1. The statutory shield provided by a limited liability partnership is robust, yet it does not operate as an impenetrable cloak against allegations of personal professional negligence. While the Limited Liability Partnership Act provides a robust shield for partners, it is not an absolute cloak against allegations of personal professional wrongdoing. At this preliminary stage, the Court exercises extreme judicial restraint; it is not conducting a mini-trial to test the ultimate strength of the case. Doing so would risk the appearance of predetermination or, worse, leave a poisoned trail should this suit eventually fall before a different bench.
2. Nevertheless, the Court must perform its duty to determine if the suit against the 2nd Defendant passes the threshold of a prima facie case. If the Plaintiff demonstrates a sustainable cause of action, this application must fail; if the claim is demonstrably hollow, the application succeeds. Parties must understand that the Court is not weighing evidence to reach a final verdict today. The Plaintiff is merely seeking their day in court, and this ruling determines only whether the suit survives this initial legal skirmish and is not collapsed by this first artillery barrage.
Background Facts
2. The dispute arises from the sale of Land Reference Number 7785/57, Nairobi. The professional relationship between the Plaintiff and the 2nd Defendant traces back to 1998. At that time, the 2nd Defendant is said to have personally acted for the Plaintiff in acquiring the property. The 1st Defendant LLP was registered much later, on 19th April, 2017. In August 2017, the Plaintiff instructed the 2nd Defendant to handle the sale of the property for Kshs. 110,500,000. The purchaser, Josephat Nyori, remitted the full funds to the 1st Defendant's bank account.
3. The Plaintiff issued clear instructions to remit the net proceeds to his United Nations Federal Credit Union (UNFCU) account in New York. Instead, a sum of USD 973,236.01 was diverted to a third-party account under the name Phoenicia Trust Ltd at Citibank, Michigan. The Defendants maintain they acted on email instructions that later turned out to be fraudulent. The Plaintiff points an accusing finger at the 2nd Defendant for gross negligence, failure to verify basic instructions, and presenting a fake bank confirmation note. The 2nd Defendant argues he was merely acting as an agent of a disclosed LLP and bears no personal liability.
Reliefs Sought
4. By a Chamber Summons application dated 10th December, 2024, the 2nd Defendant seeks the following primary orders:
1. This application be heard before the main suit is set down for hearing.
2. This Honourable Court be pleased to strike out the name of the 2nd Defendant from the suit.
3. The costs of this application be borne by the Plaintiff.
Issues for Determination
8. The Court has carefully considered the Application, the response, the written submissions as well as the oral highlights by Counsel for the parties. The Court frames two distinct issues for determination:
(a) Whether a partner in a Limited Liability Partnership enjoys absolute immunity from personal suits under Section 10 of the LLP Act for acts done during the course of partnership business.
(b) Whether the Plaint discloses a reasonable and sustainable cause of action against the 2nd Defendant in his personal capacity to warrant retaining him as a party.
Analysis
11. Striking out a party is a draconian measure. The power must be exercised with extreme circumspection. A suit should only be terminated summarily if it is hopeless, plain, and obvious that it cannot be cured by amendment. This is as was established by the Court of Appeal in DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR).
12. The 2nd Defendant relies heavily on Section 10(2) of the Limited Liability Partnerships Act. He argues that as a partner, he is a mere agent of a disclosed principal—the LLP. He cites Wamuyu v Humprey & Company LLP & 2 others [2022] KEELRC 13487 (KLR) and Okonya v Inamdar & 15 others [2024] KEHC 7423 (KLR) to demonstrate that partners cannot be sued personally for the contractual obligations of an LLP. This Court has analyzed those authorities. They are legitimate precedents. However, they apply strictly to classic contractual debts where no independent personal tort or wrongful act is alleged against the specific partner.
13. While Section 10(2) protects a partner from regular commercial liabilities of the LLP, Section 10(3) provides a necessary statutory counterweight. It preserves personal liability where a person suffers loss due to a partner's personal wrongful act or omission in the course of business. The Plaintiff has detailed specific, grave allegations of independent personal actions of negligence by the 2nd Defendant. These include the active failure to verify a massive deviation in wire transfer instructions and the transmission of a fraudulent bank confirmation note.
14. The High Court in Shah v Shah & 2 others [2023] KEHC 23193 (KLR) rightly held that where documentation and specific disbursements link individual parties to the transaction, it would be improper to dismiss the suit against them without a trial on the merits. Furthermore, the Court of Appeal in Champion Motor Spares Limited v Y.V. Phadke and Others [1968] EACA 11 establishes that an Advocate can be held liable in professional negligence.
15. The 2nd Defendant's reliance on the corporate veil is misplaced in these circumstances. The statutory protection is not absolute.
16. It cannot shield a professional from answering to claims and allegations of personal tortious omissions and gross professional negligence. The long-standing relationship beginning in 1998, well before the LLP's birth in 2017, introduces a complex factual matrix regarding the precise scope and nature of the professional retainer. These are substantial triable issues. This Court cannot pre-determine liability or the issue of negligence in this ruling. However, fairness dictates that the Plaintiff must subject the evidence to the rigors of cross-examination during a plenary trial.
17. Pragmatism within the law demands that all necessary parties remain before the Court to ensure an effective and executable decree can be issued upon final determination. The 2nd Defendant is a proper and necessary party for the complete adjudication of this dispute.
Determination
17. Consequently, this Court orders as follows:
18. The 2nd Defendant’s Chamber Summons Application dated 10th December, 2024 is HEREBY dismissed for lack of merit.
19. The costs of this application shall be costs in the cause.
20. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 09TH DAY OF JULY, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Ouma for the Plaintiff/Respondent.
