REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
IN THE CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E052 OF 2024
IN THE MATTER OF: ARTICLES 2(1) AND (2), 3(1), 10, 19(1) AND (2), 20(1), 21(1), 22(1), 23(1) AND (3), 24(1), 35(1)(b), 47(1) AND (2), 50(1), 159(1), 165 (3), 232(1), 258 AND 259(1) AND (3) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE ALLEGED CONTRAVENTION AND VIOLATION OF ARTICLES 35(1)(b), 47(1) AND (2), 50(1), AND 232(1)(c) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
BETWEEN
MALI ADVOCATES LLP………………………..…………...1 ST PETITIONER
EDWIN HAROLD DAYAN DANDE…………………………2 ND PETITIONER
AND
THE DIRECTOR GENERAL
BUSINESS REGISTRATION SERVICE…………………...1 ST RESPONDENT
THE REGISTRAR OF LIMITED
LIABILITY PARTNERSHIPS……………………………...2 ND RESPONDENT
THE OFFICIAL RECEIVER………………..…………...…3 RD RESPONDENT
THE HON. ATTORNEY GENERAL……….……..……..…4 TH RESPONDENT
AND
THE LAW SOCIETY OF KENYA………………...….…INTERESTED PARTY
JUDGMENT
1. This judgment determines the amended petition dated 1 st February, 2026. The facts giving rise to the petition as amended are that the 1 st Petitioner being a law firm duly incorporated under the provisions of the Limited Liability Partnership Act, No. 42 of 2011 was issued with a Certificate of Registration of a Limited Liability Partnership – LLP-G81Q555 on 9 th November, 2022, having satisfied Sections 17 and 20 of the LLP Act.
2. The 2 nd Petitioner is a male adult of sound mind and understanding and the former statutory manager of the 1 st Petitioner. It is pleaded that on 30 th June 2023, Ms. Lilian Maina who was initially registered as a partner in the aforesaid law firm, tendered her resignation and that on the same date, the Partners passed a resolution acknowledging her resignation and that a Statutory Declaration formalizing her resignation was sworn on 1 st July 2023.
3. That following her resignation, the 1 st Petitioner appointed Mr. Ernest Mugao as a Partner to replace Ms. Lilian Maina and that appointment was effected through a resolution dated 31 st August 2023. Subsequently, on 4 th September 2023, Mr. Noah Randiek resigned from the said law Firm vide a formal resignation notice, supported by the requisite Statutory Declaration dated 4 th September 2023.
4. It is asserted that on 11 th September 2023, the Partners of the 1 st Petitioner passed a resolution acknowledging the resignation of Mr. Noah Randiek and concurrently appointed Ms. Celestine Koile as a Partner and that on the same date, the 1 st Petitioner also resolved to change its registered address. Later, on 30 th January 2024, the 1 st Petitioner appointed Mr. Adamskey Ojwang Dudi as a Partner through a resolution of the Partners, which change was officially recorded in a Statement of Change of Particulars dated the same day.
5. That Ms. Celestine Koile subsequently tendered her resignation from the firm, which resignation was accepted during the 1 st Petitioner’s Partners’ meeting held on 28 th January 2025. Her resignation was supported by a Statutory Declaration formalizing her exit from the partnership.
6. Consequently, that the Partners at the 1 st Petitioner presently comprise of Adamskey Dudi Advocate and Ernest Muriungi Advocate.
7. The petitioners aver that on 27 th March 2025, Mr. Adamskey Dudi was authorized to act on behalf of the 1 st Petitioner in the instant Petition.
8. According to the petitioners, prior to incorporation of the law firm, the 1 st Petitioner submitted the necessary documents antecedent to its registration to the Interested Party, the principal regulatory authority over the legal profession. That the Interested Party, having satisfied itself that all the requirements mandatory to registration of a law firm had been met, issued the 1 st Petitioner with a Letter of No Objection.
9. It is asserted that the 1 st Petitioner has and continues to carry on its operations until sometime on or about 11 th May, 2023, when the Interested Party notified it that its irregular conduct has been registered because of the practice of an unqualified person by the name Edwin Harold Dayan Dande, the 2 nd Petitioner. In its said letter, the Interested Party noted that Section 9 of the Advocates Act qualifies the practice of law for advocates who have been admitted, their names being on the roll and possess a practicing certificate. That the Interested Party further stated that Section 37 of the Advocates Act and Rule 4 of the Advocates Practice Rules prohibits the sharing of profits with unqualified persons.
10. Against this backdrop, the Interested Party wrote to the 1 st Respondent on 16 th June, 2023 asking them to immediately deregister the 1 st Petitioner since it had a statutory manager who is not qualified. The Interested Party relied on the Business Names Act, and Section 37 of the Advocates Act which prohibits the sharing of profits with unqualified persons. That engagements between the 1 st Petitioner and the Interested Party led to the resignation of the 2 nd Petitioner as a statutory manager .
11. Upon receiving the 2 nd Petitioner’s application for resignation, the Interested Party wrote to the 1 st Respondent on 27 th June, 2023 indicating that the 1 st Petitioner had duly regularized its constitution and that therefore, the interested party had no issues regarding the operations pf the 1 st petitioner and that the issue of deregistration should now be rested.
12. The petitioners contend that the above facts notwithstanding, since its inception, the 1 st Petitioner has tried to effect various changes to its membership and change of address in vain. That on or about 30 th June, 2023, one of the Partners of the 1 st Petitioner lodged her resignation as a partner but that despite lodging the application in the prescribed manner and paying the requisite fees, the 1 st Respondent has never approved the same, and has always asked the 1 st Petitioner to contact the 3 rd Respondent on the same, which had taken forever.
13. The petitioners also lament that equally, on 4 th September, 2023, another Partner of the 1 st Petitioner lodged his resignation in the prescribed manner and paid the requisite fees but that to date, the 1 st Respondent has never approved the said application.
14. Again, it is contended that on 11 th September, 2023, the 1 st Petitioner held a meeting wherein it was resolved that another Partner be onboarded but that despite the said application being lodged in the prescribed form, the same has not been acted upon and/or approved. Further, that the Interested Party has cautioned the 1 st Petitioner not to undertake its operations until it is fully constituted and in full compliance with the law.
