https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11867

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL SUIT NO. E001 OF 2023 (OS)** **JEDIDA WAIRIMU (Suing as the Administrator** **of the Estate of the Late JUMA KIPLENGE)…………………..…......PLAINTIFF** **VERSUS** **AMOS ANDAMA, MAKAU MUTISO T/A** **KIPLENGE ANDAMA & MAKAU ADVOCATES…………….......DEFENDANTS** **JUDGMENT** 1. By an Originating Summons dated 16th February, 2023 brought pursuant to Sections **12(2)** & **37** of the **Partnership Act,** **Order 37 Rule 10** of the **Civil Procedure Rules**, the Plaintiff seeks the following Orders:- 2. ***That this Honourable Court be pleased to make an order directing the Defendants to give full disclosure to the Plaintiff in writing of all the details, documents and information relating to assets in their possession, control or directions belonging to the Estate of Juma Kiplenge.*** 3. ***That this Honourable Court be pleased to make an order directing the Defendants to account to the Plaintiff on behalf of the estate all monies, benefits which accrued or ought to accrue to the Deceased Estate in respect of the law firm.*** 4. ***That this Honourable Court be pleased to make an order directing the Defendants to make a full disclosure of all pending bills of costs accrued by Kiplenge & Kurgat & Co Advocates prior to 4th November, 2020.*** 5. ***That this Honourable Court be pleased to make a declaration that all profits and/or benefits accrued by the law firm of Kiplenge & Kurgat & Co Advocates prior to 4th November, 2020 belong and should devolve to the Estate of Juma Kiplenge and that the Defendants are not entitled to share in the same.*** 6. ***That an order dissolving the*** ***partnership of Kiplenge, Andama & Makau Advocates*** 7. ***That costs hereof be the cause****.* 8. The Summons is predicated on the facts on its face and the annexed **Supporting Affidavit** of **Jedidah Wairimu,** evenly dated. She averred that she is the Administrator of the Estate of Juma Kiplenge (deceased), who was an advocate practising in the firm of Kiplenge Andama & Makau Advocates. 9. The Plaintiff states that prior, the deceased was practising in the name of Kiplenge & Kurgat Advocates, which was established in 2009. That the deceased had initially employed the Defendants who were later incorporated as partners on 4th of November, 2020. 10. That before his demise on 7th October, 2022, the deceased had carried out Court work whose bills of costs had accumulated over time and had not been settled by the time of passing. In particular, the bill in respect of late President Moi and his associate companies had accumulated to Khs. 137,000,000. 11. It is stated that the deceased had on several occasions held meetings with the executor of the Will of Daniel Arap Moi, one Advocate Jan Mohamed and his beneficiaries regarding settlement of the same. They intimated to settle the same. 12. She deposes that that was part of the bill and that there were others to which the Plaintiff has no details of and the Defendants have refused to disclose the same. She argued that a partner cannot share profits of a partnership before becoming a partner; therefore, all profits and benefits or benefits by way of pending bills of costs prior to 4th November, 2020 cannot be shared with them and ought to devolve to the Estate of Juma Kiplenge. 13. It is her case that there were attempts to reach out to the Defendants with a view of settling these issues discussed and resolved, but the Defendants have been uninterested. Further, the Plaintiff had discovered that there was a property which was allocated to the three partners. However, the Defendants had failed to disclose it. 14. She is therefore apprehensive that the Defendants will not fully disclose the extent of the properties owned by the deceased and accrued profits and benefits unless compelled by this Court. That it is also important that there be settling of accounts between the Defendants and the deceased’s estate. She further deposes that the estate of the deceased stands to be prejudiced and the Defendants will benefit unjustly unless the Court intervenes. 15. In response, the Defendants filed a **Replying Affidavit** sworn by **Makau Mutiso**, on 18th June’ 2024, in opposition to the Summons. It is deposed that the summons is defective since the individual named Moses Adama is unknown to them. Further that the proceedings are premature and an ambush since the parties were having discussions in respect of the issues raised in these proceedings and the said discussions are yet to be concluded. 16. It is deposed that a detailed inventory was prepared and items listed were handed over to the Plaintiff. Further that between 1st October and 1st November, 2022, Kshs. 2,369,461 was drawn from the Firm’s Account to pay for various expenses including funeral, medical fees, utilities among others; and the bulk of the funds were sent directly to the Plaintiff, hospitals and various vendors in connection with the deceased's funeral. He confirms that the deceased had an interest in some office furniture whose value is yet to be ascertained. 