https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11969

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **COMMERCIAL CASE NO. E013 OF 2025 (OS)** **IN THE MATTER OF THE PARTNERSHIP ACT** **AND** **IN THE MATTER OF WAKULIMA FARM HUB** **ANASTACIA WAMBUI KAMURI…...……...PLAINTIFF/APPLICANT** **VERSUS** **SAMUEL KIHARA MWANGI……...1ST DEFENDANT/RESPONDENT** **AGNES MUTHONI KIHARA…..….2ND DEFENDANT/RESPONDENT** **AND** **CAROLINE NJOKI MACHARIA……………...…INTERESTED PARTY** **RULING** **Introduction** 1. Through the Notice of Motion Application dated 17th September 2025, supported by the affidavit of ANASTACIA WAMBUI KAMURI of even date, the Applicant seeks orders *inter alia* that, an of interlocutory injunction restraining the respondents whether by themselves, their servants, agents, employees or any other person claiming under them from entering, occupying and or in any other manner interfering with the partnership business premises located at Kitamaiyu House, Thika town pending the hearing and determination of the suit. Further, an order restraining the respondents whether by themselves or their agents, servants, employees or any other person from accessing or operating the firm’s bank account domiciled at Equity Bank Limited Thika Kenyatta Highway Branch Account Number 0340267135536 pending the hearing and determination of the suit. Finally, an order compelling the OCS of Thika Police Station to enforce the orders issued by the court and the costs of this Application to be provided for. 1. The respondents opposed the application and filed a Replying Affidavit dated 3rd October 2025. **The Applicant’s Case** 1. The Applicant deponed that together with the Respondents, they joined hands and formed a partnership business on 20th March 2022, in the name of **Wakulima Farm Hub** under certificate of registration number **BN-VDCARLRX**. They executed a Partnership Deed on 1st April 2022 in which her contribution was 50%, the 1st Respondent 45% and the 3rd Respondent 5%. The Partnership firm’s Bank account for purposes of trading was domiciled at Equity Bank Limited Thika Kenyatta Highway Branch Account Number 0340267135536. Further, the daily stock movements and sales were maintained on the business quick books software which reflect the purchases, sales and the profit margins over the years. 1. The Applicant states that the business operations run smoothly until 22nd July 2025 when the 1st respondent in collusion with the 2nd Respondent through their advocate sent her a letter with unsubstantiated allegations that they were opting out of the partnership business. Thereafter, they have blocked her from accessing the business premises located at Kitamaiyu House, Thika town, changed all the padlocks, all the access to the firm software system and opened a new bank account being number 03402867185389 under the account name Samuel Kihara Mwangi & Others through which the Respondents channel the daily sales. At the time she was denied access to the business premises on 22nd July 2025, the business stock was more than Kshs. 3 million **The Respondents’ Case** 1. The Respondents admit that they were in a partnership with the Applicant. However, they contend that the said business has since collapsed and is no longer in operation and are not in any way engaged in any joint income generating activity. 2. The Respondents deponed that the business by the name, **Wakulima Farm Hub**, is not in existence and the only business that exists is **Wakulima Wholesale Agrovet** owned by themselves. They further state that the document attached to the applicant’s supporting affidavit and marked “AWK 4a&b” clearly indicates that the Kenya Plant Health Service Inspectorate Service Seeds Sellers Licence was issued to **Wakulima Wholesale Agrovet** and the license by the Kiambu County Government was issued to **Wakulima Wholesale Agrovet** and not **Wakulima Farm Hub**. Further, the display of the business at the door of the business shows that the business is **Wakulima Agrovet**. 3. The Respondents depose that Wakulima Wholesale Agrovet operates its business from the leased part of the premises erected on LR 4953/16/V where the 1st Respondent leased the premises from the landlord to the benefit of the business. They maintain that Wakulima Farm Hub only operates on paper and not in reality and thus the Applicant is a nuisance and is only intent on benefiting through the sweat and hard work of other people. 1. The Applicant filed a Further Affidavit dated 25th October 2025 and states that the Respondents are intent on depriving her off her rightful share in the business she has built and sustained over the years. She avers that all along they have operated and traded under the names Wakulima Wholesale Agrovet in the genuine belief that it is only a trading name which is not registered in any way. She further avers that all her National Social Security Fund (NSSF) contributions were remitted by the names Wakulima Wholesale Agrovet. 2. The Applicant reveals that she learnt that Wakulima Wholesale Agrovet was registered as a partnership from the Respondents’ Replying affidavit with the following partners; Caroline Njoki Macharia, Samuel Kihara Mwangi and Agnes Muthoni Kihara. She further reveals that Caroline Njoki Macharia was their employee since the inception of the partnership business whom she recommended for employment in the years 2015 and used her education and professional qualifications to operate the business. 1. The Applicant states that the 1st Respondent was wholly entrusted with signing the partnership’s premise lease but the monthly rent payment of Kshs. 78,880/- was made through a joint account held at Equity Bank Ltd in the names of the three partners account number 0340267135536. Further, in the year 2022 to further supplement on the partnership business banking, they opened a bank account at Equity Bank Limited Account Number 0890284922488 which is indicative of the business dealings of the partnership business over the years. Additionally, all tax returns for the partnership business were normally done through the firm business name Wakulima Farm Hub which clearly indicates that the business is situate at Kitamaiyu House and thus the disposition that Wakulima Farm Hub does not exist physically is a far-fetched lie. 1. Parties put in written submissions. **The Applicant’s Submissions** 1. The applicant relied on the cases of **Giella vs Cassman Brown & Co. Ltd (1973) EA 358; Kenya Commercial Finance Co. Ltd vs Afraha Education Society [2001] 1 EA 86; American Cyanamid Co. vs Ethicom Ltd [1975] AC 396** and **Kenya Electricity Transmission Company Limited vs Kibotu Limited [2019] eKLR** and submitted that the purposes of a temporary injunction are to maintain a position that will more easily enable justice to be done when its final order is made and also preserve the substratum of the suit. Further it’s a constitutional tool for guaranteeing the right to a fair hearing and due process of the law as contemplated by Article 50 of the Constitution. 2. The applicant submitted that an injunction is underpinned in the doctrine of lis pendens which doctrine basically commands that while litigation is underway, nothing should change to avoid rendering the litigation an academic exercise. To buttress that point, reliance was placed in the case of **Mawji vs International** **University & Another (1976-80) KLR 229**. Further, it mitigates the risk of an injustice to the applicant during the period before that uncertainty could be resolved by protecting the applicant against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at trial. 1. The applicant submitted that she was unceremoniously kicked out of an ongoing partnership with no proper book of accounts or the current stock had been accounted for, yet the respondents continue to dispose the business stock unabated without involving her in any way. Thus, the substratum of the suit continues to be altered every passing minute and unless the court intervenes, the suit is likely to be rendered a mere academic exercise. Further, bearing in mind that the current status of the business cannot be ascertained, compensation by way of damages may prove futile as there will be no proper books for awarding such damages endeavour. **The Respondents’ Submissions** 1. The Respondents submitted that the partnership deed is not compliant with Section 19 of the Stamp Duty Act and therefore falls short of Section 7 of the Stamp Duty Act. They therefore submitted that there was no business partnership relationship between the parties since no admissible document has been attached to prove otherwise. The Respondents further submitted that the matter is filled with discrepancies as the applicant alleges that she is engaged in a business called Wakulima Farm Hub yet the documents she attached show another business Wakulima Wholesalers Agrovets. Further, they asserted that the prayers sought in the application are ambiguous as they do not specify which business it is. **The Interested Party’s Submissions** 1. The interested party submitted that she was employed between 2015 and 2016 to run an agrovet business at Kitamaiyu House, Thika town which was visibly, dynamically and jointly operated on a day-to-day basis by both the Applicant and Respondents. She explicitly provided her own professional veterinary technician qualification since none of the partners possessed the mandatory statutory credentials to register and operate an agro-veterinary enterprise. 1. The Interested Party deponed that she holds a direct, clear and identifiable stake in the accurate judicial determination of the dispute as her name was unilaterally used by the Respondents without her signature or consent to register a *parallel entity known as Wakulima Wholesale Agrovet*. Consequently, she unreservedly supports the Applicant’s application seeking temporary preservation orders over the partnership assets. She further affirms and adopts the factual depositions contained in the Applicant’s supporting affidavit dated 17th September 2025 regarding the active, concurrent operational existence of the business. The said continuous commercial existence is corroborated by the physical signage of Wakulima Wholesale Agrovet which has remained unaltered on the storefront display over the years. 