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ELCPartially Allowed· [2025] KEELC 6408 (KLR)

Gachoni Enterprises Limited v Nyaga & 5 others (Environment and Land Case Civil Suit 561 of 2015) [2025] KEELC 6408 (KLR)

Environment and Land Court
25 September 2025
1,905 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out claims against a lawyer and his partner in a land sale dispute, confirming misconduct complaints belong before the Advocates Disciplinary Tribunal.

What this practically means

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Executive summary

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Two notices of motion by the 1st and 2nd Defendants sought to strike out the Plaintiff's suit against them for failure to disclose a reasonable cause of action. The 1st Defendant, an advocate, argued he merely acted for the 3rd Defendant in the impugned sale transaction, owed no duty to the Plaintiff, and that any professional misconduct complaint lay exclusively before the Advocates Disciplinary Tribunal under sections 57 and 60 of the Advocates Act. The 2nd Defendant, a limited liability partner in Njeru, Nyaga & Company Advocates, argued the firm had a separate legal personality and that under section 10(4) of the Limited Partnership Act 2012 he was not personally liable for another partner's acts, citing Mwenda v Afri Business LLP. The Plaintiff, through replying affidavits of Peter Mbogua, asserted the firm prepared the sale agreement, received the Kshs 5,500,000 deposit in trust, and released it contrary to express instructions, raising triable issues. A. Omollo J applied the cautionary DT Dobie principle but found that, the 3rd Defendant as principal having been sued, no orders could issue against the agents, and that complaints of breach of professional duties belong before the Advocates Disciplinary Tribunal. Although rejecting the 2nd Defendant's limited-liability argument for want of evidence, the court struck out the 2nd Defendant's name as well. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the claim against the 1st Defendant (advocate for the 3rd Defendant) discloses a cause of action

Holding

The claim against the 1st Defendant was struck out because the principal (3rd Defendant) was sued and any professional misconduct complaint lies before the Advocates Disciplinary Tribunal

Reasoning

The court held that the 1st Defendant acted only as advocate for the 3rd Defendant in the sale transaction, which was not contested. Having sued the principal, the Plaintiff's remedies lie against that principal, not the agent. Further, allegations of breach of professional duties fall within section 60 of the Advocates Act and belong before the Advocates Disciplinary Tribunal rather than a civil suit.

p. 4
02

Whether the 2nd Defendant, a limited liability partner, is personally liable

Holding

The court rejected the limited-liability argument for lack of evidence of the partners' respective liabilities, but nonetheless struck out the 2nd Defendant's name as a consequence of the finding that the misconduct claim belongs to the Disciplinary Tribunal and the principal had been sued

Reasoning

The court held that the argument that a partner in an LLP is not personally liable was not established because the 2nd Defendant adduced no evidence or documents showing the extent of the partners' liabilities. However, since the substantive complaints against the firm were found to belong before the Advocates Disciplinary Tribunal and the principal had already been sued, the 2nd Defendant's name was also struck out.

p. 4
03

Whether the striking-out power should be exercised

Holding

The power to strike out is exercised sparingly; a suit with a semblance of a cause of action should proceed to full hearing

Reasoning

Relying on DT Dobie & Company (Kenya) Ltd vs Muchina, the court reaffirmed that pleadings are only struck out where the suit is plainly hopeless and incurable by amendment. However, on the specific findings that the agents' liability was subsumed in that of the principal and that misconduct complaints belong to the Tribunal, striking out the 1st and 2nd Defendants was warranted.

p. 3

Legal principles established

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  • The power to strike out pleadings is exercised sparingly and cautiously; no suit ought to be summarily dismissed unless it is hopeless and incurable by amendment
  • Complaints of professional misconduct against advocates are properly addressed to the Advocates Disciplinary Tribunal under section 60 of the Advocates Act, not through a civil suit against the advocate

Court orders

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  1. 1.The motion dated 18th June 2025 is allowed and the name of the 2nd Defendant is struck out from the proceedings
  2. 2.Each party to meet their costs of the application and the struck-out suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(2)
  • Civil Procedure RulesOrder 2 Rule 15
  • Limited Partnership ActSection 10(4)
  • Magistrate's Court ActSection 7
  • Advocates ActSections 57 and 60(1)

Cases cited (7)

  • Drummond-Jackson V.B.M.A
    (1970)1 W.L.R 688 AT P.696
  • Mwenda v Afri Business LLP & another
    Cause E409 of 2020
  • Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono
    [2015] KECA 846 (KLR)
  • Stephen Oddiaga v Eliud Mwamunga
    [2017] KEELC 1302 (KLR)
  • D. T. DOBIE & CO (KENYA) LTD VS MUCHAIA
    (1982) KLR
  • DT Dobie & Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
  • Gachoni Enterprises Limited vs David Njeru Nyaga & 5 Others
    Nairobi ELC No.391 of 2010
Jurisdiction invoked
Environment and Land Court jurisdiction over the land transaction dispute (statutory provision not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gachoni Enterprises Limited v Nyaga & 5 others (Environment and Land Case Civil Suit 561 of 2015) [2025] KEELC 6408 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6408/eng@2025-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.