17. It is also deponed that at the time of the deceased's demise, the firm had a total of **Kshs. 3,315,414** and that after deducting liabilities totalling **Kshs. 476,385,** the available balance for the partners to share was **Kshs. 2,839,029** of which **Kshs. 1,135,611** was the deceased's share at the end of the month of October. 18. He argues that should they deduct the sum of **Khs. 2,369,461/=** that was used towards medical bills, funeral expenses, and other utilities, then the estate will be left with a loss of **Kshs. 1,233,850.** 19. He deposes that the paid-up profits and benefits accrued by the law firm of Kiplenge and Kurgat Advocates before 4th November, 2022, were applied and expended by the deceased and the late Job Kurgat. Further that the Defendants have never been partners in the said firm and are not in a position to discuss management revenue due to the said firm. 20. He states that as from 4th November, 2020, all pending matters initiated by the firm of Kiplenge & Kurgat Advocates were taken up and handled by the firm of Kiplenge Andama & Makau Advocates and thus, the fees generated from the same were expended to run the law firm and profits shared in line with the partnership deed. 21. In addition, he states that the Plaintiff forcefully confiscated files for perusal and they were returned following the intervention of the Law Society. That Plaintiff’s annexure JW4 is not an official document from their firm, and it does not belong to the deponent nor did he author it. 22. It is deposed that there are no pending Bills of Costs in any Court with respect to matters conducted by the firm on behalf of the late His Excellency Daniel Arap Moi, and it would be premature to apportion the same before the outcome, and it would not automatically be considered an income. 23. Consequently, it was deposed that there are no reasonable grounds to justify dissolution of the partnership of Kiplenge Andama and Makau Advocates since the Clause of the Partnership Deed provides the rights of the remaining partners notwithstanding the death of a partner. 24. In her **Further Affidavit** sworn on 18th October, 2025, the Plaintiff depones that the discussions by counsel Lawrence Karanja were unsuccessful. In addition, she adds that she was only given Kshs 550,000 by the Defendant and that the Defendants have failed to disclose the firm accounts in Equity Bank and Eco Bank. 25. She also deposes that the Defendants have not disclosed all pending accounts receivables that belong to the firm of Kiplenge & Kurgat & Co Advocates since the cases never spilt over to the firm of Kiplenge Andama Makau Advocates. 26. She maintains the letter dated 7th October, 2022 was prepared by Mr. Kamau and he handed it to her to take it to Gideon Moi on the day of the deceased's funeral, a letter which she would not be privy to the information therein and therefore incapable of preparing it. 27. She denies confiscating any files. She maintains that the Defendants still generate income from the files handled by the firm of Kiplenge Kurgat Advocates. That further, the Defendants still retain titles handled by the said firm whose buyers are nagging her for their titles. 28. The Plaintiff swore a **Supplementary Affidavit** on 22nd October, 2025 stating that there are huge substantial bills of costs in respect of **Nairobi ELRC No. 50 of 2013** consolidated with **Nairobi Civil Suit No. 395 of 2001** which cases were handled and concluded by the deceased before the Defendants became partners. 29. The Defendants filed a **Supplementary Affidavit** dated 25th November, 2025 where it is deponed that the account at Eco Bank is a Client account that held Kshs 105,362 and does not make up part of the assets of the deceased, hence not material to these proceedings. 30. It is deposed that the late His Excellency Daniel Arap Moi left a Will and any communication should be directed to the executrix, Jan Mohammed, Advocate and that there are no advocate- client bills of costs in any Court with respect to matters conducted by the firm of the estate of His Excellency Daniel Toroitich Arap Moi. 31. The parties agreed to canvass the summons by way of written submissions **Plaintiff’s Submissions** 1. The Plaintiff submits that she is entitled to the order sought as the Defendants are not entitled to benefit from profits and accounts receivables accrued to her deceased husband before 4th November, 2020 when he took them in as partners. 2. The Plaintiff relies on ***Chase International Investment & 2 others vs To Laxman Keshra & 3 others* Civil Appeal No 8 of 1997** where the Court defined the parameters of what gives rise to a claim for unjust enrichment. 3. It is argued that the help extended by the Defendants was on humanitarian grounds and should not be used to deny her any legal right over her husband's hard work quantifiable by the accounts receivables that have yet to accrue or have already accrued. 