[1982] KEHC 22 (KLR)
The court found that the association in question consisted of more than twenty persons and was not registered as a company or under any other Act. As such, it lacked legal existence and could not maintain a suit in its own name. The court rejected the plaintiffs' attempt to distinguish their claim as being...
Source-derived case information.
- Citation
- [1982] KEHC 22 (KLR)
- Parties
- Plaintiff: Karanja and 18 Others; Defendant: Kanyuiria and Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1965 of 1979
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit struck out on preliminary objection
- Legal Topics
- Partnership Membership Limit, Unregistered Association, Capacity to Sue, Company Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karanja and 18 Others
Plaintiff
Kanyuiria and Another
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an association of more than twenty persons not registered as a company can maintain a suit in its own name.
- 2 Whether the plaintiffs' claim is derived from the association or from the individuals themselves.
Ratio Decidendi
The court found that the association in question consisted of more than twenty persons and was not registered as a company or under any other Act. As such, it lacked legal existence and could not maintain a suit in its own name. The court rejected the plaintiffs' attempt to distinguish their claim as being individual rather than association-based, finding no such distinction in the pleadings. Consequently, the preliminary objection was upheld and the suit was struck out.
Court Disposition
suit struck out on preliminary objection
Orders
- The suit is hereby struck out with no order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1965 OF 1979
KARANJA AND 18 OTHERS ..................................PLAINTIFF
VERSUS
KANYUIRA AND ANOTHER...............................DEFENDANT
RULING
This is a suit filed by nineteen individuals eighteen of whom are described as businessmen and one as the personal legal representative of a deceased person and a body described as a firm against two other individuals. The plaint alleges that the first nineteen plaintiffs and the two defendants being twenty one persons in all on April 8, 1953, agreed to form an association then known as Nyagatugu and Kirimiga; that the objective of the association were to acquire and develop properties and carry on businesses in Nairobi; that subsequently the association acquired some seven plots and that the original capital contributed by the members being Kshs 27,550 was to be and was used to acquire plot No 209/2705 Kariokor and other plots. There are other averments in the plaint but I do not need to set them out for the purposes of this ruling.
When the case came up for hearing, learned counsel for the plaintiffs gave an outline of his case. The learned counsel for the defendants then took as a preliminary objection a point that he has raised in his pleadings: he said that as there were nineteen plaintiffs and two defendants who allegedly formed the alleged association, the said association was illegal as its members exceeded the statutory limit of twenty persons under the Partnership Act. In support of this contention, he cited the case of FortHall Bakery Supply Co v Frederick Muigai Wangoe[1958] EA 118.
In that case it was held that as the association therein was not registered as a company under the Companies Act or formed in pursuance of some other Act or letters patent, it could not be recognized as having any legal existence; there was therefore no party to maintain the action in the suit and consequently the action was ordered to be struck out with no order as to costs.
In response to this objection, Mr Kamau sought to distinguish the present case by alleging that the claim herein is not derived from the association but from the individuals themselves. I have perused the pleadings carefully and with respect I fail to see the distinction sought to be drawn.
In the result, I hold that the preliminary objection succeeds. The suit is hereby struck out with no order as to costs.
Dated and delivered at Nairobi this 30th day of July , 1982.
J.R.O MASIME
JUDGE