15. It is asserted that the 1 st Petitioner has written to the 1 st Respondent to seek clarity on the pending applications to wit:
i) ROM-KOTM9OR: Resignation of Manager submitted on 21 st June, 2023
ii) ROP-8J8WPZ: Resignation of Partner submitted on 3 rd July, 2023
iii) CRALLP-2ETLMWZ: Change of address submitted on 3 rd July, 2023
iv) AOP-YLTORKT: Appointment of Partner submitted on 6 th September, 2023
v) ROP-QPTJZVP: Resignation of Partner submitted on 27 th October, 2023.
vi) AOP-J5TP6A2: Appointment of Partner submitted on 27 th October, 2023.
vii) CRALLP-AKT69LR: Application for Change of Registered Address submitted on 20 th November, 2023.
16. That on 6 th November, 2023, the 1 st Petitioner sought a response on this issue but to date, no response has been forthcoming from the 1 st respondent. Again, on 11 th and 15 th December, 2023, the 1 st Petitioner wrote to the 1 st Respondent on the pending applications, but that the notifications on their accounts with the 1 st respondent indicated that they seek redress from the 3 rd Respondent, which came as a surprise and a shock as it is the 1 st Respondent who is duly mandated by law to effect changes of the lodged applications.
17. The petitioners claim that time and again, the 1 st Petitioner has sought an explanation on why the change of particulars should be directed to the 3 rd Respondent but received no response form the 1 st respondent and that as a consequence of the 1 st Respondent’s failure to effect changes made by the 1 st Petitioner, the Interested Party avers that the 1 st Petitioner is not properly constituted to undertake operations as a firm of advocates in the nature of an LLP.
18. That although the 1 st Respondent contends that the Petitioners’ representatives should contact the 3 rd Respondent regarding the lodged applications, the 1 st Petitioner is solvent, hence the 3 rd Respondent has no business overseeing the changes to be effected by the 1 st Petitioner.
19. The petitioners therefore assert that the failure by the 1 st Respondent to approve changes duly lodged by the Petitioners in the prescribed form violates the 1 st Petitioner’s right to legitimate expectation, contrary to Article 232(1)(c) that binds public officers and offices to be responsive, prompt, effective, impartial and equitable in provision of services.
20. The petitioners further assert that failure by the 1 st Respondent to approve changes duly lodged by the 1 st Petitioner in the prescribed form violated the Petitioners’ right to fair administrative action, contrary to Article 47(1) and (2) of the Constitution.
21. Further, that failure by the 1 st Respondent to provide the Petitioners with information on the status of their applications violates the Petitioners’ right to access to information contrary to Article 35(1)(b) of the Constitution.
22. Additionally, that failure by the 1 st Respondent to accord the Petitioners an opportunity to be heard violates the Petitioners’ right to a fair trial contrary to Article 50(1) of the Constitution.
23. As against the Official Receiver, the petitioners aver that by directing the 1 st Respondent to place restrictions on changes effected by the 1 st Petitioner, the 3 rd Respondent has not only acted ultra vires , but that it has done so in brazen breach of the Petitioners’ right to legitimate expectation under Articles 35(1)(b), 47(1) and (2), 50(1), and 232(1)(c) of the Constitution.
24. The petitioners therefore pray for the following reliefs and orders:
a) A declaration that the 1 st Respondent has violated the Petitioners’ right of access to information under Article 35(1)(b) of the Constitution.
b) A declaration that the Petitioners’ constitutional rights under Article 47(1) and (2) of the Constitution have been violated by the 1 st and 3 rd Respondents.
c) A declaration that to the extent that the 1 st Respondent has refused to approve the Petitioners’ applications for change in its membership and change of address, that such refusal is unreasonable, irrational, unprocedural and outright unconstitutional.
d) An order of mandamus compelling the 1 st Respondent to forthwith approve the 1 st Petitioner’s applications on its membership and change of address.
e) An order of mandamus compelling the 1 st Respondent to forthwith approve the 2 nd Petitioner’s application for resignation as Statutory Manager submitted on 21 st June, 2023.
f) Costs of this Petition
25. The petition as amended is supported by the affidavit sworn by Adamskey Dudi, the managing partner of the 1 st petitioner LLP. He annexes to his affidavit, documents which the petition is anchored on as evidence in support and reiterates the averments in the amended petition as reproduced hereinabove. He maintains that the failure by the 1 st respondent to approve the changes lodged by the 1 st petitioner is a violation of the petitioners’ legitimate expectation and Article 23 (1( ( c) of the Constitution on the principles and values of public service; Article 47 on the right to fair administrative action; Article 50(1)on the right to a fair hearing; Article 35(1) (b) on the right to access information held by the State; and that the said failure greatly prejudiced the petitioners, subjecting them to hardship.
26. Despite being served, the respondents did not file any response to the amended petition. Only the interested party, Law Society of Kenya filed a replying affidavit sworn on 13 th October, 2025 by Florence Muturi, the CEO.
27. In the said replying affidavit, the interested party sets out its statutory mandate and role in regulating the practice of advocates. She literally restates what the petitioners have pleaded on how it came to be known that the 1 st petitioner was operating with non-advocates as managers and partners upon which the interested party wrote to them directing them to cease operations and regularise its constitution.
28. It is also deposed that the interested party acted within its mandate in writing to the 1 st respondent and asking it to deregister the 1 st petitioner on account of the provisions of the law under the Business Names Act, section 37 of the Advocates Act and the Advocates (Practice) Rules which prohibits law firms from sharing of profits with unqualified persons noting that the 2 nd petitioner was not an advocate yet he was registered as a statutory manager of the 1 st petitioner law firm. That therefore the interested party did not act ultra vires hence the amended petition should be dismissed as it is not merited or filed in the interest of justice.