2. The Interested Party cited the case of **Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR** and submitted that her unique professional position and unauthorised deployment of her certificates directly validate the applicant’s claim that the business was a living, evolving joint venture rather than a mere paper partnership as alleged by the respondents. On the legal principles governing the grant of temporary injunctions to protect partnership property, the interested party submitted that the applicant has successfully met the criteria set out in **Giella vs Cassman Brown & Co. Ltd [1973] EA 358** as she has set out a prima facie case with a high probability of success through the sheer collection of operational history, regulatory permits and her own technical backing of the business setup. Further, the applicant stands to suffer immediate, irreparable injury that cannot be compensated by an award of damages if the respondents are left to unchecked, unilateral control. The Respondents’ high handed actions of locking out a founding partner, manipulating quick books accounting software access, and re-routing ongoing daily revenue streams into parallel bank accounts threatens to completely dissipate the business’s inventory and capital assets. The absolute necessity of preserving the subject matter of a partnership suit from destruction pending trial was reinforced in **Mrao Ltd vs First American Bank** **of Kenya Ltd & 2 others [2003] eKLR** where the court held that judicial intervention is demanded to prevent a Respondent from acting in a manner that renders the final judgment a completely hollow and academic victory. 1. On the balance of convenience, the interested party submitted that it heavily tilts towards issuing the interim orders to preserve the physical and financial assets of Wakulima Farm Hub. She further submitted that leaving the business premises and its banking channels solely under the unilateral control of parties who have engaged in documented registration irregularities and deceptive lockouts creates immense legal and economic peril. **Analysis and Determination** 1. The main issue for determination is whether the Applicant has met the requisite conditions to warrant the granting of a temporary injunction. **Whether the Applicant has met the requisite conditions to warrant the granting of a temporary injunction** 1. The principles governing issuance of interlocutory injunction are now well settled. Those principles were set out in **East African** **Industries vs Trufoods [1972] EA 420** and **Giella vs Cassman Brown & Co. Ltd [1973] EA 358.** Restating the said principles, Ringera J, (as he then was) in **Airland Tours & Travel Limited** **vs National Industrial Credit Bank Nairobi (Milimani) HCCC No. 1234 of 2002** set them out as follows: - 1. **A *prima facie* case with a probability of success at trial;** 2. **The Applicant is likely to suffer an injury, which cannot be adequately compensated in damages;** 3. **If the court is in doubt about the existence or otherwise of a *prima facie* case it should decide the application on a balance of convenience;** 4. **The conduct of the Applicant meets the approval of the court of equity.** 5. Similarly, in **Dr. Simon Waiharo Chege vs Paramount Bank of Kenya Ltd Nairobi (Milimani) HCCC No. 360 of 2001, Ringera J,** (as he then was) held:- **“The remedy of injunction is one of the greatest equitable relief. It will issue in appropriate cases to protect the legal and** **equitable rights of a party to litigation, which have been, or are being or are likely to be violated by the adversary. To benefit** **from the remedy, at an interlocutory stage, the applicant must, in the first instance show that he has a *prima facie* case with a probability of success at the trial. If the court is in doubt as to the existence of such a case, it should decide the application on a balance of convenience. And because of its origin and** **foundation in the equity stream of the jurisdiction of the courts of judicature, the applicant is normally required to show that damages would not be an adequate remedy for the injury suffered or likely to be suffered if he is to obtain an interlocutory injunction. As the relief is equitable in origin, it is discretionary in application and will not issue to a party whose conduct as pertains to the subject matter of the suit does not meet the approval of the eye of equity.”** **A *prima facie* case with a probability of success at trial** 1. What then constitutes a *prima facie* case? This was articulated in the case of **Mrao Ltd vs First** **American Bank of Kenya Ltd & 2 Others [2003] KLR 125** as follows: **“The principles which guide the court in deciding whether or not to grant an interlocutory injunction are, first, an applicant** **must show *prima facie* case with a probability of success. Secondly, an interlocutory injunction will not normally be** **granted unless an applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience….A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence. It is true that the court is not required at that stage to decide finally whether the evidence is** **worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “*prima facie* case” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence…The terms “*prima* *facie*” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a suitable cause of action, the words “*prima facie*” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case** **standard rather than one of *prima facie* case, the former being the lesser standard of the two…In civil cases a *prima facie* case** **is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently being infringed by the opposite party to call for an explanation or rebuttal from the latter. A *prima facie* case is more than an arguable case. It is not** **sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the** **applicant’s case upon trial. That is clearly, a standard, which is higher than an arguable case.”** 1. From the record, it is manifest that the Applicant and the Respondents entered into a partnership agreement on 20th March 2022 and executed a partnership deed on 1st April 2022, a fact that is not disputed by the parties. The said Partnership was to operate under the name of Wakulima Farm Hub and its firm bank account was domiciled at Equity Bank Limited Thika Kenyatta Highway Branch Account Number 0340267135536, a fact that has not been denied by the Respondents. 