[2008] KEHC 1205 (KLR)
The court found that the applicant failed to provide evidence to satisfy the requirements for the grant of a temporary injunction as set out under Order 39 of the Civil Procedure Rules. Specifically, there was no demonstration that the property in dispute was in danger of being wasted, damaged, or alienated, nor...
Source-derived case information.
- Citation
- [2008] KEHC 1205 (KLR)
- Parties
- Plaintiff: Stephen Marigi Gathigi; Defendant: Gabriel Gatheca; Defendant: Moses Sironik Muraya; Defendant: Ndungu Mwaniki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 203 of 2008
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Injunction
- Outcome
- application dismissed
- Legal Topics
- Partnership Disputes, Temporary Injunctions, Business Names, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Marigi Gathigi
Plaintiff
Gabriel Gatheca
Defendant
Moses Sironik Muraya
Defendant
Ndungu Mwaniki
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the defendants, not being registered partners, should be restrained from conducting business or acting as partners of Kihoto Munyaka Building Company.
- 2 Whether the plaintiff has satisfied the legal requirements for the grant of a temporary injunction under Order 39 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant failed to provide evidence to satisfy the requirements for the grant of a temporary injunction as set out under Order 39 of the Civil Procedure Rules. Specifically, there was no demonstration that the property in dispute was in danger of being wasted, damaged, or alienated, nor that the defendants threatened to remove or dispose of property in a manner that would obstruct or delay execution of a decree. While acknowledging the existence of a serious dispute between the parties regarding the management and participation in the partnership, the court held that the threshold for interlocutory relief had not been met. Consequently, the application for a...
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 203 of 2008
STEPHEN MARIGI GATHIGI..…….......….……....PLAINTIFF
VERSUS
GABRIEL GATHECA
MOSES SIRONIK MURAYA
NDUNGU MWANIKI…………………...…….....DEFENDANT
RULING
Kihoto Munyaka Building company is registered under Registration of Business Names Act.
The persons registered as carrying on business under that name are listed as:
1. Peter Gakuo
2. Nahashon Muraya
3. