The trouble-ridden Kencom Sacco management has been given a 60-day period to pay the law firm of Nick Ndeda &Associates USD 35,000 in a professional undertaking.
Kencom Sacco had blatantly refused to remit the USD 35,000 to the advocates despite an agreement they had that read, We shall immediately and in any event not later than 24 hours, upon receipt of your first notification that our client has executed the term sheet/letter of interest, and without any cavil, pay you or as directed by yourself USD 35,000 in free and clear funds without any deductions or withholding whatsoever, such that the said sum shall be available for your client for further processing of the loan application within 48 hours of our receipt of your notification.”
In an affidavit sworn by Moses Sande Makhanda, Kencom Sacco Society was to obtain loan facilities and therefore made an application to the defendant’s client, Infracapital Investment Group Limited, a company incorporated in the United Kingdom. The letter of offer required that before due diligence was done, the plaintiff would pay due diligence fees to the defendant of USD 35,000 or the equivalent in Kenyan shillings.
The payment was secured by a professional undertaking that was given by the plaintiff’s advocates (Makhandia and Makhandia Advocates) to the defendant. The ruling by Judge A.N. Ongeri reads in part “I find that the terms for the release of the funds to the defendant were clear, and as a professional, the defendant was required to observe the terms of his professional undertaking”.
The order reads in part, “Judgment be and is hereby entered in favour of the applicant against the respondent for USD 35,000 or its equivalent in Kenya shillings, together with costs and interest from the date of filing suit if the undertaking is not honoured within 60 days of execution.
