INTRODUCTION
1. This a ruling on two applications two applications. The first one is the Notice of Motion dated 16th December, 2025 filed by the Interested Parties/Applicants, namely Jonathan Ombati, Peter Nyangoko, Ezekiel Mokoro and Henry Orori Asanyo. The second one is the Notice of Motion dated 18th December, 2025 filed by the Defendant, Absolom M. Nyangoka.
2. Both applications arise from the orders issued by this Court on 4th July, 2025 in relation to Morako General Trading Company and, in particular, the management, rental income, accounts and preservation of the partnership property. The two applications were argued together since they substantially attack the same orders and raise overlapping questions on locus standi, joinder, review, stay and the proper constitution of the suit.
3. The application dated 16th December, 2025 in substance seeks , stay of the execution, implementation and enforcement of the orders of 4th July, 2025; setting aside, vacation or review of those orders; and the striking out or dismissal of the suit on the grounds that the Plaintiffs lack locus standi and that the Defendant has wrongly been sued in his personal capacity. The prayer for joinder of the Applicants as parties was allowed, and the pleadings were to be amended accordingly.
4. The application dated 18th December, 2025, as gathered from the affidavits and the parties' responses, seeks to stay or revisit the consequences flowing from the orders of 4th July, 2025 and the subsequent compliance directions. It is supported by the Defendant's material alleging, among other things, discovery of correspondence, minutes, a memorandum of understanding and land documents touching on the proposed sale or handling of Kisii Municipality Block II/73.
5. The applications are opposed by the Plaintiffs through Grounds of Opposition dated 14th January, 2026, replying affidavits sworn by Tom Omio Nyangweso and written submissions. The Plaintiffs contend that the applications are incompetent, misconceived, premature, an abuse of the process of the Court and lacking in merit.
THE APPLICANTS' CASE
6. The Interested Parties contend that Morako General Trading Company is governed by a written Partnership Deed and that the deed provides the manner in which families of deceased partners are represented. They assert that the lawful representatives are the first major sons of the deceased partners, or in their absence the widows.
7. They argue that the Plaintiffs do not fall within that category and therefore lack authority to litigate over the affairs of the partnership. They further contend that there is no resolution, power of attorney, family consent or partnership mandate authorising the Plaintiffs to institute or prosecute the suit.
8. The Interested Parties also challenge the propriety of the suit against the Defendant in his personal capacity. Their position is that the dispute concerns partnership property, rental income, bank accounts, management and accounts, and that the proper defendant ought to be the partnership or its duly authorised organs.
9. They maintain that the orders issued on 4th July, 2025 were made without the participation of the majority of the families of deceased partners. They assert that those orders have caused confusion in the collection of rent and prejudice to beneficiaries who depend on the partnership income.
10. The Defendant, in the application dated 18th December, 2025 and the supplementary affidavit placed before the Court, relies on material relating to a chief's letter, alleged minutes, a memorandum of understanding on sale proceeds, an affidavit by Ignatius Bosire Ontita, letters to the office of the Director of Public Prosecutions and lease documents. He contends that the material demonstrates that there are serious questions surrounding the partnership property and the conduct of some parties.
THE PLAINTIFFS' RESPONSE
11. The Plaintiffs oppose the application dated 16th December, 2025. They contend that the Applicants have not demonstrated any legal capacity to bring the application or to protect and preserve the estates of deceased partners. They further contend that the Applicants' alleged committee was constituted after the orders of 4th July, 2025 and therefore cannot properly complain that it was not heard before those orders were issued.
12. On locus standi, the Plaintiffs state that they hold letters of administration in respect of the estate of the late Nyangweso Isekario, who was a partner of Morako General Trading Company. They rely on section 82 of the Law of Succession Act and argue that personal representatives have power to enforce, by suit or otherwise, causes of action that survive the deceased.
13. The Plaintiffs further argue that the Partnership Deed relied upon by the Applicants was executed in 1964, before the Law of Succession Act came into force. Their position is that the deed cannot be used to displace the statutory authority of duly appointed personal representatives.
14. On the Defendant, the Plaintiffs state that he has been sued as the Treasurer and the only surviving original partner of Morako General Trading Company. They rely on sections 7, 17 and 22 of the Partnership Act and contend that a partner may be sued in relation to partnership obligations, and that the suit is not fatally defective merely because the Defendant is named personally.
15. As regards the application dated 18th December, 2025, the Plaintiffs state that the Defendant was aware of the orders of 4th July, 2025 and was represented by counsel. They further depose that on 23rd October, 2025 the parties recorded a consent that the Defendant would comply with the orders and that rent would be deposited in a joint interest- earning account. They argue that the Defendant cannot avoid the consequences of non-compliance by raising matters that properly belong to the hearing of the main suit.
ISSUES
16. Having considered the applications, affidavits, grounds of opposition, submissions and the record, the following issues arise for determination:
1. whether the Interested Parties are proper or necessary parties to the proceedings;
2. whether the orders issued on 4th July, 2025 should be stayed, reviewed, varied, vacated or set aside;
3. whether the suit should be struck out or dismissed for want of locus standi or for having been brought against the Defendant in his personal capacity;
4. whether the application dated 18th December, 2025 has disclosed any independent basis for stay, review or variation of the existing orders; and
5. who should bear the costs of the applications.
ANALYSIS
17. The applicants in the motion dated 16.12.26 were enjoined in this suit by consent on 15.1.26 . payer 3 of that application is thus spent .
18. The subject matter of the suit concerns a partnership and property said to benefit several families of deceased partners.
20. The prayer to strike out the suit requires a different threshold. Striking out is a draconian remedy and should be reserved for plain and obvious cases where a pleading is so hopeless that it cannot be sustained even by an amendment. The Court should not, at an interlocutory stage, conduct a mini-trial on contested facts relating to the partnership deed, succession, representation of families, alleged authority and the administration of partnership affairs.
21. The Plaintiffs have placed before the Court material showing that they are personal representatives or beneficiaries acting in respect of the estate of a deceased partner. Section 82 of the Law of Succession Act gives personal representatives power, subject to the terms of the grant, to enforce by suit or otherwise causes of action that survive the deceased. In Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR, the Court of Appeal underscored that a personal representative, in this context, is a person who has obtained probate or letters of administration.
22. The Applicants' argument that the Partnership Deed recognises only the first major son or widow raises a serious issue, however this is an issue that requires proper evidence on the deed, the identity of the deceased partners, the families represented, the grants issued, any resolutions or consents, and the interaction between the deed and the Law of Succession Act. There is no basis for striking out the suit at this stage.
23. The challenge to the Defendant's capacity is also not a basis for striking out the suit. The Plaintiffs say the Defendant was sued as Treasurer and as the surviving partner or official in control of the partnership affairs. The Partnership Act recognises that a partnership may sue and be sued in its name and also provides for responsibility and liability of partners in relation to partnership business. If the pleadings require clarification, amendment and joinder are available remedies. Dismissal of the entire suit would be disproportionate.
24. The Court is also not persuaded that the orders of 4th July, 2025 should be vacated or set aside. The orders are preservatory in character. Their purpose is to maintain the partnership property and income pending the hearing and determination of the dispute. The contention that the orders affect rent collection and accounts does not by itself demonstrate prejudice; it instead confirms why a structured preservatory arrangement is necessary.
25. For review, section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules require an applicant to show discovery of new and important matter or evidence which, despite due diligence, was not within the applicant's knowledge or could not be produced at the time the order was made; or an error apparent on the face of the record; or any other sufficient reason. The application must also be made without unreasonable delay.
