Introduction
1. The Applicant, Jason N. Namasake, a seasoned advocate, instituted these proceedings by way of Originating Summons dated 11th January 2023 seeking removal of the 1st and 2nd Respondents as partners of JNN Advocates LLP, prohibition against admission of the 3rd Respondent, and ancillary reliefs including control of firm accounts and return of the firm’s ETR machine.
2. The Applicant alleges that the 1st Respondent fraudulently introduced the 2nd and 3rd Respondents as partners, interfered with firm accounts, and locked him out of communication channels, thereby threatening his proprietary and professional rights.
3. The Respondents oppose the application and filed separate affidavits, all dated 20th February 2023, contending that the Applicant has approached the Court with unclean hands, operated a secret account, diverted client funds, and improperly invoked constitutional provisions and procedure under Order 37 Rule 10 of the Civil Procedure Rules.
4. The Application was canvassed by way of written submissions. The Applicant, through MWAE & Associates Advocates, filed his submissions dated 15th September 2025, whereas the Respondents, through JNN Advocates LLP, filed their joint submissions dated 7th October 2025.
The Applicant’s Case
5. The Applicant, Mr. Jason N. Namasake, contends that he is the founding and legitimate partner of JNN Advocates LLP, formerly trading as J. N. Namasake & Company Advocates. He avers that the LLP was registered on 17th February 2022 with himself and the 1st Respondent as the only partners, and his son, Mr. Walter Namasake, as the designated manager.
6. The Applicant’s grievance is that the 1st Respondent, without authority or consent, attempted to introduce the 2nd and 3rd Respondents as partners, interfered with the firm’s bank accounts, altered its website, changed official email passwords, and removed the firm’s ETR machine, thereby crippling operations. He asserts that these acts were fraudulent, calculated to dispossess him of his proprietary stake, and intended to unjustly enrich the Respondents by riding on his goodwill and reputation built since 2007.
7. The Applicant submits that the Respondents’ conduct violates Section 10 of the Limited Liability Partnerships Act, 2011, which requires consensual alteration of partnership composition. He relies on authorities including Giella v Cassman Brown [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd [2003] KLR 125, Nguruman Ltd v Jan Bonde Nielsen [2014] eKLR, and Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 to argue that he has established a prima facie case, stands to suffer irreparable harm, and that the balance of convenience favours him.
8. He further invokes Article 40 of the Constitution to protect his proprietary rights in the LLP, and Article 10 to underscore the principles of integrity and accountability. He maintains that upon removal of the 1st Respondent, the LLP is entitled to continue under his stewardship pursuant to Sections 19, 25 and 27 of the LLP Act, which provide for continuity notwithstanding the exit of a partner.
The Respondents’ Case
9. The Respondents, led by the 1st Respondent, Mr. Philip O. Odete, opposed the application, and submitted that the Applicant has not approached the Court with clean hands, having operated a “secret account” under his defunct sole proprietorship, diverted client funds, concealed bank statements, and defied court orders. They argue that these acts amount to exploitation of the partnership and breach of fiduciary duties under the LLP Act.
10. The Respondents contend that the Applicant’s reliance on Article 40 of the Constitution is misconceived, as he has not particularized any specific property unlawfully taken. They invoke the principle in Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society [2013] eKLR, which require precision in constitutional pleadings. They argue that goodwill and reputation, while valuable, do not amount to proprietary rights capable of constitutional protection in the context of an LLP.
11. On procedure, the Respondents submit that the application is fatally defective, having been brought under Order 37 Rule 10 of the Civil Procedure Rules, which is limited to dissolution and taking of accounts. They rely on Kibutiri v Kibutiri [1983] KLR 62 and Cyril Haroo v Uchumi Services Ltd [2014] eKLR to argue that contested factual issues cannot be determined by originating summons, and that the matter should have been commenced by plaint.
12. The Respondents further argue that the Applicant seeks to irregularly oust them from the LLP and convert it into his personal dominion, contrary to Section 6 of the LLP Act which requires at least two partners. They maintain that the LLP is a going concern, servicing clients, and that the Applicant’s prayers would unlawfully extinguish their proprietary interests.
13. In sum, the Respondents urge the Court to dismiss the application as incompetent, misconceived, and devoid of merit, and to find that the Applicant is disentitled to equitable relief by reason of bad faith, concealment, and lack of candour.
Analysis and Determination
14. Having carefully considered the pleadings, submissions and the applicable law, I find the following issues as requiring determination:
i. Whether this Court has jurisdiction to entertain the application.
ii. Whether the Originating Summons as filed is competent under Order 37 Rule 10 of the Civil Procedure Rules.
iii. Whether the Applicant has satisfied the threshold for the equitable reliefs sought.
Whether the Court has jurisdiction
15. The starting point is the question of this Court’s jurisdiction in this matter is Article 165(3)(b) of the Constitution, which provides that: -
“Subject to clause (5), the High Court shall have jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.”
16. The Respondents in objecting to the jurisdiction of this Court argued that since the Applicant has in the present application invoked Article 40 (protection of property rights), the matter ought to have been filed in the Constitutional & Human Rights Division, and not in this Division.
17. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR emphasized the principle of constitutional avoidance.
“…where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
18. Lenaola J (as he then was) in Bernard Murage v Fineserve Africa Ltd [2015] eKLR held:
“…not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.”
19. Applying these principles, the Court finds that while Article 40 is cited, the gravamen of the dispute is commercial in nature. The Applicant seeks removal of partners and regulation of partnership affairs, not constitutional declarations. The Respondents’ reliance on Anarita Karimi Njeru is apt in constitutional petitions, but here the pleadings are not framed as such. The Court therefore finds jurisdiction lies with this Division. The Preliminary Objection on jurisdiction is misconceived and fails.
On Competence of Originating Summons
20. The Respondents submitted that Order 37 Rule 10 is limited to dissolution and taking accounts where dissolution is not in dispute. They argue that in the present case, the Applicant does not seek dissolution, and further, the dissolution is contested. They rely on Kibutiri v Kibutiri [1983] KLR 62 and Cyril J Haroo v Uchumi Services Ltd [2014] eKLR to argue that Originating Summons is inappropriate for contested facts.
21. The Applicant, on the other hand, argued that his prayers concern the removal of partners and regulation of partnership affairs, which fall within the ambit of partnership disputes. He cites Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 and Mutiso v Gachanja [1987] eKLR to emphasize that partnerships are founded on utmost good faith and no partner may introduce a stranger without consent.
22. Order 37 Rule 10 of the Civil Procedure Rules provides that:
“When the existence of a partnership, or the right to a partnership, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating summons… for the purpose of having the partnership dissolved (if it be still subsisting) and for the purpose of taking the accounts of and winding up such partnership.”
23. In Kibutiri v Kibutiri [1983] KLR 62, the Court held that: -
“The scope of an inquiry which could be made on an Originating Summons and the ability to deal with a contested case was very limited. When it becomes obvious that the issues raise complex and contentious questions of facts and law, a judge should dismiss the summons and leave the parties to pursue their claim by ordinary suit.”
24. In Cyril J Haroo & another v Uchumi Services Ltd & 3 others [2014] eKLR, the Court reiterated that originating summons is not appropriate where contested facts require viva voce evidence.
25. In this case, the affidavits reveal sharp factual disputes: whether the 2nd and 3rd Respondents were admitted with consent, whether the Applicant diverted funds to a “secret account,” and whether the Respondents misrepresented their experience. These are contested matters requiring oral testimony and cross-examination.
26. In the premises, the Court finds that the originating summons procedure is ill-suited to resolve such disputes. The summons is therefore procedurally defective in the circumstances.
whether the Applicant is entitled to the injunctive orders sought
27. I note from the pleadings that the Applicant, by the Summons, seeks injunctive reliefs and relies on, among others, the cases of Giella v Cassman Brown [1973] EA 358, Mrao Ltd v First American Bank [2003] KLR 125, and Nguruman Ltd v Jan Bonde Nielsen [2014] eKLR in support of his case. He argues that he has, by the evidence adduced, established a prima facie case, irreparable harm, and balance of convenience.
