus the Law Society of Kenya (disciplinary body_ is merely
complementing the court.
The courts in the UK prior to the 2000s have previously held that advocates have immunity. 88
However, this position was deviated by Arthur J.S. Hall vs Simmons89 where the Court held
that the rule relating to immunity of an advocate in respect of and relating to conduct of legal
proceedings should no longer be maintained. In Kenya, advocates are not immune to
professional misconduct. In the Omwoyo vs AH & P Co. limited 90 it was held that Courts
cannot afford the luxury of entertaining the negligence of advocates in litigation and it was
time that advocates bear the consequence of their mistakes.
Yours faithfully,
Mitei Julius Nyakweba,

For;
FIRM TWELVE & TENS ADVOCATES
Disclaimer
This opinion is given to Mr. Kawigula for the sole benefit of himself. It is given on condition
that it shall be construed in accordance with the laws of Kenya any matter arising out of it is
subject to the exclusive jurisdiction of the Kenyan courts. It may not be delivered to nor
relied upon by any other person or used for any other purpose or quoted or referred in any
documents except with our prior consent.
88 Reid Rondel V Worsely [1969] AC 193.

89 [2000] 3 WLR 543.
90 [2002] 1KLR 68.
Page | 19
BIBLIOGRAPHY
Books
1. LSK Law Firm Management Manual (Law Africa, 2018)
2. Prof.Ojienda Tom & Katarina Juma, Professional Ethics Kenyan Perspective (first
published 2011, Law Africa Publishing (K) Ltd)
Online Journals/Articles
1. Advocates Complaints Commission - the State law Office and Department of Justice
website https://statelaw.go.ke/services-to-the-public/receipt-of-advocate-complaints/.
Accessed 3rd September 2021.
2. “Duty of Care & Negligence”
https://www.lsc.qld.gov.au/__data/assets/pdf_file/0008/655829/negligence-july-
2020.pdf Accessed on 23 August 2021
3. Law Society of Kenya, ‘advocates’ complaints commission’<
https://lsk.or.ke/public/advocates-complaints-commission/> accessed 7th September
2021
Page | 1
ANNEXURES
Annexure 1: SAMPLE OF DISCHARGE FORM
DISCHARGE OF THE FIRM
I, Mr. KAWIGULA ID NUMBER 2316522 of Post Office Box 4529-40100 KISUMU has
been taken from PETER MACHACHARI & CO. ADVOCATES, GATE HOUSE 2ND
FLOOR P.O BOX 12973 KISUMU, took the file concerning Land Title number
4596/Migingo/ Kisumu East.
I do discharge PETER MACHACHARI & CO. ADVOCATES from any liability and/or
any future claims.
RECEIVED
SIGNED:
MR KAWIGULA, SIGN………………..…
P.O BOX, 4529-40100 ID NUMBER: 2316522
KISUMU CELL: +25475598635
WITNESS:
Page | 2
Annexure 2: SAMPLE OF NOTICE TO CHANGE ADVOCATES

P.O BOX 80961 – 40100 KENYA
KISUMU
OUR REF: 29/LO/2021 YOUR REF: TBA DATE: 25th July 2021
PETER MACHACHARI & CO. ADVOCATES,

GATE HOUSE 2ND FLOOR
P.O BOX 12973-40100 Advance by email: info@machachari.co.ke
KISUMU.
Dear Mr. Kawigula,

RE: NOTICE OF CHANGE ADVOCATE
Reference is made to the above subject.

This is to inform you that we have been instructed by Mr. Kawigula to take over the conduct
of the sale of land.
Please confirm that you are agreeable to this and if so, kindly send us the file through Mr.
Kawigula with all the necessary documents to enable us to move the matter forward. If any
further documents and information in relation to this matter is sent to your offices, kindly
inform us of the same.

For;
Annexure 3: SAMPLE OF NOTICE TO CHANGE ADVOCATES
Page | 3
P.O BOX 80961 – 40100 KENYA
KISUMU
OUR REF: 29/LO/2021 YOUR REF: TBA DATE: 25th July, 2021
KIMBELEMBELE & COMPANY ADVOCATES,

TAUSI HOUSE, FOURTH FLOOR,
P.O.BOX 9658-40100 Advance by email: info@kimbelembele.co.ke
KISUMU
RE: NOTICE OF APPOINTMENT OF ADVOCATE
Reference is made to the above subject.

This is to inform you that we have been appointed by Mr. Kawigula to take over the conduct
of the matter of the sale of land between him and your client Ms. Tayari from the firm of
MACHACHARI & CO. ADVOCATES.
Henceforth all correspondence and/or processes should be addressed to TWELVE AND
TENS ADVOCATES, TSS TOWERS, MOI AVENUE, P.O BOX 80961 – 40100
KISUMU

For;
ANNEXURE 4 : SAMPLE OF COMPLAINT FORM
Page | 4
THE ADVOCATES COMPLAINTS COMMISSION
_________
HELP FORM
SUMMARY OF A COMPLAINT AGAINST AN ADVOCATE
(Please complete in Block/Capital letters)
Fill out all spaces on this form. When providing documents to the Advocates Complaints
Commission, please send copies only. All documents received, whether originals or copies,
become the property of the Commission and are subject to future destruction.
The Advocates Complaints Commission will review and evaluate your complaint to
determine whether investigation and prosecution is appropriate. You will be notified of our
decision in writing. Thank you for your cooperation.
Section One – Personal Details
1. (a) Your full name: Surname: ……………………………………………………..……..

First name: ……………………………Other: …………………...………………………
(b) Title (Please state if Mr/Mrs/Miss/Other) ………………..…………………………
(c) Personal identification (e.g. identity card/passport/driving licence) number……..
……………………………………………………………………………….
2. Your postal address ……………………………………………………………..…………
3. Physical address: …………....... Town………………………………………...…..
County……..………………….. Sub-County..………………………..…………...
Division….…………………….. Location……………………………..…..………
Sub location…….……………...
4. Your Telephone number(s):
Mobile…………………….……………. Office…………………………………….
Home……………………………………
5. Email address……………………………
6. Are you making this complaint on behalf of another person such as a client or relative?
Yes No
7. If yes, please tell us :
(a) Complainant’s full name and postal address…………………………………….….
………………………………………………………………………………………………
(b) Reason for complaining on behalf of someone else
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
(c) Are you authorised to make this complaint on behalf of this person?
o If yes please attach written authorization.
o No, Seek written authorization.
________________________________________________________________________
Page | 5
Section 2 – The Advocate about Whom You Are Complaining
8. The Advocate’s Surname: ………………………………………………………………...
First name: ……………………………………Other name: ……………………………..
(a) The name of the Advocate’s firm, if applicable
………………………………………………………………………………………………
(b) Number of advocates in the law firm Sole Practitioner 2-10 Above 11
Unknown
(c) Advocate’s Postal Address …………………… Postcode: ……………..……………
(d) Town ………………………
(e) Advocate’s Physical Address: Building……………………………………..…………
Street………………………………….Town …………………………………………
(f) Telephone numbers: Office……………………..…Mobile……….…………………
(g) Email address………………………………………..
9. Describe your relationship to the advocate who is the subject of your complaint:
I am a client I am an opposing advocate
I am a former client other…………………………………………..
I am an opposing party
10. If you are a client state;
Date of first contact with advocate..........................................................................
Date of last contact with advocate...........................................................................
11. If the advocate you are complaining about is acting for you, please answer these
questions:
(a) Have you already raised your complaint in writing either with the advocate himself or
a senior partner in the law firm?
Yes No
(i) If so, who? ..............................................................................................
(ii) If yes, enclose copies of all relevant correspondence: Enclosed Not
Enclosed
(iii) If no, please briefly advise why you have not raised the matter in
writing………………………………...………………….……………………..
(iv) What is the advocate’s file reference number? ..........................................
(b) When did you first raise your complaint with your advocate(s)…..
…………………………………………………………………………
(c) Have the advocates told you they will no longer act for you? Yes No
(d) When was the last time you were in contact with the advocate and what occurred at
that time…………………………………………………………………..
………………………………………………………………………......
…………………………………………………………………………………………..
....
…………………………………………………………………………………………
……………..
Page | 6
(e) If finalised, have you received a fee note/invoice/bill of costs? Yes No (Attach
copy if available)
(f) Did you have a written fee agreement duly executed between you and your
advocate(s) : Yes No (Attach copy of the agreement)
(g) If there was no written fee agreement, please explain your understanding regarding
payment to your advocate of fees, expenses, costs, etc.
…………………………………………………………………………………………
……………....................................................................................................
……………………………………………………………………………………..
…………………………………………………………………….………………….
…………………………………………………………………………………………......……
(h) Have you paid any fee to your advocate(s): Yes No
(i) If so, how much have you paid? .............................................................
(ii) Were you issued with receipts? Yes No (Please attach copy of receipts)
(i) Has the advocate taken you to court for unpaid legal fees? Yes No I do not
know
If yes, when did the advocate commence the legal proceedings? .........................
Please note, generally the ACC cannot handle a complaint if the advocate has
commenced legal proceedings to recover the unpaid costs.
12. Have you instructed a new advocate to act for you in the same matter? Yes No
If yes, please give brief particulars of your new advocate(s) as we may need to contact
him/them, at no charge to you:
(a) Surname: ……………………………….Middle name………………………….……
Other name …………………………….
(b) The name of the new advocate’s law firm: ………………………………………….
(c) The new advocates contacts:
(i) Postal Address…………………………Postcode………………………………….
(ii) Physical Address:
Building……………………………………
Street……………………………………… Town…………….………………………
(iii) Telephone number:
Office .……………………………
Mobile……………………….……
(iv) Email address……………………..
13. When did you instruct your new advocate(s)…………………………………………..
14. Can we contact your new advocate(s) to discuss your complaint? Yes No
________________________________________________________________________
Section Three – The Kind of Work Involved

(You must complete this section)
15. (a) Briefly state what kind of legal work you instructed your advocate(s) to do:
…………………………………………………………………………………..…………..
Page | 7
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
.........................
(b) What is the status of the legal work done so far?
..............................................................................................................................
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
.
(c) If a suit has been filed, please give particulars of the suit, including suit number, the
court, parties involved, the stage it has reached etc. Also attach copies of any relevant
court documents in your possession
…...…………………………………………………………………………………….......
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
.........................
__________________________________________________________________
Section Four – Further Information about the Work Involved

16. The name of the deceased? ......................................................................................
17. Date of death…………………..…………………………………………………………...
18. The name(s) and address (es) of those dealing with the deceased’s affairs (i.e. executor,
administrators)………………………………………………………………….
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
19. Are you a beneficiary of the estate Yes No
20. Names and addresses of other beneficiaries
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………….
Page | 8
21. If the matter relates to a road accident, the following questions must be answered in full.
Attach photocopy of police abstract:
(a) Name(s) and address (es) of the person(s) injured or killed
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
(b) Names and address (es) of insured/defendant, if any

………………………………………………………………………………………………
................................................................................................................................................
................................................................................................................................................
................................................................................................................................................
............................................................................
(c) Name and address (es) of insurer(s)

………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
(d) Insurance policy number………………………………………………….…………..

(e) Insurance claim number……………………….……….………………………………
(f) Amount of compensation awarded/settlement: Kshs…………………………...…..
(g) Amount paid to you or beneficiary: Kshs…………………………………………….
NOTE: Please attach copies of all the relevant documents to support your complaint
and a list of these documents.
____________________________________________________________________
Section Five – What exactly is Your Complaint?
22. Please say briefly what you are dissatisfied with and why, and/or what you think the
advocate did wrong or what he failed to do….......................................................
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
Page | 9
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
________________________________________________________________________
Section Six – Setting Your Complaint
23. Please say what you would like done to put things right;
● Have my documents/file returned to me
If so, please specify the documents you want returned
…………………………………………………………………………………………
…………………………………………………………………………………………
…………………………………………………………………………………………
…………………………………………………………………………………………
…………………………………………………………………………………………
…………………………………………………………………………………………
● Improve my communication with the advocate
● Improve the service provided with the advocate
● Receive an apology
● Resolve my dispute about fees
● Resolve my dispute with the advocate
Other……………………………………………….
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………
DECLARATION: I declare that the information I have provided above is true and accurate
to the best of my knowledge. I understand that all information that I submit can be disclosed
to the advocate.
Signed…………………………………… Date……………………………………………..
Send the completed form together with photocopied attachments to;

The Secretary
The Advocates Complaints Commission
Cooperative Bank House, 20th Floor
Haile Selassie Avenue.
P O Box 48048 – 00100, Nairobi
Tel. +254-20-2224029, 251915
Fax 315317
Email: acc@ag.go.ke
Page | 10
Annexure 5: SAMPLE PROFESSIONAL UNDERTAKING ENFORCEMENT
APPLICATION THROUGH THE COURT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO. OF 2021 (OS)
BETWEEN
WANGO HESBON OMBEWA T/A TWELVE & TENS
ADVOCATES…………………………………………………………..….…..APPLICANT
VERSUS
MR. KIMBELEMBELE T/A KIMBELEMBELE & CO

ADVOCATES………………………………………………………………RESPONDENT
CERTIFICATE OF URGENCY
I, WANGO HESBON OMBEWA, a resident of Kisumu with the address of P.O BOX
80961 – 40100 KISUMU, being an Advocate of the High Court of Kenya, the Petitioner
herein, and practicing as such in the name and style of TWELVE & TENS ADVOCATES,
do hereby certify that the Originating Summons is urgent and ought to be heard and
determined at the earliest opportunity and on priority basis for the following reasons:-
1. THAT on or about 1st September 2014, I received instructions from Mr. Kawigula
(Vendor) to represent him in a land transaction.
2. THAT Mr. Kawigula (Vendor) was the vendor and was disposing of his property to
raise funds for school fees for his children.
3. THAT Mr. Kawigula identified the purchaser as Ms. Tayari who was being
represented by Mr. Kimbelembele an advocate of the High court of Kenya.
4. THAT I prepared a sale agreement for the purchase of the land which had an
unequivocal declaration by the purchaser’s advocate to issue an undertaking to release
the funds within 14 days of the registration.
5. THAT the Respondent went through the agreement was satisfied and he signed it.
6. THAT the respondent issued a professional undertaking which he has failed to honor.
7. THAT the actions of the Respondent as set out in the Originating Summons and the
supporting affidavit is manifestly unconstitutional and unlawful, are prejudicial.
8. THAT It is just and proper that the Originating summons be certified urgent, be heard
expeditiously and the orders sought therein be granted to prevent a further denial,
violation or infringement of the applicant’s rights and to defend the honor of the
Page | 11
profession.
DATED at KISUMU this…………………day of ……………….………2021.

ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:

TWELVE AND TENS
ADVOCATES
TSS TOWERS, MOI AVENUE,
P.O BOX 80961 – 40100
KISUMU.
Email: info@twelveandten.co.ke
TO BE SERVED UPON:
KIMBELEMBELE & CO ADVOCATES
TAUSI HOUSE, 4TH FLOOR
P.O. BOX 9658 – 40100
KISUMU.
EMAIL: info@kimbelembele.co.ke
Page | 12
REPUBLIC OF KENYA
BETWEEN
WANGO HESBON OMBEWA T/A TWELVE AND TENS

ADVOCATES………………………………………………….………...…..APPLICANT
VERSUS

ADVOCATES...........................................................................................… RESPONDENT
ORIGINATING SUMMONS
(Under Order 37 Rule 3 & Order 52 Rule 7 of the Civil Procedure Rules 2010, Section 1
and 3A of the Civil Procedure Act Cap 21 Laws of Kenya)
LET Mr. Kimbelembele Of Kimbelembele & Co Advocates Tausi House, 4th Floor P.O.
Box 9658 – 40100 Kisumu Kenya the respondent herein, within fourteen days parties
concerned enter appearance forthwith and attend the court virtually on the ......... day
of ............... 2021 for hearing of the application by WANGO HESBON OMBEWA of
Twelve & Tens Advocates whose address of service for purposes of this suit shall be care of
P.O. Box 12973-40100 Kisumu Orders That:
1. This application be certified urgent for an expedited hearing;
2. That the respondent be called upon to honor an undertaking issued by the respondent
applicant for payment of the balance of the purchase price of Kshs. 5,400,000 with
interests at the rate of 20% per annum from the completion date until payment in full.
3. That the respondent’s failure to honor the professional undertaking constitutes
professional misconduct.
4. There is an order on costs.
WHICH SUMMONS is made on the following grounds;
1. That the respondent issued a professional undertaking promising to release kshs.

5,400,000/= upon successful transfer in favor of the purchaser.
2. That all the completion documents were released to the purchaser.
3. That the transfer was registered against the title on 10th January, 2015.
4. That the purchaser took possession of the land and forwarded the balance of the
purchase price to the respondent.
Page | 13
WHICH SUMMONS are supported by affidavit of WANGO HESBON OMBEWA
and upon such grounds and arguments as may be adduced at the hearing of the
application
DATED at KISUMU this…………………day of ……………….………2021.

ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:

TWELVE AND TENS
ADVOCATES
P.O BOX 80961 – 40100
KISUMU.
TO BE SERVED UPON:
P.O. BOX 9658 – 40100
KISUMU.
“If any party served does not appear at the time and place above mentioned, such
orders will be made and proceedings taken as the Court may think just and expedient.”
Page | 14
REPUBLIC OF KENYA
BETWEEN
WANGO HESBON OMBEWA T/A TWELVE & TENS

ADVOCATES………………………………………………………..………..APPLICANT
VERSUS

ADVOCATES...........................................................................................… RESPONDENT
SUPPORTING AFFIDAVIT
I, WANGO HESBON OMBEWA a resident of KISUMU, an Advocate of the High Court of

Kenya and practising as such under the firm of TWELVE & TENS ADVOCATES, TSS
TOWERS, MOI AVENUE, P.O BOX 80961 – 40100 KISUMU in the Republic of Kenya
make oath and state as follows: -
1. THAT I am an adult male of sound mind and disposition, the Petitioner, conversant
with the Application herein and hence competent to swear this affidavit.
2. THAT on or about 1st September 2014, I received instructions from Mr. Kawigula to
represent him in a land transaction.
3. THAT Mr. Kawigula (Vendor) was the vendor and was disposing of his property to
raise funds for school fees for his children.
4. THAT Mr. Kawigula identified the purchaser as Ms. Tayari who was being
represented by Mr. Kimbelembele advocate of the High court of Kenya.
5. THAT I prepared a sale agreement for the purchase of the land which had an
unequivocal declaration by the purchaser’s advocate to issue an undertaking to release
the funds within 14 days of the registration.
6. THAT the Respondent went through the agreement was satisfied and he signed it.
7. THAT the purchase price was agreed at kshs. 6,000,000/=. The respondent returned
the sale agreement together with a deposit of 10% of the purchase price to hold as a
stakeholder and that the professional undertaking would follow once the purchaser
had put the funds in the respondent’s account.
8. THAT I released the completion document once I received the Professional

Undertaking from the respondent.
9. THAT I made various correspondences to the respondent on the progress of

registration but there was no response from the respondent.
Page | 15
10. THAT I conducted a search on 03/03/2015 to determine the status of the tittle. The
search revealed that the respondent had registered the transfer against the tittle on
10/1/2015.
11. THAT the respondent has failed to honor the professional undertaking he issued.
12. THAT the actions of the Respondent are not only manifestly unconstitutional and
unlawful, but also prejudicial to the vendor.
13. THAT it is just and proper that the orders sought in the Originating summons herein
be granted.
14. THAT what is stated hereinabove is true to the best of my knowledge, information
and belief, save where the sources thereof have been disclosed.
SWORN at KISUMU this…………….…day of………………………………….2021
By the said:
)
WANGO HESBON OMBEWA ) ……………………………
) DEPONENT
BEFORE ME )
COMMISSIONER FOR OATHS
DRAWN & FILED BY:

TWELVE AND TENS
ADVOCATES
P.O BOX 80961 – 40100
KISUMU.
TO BE SERVED UPON:
P.O. BOX 9658 – 40100
KISUMU.
Page | 16
Annexure 6: SAMPLE OF COMPLETION NOTICE
NOTICE TO COMPLETE PURCHASE OF TITLE NUMBER 4596/MIGINGO/

KISUMU EAST.
TO: KIMBELEMBELE & COMPANY ADVOCATES

TAUSI HOUSE, FOURTH FLOOR,
P.O.BOX 9658-40100 Advance by email: info@kimbelembele.co.ke
KISUMU
WE, TWELVE & TENS ADVOCATES, as advocates for and on behalf of Mr. Kawigula
of ID Number 2316522 and of care of P.0. Box Number 54529-40100 KISUMU [the
“Vendor") hereby give you notice pursuant to the Agreement for Sale between the Vendor
and Purchaser therein (the "Agreement"), as follows:
1. THAT the Vendor, in accordance with the provisions of the Agreement, is ready, able and
willing to complete the sale of ALL THAT piece of land known as Title number
4596/Migingo/ Kisumu East. [hereinafter the "Property").
2. THAT you have made default in complying with your obligations under the Agreement in
that:
2.1 You have failed to provide the Vendor with the Balance of the Purchase Price in the
sum of Kenya Shillings Five million and Four hundred thousand. (Kshs. 5,400,000/=)
3. THAT you are hereby required to make good such default by completing the purchase of
the Property, in accordance with the provisions of the Agreement, before the expiration of
Twenty One [21) days from the date of service of this notice and that if you fail to comply
with this notice within the time aforesaid the Purchaser shall be entitled to enforce the rights
powers and remedies conferred upon them by law.
DATED the 6th September 2021
Page | 17
MINUTES
MEETING 1
MEETING OF ATP 105 PROFESSIONAL ETHICS OF FIRM 12 CLASS HELD
ONLINE VIA MICROSOFT TEAMS ON 16/07/2021 AT 3.15 PM
MEMBERS PRESENT
(Microsoft Teams Generated Attendance Attached)
MEMBER ABSENT
1. VERAH MURUNGA 20211638 (DEFERRED)
AGENDA
1. General overview of the question 1 and 2
2. Picking of the course secretary
3. Setting of deadlines
4. A.O.B
PRELIMINARIES
The meeting began with a prayer by Kahiga Lydia.
The Chairperson, Nyakweba Wendy, welcomed the members to the meeting and
commended them for keeping time.
MIN 1/2021 GENERAL OVERVIEW OF THE QUESTION

Julius Wamboi read question 1 while Eric Wango read question 2. The members agreed to
go through both questions and choose the best option for the firm. Below are some of the
contributions of the Members.
Question 1
The Questions were on drafting a Ruling and drafting of well-reasoned opinion
Caren Unity began by suggesting that, while dissecting the question, the firm should first
look into how to draft a proper Ruling. She suggested that the members investigate the notes
given by the lecturer and see whether they provided any guidance on this.
Wango Eric stated that we could get a few ruling formats from the website Kenya Law
Resources and went on to display a sample he had retrieved from the said website.
Kahiga Lydia inquired whether there was a major difference between a ruling and judgment
in terms of how they were drafted. Nyakweba Wendy gave an elaborate answer stating that
rulings are decisions made on particular stages of a case while judgment is the final decision
of a case. Apart from that she went on, there is no major difference in how they are drafted.
Page | 18
Julius Wamboi pointed out that the Civil Procedure Rules Order 21 rule 4 provided for
contents a judgement so perhaps it would be prudent for every member to be fully aware
before the next meeting.
Kipkorir Mitei stated that he had come across a few tips that could aid in drafting the ruling.
These included how to decide the best format of the ruling, drafting a ruling in plain English
amongst others.
On the second part of the question, Nyagaka Hesbon suggested that the question was a clear-
cut question of confidentiality of an Advocate to his clients, he went on to suggest that we
should look at what the lecturer's notes provided on the same.
Trizah Ombewa added that that exception of confidentiality would also be applicable in
respect of Mwamboza’s conduct in the case.
Victor Kipkemboi noted that Advocate client privilege should be discussed exclusively
especially on the fact that Mwamboza being an advocate should not go around revealing to
everyone about his client's legal problems. Consultation between advocates does not breach
confidentiality.
Lena Musingo stated that when members are going through the legal framework they should
not forget about the Evidence Act that provides for confidentiality of an Advocate and how it
can be waived.
Julius Wamboi also suggested that the Advocate complaints commission should be part of
the issues that we are to raise as a firm.
In conclusion, all the members agreed that the question being a legal opinion should be
handled in FIRAC method of Facts, Issue, Rule, Analysis, and the Conclusion.
Question 2
The Question was on the process of taking over a matter, the actions that can be taken
advocates against a professional undertaking, and actions against Advocate Peter
Machachari.
Hesbon Nyagaka suggested that the process of taking over matters is not provided under
Order 9 of the Civil Procedure Rules. He stated that the rules strictly provide for the ways of
taking over the matter that was in court. This wasn’t the case in the stated case.
The members agreed to do more research on this and discuss it in the next meeting
MIN 02/2021: CHOOSING OF A COURSE SECRETARY

