[2010] KEHC 809 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ELC NO.181 OF 2010

In the matter of an application for vesting order by

1. DAVID KARANJA WAKABA

2. BENJAMIN MUSYOKA MAINGI

3. NELSON NJOROGE GITHINA

4. DAVID MUTISYA MAKUMBI

5. ESTATE OF THE LATE TITUS MUTUA KILOMO

6. ESTATE OF THE LATE DAVID KYULI KAINDI

ALL TRADING AS AFRICAN HOUSING COMPANY..........................................................................................APPLICANTS

AND

IN THE MATTER OF LR.NO.209/136/197 NAIROBIESTATE OF SAMUEL NGINA MUNENGE................RESPONDENT

JUDGMENT

The applicants brought this suit by way of Originating Summons for orders that the share and interest of Samuel Munenge Ngina in the property known as LR.No.209/136/197 Kirinyaga Road, Nairobi be vested in the names of David Karanja Wakaba, Benjamin Musyoka Maingi, Nelson Njoroge Githina, David Mutisya Makumbi and the Estates of the late Titus Mutua Kilomo and David Kyuli Kaindi all trading as African Housing Company.

The grounds upon which this order was sought are that;

1. The property known as LR.No.209/136/197 Kirinyaga Road, Nairobi was purchased by the applicants and the late Samuel Munenge Ngina who were operating a partnership known as African Housing Company.

2. That the property was registered in the names of all the applicants and the late Samuel Munenge Ngina trading as African Housing Company.

3. That the said Samuel Munenge Ngina sold his share in the partnership to the other partners and ceased to be a partner in Africa Housing Company.

4. That despite the sale of his shares and his ceasing to be a partner no formal transfer of his share was effected and his name remains in the title documents of the property.

5. The remaining partners have entered into a Sale Agreement for the sale of property to a 3rd party and cannot do so unless the late Munenge’s share is vested in them.

In addition to the said grounds, there is an affidavit sworn by Nelson Njoroge Githina who is one of the partners in the said partnership. A further affidavit was subsequently sworn by one of the partners, David Karanja Wakaba. The Originating Summons is brought under Order XXXVI Rules 3 and 7 of the Civil Procedure Rules. It is opposed by the legal representatives of the late Samuel Munenge Ngina through affidavits sworn by Simon Kamau Munenge and Joseph Kimani Munenge.

Both counsel agreed to address this matter by way of affidavit evidence. After the filing of all the relevant affidavits the learned counsel for both parties filed written submissions which I have noted. My first observation is that the suit property herein is registered under the Registration of Titles Act, Cap 281 Laws of Kenya. The transfer of the share is said to have been documented and there is an affidavit of Mr. Omesh Kapila who depones that sometime in 1974 his firm received instructions from a partnership called African Housing Company to arrange for the retirement of one partner Samuel Munenge Ngina who was selling his share to the remaining partners. A deed of dissolution of partnership was prepared by this advocate and signed by all the partners. The learned counsel also prepared a Notice of Dissolution of Partnership which was gazetted vide Gazette Notice No.187 of 1975.

The advocate also confirmed that he released a payment of Kshs.10,000/= to the retiring partner Mr. Samuel Munenge Ngina and a further cheque of Ksh.485/= from the partnership being the agreed amount for the value of the share. He, the said advocate prepared a handwritten acknowledgment which was signed by the said Samuel Munenge Ngina on 30th April, 1974 when he received the two cheques.

All this information is disputed by the administrators of the said Samuel Munenge Ngina. In particular, it is observed that the affidavits do not prove that the deceased sold his interest because there is no Sale Agreement or explanation why it was not prepared. There is no transfer or instrument of transfer of the interest from the deceased to the remaining partners and there is no explanation as to why it was not prepared. The consideration is not disclosed anywhere. Instead, the deceased appears to have been paid Kshs.10,485/= without any explanation what this stood for. There is also no valuation report attached to show what was the value of the property in 1974 to determine the value of the deceased share if indeed he sold it.

If anything, the affidavits in support of the application confirm that the deceased and the applicants run a partnership called African Housing Company and that the deceased retired from the partnership but did not sell his interest in the suit premises. The sum of Kshs.10,485/= was purportedly paid by two cheques, however, the numbers of these cheques and whether or not they were cleared has not been disclosed.

The proof of the sale of the deceased interest in the property has also not been given. It is the respondent’s case that the deceased never sold his interest in the suit property.

It is trite law that any disposition of an interest in land under the Law of Contract Act has to be in writing. I note that as at the time this alleged transfer took place, the Law of Contract and in particular Section 3(3) was different from what it reads today. As at that time, it was enough for a party to show a memorandum in writing, signed by a party to be charged. No such memorandum has been annexed to show the late Samuel Munenge Ngina signed any. Even then a claim for land would still be subject to the provisions of Limitation of Actions Act.

The transaction between the parties herein as presented was not for disposition of an interest in land. I say so because, there is nothing in writing to that effect under the Law of Contract Act.

Secondly, the information produced by the letter dated 7th July, 2010 by the Registrar of Companies is under the Business Names Act Cap 499 Laws of Kenya which has no relationship in a dispute of this nature which is under the Registration of Titles Act Cap 281 Laws of Kenya.

The transaction addressed by Mr. Omesh Kapila relates to sale of a share. The material before me is silent as to the nature of the business these partners were conducting, but the letter from the Registrar of Companies states the business was for buying houses. My assessment is that there was a business in the name and style of African Housing Company whose location was at the suit premises, and it is this suit premises that was owned by the partners herein.

I am fortified in so holding by the contents of the Legal Notice No.187 of 13th December, 1974 which clearly shows that these partners were carrying on business under the firm name or style of African Housing Company at plot No.209/136/197 Kirinyaga Road, Nairobi. (Emphasis added).

The last paragraph of the said Gazette Notice reads as follows;

“As from the said date the continuing partners will carry on the said business at the same address and the same name.All the debts due to and liabilities due from the said business up to and including 15th November, 1973, will be collected and paid by the continuing partners”.(Emphasis added)

Returning to the letter dated 7th July, 2010 addressed to the learned counsel for the applicant by the Registrar of Companies I observe that the name of the late Samuel Munenge Ngina is not there. However, the letter reads in part, “the records filed in this registry relating to the above business name indicate, Registration name and number BN 44924, Date of registration 11th August, 1970, Location plot NO.209/136/197, Kirinyaga Road. Address P.O. Box 11188 Nairobi. Nature of business, Buying Houses.”

It is clear therefore, that the deceased Samuel Munenge Ngina was a partner in this partnership in the business of buying houses which operated from the suit premises now in dispute. The suit premises were owned by all the partners. My analysis of the evidence on record is that the deceased Samuel Munenge Ngina withdrew from the partnership but did not relinquish his interest in the suit premises plot No.209/136/197 Kirinyaga Road, Nairobi. Had this been the intention, the learned counsel who handled the said dissolution would not have failed to include this in the deed that dissolved the said partnership. I am not surprised therefore that the name of the late Samuel Munenge Ngina is in the title document that has been annexed in these proceedings.

Having said so, I, with respect, find that the deceased Samuel Munenge Ngina at the time of his death still held an interest in the suit premises, his withdrawal from the partnership notwithstanding. There is no way therefore that his interest can vest in the remaining partners and this can only vest in the administrators of his estate. Having said so, I decline to grant the orders sought in Originating Summons and dismiss the same with costs to the respondent.

Orders accordingly.

Dated, signed and delivered at Nairobi this 25th day of October, 2010.

A.MBOGHOLI MSAGHA

JUDGE