4. The Plaintiff relies on the case of ***Virginia Wangui Mathenge v Agnes Wairimu Njoroge & Another* *Civil Case 568 of 2012*** to submit that the Defendants, by taking control of the law firm's profits, are constructive trustees for the Estate of Juma Kiplenge. 5. To buttress her position, the Plaintiff relies on ***Maxwell Mbogo vs Standard Chartered Bank of Kenya Ltd* [2000] 2 EA 475** to submit that the Court of Appeal held therein that the law firm of an advocate practising as a sole practitioner forms part of his estate upon death. The Court further clarified that where a partnership exists, the death of a partner dissolves the partnership and the deceased Partner’s interest in the partnership assets forms part of his estate under **Sections 32** and **37** of the **Partnerships Act.** 6. As to dissolution, the Plaintiff argues that the Defendants have acquired goodwill with the name of the deceased and which the Defendants continue to exploit to the detriment of the deceased. She questioned as to why the Defendants insist on having the deceased's name on the firm without a corresponding benefit to his estate and family. **Defendants’ submissions** 1. It is submitted that the prayer for full disclosure is not only spent but moot since the Defendants already complied and no further disclosure is necessary. Reliance is placed on ***Suleiman Kasuti Murunga vs IEBC & 2 Others [2018] eKLR,*** to submit that claims must be supported by evidence and not assertions. Further that there has been no credible evidence to contradict the Defendants' version in their disclosures. 2. It is submitted that the Partnership Deed dated 4th November, 2020 established the profit-sharing ratio and the posthumous rights of partners. That no breach of fiduciary duty has been established against the Defendants. 3. As to whether the Court can decide with respect to profits, losses and benefits accrued to the firm of Kiplenge and Kurgat Advocates, it is submitted that the Defendants are separate entities and cannot be compelled to account for a firm in which they were neither partners nor beneficiaries. 4. They rely on **HCCC No 497 of 2008 Patrick Muiruri v Lawyers and Others** to submit that parties cannot be held accountable for matters beyond their control. That under **Section 11** of the **Partnership Act,** a partner is not liable for obligations or profits of a partnership to which they were not a party; that to hold otherwise would amount to imposing retrospective liability in violation of legal principles. 5. On the issue of dissolution of the partnership, the Defendants submit that **Section 36** and **42** of the Partnership Act provide that dissolution can only happen once the same is broken up, which is governed under **Section 35** of the **Act** and in this case, that the Plaintiff lacks the legal standing to seek dissolution**.** 6. On the issue of costs, the Defendants submit that it is only just and fair that they be awarded costs of the proceedings. **Analysis and determination** 1. This Court has considered the Summons, the arguments for and against espoused in the various Affidavits filed by the parties and their rival submissions. The issue for determination is whether the Plaintiff has made a case warranting issuance of the prayers sought. 2. On **Prayer No. 1 & 2**, the Plaintiff seeks full disclosure of the estate’s assets and a proper accounting of all monies and benefits due to Juma Kiplenge’s estate from the law firm **Kiplenge, Andama & Makau Advocates.** 3. The duty of disclosure in partnership matters is well anchored both in equity and statute. The Defendants argue that disclosure has already been made and that further demands are moot. However, the Affidavits reveal gaps, particularly concerning receivables and bank accounts. 4. This Court has considered the letter dated 25th November 2023 emanating from the firm and notes that it references decrees issued on 12th September 2017 and 14th July 2019 in **Nairobi ELRC No. 50 of 2013 consolidated with Nairobi Civil Suit No. 395 of 2001**. These decrees were issued well before the Defendants became partners. It is therefore beyond dispute that the bills of costs had already accrued at the time of the death of Juma Kiplenge, but the Defendants are the ones pursuing the case. 5. The fact that the firm of **Kiplenge & Kurgat Advocates** was later absorbed into **Kiplenge, Andama & Makau Advocates** does not alter the legal character of those receivables. The Defendants’ fiduciary duty obliges them to disclose and account for such receivables, holding them in trust for the estate until proper distribution. 6. As regards the deceased’s share of profits for October following his demise, a partner's authority to bind or use partnership funds generally terminates immediately upon death. His share must be paid strictly to the estate and not to family members or service providers. Anything to the contrary would be termed as intermeddling with the estate of the deceased under Section 45 of the Law of Succession Act, which attracts criminal liability. 