28. The Respondents, on their part, argue that the Applicant has not approached the Court with clean hands. They allege he operated a “secret account” under his former sole proprietorship, diverted client funds, concealed bank statements, and enabled his son, who is not an advocate, to unlawfully practice law. They rely on Caliph Properties Ltd v Barbel Sharma [2015] eKLR to stress that equitable relief demands utmost good faith.
29. Having carefully considered the parties’ respective submissions, I note that while the Applicant has shown arguable claims of unilateral alteration of partnership composition and deprivation of access to firm assets, the Respondents have raised serious allegations of concealment, diversion of funds, and unauthorized practice by the Applicant’s son.
30. Further, the Respondents allege the Applicant operated a “secret account” under the defunct business name, diverted client funds, and concealed bank statements. If true, these allegations would taint the Applicant’s hands and disentitle him to the equitable relief sought. As pointed out above, these allegations can only be adequately tested on a full trial, for which Originating Summons is least suited.
31. Equity demands clean hands. In Caliph Properties Ltd v Barbel Sharma [2015] eKLR, the Court held:
“He that comes to equity must come with clean hands and must also do equity.”
32. On balance of convenience, it is common ground that the partnership is a going concern serving clients. Granting orders that effectively vest exclusive control in the Applicant risks destabilizing the firm. Consequently, the balance tilts against granting the sweeping reliefs sought at this stage.
33. Accordingly:
i. The Respondents’ Preliminary Objection dated 20th February 2023 is dismissed on the issue of jurisdiction.
ii. The Originating Summons dated 11th January 2023 is struck out for being procedurally defective.
iii. The Applicant is at liberty to institute a proper suit by way of a plaint to ventilate the substantive issues.
iv. Since the dispute herein is one arising from the partnership between the parties, I hereby direct that each party bear their own costs.
It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A…………..for the Applicant
Odete……. for the Respondents
1. The Applicant, Jason N. Namasake, a seasoned advocate, instituted these proceedings by way of Originating Summons dated 11th January 2023 seeking removal of the 1st and 2nd Respondents as partners of JNN Advocates LLP, prohibition against admission of the 3rd Respondent, and ancillary reliefs including control of firm accounts and return of the firm’s ETR machine.
2. The Applicant alleges that the 1st Respondent fraudulently introduced the 2nd and 3rd Respondents as partners, interfered with firm accounts, and locked him out of communication channels, thereby threatening his proprietary and professional rights.
3. The Respondents oppose the application and filed separate affidavits, all dated 20th February 2023, contending that the Applicant has approached the Court with unclean hands, operated a secret account, diverted client funds, and improperly invoked constitutional provisions and procedure under Order 37 Rule 10 of the Civil Procedure Rules.
4. The Application was canvassed by way of written submissions. The Applicant, through MWAE & Associates Advocates, filed his submissions dated 15th September 2025, whereas the Respondents, through JNN Advocates LLP, filed their joint submissions dated 7th October 2025.
The Applicant’s Case
5. The Applicant, Mr. Jason N. Namasake, contends that he is the founding and legitimate partner of JNN Advocates LLP, formerly trading as J. N. Namasake & Company Advocates. He avers that the LLP was registered on 17th February 2022 with himself and the 1st Respondent as the only partners, and his son, Mr. Walter Namasake, as the designated manager.
6. The Applicant’s grievance is that the 1st Respondent, without authority or consent, attempted to introduce the 2nd and 3rd Respondents as partners, interfered with the firm’s bank accounts, altered its website, changed official email passwords, and removed the firm’s ETR machine, thereby crippling operations. He asserts that these acts were fraudulent, calculated to dispossess him of his proprietary stake, and intended to unjustly enrich the Respondents by riding on his goodwill and reputation built since 2007.
7. The Applicant submits that the Respondents’ conduct violates Section 10 of the Limited Liability Partnerships Act, 2011, which requires consensual alteration of partnership composition. He relies on authorities including Giella v Cassman Brown [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd [2003] KLR 125, Nguruman Ltd v Jan Bonde Nielsen [2014] eKLR, and Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 to argue that he has established a prima facie case, stands to suffer irreparable harm, and that the balance of convenience favours him.
8. He further invokes Article 40 of the Constitution to protect his proprietary rights in the LLP, and Article 10 to underscore the principles of integrity and accountability. He maintains that upon removal of the 1st Respondent, the LLP is entitled to continue under his stewardship pursuant to Sections 19, 25 and 27 of the LLP Act, which provide for continuity notwithstanding the exit of a partner.
The Respondents’ Case
9. The Respondents, led by the 1st Respondent, Mr. Philip O. Odete, opposed the application, and submitted that the Applicant has not approached the Court with clean hands, having operated a “secret account” under his defunct sole proprietorship, diverted client funds, concealed bank statements, and defied court orders. They argue that these acts amount to exploitation of the partnership and breach of fiduciary duties under the LLP Act.
10. The Respondents contend that the Applicant’s reliance on Article 40 of the Constitution is misconceived, as he has not particularized any specific property unlawfully taken. They invoke the principle in Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society [2013] eKLR, which require precision in constitutional pleadings. They argue that goodwill and reputation, while valuable, do not amount to proprietary rights capable of constitutional protection in the context of an LLP.
11. On procedure, the Respondents submit that the application is fatally defective, having been brought under Order 37 Rule 10 of the Civil Procedure Rules, which is limited to dissolution and taking of accounts. They rely on Kibutiri v Kibutiri [1983] KLR 62 and Cyril Haroo v Uchumi Services Ltd [2014] eKLR to argue that contested factual issues cannot be determined by originating summons, and that the matter should have been commenced by plaint.
12. The Respondents further argue that the Applicant seeks to irregularly oust them from the LLP and convert it into his personal dominion, contrary to Section 6 of the LLP Act which requires at least two partners. They maintain that the LLP is a going concern, servicing clients, and that the Applicant’s prayers would unlawfully extinguish their proprietary interests.
13. In sum, the Respondents urge the Court to dismiss the application as incompetent, misconceived, and devoid of merit, and to find that the Applicant is disentitled to equitable relief by reason of bad faith, concealment, and lack of candour.
Analysis and Determination
14. Having carefully considered the pleadings, submissions and the applicable law, I find the following issues as requiring determination:
i. Whether this Court has jurisdiction to entertain the application.
ii. Whether the Originating Summons as filed is competent under Order 37 Rule 10 of the Civil Procedure Rules.
iii. Whether the Applicant has satisfied the threshold for the equitable reliefs sought.
Whether the Court has jurisdiction
15. The starting point is the question of this Court’s jurisdiction in this matter is Article 165(3)(b) of the Constitution, which provides that: -
“Subject to clause (5), the High Court shall have jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.”
16. The Respondents in objecting to the jurisdiction of this Court argued that since the Applicant has in the present application invoked Article 40 (protection of property rights), the matter ought to have been filed in the Constitutional & Human Rights Division, and not in this Division.
17. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR emphasized the principle of constitutional avoidance.
“…where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
18. Lenaola J (as he then was) in Bernard Murage v Fineserve Africa Ltd [2015] eKLR held:
“…not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.”
19. Applying these principles, the Court finds that while Article 40 is cited, the gravamen of the dispute is commercial in nature. The Applicant seeks removal of partners and regulation of partnership affairs, not constitutional declarations. The Respondents’ reliance on Anarita Karimi Njeru is apt in constitutional petitions, but here the pleadings are not framed as such. The Court therefore finds jurisdiction lies with this Division. The Preliminary Objection on jurisdiction is misconceived and fails.
On Competence of Originating Summons
20. The Respondents submitted that Order 37 Rule 10 is limited to dissolution and taking accounts where dissolution is not in dispute. They argue that in the present case, the Applicant does not seek dissolution, and further, the dissolution is contested. They rely on Kibutiri v Kibutiri [1983] KLR 62 and Cyril J Haroo v Uchumi Services Ltd [2014] eKLR to argue that Originating Summons is inappropriate for contested facts.