29. The petitioners filed a further affidavit sworn by Adamskey Dudi in which he deposes that at paragraph 12 of its replying Affidavit, the Interested Party seeks to justify its earlier recommendation for deregistration by reliance on the Advocates Act and the Advocates (Practice) Rules, on the basis that unqualified persons are prohibited from sharing in a law firm’s profits, which concerns the petitioners do not dispute save that these were the initial concerns raised by the interested party but that the Affidavit sworn on behalf of the Interested Party is materially incomplete, as it fails to disclose what transpired after those concerns were raised and engagements held between the Petitioners and the Interested Party.
30. The petitioners reiterate that the 2nd Petitioner resigned as a statutory manager and upon receiving the 2nd Petitioner’s resignation, the Interested Party wrote to the 1st Respondent on 27th June 2023 indicating that the 1st Petitioner had duly regularized its constitution and that it has therefore no issues regarding its operations and that the issue of deregistration should now be rested.
31. That despite the foregoing, the Interested Party does not respond at all to the specific and material factual averment at paragraph 52 of the Petition, to the effect that after the resignation of the Statutory Manager, the Interested Party issued a letter of no objection confirming regularization of the 1st Petitioner.
32. That the Interested Party having failed to respond to or deny the specific averment at paragraph 52 of the Petition and having not revoked or reviewed its letter of no objection, the said letter remains valid and not disputed by the Interested Party.
33. Only the petitioners filed their written submissions despite the court according all the parties time to file their written submissions. The petitioners’ submissions dated 26 th January, 2026 framing the following three issues for determination:
a. Whether the 1 st Respondent violated the Petitioners right to access information under Article 35(1)(b) of the Constitution?
b. Whether the 1 st Respondent violated the Petitioners right to fair administrative action under Article 47(1) and (2) of the Constitution?
c. What are the appropriate reliefs ?
34. On the 1 st issue, it is submitted that the 1 st Respondent’s failure to respond to written correspondence dated 6 th November 2023 and the subsequent letters of 11 th and 15 th December 2023, constitutes a clear violation of the right of access to information guaranteed under Article 35 of the Constitution.
35. Reliance is placed on the case of Katiba Institute Vs Presidents Delivery Unit & 3 others [2017] eKLR where the court is said to have held that:
"... It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information..."
36. The petitioners also relied on the cases of Nairobi Law Monthly v Kenya electricity Generating Company & 2 Others (no citation), Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016] eKLR, President of Republic of South Africa v M & G Media -no citation, Brummer v Minister for Social Development & Others- no citation and Attorney General v Kituo cha Sheria & 7 others [2017] eKLR to urge that the petitioners were entitled to the information sought from the 1 st respondent following the communication by the interested party and the resignation of the unqualified persons and joining of new partners into the LLP Law firm, the 1 st petitioner herein.
37. On the 2 nd issue of whether the 1st Respondent violated the Petitioners right to fair administrative action under Article 47(1) and (2) of the constitution, the petitioners submitted that the Respondent’s failure to approve changes duly lodged by the Petitioners constitutes an act of administrative inaction that violates Article 47(1) of the Constitution. They urged that once an application is properly lodged, the 1 st Respondent is under a constitutional duty to process and determine it within a reasonable time. That the unexplained failure to do so amounts to unfair administrative action by omission. The petitioners rely on various decisions to argue this point namely: Katiba Institute v Attorney General & 3 others; Independent Medico-Legal Unit & 3 others (Interested Parties) (Constitutional Petition 26 of 2019) [2023]; Katiba Institute v President of Republic of Kenya & 2 others; Judicial Service Commission & 3 others (Interested Parties) (Petition 206 of 2020) [2021]; of Republic v Nairobi City County Assembly & another; Musumba & 4 others (Exparte) [2024]; and S N v Cabinet Secretary for the Ministry of Interior and Co-ordination of National Management Services, Director General, Kenya Citizens & Foreign Nationals Management Services & Attorney General [2016].
38. On the 3 rd issue, of what are the appropriate remedies in the circumstances. It is submitted that in light of the facts, evidence and applicable law, the Respondents violated the Petitioner’s right of access to information, right to fair administrative action and have offered no justification for that violation.
39. For that reason, the Petitioners submit that they have proved their case to the required standard and must succeed. They rely on the case of Tinyefuze v Attorney General of Uganda [1997] UGCC3 where the court is said to have stated that; "if a petitioner succeeds in establishing breach of a fundamental right, he is entitled to the relief in exercise of Constitutional jurisdiction as a matter of course."
Analysis and determination
40. I have considered the amended petition and the supporting affidavit together with the replying affidavit filed by the interested party, the further affidavit and the submissions filed by the petitioner and the main issue for determination is whether the petitioners’ rights to access information and fair administrative action were violated as alleged by the petitioners.
41. The petition in my view, raises very simple matters which could have been effectively and expeditiously been handled by a court exercising judicial review jurisdiction and not necessarily as a constitutional petition. However, in view of the fact that judicial review is now a constitutional remedy under Article 23, I would not send the file to the Judicial Review Division.
42. I will nonetheless determine whether the petitioners’ rights as pleaded were violated by the 1 st respondent. I will commence with the right to access information. Article 35 of the Constitution provides that:
1. Every citizen has the right of access to—
a) information held by the State; and
b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
43. In the instant case, the question is whether the petitioners sought any information from the 1 st respondent or they were simply seeking for an administrative action to be taken, to accept the changes in terms of the partners in the 1 st petitioner law firm and to effect those changes, which changes include recognition of resignation of the unqualified persons as partners and statutory manager, the resignation of one advocate and the joining of other advocates as partners in the LLP, 1 st petitioner herein having filed a form for such changes as required by law and the interested party regulator having accepted those changes to allow proper constitution of the 1 st petitioner as a LLP.
44. To determine whether there was violation of the right to access information, this court must identify what information the petitioners were allegedly entitled to. The petitioners at paragraph 26 of their written submissions claim that they were entitled to receive information held by the 1 st Respondent explaining the status of the lodged applications and the reasons for non-processing thereof. That the continued silence by the 1 st Respondent amounts to a constructive denial of information, which the courts have held to be impermissible in a constitutional democracy. The petitioners proceed to explain why the right to access information is important namely, that the right to access information is a basis for accountability, responsiveness and openness.
