Felix Onyango Opiyo & 1 other v Kiyondi Nyachae Advocates

cannot resort to invoking its inherent jurisdiction in the first instance on application by a party where there are express provisions of law suitable for conclusive disposal of issues raised in the application. 5. That it is evident the Applicant has completely failed to invoke jurisdiction of this court to grant the orders sought. Therefore, the same should be struck out in limine without further consideration by the court. 6. The Respondents further stated that where an application seeking review of court orders is made, it ought to be accompanied by extracts of the orders sought to be set aside or reviewed. However, the Applicant has failed to attach the said orders or decisions. 7. Further, it was deponed that the Applicant has lodged an appeal at the Court of Appeal against the ruling delivered by this court, while still engaging the court herein over the same matters between the same parties contrary to provisions of Section 6 Part VIII and Section 80 of the Civil Procedure Act, which calls for dismissal of the application herein. 8. The Respondents stated that contrary to the Applicant’s allegation that they are not a legally registered entity capable of being sued, the Applicant has never disputed that there existed an AdvocateClient relationship between the parties. The Respondents issued instructions to the Applicant which instructions were executed at the Small Claims Court and the Chief Magistrates Court by the Applicant in the name of Ms. Kiyondi Nyachae Advocates. 9. That the Applicant’s averments made in the Replying Affidavit by Boniface Momanyi Nyachae confiicts the averments made in the application herein which amounts to perjury. 10. That this court ought to proceed and tax the Bill of Costs raised in the sum of Kshs. 560,801.60, owing as legal fees from the 1st Respondent while that of the 2nd Respondent, the Applicant is in the sum of Kshs. 620,413.60. That upon delivery of judgment in the primary claims lodged in Mombasa Small Claims Court and recorded as SCC No. 202 of 2022 and SCC No. 203 of 2022, the Applicant lodged declaratory suits against the insurer in the same court which suits were dismissed for want of jurisdiction. 11. The Respondents stated that they could not be subjected to paying the Applicant legal fees twice on the same instructions. That it was the duty of the Applicant to lodge the declaratory suits in the proper forum, and that the Respondents could not agree with tabulation of the legal costs by the Applicant. 12. The application was canvassed by way of written submissions. The Applicant confirmed that they had filed their submissions but the Respondents informed court that they would rely on their Replying Affidavit. 13. The Applicant submitted that they are not a legal entity capable of being sued as they are neither a registered partnership under the Partnership Act, a limited liability partnership under the Limited Liability Partnerships Act nor a company under the Companies Act. The Applicant submitted that Article 159 (2) (d) of the Constitution which instructs courts to administer justice without undue regard to procedural technicalities cannot be invoked to cure substantive legal defects such as proceedings instituted by or against a non-existent person. 14. The Applicant submitted that additionally, pleadings before this court clearly indicate that the subject matter is below Kshs. 20 million, and therefore this court lacks the requisite pecuniary jurisdiction to hear and determine the matter. That the Originating Summons is therefore void ab initio and the orders issued against the firm are incapable of enforcement. The Applicant prayed that the said Originating Summons be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19586/eng@2025-11-27 2

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Determination 15. This court has considered the Notice of Motion, the Respondent’s Replying Affidavit and Submissions by the Applicant. The issues for determination are: a. Whether the application is merited for grant of the orders sought b. What orders on costs should issue 16. The Applicant states that it is a non-existing entity as it is not a Company, a Partnership nor a Limited Liability Partnership. I have perused through the Notice of Appointment of Advocate I respect to the Respondent/ Applicant. The party is stated as “Kiyondi Nyachae Advocates”. The pleadings in the lower court were filed in the name of Kiyondi Nyachae Advocates. It cannot be said that the Respondent/ Applicant is a non-existing entity. 17. The Respondent/ Applicant states that the advocate ought to have been sued as a person trading under the business name Kiyondi Nyachae Advocates. Order 30 Rule 1 & 2 (1) of the Civil Procedure Rules, 2010 provides as hereunder; 1. Any two or more persons claiming or being liable as partners and carrying on business in Kenya may sue or be sued in the name of the firm (if any) in which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct. 2. (1) 18. Where a suit is instituted by partners in the name of their firm, the plaintifis or their advocate shall, on demand in writing by or on behalf of any defendant, within seven days, declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. From the above, it is discerned that a law firm can sue or be sued in its name if it has two or more partners. Therefore, for a sole proprietorship, the suit is in the proprietor’s name and the firm is used for descriptive purposes. In the case of Mehul Nemchand Haria v Hombe Saw Mills & another [2013] eKLR the Court of Appeal held as follows; “ It is clear from rule 1 of Order 29 (now Order 30) that where a firm has two or more partners, a suit can be instituted in the firm’s name. If, however, the firm is a sole proprietorship, the rule does not apply and consequently a suit against a sole proprietor must be in the name of the proprietor as opposed to the name of the firm…” 19. The Respondent/ Applicant just stated that it is neither a Partnership, Limited Liability Partnership nor a Company. I have perused through the Supporting Affidavit to the Application and the Respondent did not attach any documentary evidence in support of this averment. It is not the duty of the court to go digging for evidence from the parties. Under section 107 of the Evidence Act, it provides as follows; 107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts must prove that those facts exist. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19586/eng@2025-11-27 3

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(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies in that person. 20. The Respondent/ Applicant having failed to proof the alleged fact that it is not a legal entity know in any law, and capable of suing and being sued, the prayers sought for in the Notice of Motion subject to this ruling fails. 21. It cannot be ignored that the Respondent/ Applicant has already filed an appeal against the ruling of this court dated 21/11/2024. Though the same was not disclosed by the Applicant, the orders being sought in the application at hand seeks to dismiss the Originating Summons dated 25/04/2024 and vacate any orders made in this suit, indirectly seeks to have this court sit on appeal against its own orders. Again, based on this, the application by the Respondent/ Applicant fails. 22. On costs, it follows that the successful party gets awarded the costs of the application. However, the award of costs being discretionary. I find no reason to deny the Applicants/ Respondents costs. Determination 23. The upshot of the foregoing is that the court renders itself as hereunder; i. The Notice of Motion application dated 27/02/2025 lacks merits and is hereby dismissed. ii. Cost of the application awarded to the Applicants/ Respondents DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 27TH DAY OF NOVEMBER, 2025. ……………… HON. F. WANGARI JUDGE In the presence of: Mr. Amakobe Advocate h/b for Mr. Maingi Advocate for the Applicants/ Respondents Mr. Ndwiga Advocate for the Respondent/ Applicant Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19586/eng@2025-11-27 4

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