The members agreed that the course secretary for the purposes of coordination would be
Mitei Kipkorir.
Page | 19
MIN 03/2021: SETTING DEADLINES
Mitei Kipkorir suggested that due to the circumstances surrounding the completion of the
project, it would be prudent that the firm completes the assignment diligently and promptly.
The members agreed to this.
The deadlines were thus set as follows:
Submission of work for compilation – 06/08/2021
Review of compiled document – 03/09/2021
Date of completion of the project – 29/09/2021
MIN 04/2021: A.O.B

The members were encouraged to respect the deadlines set.
MIN 05/2021: ADJOURNMENT

The meeting come to a close at 5:08 PM with a prayer from Victor Kipkemboi. The next
meeting was set for 3rd August 2021. The Chair thanked everyone for their commitment and
dismissed them.
Dated 3rd of August 2021
Confirmed as the true copy of the proceedings by:
_______________________ ………………………………...
NYAKWEBA WENDY MITEI KIPKORIR
Chairperson Secretary
MEETING 2
MEETING OF ATP 105 PROFESSIONAL ETHICS OF FIRM 12 CLASS A AT THE

KENYA SCHOOL OF LAW ON 03/08/2021 FROM 2.35 PM
MEMBERS PRESENT
1. WENDY NYAKWEBA ………………………….
2. KIPKORIR MITEI ………………………….
3. ERIC WANGO ………………………….
Page | 20
4. JULIUS WAMBOI ………………………….
5. LENA MUSINGO ………………………….
6. LYDIA KAHIGA ………………………….
7. TRIZAH OMBEWA ………………………….
8. CAREN UNITY ………………………….
9. HESBON NYAGAKA ………………………….
10. VICTOR KIPKEMBOI ………………………….
MEMBER ABSENT
AGENDA
1. Confirmation of previous minutes
2. Matters arising from the previous minutes
3. Selection of the best question
4. Creating an outline
5. Sub-division of the work among members
6. A.O.B
7. Adjournment
PRELIMINARIES
The meeting began with a prayer from Wendy Nyakweba.
The members then settled in for the meeting.
MIN 06/2021: CONFIRMATION OF PREVIOUS MINUTES
The minutes of the previous meeting were read by Mitei Kipkorir, the secretary. They were
confirmed by the members and were adopted as part of the records.
MIN 07/2021: MATTERS ARISING FROM THE PREVIOUS MINUTES

There were no matters arising from the previous minutes, therefore the day’s agenda was
adopted for discussion.
MIN 08/2021: SELECTION OF THE BEST QUESTION
Mitei Kipkorir read both questions. This marked it as the second reading of the question.
The Chair asked the members which question they preferred to do. The majority of the
members were of the opinion that they were conversant with the second question and it
would be best to choose it.
Page | 21
MIN 09/2021: CREATING AN OUTLINE
Having chosen the second question the members made an outline for the second question.
The question was sub-divided into three parts. The members agreed on the following outline:
Part a. The Process of taking over the conduct of the matter from Advocate Peter
Machachari
The general rule of taking over a matter. (Non-contentious matters)

The laws applicable for taking over the matter
Analysis of the matter
Recommendation and conclusion
Part b. The action he may take against the purchaser and her Advocate Kimbelembele who
issued the professional undertaking
What is professional undertaking, and purposes of professional undertaking?

The actions were taken against the purchaser and Advocate Kimbelembele including the
enforcement of professional undertaking.
Part c The action he may take against his former Advocate Peter Machachari
The aspect of professional negligence and what amounts to negligence

The actions that can be taken against Advocate Peter Machachari
MIN 10/2021: SUB-DIVISION OF THE WORK AMONG MEMBERS
The members agreed that the work is subdivided according to the parts of the question. The
work was thus subdivided as follows:
Part A- Mitei Kipkorir, Hesbon Nyagaka, Lydia Kahiga (Subgroup A)
Part B- Eric Wango, Julius Wamboi, Wendy Nyakweba, Caren Unity (Subgroup B)
Part C- Victor Kipkemboi, Lena Musingo, Trizah Ombewa (Subgroup C)
MIN 11/2021 A.O.B

There was no other business arising.
MIN 12/2021 ADJOURNMENT
The meeting came to a close at 6.30 pm with a prayer from Lydia Kahiga.
The next meeting was set for 17th August at 2.35 pm.
The Chair, Wendy Nyakweba, thanked the members for their attendance and dismissed them.
Dated 17th of August 2021
Page | 22
…………………………...
NYAKWEBA WENDY
chairperson
.…………………….
MITEI KIPKORIR
Secretary
Page | 23
MEETING 3

MEMBERS PRESENT
3. ERIC WANGO ………………………….
8. CAREN UNITY ………………………….
MEMBER ABSENT
1.VERAH MURUNGA 20211638 (DEFERRED)
AGENDA
3. Review of progress on the project work
4. A.O.B
5. Adjournment
PRELIMINARIES
The meeting began with a prayer by Caren Unity.
The minutes of the previous meeting were read by Mitei Kipkorir, the Secretary. They were
Page | 24
MIN 15/2021: REVIEW OF PROGRESS ON THE PROJECT WORK