Mr. Angwenyi for the Defendants/Applicants.
Mr. John Paul - Court Assistant
2. Nevertheless, the Court must perform its duty to determine if the suit against the 2nd Defendant passes the threshold of a prima facie case. If the Plaintiff demonstrates a sustainable cause of action, this application must fail; if the claim is demonstrably hollow, the application succeeds. Parties must understand that the Court is not weighing evidence to reach a final verdict today. The Plaintiff is merely seeking their day in court, and this ruling determines only whether the suit survives this initial legal skirmish and is not collapsed by this first artillery barrage.
Background Facts
2. The dispute arises from the sale of Land Reference Number 7785/57, Nairobi. The professional relationship between the Plaintiff and the 2nd Defendant traces back to 1998. At that time, the 2nd Defendant is said to have personally acted for the Plaintiff in acquiring the property. The 1st Defendant LLP was registered much later, on 19th April, 2017. In August 2017, the Plaintiff instructed the 2nd Defendant to handle the sale of the property for Kshs. 110,500,000. The purchaser, Josephat Nyori, remitted the full funds to the 1st Defendant's bank account.
3. The Plaintiff issued clear instructions to remit the net proceeds to his United Nations Federal Credit Union (UNFCU) account in New York. Instead, a sum of USD 973,236.01 was diverted to a third-party account under the name Phoenicia Trust Ltd at Citibank, Michigan. The Defendants maintain they acted on email instructions that later turned out to be fraudulent. The Plaintiff points an accusing finger at the 2nd Defendant for gross negligence, failure to verify basic instructions, and presenting a fake bank confirmation note. The 2nd Defendant argues he was merely acting as an agent of a disclosed LLP and bears no personal liability.
Reliefs Sought
4. By a Chamber Summons application dated 10th December, 2024, the 2nd Defendant seeks the following primary orders:
1. This application be heard before the main suit is set down for hearing.
2. This Honourable Court be pleased to strike out the name of the 2nd Defendant from the suit.
3. The costs of this application be borne by the Plaintiff.
Issues for Determination
8. The Court has carefully considered the Application, the response, the written submissions as well as the oral highlights by Counsel for the parties. The Court frames two distinct issues for determination:
(a) Whether a partner in a Limited Liability Partnership enjoys absolute immunity from personal suits under Section 10 of the LLP Act for acts done during the course of partnership business.
(b) Whether the Plaint discloses a reasonable and sustainable cause of action against the 2nd Defendant in his personal capacity to warrant retaining him as a party.
Analysis
11. Striking out a party is a draconian measure. The power must be exercised with extreme circumspection. A suit should only be terminated summarily if it is hopeless, plain, and obvious that it cannot be cured by amendment. This is as was established by the Court of Appeal in DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR).
12. The 2nd Defendant relies heavily on Section 10(2) of the Limited Liability Partnerships Act. He argues that as a partner, he is a mere agent of a disclosed principal—the LLP. He cites Wamuyu v Humprey & Company LLP & 2 others [2022] KEELRC 13487 (KLR) and Okonya v Inamdar & 15 others [2024] KEHC 7423 (KLR) to demonstrate that partners cannot be sued personally for the contractual obligations of an LLP. This Court has analyzed those authorities. They are legitimate precedents. However, they apply strictly to classic contractual debts where no independent personal tort or wrongful act is alleged against the specific partner.
13. While Section 10(2) protects a partner from regular commercial liabilities of the LLP, Section 10(3) provides a necessary statutory counterweight. It preserves personal liability where a person suffers loss due to a partner's personal wrongful act or omission in the course of business. The Plaintiff has detailed specific, grave allegations of independent personal actions of negligence by the 2nd Defendant. These include the active failure to verify a massive deviation in wire transfer instructions and the transmission of a fraudulent bank confirmation note.
14. The High Court in Shah v Shah & 2 others [2023] KEHC 23193 (KLR) rightly held that where documentation and specific disbursements link individual parties to the transaction, it would be improper to dismiss the suit against them without a trial on the merits. Furthermore, the Court of Appeal in Champion Motor Spares Limited v Y.V. Phadke and Others [1968] EACA 11 establishes that an Advocate can be held liable in professional negligence.
15. The 2nd Defendant's reliance on the corporate veil is misplaced in these circumstances. The statutory protection is not absolute.
16. It cannot shield a professional from answering to claims and allegations of personal tortious omissions and gross professional negligence. The long-standing relationship beginning in 1998, well before the LLP's birth in 2017, introduces a complex factual matrix regarding the precise scope and nature of the professional retainer. These are substantial triable issues. This Court cannot pre-determine liability or the issue of negligence in this ruling. However, fairness dictates that the Plaintiff must subject the evidence to the rigors of cross-examination during a plenary trial.
17. Pragmatism within the law demands that all necessary parties remain before the Court to ensure an effective and executable decree can be issued upon final determination. The 2nd Defendant is a proper and necessary party for the complete adjudication of this dispute.
Determination
17. Consequently, this Court orders as follows:
18. The 2nd Defendant’s Chamber Summons Application dated 10th December, 2024 is HEREBY dismissed for lack of merit.
19. The costs of this application shall be costs in the cause.
20. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 09TH DAY OF JULY, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Ouma for the Plaintiff/Respondent.
Mr. Angwenyi for the Defendants/Applicants.
Mr. John Paul - Court Assistant