1. By a Notice of Motion filed under Certificate of Urgency and dated 30th December 2021 and filed through the firm of Bosire Gichana & Company Advocates and under Section 3, 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, order 42 rule 6, order 50 rule 5, order 51 rules 1 &3, order 22 rule 22 of the Civil Procedure Rules, the Appellants/Applicants herein seek the following orders:-
2. The application is based on the following grounds;
a. That the plaintiffs\applicants are personal representatives of the deceased partners who were proprietors in common with the respondent herein in respect to land parcel No. Kisii municipality / Block 11/73
b. The defendant/ respondent is collecting the monthly rent from the rental premises situated on the suit land
c. The defendant/respondent has failed and/or refused to render to the plaintiff as personal representatives of the deceased partners any or any true of full or accurate account of the monthly rent collected from the premises situated on the suit land
d. That the monthly rent collected from the premises situated on land parcel No. Kisii Municipality / Block 11/73 in the tune of Ksh.290,000/= however the defendant has failed to disclose how he has been spending the money for a period of more than 5 years
e. The defendant/ respondent has acted in breach of the trust bestowed on him.
APPLICANTS WRITTEN SUBMISSINS
3. The respondent herein and 11 others who are since deceased were partners trading as Morako General Trading Company registered on 9th September, 1964.
4. The 12 partners jointly acquired the property and became the joint registered owners of land parcel no. Kisii Municipality/Block/11/73.
5. Since the acquisition of the said parcel of land,11 of the have since partners has passed on leaving only the defendant/respondent surviving them.
6. Upon the demise of Nyangweso Isekerario, who was one of the partners, the 1st and 2nd Applicants applied for letters of administration for his estate and were issued with certificate of confirmation of grant dated 26th November, 2010 and the 3rd applicant applied and was issued with grant of letters of administration to the estate of the late Obonyo Otundo .
7. The respondent has since refused to recognize the applicants and instead solely collect and utilizes the monthly rental income totaling to some of Ksh. 290,000/= in exclusion of the applicants or render a true and accurate account of the rental income against law of the succession, hence the need to preserve and protect the estate if all the deceased partners.
8. The applicants submitted that they wish to have the respondent directed to deposit the rental income from the partnership business in a joint interest earning account and render a true and accurate account. The other partners being deceased and having been survived by the respondent only, there is need to have the estates of the deceased partners preserved and protected as due process is followed to ensure proper management of the partnership property. The applicants said are the legal representatives of the estate of some of the deceased partners in an effort to preserve and avoid wastage of the same.
9. In conclusion the applicant told this court that it is in the interest of justice that the orders sought herein be granted since the respondent has wrongfully failed and refused to render correct and accurate accounts or make them available at the partner’s office for perusal.
RESPONDENT’S SUBMISSIONS
10. The respondent submitted that the application is opposed vide the replying affidavit of the respondent dated the 12th day of February 2025 and that the monthly collection is deposited in the KCB bank account run and managed by three signatories who were elected by the majority of the beneficiaries (provided the minutes to attest the same).
The said proceeds are shared amongst all the beneficiaries including the applicants, this has not been opposed by the applicants. Also that the only issue for determination in this application is whether the applicant has demonstrated any ground to warrant issuance of the orders sought. The respondent has told this court that the rent payable is always deposited to the KCB bank account that is managed by three signatories. Further that the applicants are seeking order number two (2) in a vacuum since they have not disclosed the amount of rent has not been remitted to the bank account.
11. On order three (3) the plaintiffs/applicants it was submitted that the applicants are indirectly approaching the honorable court to help them the time of filing this case they were not ready with the evidence. Lastly that respondent herein has provided the minutes and payment acknowledgement. In summary it is clear from the minutes that due to infights of the shareholders.
12. I have carefully considered the application the response and the able submissions by both learned counsel on record . It is not disputed that the respondent and Jenubei Bichanga , Mborongo Nashon Mingate, Mwambi Keura, Dan Nyangoka Ombati, Nyangweso Nashon, Harrison Obonyo Daniel M Moturi And Samuel A Airo are the registered as owners of land parcel No Kisii/Municipality/ 11/73 in equal shares . Further that the said 12 men that they are equal partners in Marako General Trading company since 1964. The locus standi of the applicants is thus not contested as it is admitted that they are sons and widow of the deceased shareholders.