45. I have assessed the petitioner’s claim that this court should deem the conduct of the 1 st respondent in refusing to effect changes to the register on the status of the partnership and not giving reasons for the failure to effect such changes as requested by the 1 st petitioner to be constructive denial of access to information. I disagree. The right to access information is an express right which cannot be construed through interpretation. A person seeking information held by the state or by a private citizen must be clear on what information they seek and seek such information in writing. Where such information is denied or there is no responsiveness to the request, the procedure for enforcement of that right to access information is clearly spelt out in the Access to Information Act.
46. There was no such request for any specific information by the petitioners. In my view, the petitioners are confusing the right of access to information and the right to a fair administrative action which is guaranteed under Article 47 of the Constitution. This is because, although the two rights are related, they are nonetheless distinct.
47. The main distinction between the two rights in the present scenario is that the Director General of Business Registration Services having allegedly refused, delayed, ignored, failed to process and or declining to effect the requested changes in the LLP Register, he or she in essence was unreasonable, acted unlawfully, procedurally unfair and had not acted with expedition and or giving reasons for such refusal or failure to effect the changes requested.
48. Where the Director General refuses to register the resignation of a partner or manager or an incoming partner and gives no reasons for such refusal, despite an appropriate application having been made before him or her, or simply remains silent thereby ignoring the application, then, to the extent that the Director General has refused to act and without giving any reasons for such refusal, fundamentally, that is an administrative action issue and not an access to information problem.
49. There is no evidence that what the petitioners sought was to exercise the right guaranteed under Article 35 of the Constitution, which right concerns access to information held by the State or another person where required for protection of a right. For example, there is nothing to demonstrate that the petitioners asked for any records and those records were denied in which event, as earlier stated, the petitioners would be expected to enforce the right to access information as provided for under the Access to Information Act.
50. The above position is supported by the holding by the Supreme Court in Kenya Railways Corporation & 2 others v Okoiti & 3 others [2023] KESC 38 (KLR) where the apex Court stated as follows:
“Article 35 of the Constitution of Kenya 2010 provides for the right to access information held by the State, including that held by public bodies. The Access to Information Act No 31 of 2016 was enacted to give effect to article 35 and sets out the procedure to be followed when requesting information including on the mandate of the Commission on the Administrative Justice. Pursuant to this provision, citizens should be able to access the information by first, requesting for the information from the relevant State agency. In Kahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others Nrb Petition No 25 of 2013 [2013] eKLR, the High Court stated as follows:
“However, in order for this right to be justiciable, it must be established that the person seeking the information has sought the information, and access to such information has been denied. ... In the instant case, no request for information has been made to the respondents. The enforcement of the right cannot therefore be said to have crystallized.”
51. Accordingly, I find that the petitioners have not demonstrated that their right to access information as guaranteed under Article 35 of the Constitution was violated. accordingly, prayer a of the amended petition is dismissed.
52. On whether the petitioner’s right to fair administrative action as guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act was breached by refusal to approve the petitioner’s application for change in its membership and change address, the uncontroverted evidence of record is that the Law Society of Kenya, which regulates the practice of advocates did raise the issue with the 1 st petitioner that the 1 st petitioner had associates which were not qualified advocates. upon the issue being raised, and a demand made that the petitioners regularize the irregularity, the petitioners did make amends and the Law Society of Kenya did confirm the regularization. what now remained was for the 1 st respondent to approve the application for the changes to be effected, as submitted in the appropriate form since the unqualified persons had resigned and now, qualified persons had joined the firm for it to be a going concern.
53. Section 2 of the Fair Administrative Action Act defines failure to include refusal to take an administrative action. Under section 4, an administrator is under a duty to give reasons for failure to take an administrative action. The 1 st respondent is responsible for registration of business names and to effect changes to such business names and firms as and when requested to do so, and on application in the prescribed manner. Where it is called upon to effect registration or changes, it is under a duty to act or refuse to act but with reasons in writing.
54. In the present case, the petitioners have adduced evidence to show that the Law Society of Kenya did write to the BRS to indicate that the petitioners had since rectified the anomaly of having unqualified persons as associates and or managers of the LLP contrary to sections 9 and 37 of the Advocates Act and Rule 4 of the Advocates Practice Rules. There is evidence that the 2 nd petitioner resigned as manager vide his letter dated 21 st June, 2023 and Mr. Noah Odhiambo Randiek was nominated as the new manager and the LSK notified of those changes and on 27 th June, 2023, the LSK wrote to the 1 st respondent lifting the deregistration request.
55. Ms Lilian Maina on the other hand resigned on 30 th June, 2023 as a partner of the firm followed by Mr. Randiek on 4 th September, 2023 and on 11 th September, 2023, Ms Celestine Koile filled form LLP-9 as an incoming partner. Mr. Ernest Mugao joined vide LLP-9 filled on 30 th January, 2024 together with Mr. Adamskey Ojwang Dudi. the 1 st respondent did not effect the changes and on 28 th November, 2023, the 1 st respondent wrote to LSK indicating that the partners were still Mr. Noah Odhiambo Randiek and MS Lilian Maina while Mr. Dande remained as a manager. This information was in the view of this Court, inaccurate as the 1 st respondent ought to have effected changes as per the various LLP-9 forms filled and submitted by the 1 st petitioner, now that the regulator of legal practice, LSK, had given the greenlight that the 1 st petitioner was now compliant following the resignations of Mr. Dande and Ms Maina. furthermore, this issue was litigated upon in Civil Application Nos. Nai. E590- E593, E597, E601, E607 and E615 of 2023 vide ruling delivered on 24 th January, 2025 by the Court of Appeal.
56. This Court has not been shown any other pending issue with the 1 st petitioner, whether with LSK or with the respondents. The 1 st respondent has not given any reasons in writing as to why it cannot approve the changes made by the 1 st petitioner which changes involve resignation of unqualified partners and the manager as well as the joining into the firm of other associates who have not been shown to be unqualified persons, to run the LLP. For that reason, I find tha
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
IN THE CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E052 OF 2024
IN THE MATTER OF: ARTICLES 2(1) AND (2), 3(1), 10, 19(1) AND (2), 20(1), 21(1), 22(1), 23(1) AND (3), 24(1), 35(1)(b), 47(1) AND (2), 50(1), 159(1), 165 (3), 232(1), 258 AND 259(1) AND (3) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE ALLEGED CONTRAVENTION AND VIOLATION OF ARTICLES 35(1)(b), 47(1) AND (2), 50(1), AND 232(1)(c) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
BETWEEN
MALI ADVOCATES LLP………………………..…………...1 ST PETITIONER
EDWIN HAROLD DAYAN DANDE…………………………2 ND PETITIONER
AND
THE DIRECTOR GENERAL
BUSINESS REGISTRATION SERVICE…………………...1 ST RESPONDENT
THE REGISTRAR OF LIMITED
LIABILITY PARTNERSHIPS……………………………...2 ND RESPONDENT
THE OFFICIAL RECEIVER………………..…………...…3 RD RESPONDENT
THE HON. ATTORNEY GENERAL……….……..……..…4 TH RESPONDENT
AND
THE LAW SOCIETY OF KENYA………………...….…INTERESTED PARTY
JUDGMENT
1. This judgment determines the amended petition dated 1 st February, 2026. The facts giving rise to the petition as amended are that the 1 st Petitioner being a law firm duly incorporated under the provisions of the Limited Liability Partnership Act, No. 42 of 2011 was issued with a Certificate of Registration of a Limited Liability Partnership – LLP-G81Q555 on 9 th November, 2022, having satisfied Sections 17 and 20 of the LLP Act.
2. The 2 nd Petitioner is a male adult of sound mind and understanding and the former statutory manager of the 1 st Petitioner. It is pleaded that on 30 th June 2023, Ms. Lilian Maina who was initially registered as a partner in the aforesaid law firm, tendered her resignation and that on the same date, the Partners passed a resolution acknowledging her resignation and that a Statutory Declaration formalizing her resignation was sworn on 1 st July 2023.
3. That following her resignation, the 1 st Petitioner appointed Mr. Ernest Mugao as a Partner to replace Ms. Lilian Maina and that appointment was effected through a resolution dated 31 st August 2023. Subsequently, on 4 th September 2023, Mr. Noah Randiek resigned from the said law Firm vide a formal resignation notice, supported by the requisite Statutory Declaration dated 4 th September 2023.
4. It is asserted that on 11 th September 2023, the Partners of the 1 st Petitioner passed a resolution acknowledging the resignation of Mr. Noah Randiek and concurrently appointed Ms. Celestine Koile as a Partner and that on the same date, the 1 st Petitioner also resolved to change its registered address. Later, on 30 th January 2024, the 1 st Petitioner appointed Mr. Adamskey Ojwang Dudi as a Partner through a resolution of the Partners, which change was officially recorded in a Statement of Change of Particulars dated the same day.
5. That Ms. Celestine Koile subsequently tendered her resignation from the firm, which resignation was accepted during the 1 st Petitioner’s Partners’ meeting held on 28 th January 2025. Her resignation was supported by a Statutory Declaration formalizing her exit from the partnership.
6. Consequently, that the Partners at the 1 st Petitioner presently comprise of Adamskey Dudi Advocate and Ernest Muriungi Advocate.
7. The petitioners aver that on 27 th March 2025, Mr. Adamskey Dudi was authorized to act on behalf of the 1 st Petitioner in the instant Petition.
8. According to the petitioners, prior to incorporation of the law firm, the 1 st Petitioner submitted the necessary documents antecedent to its registration to the Interested Party, the principal regulatory authority over the legal profession. That the Interested Party, having satisfied itself that all the requirements mandatory to registration of a law firm had been met, issued the 1 st Petitioner with a Letter of No Objection.
9. It is asserted that the 1 st Petitioner has and continues to carry on its operations until sometime on or about 11 th May, 2023, when the Interested Party notified it that its irregular conduct has been registered because of the practice of an unqualified person by the name Edwin Harold Dayan Dande, the 2 nd Petitioner. In its said letter, the Interested Party noted that Section 9 of the Advocates Act qualifies the practice of law for advocates who have been admitted, their names being on the roll and possess a practicing certificate. That the Interested Party further stated that Section 37 of the Advocates Act and Rule 4 of the Advocates Practice Rules prohibits the sharing of profits with unqualified persons.
10. Against this backdrop, the Interested Party wrote to the 1 st Respondent on 16 th June, 2023 asking them to immediately deregister the 1 st Petitioner since it had a statutory manager who is not qualified. The Interested Party relied on the Business Names Act, and Section 37 of the Advocates Act which prohibits the sharing of profits with unqualified persons. That engagements between the 1 st Petitioner and the Interested Party led to the resignation of the 2 nd Petitioner as a statutory manager .
11. Upon receiving the 2 nd Petitioner’s application for resignation, the Interested Party wrote to the 1 st Respondent on 27 th June, 2023 indicating that the 1 st Petitioner had duly regularized its constitution and that therefore, the interested party had no issues regarding the operations pf the 1 st petitioner and that the issue of deregistration should now be rested.
12. The petitioners contend that the above facts notwithstanding, since its inception, the 1 st Petitioner has tried to effect various changes to its membership and change of address in vain. That on or about 30 th June, 2023, one of the Partners of the 1 st Petitioner lodged her resignation as a partner but that despite lodging the application in the prescribed manner and paying the requisite fees, the 1 st Respondent has never approved the same, and has always asked the 1 st Petitioner to contact the 3 rd Respondent on the same, which had taken forever.
13. The petitioners also lament that equally, on 4 th September, 2023, another Partner of the 1 st Petitioner lodged his resignation in the prescribed manner and paid the requisite fees but that to date, the 1 st Respondent has never approved the said application.
14. Again, it is contended that on 11 th September, 2023, the 1 st Petitioner held a meeting wherein it was resolved that another Partner be onboarded but that despite the said application being lodged in the prescribed form, the same has not been acted upon and/or approved. Further, that the Interested Party has cautioned the 1 st Petitioner not to undertake its operations until it is fully constituted and in full compliance with the law.