Julius Wamboi read the question. This marked the third reading of the question by the firm.
The Secretary, Mitei Kipkorir, led the discussion. He asked each of the members to give the
firm members an update on the work allocated to them.
Hesbon Nyagaka began the discussion by updating the firm on his progress on Part A of the
question. Being that members agreed to use FIRAC in answering the question, he started with
the brief facts that were relevant to part A. On the issues, he raised two issues that the sub-
group come up with.
Lydia Kahiga updated the firm on the progress analyzing the issues that were raised which
were: the process of taking over the matter and the other issues that might arise as a result of
the firm taking the matter.
Mitei Kipkorir stated that the laws applicable in part A were the Advocates Act, the LSK
Code of Standards of Professional Practice and Ethical Conduct 2016, The Advocates
(Remuneration) Order as well as the Constitution.
In part B of the question, Eric Wango kicked off by defining professional undertaking and
the purpose of using a professional undertaking. He mentioned the relevant authorities that
should be used in the area.
Julius Wamboi mentioned the professional undertaking with the question stating that the
actions taken by Mr. Peter Machachari amounted to professional misconduct and elaborated
that Mr. Kawigula had the option to report the matter to advocates complaints commission.
Wendy Nyakweba gave the functions and composition of the commission. She went on
stating the procedure taken when a complaint is received to the conclusion of that matter. As
she elaborated she gave relevant authorities to support her assertions.
Caren Unity pointed out the option of Mr. Kawigula approaching the court through order 52
rule of the Civil Procedure Rules stating that the court will only give an order for
enforcement of professional undertaking after the advocate has been given the option to
honor the undertaking.
With regards to part C, Trizah Ombewa started by pointing out the negligence of Advocate
Peter Machachari. She pointed out the ingredients of negligence which included; the
existence of a duty of care, the breach of the duty of care and the loss as a result of the duty
of care.
Page | 25
Victor Kipkemboi informed the members of the actions that would be taken against
Advocate Peter Machachari stating that Mr. Kawigula would report the matter to the
Advocates commission.
Lena Musingo on her part stated Advocates previously had immunity with regards to
professional negligence. However, this has come to change. The court has set a very high bar
for proving professional negligence of Advocates. She provided authorities for her
arguments.
MIN 16/2021 A.O.B

The course secretary Mitei Kipkorir asked members to send their work to him for
compiling.

The meeting came to a close at 5.35 pm with a prayer from Hesbon Nyagaka
The next meeting was set for 26th August at 3.30 pm.
The Chair, Wendy Nyakweba, thanked the members for their attendance and dismissed
them.
Dated 26th of August 2021
_______________________
NYAKWEBA WENDY
Chairperson
…………………………...
MITEI KIPKORIR
Secretary
MEETING 4

Page | 26
MEMBERS PRESENT
MEMBER ABSENT
1.VERAH MURUNGA 20211638 (DEFERRED)
AGENDA
4. A.O.B
5. Adjournment
PRELIMINARIES
The meeting began with a prayer by Trizah Ombewa.

The Chair Wendy Nyakweba led the discussion. She asked the members to each give
feedback on the write-ups that had been submitted as per the agreement in the previous
meeting.
In part A, the members found no gaps and thanked Mitei Kipkorir, Hesbon Nyagaka and
Lydia Kahiga for a job well done. However, Victor Kipkemboi pointed out that the LSK
Conditions of Sale should be included among the statutes that provided for the process of
taking over by an advocate.
In part B of the work, the members found the work of Julius Wamboi, Wendy Nyakweba,
and Eric Wango, and Caren Unity to be well researched and gave their commendations on
the same. However, Mitei Kipkorir asked the members to ensure that their work was Oscola
referenced.
Page | 27
In part C of the work, the members found the work of Trizah Ombewa, Victor Kipkemboi
and Lena Musingo satisfactory and commended them on the same. The members however
noted that more authorities should be added to the work done.
MIN 21/2021 A.O.B

The next meeting was set for 3rd September at 2.35 pm.
Dated 3rd September 2021
………………………...
NYAKWEBA WENDY
Chairperson
……………………..
MITEI KIPKORIR
Secretary
Page | 28
MEETING 5

MEMBERS PRESENT
3. ERIC WANGO ………………………….
8. CAREN UNITY ………………………….
MEMBER ABSENT
AGENDA
4. A.O.B
5. Adjournment
PRELIMINARIES
The meeting began with a prayer by Lena Musingo.