21. The Applicant, on the other hand, argued that his prayers concern the removal of partners and regulation of partnership affairs, which fall within the ambit of partnership disputes. He cites Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 and Mutiso v Gachanja [1987] eKLR to emphasize that partnerships are founded on utmost good faith and no partner may introduce a stranger without consent.
22. Order 37 Rule 10 of the Civil Procedure Rules provides that:
“When the existence of a partnership, or the right to a partnership, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating summons… for the purpose of having the partnership dissolved (if it be still subsisting) and for the purpose of taking the accounts of and winding up such partnership.”
23. In Kibutiri v Kibutiri [1983] KLR 62, the Court held that: -
“The scope of an inquiry which could be made on an Originating Summons and the ability to deal with a contested case was very limited. When it becomes obvious that the issues raise complex and contentious questions of facts and law, a judge should dismiss the summons and leave the parties to pursue their claim by ordinary suit.”
24. In Cyril J Haroo & another v Uchumi Services Ltd & 3 others [2014] eKLR, the Court reiterated that originating summons is not appropriate where contested facts require viva voce evidence.
25. In this case, the affidavits reveal sharp factual disputes: whether the 2nd and 3rd Respondents were admitted with consent, whether the Applicant diverted funds to a “secret account,” and whether the Respondents misrepresented their experience. These are contested matters requiring oral testimony and cross-examination.
26. In the premises, the Court finds that the originating summons procedure is ill-suited to resolve such disputes. The summons is therefore procedurally defective in the circumstances.
whether the Applicant is entitled to the injunctive orders sought
27. I note from the pleadings that the Applicant, by the Summons, seeks injunctive reliefs and relies on, among others, the cases of Giella v Cassman Brown [1973] EA 358, Mrao Ltd v First American Bank [2003] KLR 125, and Nguruman Ltd v Jan Bonde Nielsen [2014] eKLR in support of his case. He argues that he has, by the evidence adduced, established a prima facie case, irreparable harm, and balance of convenience.
28. The Respondents, on their part, argue that the Applicant has not approached the Court with clean hands. They allege he operated a “secret account” under his former sole proprietorship, diverted client funds, concealed bank statements, and enabled his son, who is not an advocate, to unlawfully practice law. They rely on Caliph Properties Ltd v Barbel Sharma [2015] eKLR to stress that equitable relief demands utmost good faith.
29. Having carefully considered the parties’ respective submissions, I note that while the Applicant has shown arguable claims of unilateral alteration of partnership composition and deprivation of access to firm assets, the Respondents have raised serious allegations of concealment, diversion of funds, and unauthorized practice by the Applicant’s son.
30. Further, the Respondents allege the Applicant operated a “secret account” under the defunct business name, diverted client funds, and concealed bank statements. If true, these allegations would taint the Applicant’s hands and disentitle him to the equitable relief sought. As pointed out above, these allegations can only be adequately tested on a full trial, for which Originating Summons is least suited.
31. Equity demands clean hands. In Caliph Properties Ltd v Barbel Sharma [2015] eKLR, the Court held:
“He that comes to equity must come with clean hands and must also do equity.”
32. On balance of convenience, it is common ground that the partnership is a going concern serving clients. Granting orders that effectively vest exclusive control in the Applicant risks destabilizing the firm. Consequently, the balance tilts against granting the sweeping reliefs sought at this stage.
33. Accordingly:
i. The Respondents’ Preliminary Objection dated 20th February 2023 is dismissed on the issue of jurisdiction.
ii. The Originating Summons dated 11th January 2023 is struck out for being procedurally defective.
iii. The Applicant is at liberty to institute a proper suit by way of a plaint to ventilate the substantive issues.
iv. Since the dispute herein is one arising from the partnership between the parties, I hereby direct that each party bear their own costs.
It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A…………..for the Applicant
Odete……. for the Respondents