15. It is asserted that the 1 st Petitioner has written to the 1 st Respondent to seek clarity on the pending applications to wit:
i) ROM-KOTM9OR: Resignation of Manager submitted on 21 st June, 2023
ii) ROP-8J8WPZ: Resignation of Partner submitted on 3 rd July, 2023
iii) CRALLP-2ETLMWZ: Change of address submitted on 3 rd July, 2023
iv) AOP-YLTORKT: Appointment of Partner submitted on 6 th September, 2023
v) ROP-QPTJZVP: Resignation of Partner submitted on 27 th October, 2023.
vi) AOP-J5TP6A2: Appointment of Partner submitted on 27 th October, 2023.
vii) CRALLP-AKT69LR: Application for Change of Registered Address submitted on 20 th November, 2023.
16. That on 6 th November, 2023, the 1 st Petitioner sought a response on this issue but to date, no response has been forthcoming from the 1 st respondent. Again, on 11 th and 15 th December, 2023, the 1 st Petitioner wrote to the 1 st Respondent on the pending applications, but that the notifications on their accounts with the 1 st respondent indicated that they seek redress from the 3 rd Respondent, which came as a surprise and a shock as it is the 1 st Respondent who is duly mandated by law to effect changes of the lodged applications.
17. The petitioners claim that time and again, the 1 st Petitioner has sought an explanation on why the change of particulars should be directed to the 3 rd Respondent but received no response form the 1 st respondent and that as a consequence of the 1 st Respondent’s failure to effect changes made by the 1 st Petitioner, the Interested Party avers that the 1 st Petitioner is not properly constituted to undertake operations as a firm of advocates in the nature of an LLP.
18. That although the 1 st Respondent contends that the Petitioners’ representatives should contact the 3 rd Respondent regarding the lodged applications, the 1 st Petitioner is solvent, hence the 3 rd Respondent has no business overseeing the changes to be effected by the 1 st Petitioner.
19. The petitioners therefore assert that the failure by the 1 st Respondent to approve changes duly lodged by the Petitioners in the prescribed form violates the 1 st Petitioner’s right to legitimate expectation, contrary to Article 232(1)(c) that binds public officers and offices to be responsive, prompt, effective, impartial and equitable in provision of services.
20. The petitioners further assert that failure by the 1 st Respondent to approve changes duly lodged by the 1 st Petitioner in the prescribed form violated the Petitioners’ right to fair administrative action, contrary to Article 47(1) and (2) of the Constitution.
21. Further, that failure by the 1 st Respondent to provide the Petitioners with information on the status of their applications violates the Petitioners’ right to access to information contrary to Article 35(1)(b) of the Constitution.
22. Additionally, that failure by the 1 st Respondent to accord the Petitioners an opportunity to be heard violates the Petitioners’ right to a fair trial contrary to Article 50(1) of the Constitution.
23. As against the Official Receiver, the petitioners aver that by directing the 1 st Respondent to place restrictions on changes effected by the 1 st Petitioner, the 3 rd Respondent has not only acted ultra vires , but that it has done so in brazen breach of the Petitioners’ right to legitimate expectation under Articles 35(1)(b), 47(1) and (2), 50(1), and 232(1)(c) of the Constitution.
24. The petitioners therefore pray for the following reliefs and orders:
a) A declaration that the 1 st Respondent has violated the Petitioners’ right of access to information under Article 35(1)(b) of the Constitution.
b) A declaration that the Petitioners’ constitutional rights under Article 47(1) and (2) of the Constitution have been violated by the 1 st and 3 rd Respondents.
c) A declaration that to the extent that the 1 st Respondent has refused to approve the Petitioners’ applications for change in its membership and change of address, that such refusal is unreasonable, irrational, unprocedural and outright unconstitutional.
d) An order of mandamus compelling the 1 st Respondent to forthwith approve the 1 st Petitioner’s applications on its membership and change of address.
e) An order of mandamus compelling the 1 st Respondent to forthwith approve the 2 nd Petitioner’s application for resignation as Statutory Manager submitted on 21 st June, 2023.
f) Costs of this Petition
25. The petition as amended is supported by the affidavit sworn by Adamskey Dudi, the managing partner of the 1 st petitioner LLP. He annexes to his affidavit, documents which the petition is anchored on as evidence in support and reiterates the averments in the amended petition as reproduced hereinabove. He maintains that the failure by the 1 st respondent to approve the changes lodged by the 1 st petitioner is a violation of the petitioners’ legitimate expectation and Article 23 (1( ( c) of the Constitution on the principles and values of public service; Article 47 on the right to fair administrative action; Article 50(1)on the right to a fair hearing; Article 35(1) (b) on the right to access information held by the State; and that the said failure greatly prejudiced the petitioners, subjecting them to hardship.
26. Despite being served, the respondents did not file any response to the amended petition. Only the interested party, Law Society of Kenya filed a replying affidavit sworn on 13 th October, 2025 by Florence Muturi, the CEO.
27. In the said replying affidavit, the interested party sets out its statutory mandate and role in regulating the practice of advocates. She literally restates what the petitioners have pleaded on how it came to be known that the 1 st petitioner was operating with non-advocates as managers and partners upon which the interested party wrote to them directing them to cease operations and regularise its constitution.
28. It is also deposed that the interested party acted within its mandate in writing to the 1 st respondent and asking it to deregister the 1 st petitioner on account of the provisions of the law under the Business Names Act, section 37 of the Advocates Act and the Advocates (Practice) Rules which prohibits law firms from sharing of profits with unqualified persons noting that the 2 nd petitioner was not an advocate yet he was registered as a statutory manager of the 1 st petitioner law firm. That therefore the interested party did not act ultra vires hence the amended petition should be dismissed as it is not merited or filed in the interest of justice.
