[2004] KEHC 1148 (KLR)
The court found that a partnership did exist between the parties as they were registered under the Registration of Business Names Act and conducted business together, despite the absence of a written partnership deed. However, the property at Kajiado/Kaputhiel-North/1781 was found to be the beneficial property of...
Source-derived case information.
- Citation
- [2004] KEHC 1148 (KLR)
- Parties
- Plaintiff: Mercy Muthoni Wangai; Plaintiff: Joseph Kiogothe Kariuki; Defendant: Millicent Njoki Kiiru; Defendant: Joseph Ndegwa Kamau; Defendant: Joseph Kabugo Njenga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1539 of 2002
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiffs' prayers 1, 2, 3, and 4 dismissed; partnership dissolution confirmed; each party to bear its own costs.
- Judges
- PJ Ransley
- Legal Topics
- Partnership Dissolution, Business Names Registration, Commission Agency, Ownership of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mercy Muthoni Wangai
Plaintiff
Joseph Kiogothe Kariuki
Plaintiff
Millicent Njoki Kiiru
Defendant
Joseph Ndegwa Kamau
Defendant
Joseph Kabugo Njenga
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether a partnership existed between the parties under the Registration of Business Names Act and the Partnership Act.
- 2 Whether the property known as Kajiado/Kaputhiel-North/1781 was partnership property or individually owned by the 1st Defendant.
- 3 Whether the Plaintiffs were entitled to further accounts or monies from the partnership.
Ratio Decidendi
The court found that a partnership did exist between the parties as they were registered under the Registration of Business Names Act and conducted business together, despite the absence of a written partnership deed. However, the property at Kajiado/Kaputhiel-North/1781 was found to be the beneficial property of the 1st Defendant, who purchased it with her own funds. The partnership was only entitled to a commission on the sale of plots from the property, which had already been paid in full. There was no evidence that the Plaintiffs were owed any further monies or that the Defendants had failed to account for partnership assets. As such, the court dismissed the Plaintiffs' prayers for...
Court Disposition
Plaintiffs' prayers 1, 2, 3, and 4 dismissed; partnership dissolution confirmed; each party to bear its own costs.
Orders
- Prayers 1, 2, 3, and 4 of the plaint are dismissed.
- Prayer 5 (dissolution of partnership) is confirmed as previously granted.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO. 1539 OF 2002
MERCY MUTHONI WANGAI …………..………….…1ST PLAINTIFF
JOSEPH KIOGOTHE KARIUKI ……………….……. 2ND PLAINTIFF
VERSUS
MILLICENT NJOKI KIIRU ………………….………1ST DEFENDANT
JOSEPH NDEGWA KAMAU ………………………...2ND DEFENDANT
JOSEPH KABUGO NJENGA ……………..………….3RD DEFENDANT
JUDGMENT
By my order of the 7th July, 2003 I granted the prayers contained in the Plaint herein on an ex-parte hearing of the suit. On the 30th July, 2003 I suspended orders 2, 3 and 4 and allowed the parties to call further evidence with a view to determining which of my orders were to be confirmed.
The Plaintiffs gave evidence and called witnesses, as did the 1st and 2nd Defendants.
The Defendants in their Defence denied the existence of a partnership and the fraudulent acts alleged against them.
The 3rd Defendants did not give evidence and at the end of the hearing sought leave to get another advocate to represent him which application I refused.
On the 7th July 2003 I made an order for the dissolution of the partnership, but reserved the question as to what orders would be confirmed.
In so far as the partnership is concerned it is not in dispute that the parties were registered as a business under the Provisions of the Registration of Business Names Act as carrying on business under the name Busy Base Shelter. As I pointed out in my ruling of the 30th July, 2003 Miss. Ocheing Omolo & Co., for the Defendants wrote to the Registrar on the 17th September, 2002 informing him that the Defendants has dissolved the business and that the certificate of registration should be cancelled. I am satisfied on the evidence that a partnership did exist although there was no written partnership deed. The provision of section 28 of the Partnership Act apply and thus the parties are entitled to share equally in the capital and profits of the business.
The nature of the business carried on was as commission agents involved on the sale of plots of land for the customers.
The big issue in this case related to a piece of land at Kajiado known as kajiado/Kaputhiel-North/1781. It was the Plaintiffs contention that his was partnership property and that the proceeds of sale of the plots, into which it was sub-divided, belonged to the partnership.
The Defendants maintained that the property belonged to the 1st Defendant Millicent Njoki Kiiru. The 1st Defendant gave evidence and produced a copy of the title the property and a copy of the property section showing that she was registered as proprietor of the property on the 23/4/2002 she gave evidence that she had funds on her retirement from Kenya Power and Lighting Co., Ltd and used part to buy the property which was sub-divided into plots and sold as separate units by the partnership. She was to get the value of the land and the partnership would get a commission. I accept the evidence of this witness as being entirely true and find that she was the beneficial owner of the property and that the partnership was entitled to a commission on the sales of the plots.
The evidence of the second defendant was that the Commission earned on the plots was Shs.41,750/= I accept that this is a correct figure and there has been no complaint from the Plaintiff that this was not received by them and was correct.
With regard to the dealings in money between the Plaintiff and second Defendant these receipts and payments appear to have been in the nature of personal loans and are not accountable for in the partnership.
On the evidence before me it appears that the Plaintiffs have received all monies they were entitled to in the partnership so long as it subsisted until the date when by my order it was dissolved.
In the circumstance it would be pointless to order accounts to be produced by the Defendants.
I therefore dismiss prayers 1,2,3 and 4 of the plaint. Prayer 5 has already been granted. With regard to costs.
I order that each party will pay it own costs.
Dated and delivered at Nairobi this 27th day of May, 2004
P.J RANSLEY
JUDGE