The minutes of the previous meeting were read by Mitei Kipkorir, the secretary. They were

Page | 29
Caren Unity read the questions to the members once again. This marked the third reading of
the question by the firm.
Eric Wango led the discussion. He asked the unit coordinator Mitei Kipkorir to present the
document by sharing his screen with the members. Thereafter, asked the members to each
give feedback on the compiled write-ups that had been submitted as per the agreement in the
previous meeting. The members reviewed the write-up and noted the following:
The members began by thanking Mitei Kipkorir for a job well done in compiling the
document. Lena Musingo noted that the substantial part of the work didn’t have much to be
amended and only a few formatting corrections needed to be made. The members agreed.
Wendy Nyakweba noted that the list of abbreviations was not comprehensive and asked
Mitei Kipkorir to amend it to include all the abbreviations in the document if necessary.
Trizah Ombewa further suggested that all bullet points be removed from the document in
order to make it more professional. Mitei Kipkorir took note of this and stated that he would
amend the document to have the same.
Victor Kipkemboi further pointed out that the document lacked a declaration of originality
and a list of abbreviations after the cover page. Mitei Kipkorir took note of this and stated
that he would do the same.
In addition to this, Lydia Kahiga reminded Mitei Kipkorir to add page numbers to the
document. Mitei Kipkorir stated that he would do so.
MIN 26/2021 A.O.B

The next meeting was set for 29th September at 2.35 pm.
Dated 29th August 2021
………………………….
NYAKWEBA WENDY
Chairperson
………………………….
MITEI KIPKORIR
Secretary
MEETING 6

Page | 30
MEMBERS PRESENT
MEMBER ABSENT
1.VERAH MURUNGA 20211638 (Deferred)
AGENDA
4. A.O.B
5. Adjournment
PRELIMINARIES
The meeting began with a prayer by Lena Musingo.


The members went through the work correcting the grammar mistakes that may have been
omitted during the last meeting. This marked the last meeting of the project work.
MIN 26/2021 A.O.B


The meeting came to a close with a prayer from Victor Kipkemboi.
The Chairperson, Wendy Nyakweba, thanked the members for their attendance, effort and
dedication towards completing the project work.
Dated 29th September 2021
Page | 31
NYAKWEBA WENDY MITEI KIPKORIR

Chairperson Secretary
Page | 32

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KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAM (ATP)

FIRM 12, CLASS A

ATP 105 PROFESSIONAL ETHICS

COURSE INSTRUCTOR: MR. STEPHEN MALLOWAH

26th October 2021

GROUP MEMBERS REGISTRATION NO. SIGNATURE

NYAKWEBA WENDY MAGOMA 20210235

OMBEWA TRIZAH ATIENO 20210288

MITEI KIPKORIR TONY 20210294

WAMBOI JULIUS 20210584

LYDIA KAHIGA 20211082

WANGO ERIC WAMBUGU 20211272

LENA MUSINGO 20211329

CAREN UNITY 20211344

VICTOR KIPKEMBOI 20211523

NYAGAKA HESBON MATOKE 20211600

VERAH MURUNGA (Deferred) 20211638

CHAIRPERSON : …………….………... SECRETARY : ………………………

SIGNATURE : ……………………..... SIGNATURE : ……………………….

DATE : ………………………. DATE : ……………………….

1. Arthur J.S. Hall vs Simmons[2000] 3 WLR 543

Dear Mr. Kawigula,

RE: LEGAL OPINION ON THE PROCESS OF TAKING OVER THE CONDUCT OF

II. Brief Facts

1 Law Society of Kenya, Conditions of Sale, Condition 21.5.

7 Advocates Act s 45(5).

IV. Conclusion on the issue of taking over the matter

12 Advocates (Remuneration) Order 1962 (Rev. 2017), Order 62A.

i. Against Advocate Kimbelembele

A professional undertaking creates an obligation to an advocate accepting or giving it. Once

Failure to honour obligations created by professional undertakings amounts to professional

23 [1845]2 Dowl. &L. 919.

Having established that the actions of Mr. Kimbembele amounted to professional

a. Lodge complaint at Advocates Complaint Commission

i. Compensation or reimbursement of not more than one hundred thousand shillings

33 Advocates Act, s 53(6) (b).

(ii) In any other case, by Originating Summons in the High Court

Guided by the above-cited authorities, we find that advocate Kimbelembele indeed breached

49 Civil Procedure Rules 2010

i. Issue a completion notice to the purchaser

a. Issue a Completion Notice to the Purchaser

54 Law Society of Kenya Conditions of Sale 2015, Condition 13.4.1

c. The Right of Re-Entry into the Property.

d. Register Caution Against the Land

63 Land Registration Act s 71.

There is an Advocate-client relationship between Mr. Kawigula and Advocate Peter

i. The existence of a duty of care;

Date of agreement- 1st October 2014

a. Advocates complaints commission

67 “Duty of Care & Negligence” <https://www.lsc.qld.gov.au/__data/assets/pdf_file/0008/655829/negligence-

Professional misconduct is a shameful act that is inconsistent with the status of an

Process of the disciplinary tribunal

78 Advocates Act s 60 (4) (c).

Mitei Julius Nyakweba,

88 Reid Rondel V Worsely [1969] AC 193.

DISCHARGE OF THE FIRM

TWELVE & TENS ADVOCATES

PETER MACHACHARI & CO. ADVOCATES,

Dear Mr. Kawigula,

Reference is made to the above subject.

Mitei Julius Nyakweba,

Annexure 3: SAMPLE OF NOTICE TO CHANGE ADVOCATES

KIMBELEMBELE & COMPANY ADVOCATES,