1. Further the record shows that on 22nd July 2025, the 1st Respondent’s advocates wrote to the Applicant communicating the termination of the Partnership on grounds that **“In recent times you have been engaging in uncouth practices that demean essence of a Partnership. Our client is therefore not ready and willing to sustain such unhealthy business relationship”** 1. The said letter is not controverted by the Respondents. This letter in my considered opinion is the clearest confirmation that as at 22/5/2025, a business relationship in the form of a Partnership existed between the Applicant and the Respondents. The letter itself refers to the arrangement as ‘**Partnership endevour**.’ 2. What this suit this suit might require to determine could thus be issues such as; 3. **the validity of the Respondent’s alleged unilateral termination, and** 4. **whether the rights of the Applicant in the Partnership were prejudiced given the manner of the alleged termination was effected.** 5. In addition, the Applicant’s evidence of existence of partnership was give boost by the Interested Party who confirmed that a partnership did exist between the Applicants and the Respondents when she worked there as an employee between 2015/2016 as they were all operating the shop and the name that was displayed outside the shop was ‘Wakulima Wholesale Agrovet.’ She in fact confirms that at the time, the Applicants and the Respondents utilized her academic certificate and professional qualifications to operate the agri-veterinary establishment because none of them had the requisite qualifications. She however expressed concern to discover that the Respondents registered a parallel business using her names without her knowledge and authority and are running it without the knowledge of the Applicant. 1. The Respondents belatedly made an attempt to dispute the validity of partnership deed through their submissions arguing that the partnership deed could not be relied upon by the Court due to non-payment of stamp duty. While the Respondent correctly pin-pointed the legal requirements under the Stamp Duty Act which classifies partnership deeds as chargeable instruments, the submission for the absolute exclusion is legally untenable. Under the Act, non- stamping does not render the agreement illegal, void or unenforceable, it only creates an evidentially bar, such that an unstamped document is inadmissible until the applicable duty is paid and any accrued penalties. Failure to pay stamp duty thus is not fatal but a curable defect. The Court of Appeal in **Paul N. Njoroge vs Abdul Sabuni Sabonyo [2015] eKLR** held that declaring a document inadmissible in evidence on the sole ground that it was not properly stamped is erroneous. It was held that the Court should give an opportunity to the party producing such document to pay the stamp duty and penalty but not to reject the document outright. 1. This notwithstanding, it is manifest, that the Applicant’s case does not only rely on the written partnership deed as evidence of its existence. Indeed, even in the Replying affidavit, the Respondents admitted the existence but with a rider that it had come to an end. The interested party’s evidence corroborated the Applicant’s testimony as to the existence of the Partnership. Furthermore, the letter of 22/7/2025 by the Respondents Advocates to the Applicant, which purported to terminate the partnership, implicitly confirms, that the partnership did, in fact, exist. In the said letter, the Respondent’s Advocate writes: ***“Our clients intend to opt out of the partnership within 7 days from today’s date.”*** 1. On the totality of the affidavit evidence record this far, this Court finds that the Applicant has the Applicant has established a viable prima facie claim deserving full consideration=in particular, regarding whether the Respondents unlawfully ousted her and unilaterally converted the partnership business into their own to her total exclusion. **Irreparable Injury** 1. The Court, in an application for injunction is required to ascertain that Applicant demonstrated that she will suffer irreparable loss which may not adequately be compensated by an award of damages. In **Paul Gitonga Wanjau vs Gathuthi Tea Factory Company Ltd & 2 Others [2016]eKLR** referring to **Halsbury’s Laws of England** held as follows in regard to what constitutes irreparable loss: - **“First, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages.”** 1. The Applicant contended that given the fact that the current business status cannot be ascertained, she stands to suffer irreparably and compensation by way of damages would will be futile. 2. From the crisp tone of the letter of 22nd July, 2025 by the Advocates for the Respondents to the Applicant, the business relationship was ended abruptly (*within 7 days*) without any accounts being taken to ascertain respective parties’ stake in the ongoing business operations. This was risky as the extent of the Applicant’s stake then and now is in fact unknown. Allowing such a scenario to continue exposes the Applicant to considerable unquantifiable financial harm. In the premises, it is my considered view that the applicant has demonstrated the irreparable harm she stands to suffer. **Balance of Convenience Test** 1. In the case of **Pius Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR**, the court in dealing with the issue on balance of convenience held as follows:- **The meaning of balance of convenience in favour of the plaintiff is that if the injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the** **inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the inunction will be greater than which is likely to arise from granting it.