26. The documents relied upon by the Defendant in the supplementary affidavit largely consists of documents and allegations predating the orders of 4th July, 2025, including documents from 2016, 2018, 2019 and 2022. The Defendant has not shown that the material could not, with due diligence, have been obtained and presented earlier. In any event, the material raises contested issues of ownership, alleged forgery, sale, authority and management. Those are matters for pleadings, discovery and trial, not for setting aside preservatory orders.
27. The record further shows that on 23rd October, 2025 the parties recorded a consent on compliance with the orders of 4th July, 2025, including the deposit of rent into a joint interest -earning account. A consent order has contractual effect and may only be set aside on grounds that would justify the setting aside of a contract, such as fraud, mistake, misrepresentation, collusion or another sufficient vitiating factor. The Defendant has not placed before the Court material that meets that threshold.
28. The Court is mindful that the Applicants and the Defendant allege that the existing orders were made without participation of all persons interested in the partnership. There are no legal representatives of the deceased partners . It would not serve the interests of justice to vacate preservatory orders and expose the partnership property or income to uncertainty before the real issues are tried.
29. The upshot the prayers for stay, review, setting aside, vacation of the orders of 4th July, 2025 and striking out of the suit are without merit.
DISPOSITION
30. For the foregoing reasons, the Court makes the following orders:
a. Prayers 4,6, and 7 in the motion dated 16.12.25 are dismissed for lack of merit .
b. The Notice of Motion dated 18th December, 2025 is dismissed.
c. The orders issued on 4th July, 2025 and the subsequent compliance directions, including the deposit of rental income in a joint interest-earning account, shall remain in force pending the hearing and determination of the suit or until further orders of the Court.
d. The costs of the two applications shall be in the cause.
e. On 15.7.27 for directions on hearing before Hon Justice (Prof) Sifuna.
T.A ODERA
JUDGE
30.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 3OTH DAY OF JUNE 2026
In the presence of:
Court Assistant: Busienei .
Miss Bosire For the Plaintiffs/Respondents
N/A For the Defendant/Respondent
N/A For the Interested Parties/Applicants
1. This a ruling on two applications two applications. The first one is the Notice of Motion dated 16th December, 2025 filed by the Interested Parties/Applicants, namely Jonathan Ombati, Peter Nyangoko, Ezekiel Mokoro and Henry Orori Asanyo. The second one is the Notice of Motion dated 18th December, 2025 filed by the Defendant, Absolom M. Nyangoka.
2. Both applications arise from the orders issued by this Court on 4th July, 2025 in relation to Morako General Trading Company and, in particular, the management, rental income, accounts and preservation of the partnership property. The two applications were argued together since they substantially attack the same orders and raise overlapping questions on locus standi, joinder, review, stay and the proper constitution of the suit.
3. The application dated 16th December, 2025 in substance seeks , stay of the execution, implementation and enforcement of the orders of 4th July, 2025; setting aside, vacation or review of those orders; and the striking out or dismissal of the suit on the grounds that the Plaintiffs lack locus standi and that the Defendant has wrongly been sued in his personal capacity. The prayer for joinder of the Applicants as parties was allowed, and the pleadings were to be amended accordingly.
4. The application dated 18th December, 2025, as gathered from the affidavits and the parties' responses, seeks to stay or revisit the consequences flowing from the orders of 4th July, 2025 and the subsequent compliance directions. It is supported by the Defendant's material alleging, among other things, discovery of correspondence, minutes, a memorandum of understanding and land documents touching on the proposed sale or handling of Kisii Municipality Block II/73.
5. The applications are opposed by the Plaintiffs through Grounds of Opposition dated 14th January, 2026, replying affidavits sworn by Tom Omio Nyangweso and written submissions. The Plaintiffs contend that the applications are incompetent, misconceived, premature, an abuse of the process of the Court and lacking in merit.
THE APPLICANTS' CASE
6. The Interested Parties contend that Morako General Trading Company is governed by a written Partnership Deed and that the deed provides the manner in which families of deceased partners are represented. They assert that the lawful representatives are the first major sons of the deceased partners, or in their absence the widows.
