[2003] KEHC 641 (KLR)
The court found that the relevant provisions of Order 29 of the Civil Procedure Rules use the word 'may', indicating that it is permissive rather than mandatory for partners or persons carrying on business in a firm name to sue or be sued in the firm name. The plaintiff was therefore not barred from instituting the...
Source-derived case information.
- Citation
- [2003] KEHC 641 (KLR)
- Parties
- Plaintiff: Salim Mbarak Bahamed; Defendant: Ali Ahmed Surur
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 430 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Capacity to Sue, Order 29 Civil Procedure Rules, Firm as Party, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Mbarak Bahamed
Plaintiff
Ali Ahmed Surur
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff can maintain a suit in his personal capacity for property registered in the name of a firm.
- 2 Whether the suit is bad in law for failure to include the firm as a party.
- 3 Whether the provisions of Order 29 of the Civil Procedure Rules are mandatory or permissive regarding suing in the firm name.
Ratio Decidendi
The court found that the relevant provisions of Order 29 of the Civil Procedure Rules use the word 'may', indicating that it is permissive rather than mandatory for partners or persons carrying on business in a firm name to sue or be sued in the firm name. The plaintiff was therefore not barred from instituting the suit in his personal capacity, even though the property in question was registered in the firm's name and the firm was not named as a party. The preliminary objection, which was based on the alleged mandatory nature of these provisions, was thus without merit and could not be upheld.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- The suit shall proceed to hearing.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 430 OF 2002
SALIM MBARAK BAHAMED ……………………………… PLAINTIFF
VERSUS
ALI AHMED SURUR ……………………………………… DEFENDANT
R U L I N G
Before me for hearing is a Chamber Summons dated 28. 11. 02 brought under order 39 rule 1,3 and 9 of the Civil Procedure Rules. However, Counsel for the Defendant Mr. Ochwa raised a preliminary point of objection. The grounds are given as:-
1. That the application is bad in law, misconceived, frivolous, vexatious and lacks merit and is an abuse of the court process.
2. That the plaint in support of this application is bad in law and cannot support an application in the nature the plaintiff/applicant has made.
3. That the application is completely misconceived and should be dismissed.
4. That the suit herein is bad in law and should be dismissed.
The main Submission by Mr. Ochwa for the Defendant was that the plaintiff’s suit cannot stand as it offends the provisions of Order 29 rules 1,8 and 9. The suit is filed by the plaintiff in his personal capacity and he is claiming property on behalf of a registered Firm and the property is registered in the said Firm’s name. Yet the said Firm is not a party to the suit. Mr. Gekonde for the plaintiff said the provisions of order 29 rule 1 are not relevant as the operative word used therein is “May”. The relevant parts read as follows:-
“Any two or more persons claiming or being liable as partners and carrying on business in Kenya may sue or be sued in th e name of the firm (if any) of which such persons were partners at the time of accruingof the cause of action, ---------- “ .
Underlining Mine
There is no doubt rule (1) of order 29 gives the parties a choice.
Rule 8 therein in my understanding deals with the stage of execution while Rule 9 refers to suits against persons carrying on business in a name other than their own. It provides as follows:-
“Rule 9:Any person carrying on business in a name or style other than by own name, may be sued in such name or style as if it were a firm name , and so far as the nature of the case will permit
Underlining Mine
Once again the operative word is “May”. In the circumstances I do not find any reason to uphold the preliminary objection which must fail. Dated and Delivered at Mombasa this 14th day of February, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE