[2022] KEHC 16174 (KLR)

Kalyonge v Karanja (Miscellaneous Application E070 of 2021) [2022] KEHC 16174 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16174 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application E070 of 2021

A Mabeya, J

December 9, 2022

Between

Jackline Mwende Kalyonge

Applicant

and

Racheal Wanjiku Karanja

Respondent

Ruling

1. On December 29, 2021, the applicant filed an application seeking injunctive orders to restrain the respondent from interfering with the management of the affairs of Duka Halisi. In response to the application, the respondent filed a replying affidavit dated February 10, 2022 and raised a preliminary objection dated February 20, 2022. This ruling is in respect to the preliminary objection.

2. The preliminary objection is based on the grounds that the suit had been filed under the wrong provisions of the law being order 37 of the Civil Procedure Rules. That the court could only be approached through and originating summons.

3. The preliminary objection was canvassed by written submissions.

4. The respondent submitted that the suit had been commenced by a notice of motion under the wrong provisions of the law. That this being a dissolution of partnership matter, it ought to have been brought under order 37 of the Civil Procedure Rules by an originating summons. It was the respondent’s submission that the suit was a nullity for want of originating pleadings.

5. The applicant submitted that the court’s jurisdiction in this case stemmed from section 44 as read with section 44(2) of the Partnership Act 2012. That where there was no outright procedure on how to commence proceedings, then the notice of motion would be applicable and that the partnership issue did not fall under the ambit of order 37 rule 10 aforesaid. That the respondent would suffer no prejudice if the application was allowed and that the court should deem this to be a technicality under article 159(2) of the Constitution.

6. A preliminary objection was held in Mukhisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors [1969] E.A 696 to be in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

7. In the present case, the objection is twofold. That the suit had been filed under the wrong provisions of the law as matters of dissolution of partnerships must be brought under order 37 of the Civil Procedure Rules and that there are no pleadings on which the orders sought are predicated.

8. The respondent contends that the established process for dissolution of partnerships is anchored on sections 44 and 50 of the Partnerships Act and the Court should be approached vide order 37 of the Civil Procedure Rules. On the other hand, the applicant contends that the dispute between the parties is with regard to the unreasonable conduct of the respondent and thus does not fall within the context of order 37 rule 10.

9. The application before court is a notice of motion premised under sections 1A, 1B, and 3A of the Civil Procedure Act, sections 44 and 50 of the Partnerships Act, 2012 , order 40 rule 1,2 and 4 and order 51 rule 1 of the Civil Procedure Rules, 2010.

10. Order 37 rule 10 of the Civil Procedure Rules deals with partnerships and taking of accounts and it provides: -“When the existence of a partnership, or the right to a partnership, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating summons returnable before the judge sitting in chambers against his partners or former partners or their representatives (if any) for the purpose of having the partnership dissolved (if it be still subsisting) and for the purpose of taking the accounts of and winding up such partnership.”

11. In the present case, the applicant commenced these proceedings by way of a notice of motion. She contends that where there is no outright procedure on how to commence proceedings, then the notice of motion would be the applicable procedure.

12. Section 19 of the Civil Procedure Act provides that every suit shall be instituted in such manner as may be prescribed by rules. On the other hand, order 3 rule 1 of the Civil Procedure Rules provides that: -“Every suit shall be instituted by presenting a plaint to the court or in such other manner as may be prescribed”

13. In Joseph Kibowen Chemior v William C Kisera [2013] eKLR, the court observed as: -“The word "suit" has several meanings. Black's Law Dictionary defines "suit" as any proceedings by a party or parties against another in a court of law "suit of a civil nature" is defined to be a civil action.(8)"A civil action" is an action brought to enforce, redress, or protect a private or civil right.(9)Section 2 of the Civil Procedure Act, defines "suit" as all civil proceedings commenced in any manner "prescribed" under section 2 means prescribed by rules."Rules" means rules and forms made by the Rules Committee to regulate the procedure of courts.(12)"pleadings" includes a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant.Under section 19 of the Civil Procedure Act, every suit shall be instituted in such manner as may be prescribed by rules. It will be observed that section 19 does not pretend that the Civil Procedure Rules have a monopoly on how suits should be instituted. It provides that suits may be instituted in the manner prescribed by rules. There could be rules in other statutes on how proceedings may be commenced. For example the Probate & Administration Rules under theLaw of Succession Act, prescribe how matters touching on succession of estates of deceased persons need to be instituted.It means therefore that where a person is commencing a civil suit (in this instance to enforce a civil action), he needs to follow prescribed rules.”

14. The application seeks injunctive orders against the respondent and further it seeks removal of the respondent as a partner in the business known as Duka Halisi. By such removal, the partnership would have been dissolved. Obviously, the provisions of sections 44 and 50 of the Partnerships Act and therefore order 37 of the Civil Procedure Rules would be applicable.

15. In view of the foregoing, the suit before the court is not competent. The applicant came by way of notice of motion which is not prescribed by any law or rule as an originating process. In any event, an interlocutory injunction can only be granted in the interim pending the resolution of the suit. In a miscellaneous cause commenced by way of a motion, once the application is determined, the proceedings are terminated. The matter is concluded and there would be no further hearing of the dispute.

16. The applicant urged the court to invoke the provisions of article 159(2)(d) of the Constitution which provides that justice should be administered without undue regard to technicalities. My view is that the defect herein goes beyond technicalities and cannot be cured by the said constitutional provision.

17. In the upshot, I find the application to be incompetent and fatally defective. Accordingly, the preliminary objection is upheld and the application is hereby struck out with costs to the respondent.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. A. MABEYA, FCIArbJUDGE