7. While reasonable funeral expenses are a debt to the estate of the deceased, medical bills and utilities generated after the partner passed away are entirely the personal liability of the living family members and not debts of the partnership. 8. Further, voluntary contributions towards family medical expenses are personal gestures of goodwill. Though commendable, these undertakings cannot be equated to partnership obligations or treated as offsets against the deceased’s share of profits. Consequently, the Defendants cannot unilaterally deduct from the partnership under the guise that the funds went towards family needs of the deceased partner and attempt to count it as his contribution. 9. This Court further notes that the financial aspect of the disclosure is up until November, 2022. By advancing this narrative, the Defendants suggest that the deceased's receivables terminated or were extinguished after that. 10. The suggestion that the profits, bill of costs or fees accruing to the late Juma Kiplenge ceased as at 1st November 2022, cannot be accurate. Bills of costs and professional fees often mature and are settled long after the services have been rendered. It is therefore evident that matters concluded by the deceased before his demise could generate receivables payable well beyond that date. **Section 22 (a)** of the **Civil Procedure Act** provides, Cap 21, that:- ***“Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party*** ***(a)make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;”*** 1. This Court is therefore satisfied the Plaintiff’s Prayers 1 and 2 are merited. There is a need for full disclosure by the firm of **Kiplenge Andama Makau Advocates** on assets and monies, including profits owing to the estate of Juma Kiplenge by the firm of **Kiplenge Andama Makau Advocates.** 2. Regarding **prayers 3 and 4**, the Court notes that both founding partners of **Kiplenge & Kurgat & Co Advocates**, Juma Kiplenge EBS and Job Kurgat, are deceased. The partnership deed of **Kiplenge, Andama & Makau Advocates** does not specify which clients or files that Juma Kiplenge introduced into the firm. Without such clarity, any order for disclosure or apportionment of profits would be unenforceable. Courts cannot issue decrees in abstraction. To compel accounting without proof of receivables traceable to the deceased’s practice would amount to an order in a vacuum. 3. Further, this Court has not been furnished with the partnership deed of Kiplenge & Kurgat & Co Advocates, and therefore, it cannot ascertain the terms of survivorship following the death of Job Kurgat. Even if it were assumed that benefits accrued, there is no evidence presented herein to establish their extent thereof. Should any profits or benefits be traceable to that firm, the Plaintiff cannot lawfully assert that such profits devolve exclusively to the estate of Juma Kiplenge. The estate of Job Kurgat should equally be considered. 4. Regarding **Prayer No. 5,** the Plaintiff has sought an order of dissolution of the partnership of **Kiplenge, Andama & Makau Advocates**. This Court can only be guided not only by the statutory framework under the **Partnership Act,** but also by the express contractual provisions agreed upon by the partners themselves. 5. A look at **Clause 8** of the Partnership Deed shows that it explicitly outlines continuity procedures and how a deceased Partner's name or goodwill is handled. To be specific, it provides that:- ***“[8] Dissolution in the event of retirement, expulsion, bankruptcy, death or insanity of a general partners, the remaining partners have the right to continue the business of the partnership under the same name by themselves or in conjunction with any person they select.”*** 1. The above is unequivocal. It explicitly gives the surviving partners the absolute right to continue the business after a partner's death. This clause shows the deliberate intention of the deceased, Juma Kiplenge, at the time of executing the deed. By consenting to such a provision, he bound his estate to the continuity arrangement. 2. It is a settled principle of law that where parties have reduced their agreement into writing, the Court cannot rewrite the contract and must give effect to their bargain unless such agreement is unlawful or contrary to public policy. In this case, the contractual clause overrides the default dissolution rule that would otherwise apply upon death. This Court therefore uphold the clear contractual intentions agreed upon by the deceased partner with the Defendants. Hence, **Prayer No. 5** fails. 3. In conclusion, the Summons dated 16th February, 2023 partially succeeds in that Prayers 1 and 2 are allowed. The Plaintiff shall also have costs of the suit. **Dated and signed at Nairobi this 16th Day of July, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 29th Day of July, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**