ISSUES FOR DETERMINATION
13. The issues for determination are as follows :
a. Whether the applicants are entitled to accounts for the said property
b. Whether the rent from the said property in the sum of Kshs 290,000/= should be preserved in a joint interest earning account pending hearing and determination of this case and if so
c. Whether the tenants in the said premises should be directed to pay rent into the said account until this case is heard and determined
ANALYSIS AND DETERMINATION
14. On whether the applicants are entitled to the accounts of the partnership ,the 1st and second applicants are the legal representatives of the estate Nyangweso Isekarario (deceased ) while the 3nd applicant is the legal representative of the estate of Obonyo Otundo (deceased) . It is not denied that the said deceased were equal partners in the said partnership and thus their representatives are entitled to the accounts as a matter of right . The fact that the respondent is the only surviving partner does not give him priority over the other partners. I direct that the respondent file and serve the bank statement for the partnership for the past 6 years within 10 days from today . The respondent to also file a list of all tenants in the property within 10 days from today. The respondent to also account for the monthly rent in the sum of Ksh. 290,000/= which he has received for the past 6 years within 30 days from today . The respondent to also file a current tax compliance certificate within 10 days from today.
15. On whether rent from the property Kisii Municipality. 11/73 should be preserved in a joint interest earning account , this was the prayer of the applicants. The respondent vehemently opposed this proposal saying that the rent is usually deposited in KCB account ran by 3 trustees appointed by the representatives of the deceased partners . The account number and Branch of Kenya Commercial Bank where the monies are alleged to be deposited have not been disclosed . This is a court of justice and the court is empowered to protect the estate of deceased under Section 45 of the law of succession Act . This court cannot thus allow the status quo of anarchy to prevail in the partnership .It is imperative that the partnership be managed in a well structured manner and that a new account be opened by the applicants and respondents in the name of the partnership for transparency and accountability .
16. Having found that the account be opened , I direct that all tenants in the said property to deposit monthly rent therein with effect from August 2025 till this case is heard and determined .
17. In the upshot I proceed to issue the following orders :
a. That the respondent to file and serve the bank statement for the partnership for the past 6 years within 10 days from today .
b. The respondent to also file and serve a list of all tenants in the property within 10 days from today.
c. The respondent to account for the monthly rent of the property in the sum of Ksh. 290,000/= per month collected for the past 6 years within 30 days from today .
d. I direct that the applicants and the respondent do open a new interest earning account in the name of the partnership to be operated by respondent , 1st applicant and 3rd applicant or any 3 of them within 10 days from the date of this ruling .
e. All tenants in the said property to deposit monthly rent therein with effect from August 2025 till this case is heard and determined .
f. No withdrawals shall be made from the said new account and the old account without leave of the court until further orders .
g. The parties to agree on an estate agent to manage the property till this case is heard and determined .
h. The respondent to also file a current tax compliance certificate within 10 days from today.
i. Mention on 23.10.25 for pretrial directions and compliance .
T.A ODERA
JUDGE
4.7.25
Dated and delivered at Kisii this 4th day of July 2025. Mageto for the respondent and Miss Nyaenya for the applicant and CA Kipchirchir
2. The application is based on the following grounds;
a. That the plaintiffs\applicants are personal representatives of the deceased partners who were proprietors in common with the respondent herein in respect to land parcel No. Kisii municipality / Block 11/73
b. The defendant/ respondent is collecting the monthly rent from the rental premises situated on the suit land
c. The defendant/respondent has failed and/or refused to render to the plaintiff as personal representatives of the deceased partners any or any true of full or accurate account of the monthly rent collected from the premises situated on the suit land
d. That the monthly rent collected from the premises situated on land parcel No. Kisii Municipality / Block 11/73 in the tune of Ksh.290,000/= however the defendant has failed to disclose how he has been spending the money for a period of more than 5 years
e. The defendant/ respondent has acted in breach of the trust bestowed on him.
APPLICANTS WRITTEN SUBMISSINS
3. The respondent herein and 11 others who are since deceased were partners trading as Morako General Trading Company registered on 9th September, 1964.
4. The 12 partners jointly acquired the property and became the joint registered owners of land parcel no. Kisii Municipality/Block/11/73.
5. Since the acquisition of the said parcel of land,11 of the have since partners has passed on leaving only the defendant/respondent surviving them.
6. Upon the demise of Nyangweso Isekerario, who was one of the partners, the 1st and 2nd Applicants applied for letters of administration for his estate and were issued with certificate of confirmation of grant dated 26th November, 2010 and the 3rd applicant applied and was issued with grant of letters of administration to the estate of the late Obonyo Otundo .
7. The respondent has since refused to recognize the applicants and instead solely collect and utilizes the monthly rental income totaling to some of Ksh. 290,000/= in exclusion of the applicants or render a true and accurate account of the rental income against law of the succession, hence the need to preserve and protect the estate if all the deceased partners.
8. The applicants submitted that they wish to have the respondent directed to deposit the rental income from the partnership business in a joint interest earning account and render a true and accurate account. The other partners being deceased and having been survived by the respondent only, there is need to have the estates of the deceased partners preserved and protected as due process is followed to ensure proper management of the partnership property. The applicants said are the legal representatives of the estate of some of the deceased partners in an effort to preserve and avoid wastage of the same.