7. They argue that the Plaintiffs do not fall within that category and therefore lack authority to litigate over the affairs of the partnership. They further contend that there is no resolution, power of attorney, family consent or partnership mandate authorising the Plaintiffs to institute or prosecute the suit.
8. The Interested Parties also challenge the propriety of the suit against the Defendant in his personal capacity. Their position is that the dispute concerns partnership property, rental income, bank accounts, management and accounts, and that the proper defendant ought to be the partnership or its duly authorised organs.
9. They maintain that the orders issued on 4th July, 2025 were made without the participation of the majority of the families of deceased partners. They assert that those orders have caused confusion in the collection of rent and prejudice to beneficiaries who depend on the partnership income.
10. The Defendant, in the application dated 18th December, 2025 and the supplementary affidavit placed before the Court, relies on material relating to a chief's letter, alleged minutes, a memorandum of understanding on sale proceeds, an affidavit by Ignatius Bosire Ontita, letters to the office of the Director of Public Prosecutions and lease documents. He contends that the material demonstrates that there are serious questions surrounding the partnership property and the conduct of some parties.
THE PLAINTIFFS' RESPONSE
11. The Plaintiffs oppose the application dated 16th December, 2025. They contend that the Applicants have not demonstrated any legal capacity to bring the application or to protect and preserve the estates of deceased partners. They further contend that the Applicants' alleged committee was constituted after the orders of 4th July, 2025 and therefore cannot properly complain that it was not heard before those orders were issued.
12. On locus standi, the Plaintiffs state that they hold letters of administration in respect of the estate of the late Nyangweso Isekario, who was a partner of Morako General Trading Company. They rely on section 82 of the Law of Succession Act and argue that personal representatives have power to enforce, by suit or otherwise, causes of action that survive the deceased.
13. The Plaintiffs further argue that the Partnership Deed relied upon by the Applicants was executed in 1964, before the Law of Succession Act came into force. Their position is that the deed cannot be used to displace the statutory authority of duly appointed personal representatives.
14. On the Defendant, the Plaintiffs state that he has been sued as the Treasurer and the only surviving original partner of Morako General Trading Company. They rely on sections 7, 17 and 22 of the Partnership Act and contend that a partner may be sued in relation to partnership obligations, and that the suit is not fatally defective merely because the Defendant is named personally.
15. As regards the application dated 18th December, 2025, the Plaintiffs state that the Defendant was aware of the orders of 4th July, 2025 and was represented by counsel. They further depose that on 23rd October, 2025 the parties recorded a consent that the Defendant would comply with the orders and that rent would be deposited in a joint interest- earning account. They argue that the Defendant cannot avoid the consequences of non-compliance by raising matters that properly belong to the hearing of the main suit.
ISSUES
16. Having considered the applications, affidavits, grounds of opposition, submissions and the record, the following issues arise for determination:
1. whether the Interested Parties are proper or necessary parties to the proceedings;
2. whether the orders issued on 4th July, 2025 should be stayed, reviewed, varied, vacated or set aside;
3. whether the suit should be struck out or dismissed for want of locus standi or for having been brought against the Defendant in his personal capacity;
4. whether the application dated 18th December, 2025 has disclosed any independent basis for stay, review or variation of the existing orders; and
5. who should bear the costs of the applications.
ANALYSIS
17. The applicants in the motion dated 16.12.26 were enjoined in this suit by consent on 15.1.26 . payer 3 of that application is thus spent .
18. The subject matter of the suit concerns a partnership and property said to benefit several families of deceased partners.
20. The prayer to strike out the suit requires a different threshold. Striking out is a draconian remedy and should be reserved for plain and obvious cases where a pleading is so hopeless that it cannot be sustained even by an amendment. The Court should not, at an interlocutory stage, conduct a mini-trial on contested facts relating to the partnership deed, succession, representation of families, alleged authority and the administration of partnership affairs.