** 1. It is my considered opinion that the balance of convenience tilts in favour of the Applicant. The inconvenience caused to her if the present state of affairs is allowed to persist would be much greater than that caused to the Respondents. **Conclusion** 1. I thus find that the Application dated 17th September 2025 has met the threshold set out in the case of **Giella vs Cassman Brown** hence the Applicant isentitled to some interventions in the nature of interim reliefs. 1. I have carefully considered the prayers sought, namely: 2. **Pending the hearing and determination of this suit, an order of interim injunction is hereby granted restraining the Respondents, whether by themselves, or their agents, servants, employees or any other person from accessing or operating the Firm’s Bank Account domiciled at Equity Bank** **Limited, Thika Kenyatta Highway Branch Account Number 0340267135536 pending the hearing and determination of this suit.** 1. **Pending the hearing and determination of this suit, an order of interim injunction is hereby issued restraining the Respondents whether by themselves, or their agents, servants, employees or any other person claiming under them from entering, occupying and or in any other manner interfering with Partnership Business Premises located at Kitamayu House, Thika Town.** 2. **An order is hereby issued authorizing the Officer In Charge (OCS) Thika Police Station to enforce the orders of this Court.** 1. **Costs in cause.** 2. If the above orders are granted in the drastic manner currently framed, the requested interlocutory order risks driving the partnership to an abrupt and irreversible collapse. 3. That can never be the objective of an interlocutory relief whose aim should be to ensure the assets of the partnership are preserved by preventing waste, unilateral appropriation, facilitate the taking of accounts and preventing irreparable harm being occasioned to any of the partners pending the determination of the dispute. However, looking at order (a) for instance, it will literally lead to the complete stoppage the said bank account, how then would for instance salaries, suppliers, or utilities that keep the business running be met? Order (b) would mean that the business premises are sealed completely for the duration of the case and police are involved enforcing the total bar of access as if the business premises is a crime scene, that kind of an order against a business that is an ongoing concern is totally disproportionate and inappropriate to think of. 1. In my considered view, all what I am required to do at this stage is to ensure that the Court takes measures that the business continues to operate as resolution of this dispute goes on while taking strict measures to safeguard the interests of the Applicant and the Respondents in equal measure until the suit is determined on its merits. 1. Consequently, I make orders as follows: 2. **Pending the determination of this suit, an order of status quo ante is hereby granted restoring the partnership relationship that existed between the Applicant and the Respondents immediately prior to the letter of 22nd July, 2025. The Applicant shall thus be admitted and permitted to participate in the Partnership Business located at Kitamaiyu House, Thika Town whether carried out in the** **name of Wakulima Farm Hub or Wakulima Wholesalers Agrovets as the case may be.** 1. **All the partners (or their authorized agents) shall have free and unfettered access to the business premises located at Kitamaiyu House, Thika Town during the normal business hours for purpose of inspecting the business, stocks and operations and no partner shall change locks, deny access to the business or business software or exclude any other partner from the premises.** 2. **The OCS, Thika Police Station if necessary, and upon request by any Party or the Court shall ensure compliance with order (b) to prevent breach of peace, but will not interfere with the normal running of the business.** 3. **The Firm’s Bank Account domiciled at Equity Bank Limited, Thika Kenyatta Highway Branch Account Number 0340267135536 and any other partnership accounts including mobile money, or pay-bill shall be operated solely for the benefit of the partnership business (that is to pay for salaries, supplies, utilities, taxes and other related costs) and no partner, shall withdraw, divert to his personal use or account or otherwise deal with the funds without written authorization of all the partners or as the Court may direct.** **Within thirty (30) days of issuance of this order, an independent auditor shall be appointed (by consent of the parties or with leave of this Court upon application) be appointed to audit the partnership stocks, accounts, assets, liabilities and all related matters to ascertain status of the partnership immediately before the 22nd July, 2025 and its current status. The cost of hiring the** **independent auditor shall be borne directly by the Respondents and the Applicant.** ***DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 30TH DAY OF JULY, 2026.*** **………………………………………….** **L N MUGAMBI** **JUDGE**