9. In conclusion the applicant told this court that it is in the interest of justice that the orders sought herein be granted since the respondent has wrongfully failed and refused to render correct and accurate accounts or make them available at the partner’s office for perusal.
RESPONDENT’S SUBMISSIONS
10. The respondent submitted that the application is opposed vide the replying affidavit of the respondent dated the 12th day of February 2025 and that the monthly collection is deposited in the KCB bank account run and managed by three signatories who were elected by the majority of the beneficiaries (provided the minutes to attest the same).
The said proceeds are shared amongst all the beneficiaries including the applicants, this has not been opposed by the applicants. Also that the only issue for determination in this application is whether the applicant has demonstrated any ground to warrant issuance of the orders sought. The respondent has told this court that the rent payable is always deposited to the KCB bank account that is managed by three signatories. Further that the applicants are seeking order number two (2) in a vacuum since they have not disclosed the amount of rent has not been remitted to the bank account.
11. On order three (3) the plaintiffs/applicants it was submitted that the applicants are indirectly approaching the honorable court to help them the time of filing this case they were not ready with the evidence. Lastly that respondent herein has provided the minutes and payment acknowledgement. In summary it is clear from the minutes that due to infights of the shareholders.
12. I have carefully considered the application the response and the able submissions by both learned counsel on record . It is not disputed that the respondent and Jenubei Bichanga , Mborongo Nashon Mingate, Mwambi Keura, Dan Nyangoka Ombati, Nyangweso Nashon, Harrison Obonyo Daniel M Moturi And Samuel A Airo are the registered as owners of land parcel No Kisii/Municipality/ 11/73 in equal shares . Further that the said 12 men that they are equal partners in Marako General Trading company since 1964. The locus standi of the applicants is thus not contested as it is admitted that they are sons and widow of the deceased shareholders.
ISSUES FOR DETERMINATION
13. The issues for determination are as follows :
a. Whether the applicants are entitled to accounts for the said property
b. Whether the rent from the said property in the sum of Kshs 290,000/= should be preserved in a joint interest earning account pending hearing and determination of this case and if so
c. Whether the tenants in the said premises should be directed to pay rent into the said account until this case is heard and determined
ANALYSIS AND DETERMINATION
14. On whether the applicants are entitled to the accounts of the partnership ,the 1st and second applicants are the legal representatives of the estate Nyangweso Isekarario (deceased ) while the 3nd applicant is the legal representative of the estate of Obonyo Otundo (deceased) . It is not denied that the said deceased were equal partners in the said partnership and thus their representatives are entitled to the accounts as a matter of right . The fact that the respondent is the only surviving partner does not give him priority over the other partners. I direct that the respondent file and serve the bank statement for the partnership for the past 6 years within 10 days from today . The respondent to also file a list of all tenants in the property within 10 days from today. The respondent to also account for the monthly rent in the sum of Ksh. 290,000/= which he has received for the past 6 years within 30 days from today . The respondent to also file a current tax compliance certificate within 10 days from today.
15. On whether rent from the property Kisii Municipality. 11/73 should be preserved in a joint interest earning account , this was the prayer of the applicants. The respondent vehemently opposed this proposal saying that the rent is usually deposited in KCB account ran by 3 trustees appointed by the representatives of the deceased partners . The account number and Branch of Kenya Commercial Bank where the monies are alleged to be deposited have not been disclosed . This is a court of justice and the court is empowered to protect the estate of deceased under Section 45 of the law of succession Act . This court cannot thus allow the status quo of anarchy to prevail in the partnership .It is imperative that the partnership be managed in a well structured manner and that a new account be opened by the applicants and respondents in the name of the partnership for transparency and accountability .
16. Having found that the account be opened , I direct that all tenants in the said property to deposit monthly rent therein with effect from August 2025 till this case is heard and determined .
17. In the upshot I proceed to issue the following orders :
a. That the respondent to file and serve the bank statement for the partnership for the past 6 years within 10 days from today .
b. The respondent to also file and serve a list of all tenants in the property within 10 days from today.
c. The respondent to account for the monthly rent of the property in the sum of Ksh. 290,000/= per month collected for the past 6 years within 30 days from today .
d. I direct that the applicants and the respondent do open a new interest earning account in the name of the partnership to be operated by respondent , 1st applicant and 3rd applicant or any 3 of them within 10 days from the date of this ruling .
e. All tenants in the said property to deposit monthly rent therein with effect from August 2025 till this case is heard and determined .
f. No withdrawals shall be made from the said new account and the old account without leave of the court until further orders .
g. The parties to agree on an estate agent to manage the property till this case is heard and determined .
h. The respondent to also file a current tax compliance certificate within 10 days from today.
i. Mention on 23.10.25 for pretrial directions and compliance .
T.A ODERA
JUDGE
4.7.25
Dated and delivered at Kisii this 4th day of July 2025. Mageto for the respondent and Miss Nyaenya for the applicant and CA Kipchirchir