21. The Plaintiffs have placed before the Court material showing that they are personal representatives or beneficiaries acting in respect of the estate of a deceased partner. Section 82 of the Law of Succession Act gives personal representatives power, subject to the terms of the grant, to enforce by suit or otherwise causes of action that survive the deceased. In Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR, the Court of Appeal underscored that a personal representative, in this context, is a person who has obtained probate or letters of administration.
22. The Applicants' argument that the Partnership Deed recognises only the first major son or widow raises a serious issue, however this is an issue that requires proper evidence on the deed, the identity of the deceased partners, the families represented, the grants issued, any resolutions or consents, and the interaction between the deed and the Law of Succession Act. There is no basis for striking out the suit at this stage.
23. The challenge to the Defendant's capacity is also not a basis for striking out the suit. The Plaintiffs say the Defendant was sued as Treasurer and as the surviving partner or official in control of the partnership affairs. The Partnership Act recognises that a partnership may sue and be sued in its name and also provides for responsibility and liability of partners in relation to partnership business. If the pleadings require clarification, amendment and joinder are available remedies. Dismissal of the entire suit would be disproportionate.
24. The Court is also not persuaded that the orders of 4th July, 2025 should be vacated or set aside. The orders are preservatory in character. Their purpose is to maintain the partnership property and income pending the hearing and determination of the dispute. The contention that the orders affect rent collection and accounts does not by itself demonstrate prejudice; it instead confirms why a structured preservatory arrangement is necessary.
25. For review, section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules require an applicant to show discovery of new and important matter or evidence which, despite due diligence, was not within the applicant's knowledge or could not be produced at the time the order was made; or an error apparent on the face of the record; or any other sufficient reason. The application must also be made without unreasonable delay.
26. The documents relied upon by the Defendant in the supplementary affidavit largely consists of documents and allegations predating the orders of 4th July, 2025, including documents from 2016, 2018, 2019 and 2022. The Defendant has not shown that the material could not, with due diligence, have been obtained and presented earlier. In any event, the material raises contested issues of ownership, alleged forgery, sale, authority and management. Those are matters for pleadings, discovery and trial, not for setting aside preservatory orders.
27. The record further shows that on 23rd October, 2025 the parties recorded a consent on compliance with the orders of 4th July, 2025, including the deposit of rent into a joint interest -earning account. A consent order has contractual effect and may only be set aside on grounds that would justify the setting aside of a contract, such as fraud, mistake, misrepresentation, collusion or another sufficient vitiating factor. The Defendant has not placed before the Court material that meets that threshold.
28. The Court is mindful that the Applicants and the Defendant allege that the existing orders were made without participation of all persons interested in the partnership. There are no legal representatives of the deceased partners . It would not serve the interests of justice to vacate preservatory orders and expose the partnership property or income to uncertainty before the real issues are tried.
29. The upshot the prayers for stay, review, setting aside, vacation of the orders of 4th July, 2025 and striking out of the suit are without merit.
DISPOSITION
30. For the foregoing reasons, the Court makes the following orders:
a. Prayers 4,6, and 7 in the motion dated 16.12.25 are dismissed for lack of merit .
b. The Notice of Motion dated 18th December, 2025 is dismissed.
c. The orders issued on 4th July, 2025 and the subsequent compliance directions, including the deposit of rental income in a joint interest-earning account, shall remain in force pending the hearing and determination of the suit or until further orders of the Court.
d. The costs of the two applications shall be in the cause.
e. On 15.7.27 for directions on hearing before Hon Justice (Prof) Sifuna.
T.A ODERA
JUDGE
30.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 3OTH DAY OF JUNE 2026
In the presence of:
Court Assistant: Busienei .
Miss Bosire For the Plaintiffs/Respondents
N/A For the Defendant/Respondent
N/A For the Interested Parties/Applicants