[2007] KEHC 748 (KLR)
The court held that the preliminary objection lacked merit because the proceedings were properly instituted by Kenneth Kiplagat, a natural person, trading as Kiplagat & Associates. The court found that the existence or non-existence of the firm as a business name was not determinative, especially in the absence of...
Source-derived case information.
- Citation
- [2007] KEHC 748 (KLR)
- Parties
- Applicant: Kenneth Kiplagat (T/a Kiplagat & Associates); Respondent: National Housing Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 128 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Legal Topics
- Advocate Taxed Costs, Preliminary Objection, Legal Personality, Partnership Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Kiplagat (T/a Kiplagat & Associates)
Applicant
National Housing Corporation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether proceedings instituted by Kenneth Kiplagat (t/a Kiplagat & Associates) are null and void due to alleged non-existence of the firm.
- 2 Whether a partner can sue for debts due to a partnership after its dissolution.
Ratio Decidendi
The court held that the preliminary objection lacked merit because the proceedings were properly instituted by Kenneth Kiplagat, a natural person, trading as Kiplagat & Associates. The court found that the existence or non-existence of the firm as a business name was not determinative, especially in the absence of evidence from the Registrar of Business Names. Furthermore, the court affirmed that under partnership law, a partner retains the right to sue for debts owed to the partnership even after its dissolution. Accordingly, the preliminary objection was overruled and costs awarded to the advocate.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled with costs to the Advocate.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)
MISC APPLI 128 OF 2005
KENNETH KIPLAGAT
(T/a KIPLAGAT & ASSOCIATES) ……........ ADVOCATE/APPLICANT
V E R S U S
NATIONAL HOUSINGCORPORATION……..... CLIENT/RESPONDENT
R U L I N G
There has been considerable delay in the preparation and delivery of this ruling. The same was occasioned by my serious illness in 2006 and the long attendant recuperation. The delay is regretted.
The Advocate herein applied by notice of motion dated 4th May 2006 under section 51(2) of the Advocates Act, Cap. 16 for judgment for his taxed costs. When the application came up for hearing the client raised a preliminary objection to the application in terms of a notice in that regard dated 8th June 2006. The objection was that the law firm of KIPLAGAT & ASSOCIATES no longer exists in law, and that therefore any proceedings in that name are null and void.
I have considered the submissions of the learned counsels appearing and the cases cited. It was conceded by the learned counsel for the Client during arguments that it was the firm of Kiplagat and Associates that was instructed by the Client, and that there is no legal bar to an advocate practising under more than one name, though that would not be desirable. It was also conceded that the best evidence for the non-existence of Kiplagat & Associates would have been from the Registrar of Business Names, and that there was no such evidence.
But of more importance, Kiplagat & Associates, in existence or not, would not be a legal person. That is why the present proceedings were instituted by KENNETH KIPLAGAT (t/a KIPLAGAT & ASSOCIATES), a natural person. Furthermore, in partnership law, a partner can sue for the debts due to a partnership even if the partnership has since been dissolved.
The preliminary objection is not well-taken at all; it lacks merit. It is hereby overruled with costs to the Advocate. There will be an order accordingly.
DATED AT NAIROBI THIS 11TH DAY OF SEPTEMBER, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 14TH DAY OF SEPTEMBER, 2007