29. The petitioners filed a further affidavit sworn by Adamskey Dudi in which he deposes that at paragraph 12 of its replying Affidavit, the Interested Party seeks to justify its earlier recommendation for deregistration by reliance on the Advocates Act and the Advocates (Practice) Rules, on the basis that unqualified persons are prohibited from sharing in a law firm’s profits, which concerns the petitioners do not dispute save that these were the initial concerns raised by the interested party but that the Affidavit sworn on behalf of the Interested Party is materially incomplete, as it fails to disclose what transpired after those concerns were raised and engagements held between the Petitioners and the Interested Party.
30. The petitioners reiterate that the 2nd Petitioner resigned as a statutory manager and upon receiving the 2nd Petitioner’s resignation, the Interested Party wrote to the 1st Respondent on 27th June 2023 indicating that the 1st Petitioner had duly regularized its constitution and that it has therefore no issues regarding its operations and that the issue of deregistration should now be rested.
31. That despite the foregoing, the Interested Party does not respond at all to the specific and material factual averment at paragraph 52 of the Petition, to the effect that after the resignation of the Statutory Manager, the Interested Party issued a letter of no objection confirming regularization of the 1st Petitioner.
32. That the Interested Party having failed to respond to or deny the specific averment at paragraph 52 of the Petition and having not revoked or reviewed its letter of no objection, the said letter remains valid and not disputed by the Interested Party.
33. Only the petitioners filed their written submissions despite the court according all the parties time to file their written submissions. The petitioners’ submissions dated 26 th January, 2026 framing the following three issues for determination:
a. Whether the 1 st Respondent violated the Petitioners right to access information under Article 35(1)(b) of the Constitution?
b. Whether the 1 st Respondent violated the Petitioners right to fair administrative action under Article 47(1) and (2) of the Constitution?
c. What are the appropriate reliefs ?
34. On the 1 st issue, it is submitted that the 1 st Respondent’s failure to respond to written correspondence dated 6 th November 2023 and the subsequent letters of 11 th and 15 th December 2023, constitutes a clear violation of the right of access to information guaranteed under Article 35 of the Constitution.
35. Reliance is placed on the case of Katiba Institute Vs Presidents Delivery Unit & 3 others [2017] eKLR where the court is said to have held that:
"... It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information..."
36. The petitioners also relied on the cases of Nairobi Law Monthly v Kenya electricity Generating Company & 2 Others (no citation), Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016] eKLR, President of Republic of South Africa v M & G Media -no citation, Brummer v Minister for Social Development & Others- no citation and Attorney General v Kituo cha Sheria & 7 others [2017] eKLR to urge that the petitioners were entitled to the information sought from the 1 st respondent following the communication by the interested party and the resignation of the unqualified persons and joining of new partners into the LLP Law firm, the 1 st petitioner herein.
37. On the 2 nd issue of whether the 1st Respondent violated the Petitioners right to fair administrative action under Article 47(1) and (2) of the constitution, the petitioners submitted that the Respondent’s failure to approve changes duly lodged by the Petitioners constitutes an act of administrative inaction that violates Article 47(1) of the Constitution. They urged that once an application is properly lodged, the 1 st Respondent is under a constitutional duty to process and determine it within a reasonable time. That the unexplained failure to do so amounts to unfair administrative action by omission. The petitioners rely on various decisions to argue this point namely: Katiba Institute v Attorney General & 3 others; Independent Medico-Legal Unit & 3 others (Interested Parties) (Constitutional Petition 26 of 2019) [2023]; Katiba Institute v President of Republic of Kenya & 2 others; Judicial Service Commission & 3 others (Interested Parties) (Petition 206 of 2020) [2021]; of Republic v Nairobi City County Assembly & another; Musumba & 4 others (Exparte) [2024]; and S N v Cabinet Secretary for the Ministry of Interior and Co-ordination of National Management Services, Director General, Kenya Citizens & Foreign Nationals Management Services & Attorney General [2016].
38. On the 3 rd issue, of what are the appropriate remedies in the circumstances. It is submitted that in light of the facts, evidence and applicable law, the Respondents violated the Petitioner’s right of access to information, right to fair administrative action and have offered no justification for that violation.
39. For that reason, the Petitioners submit that they have proved their case to the required standard and must succeed. They rely on the case of Tinyefuze v Attorney General of Uganda [1997] UGCC3 where the court is said to have stated that; "if a petitioner succeeds in establishing breach of a fundamental right, he is entitled to the relief in exercise of Constitutional jurisdiction as a matter of course."
Analysis and determination
40. I have considered the amended petition and the supporting affidavit together with the replying affidavit filed by the interested party, the further affidavit and the submissions filed by the petitioner and the main issue for determination is whether the petitioners’ rights to access information and fair administrative action were violated as alleged by the petitioners.
41. The petition in my view, raises very simple matters which could have been effectively and expeditiously been handled by a court exercising judicial review jurisdiction and not necessarily as a constitutional petition. However, in view of the fact that judicial review is now a constitutional remedy under Article 23, I would not send the file to the Judicial Review Division.
42. I will nonetheless determine whether the petitioners’ rights as pleaded were violated by the 1 st respondent. I will commence with the right to access information. Article 35 of the Constitution provides that:
1. Every citizen has the right of access to—
a) information held by the State; and
b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
43. In the instant case, the question is whether the petitioners sought any information from the 1 st respondent or they were simply seeking for an administrative action to be taken, to accept the changes in terms of the partners in the 1 st petitioner law firm and to effect those changes, which changes include recognition of resignation of the unqualified persons as partners and statutory manager, the resignation of one advocate and the joining of other advocates as partners in the LLP, 1 st petitioner herein having filed a form for such changes as required by law and the interested party regulator having accepted those changes to allow proper constitution of the 1 st petitioner as a LLP.
44. To determine whether there was violation of the right to access information, this court must identify what information the petitioners were allegedly entitled to. The petitioners at paragraph 26 of their written submissions claim that they were entitled to receive information held by the 1 st Respondent explaining the status of the lodged applications and the reasons for non-processing thereof. That the continued silence by the 1 st Respondent amounts to a constructive denial of information, which the courts have held to be impermissible in a constitutional democracy. The petitioners proceed to explain why the right to access information is important namely, that the right to access information is a basis for accountability, responsiveness and openness.
45. I have assessed the petitioner’s claim that this court should deem the conduct of the 1 st respondent in refusing to effect changes to the register on the status of the partnership and not giving reasons for the failure to effect such changes as requested by the 1 st petitioner to be constructive denial of access to information. I disagree. The right to access information is an express right which cannot be construed through interpretation. A person seeking information held by the state or by a private citizen must be clear on what information they seek and seek such information in writing. Where such information is denied or there is no responsiveness to the request, the procedure for enforcement of that right to access information is clearly spelt out in the Access to Information Act.
46. There was no such request for any specific information by the petitioners. In my view, the petitioners are confusing the right of access to information and the right to a fair administrative action which is guaranteed under Article 47 of the Constitution. This is because, although the two rights are related, they are nonetheless distinct.
47. The main distinction between the two rights in the present scenario is that the Director General of Business Registration Services having allegedly refused, delayed, ignored, failed to process and or declining to effect the requested changes in the LLP Register, he or she in essence was unreasonable, acted unlawfully, procedurally unfair and had not acted with expedition and or giving reasons for such refusal or failure to effect the changes requested.
48. Where the Director General refuses to register the resignation of a partner or manager or an incoming partner and gives no reasons for such refusal, despite an appropriate application having been made before him or her, or simply remains silent thereby ignoring the application, then, to the extent that the Director General has refused to act and without giving any reasons for such refusal, fundamentally, that is an administrative action issue and not an access to information problem.
49. There is no evidence that what the petitioners sought was to exercise the right guaranteed under Article 35 of the Constitution, which right concerns access to information held by the State or another person where required for protection of a right. For example, there is nothing to demonstrate that the petitioners asked for any records and those records were denied in which event, as earlier stated, the petitioners would be expected to enforce the right to access information as provided for under the Access to Information Act.
50. The above position is supported by the holding by the Supreme Court in Kenya Railways Corporation & 2 others v Okoiti & 3 others [2023] KESC 38 (KLR) where the apex Court stated as follows:
“Article 35 of the Constitution of Kenya 2010 provides for the right to access information held by the State, including that held by public bodies. The Access to Information Act No 31 of 2016 was enacted to give effect to article 35 and sets out the procedure to be followed when requesting information including on the mandate of the Commission on the Administrative Justice. Pursuant to this provision, citizens should be able to access the information by first, requesting for the information from the relevant State agency. In Kahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others Nrb Petition No 25 of 2013 [2013] eKLR, the High Court stated as follows:
“However, in order for this right to be justiciable, it must be established that the person seeking the information has sought the information, and access to such information has been denied. ... In the instant case, no request for information has been made to the respondents. The enforcement of the right cannot therefore be said to have crystallized.”
51. Accordingly, I find that the petitioners have not demonstrated that their right to access information as guaranteed under Article 35 of the Constitution was violated. accordingly, prayer a of the amended petition is dismissed.
52. On whether the petitioner’s right to fair administrative action as guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act was breached by refusal to approve the petitioner’s application for change in its membership and change address, the uncontroverted evidence of record is that the Law Society of Kenya, which regulates the practice of advocates did raise the issue with the 1 st petitioner that the 1 st petitioner had associates which were not qualified advocates. upon the issue being raised, and a demand made that the petitioners regularize the irregularity, the petitioners did make amends and the Law Society of Kenya did confirm the regularization. what now remained was for the 1 st respondent to approve the application for the changes to be effected, as submitted in the appropriate form since the unqualified persons had resigned and now, qualified persons had joined the firm for it to be a going concern.
53. Section 2 of the Fair Administrative Action Act defines failure to include refusal to take an administrative action. Under section 4, an administrator is under a duty to give reasons for failure to take an administrative action. The 1 st respondent is responsible for registration of business names and to effect changes to such business names and firms as and when requested to do so, and on application in the prescribed manner. Where it is called upon to effect registration or changes, it is under a duty to act or refuse to act but with reasons in writing.
54. In the present case, the petitioners have adduced evidence to show that the Law Society of Kenya did write to the BRS to indicate that the petitioners had since rectified the anomaly of having unqualified persons as associates and or managers of the LLP contrary to sections 9 and 37 of the Advocates Act and Rule 4 of the Advocates Practice Rules. There is evidence that the 2 nd petitioner resigned as manager vide his letter dated 21 st June, 2023 and Mr. Noah Odhiambo Randiek was nominated as the new manager and the LSK notified of those changes and on 27 th June, 2023, the LSK wrote to the 1 st respondent lifting the deregistration request.
55. Ms Lilian Maina on the other hand resigned on 30 th June, 2023 as a partner of the firm followed by Mr. Randiek on 4 th September, 2023 and on 11 th September, 2023, Ms Celestine Koile filled form LLP-9 as an incoming partner. Mr. Ernest Mugao joined vide LLP-9 filled on 30 th January, 2024 together with Mr. Adamskey Ojwang Dudi. the 1 st respondent did not effect the changes and on 28 th November, 2023, the 1 st respondent wrote to LSK indicating that the partners were still Mr. Noah Odhiambo Randiek and MS Lilian Maina while Mr. Dande remained as a manager. This information was in the view of this Court, inaccurate as the 1 st respondent ought to have effected changes as per the various LLP-9 forms filled and submitted by the 1 st petitioner, now that the regulator of legal practice, LSK, had given the greenlight that the 1 st petitioner was now compliant following the resignations of Mr. Dande and Ms Maina. furthermore, this issue was litigated upon in Civil Application Nos. Nai. E590- E593, E597, E601, E607 and E615 of 2023 vide ruling delivered on 24 th January, 2025 by the Court of Appeal.
56. This Court has not been shown any other pending issue with the 1 st petitioner, whether with LSK or with the respondents. The 1 st respondent has not given any reasons in writing as to why it cannot approve the changes made by the 1 st petitioner which changes involve resignation of unqualified partners and the manager as well as the joining into the firm of other associates who have not been shown to be unqualified persons, to run the LLP. For that reason, I find tha
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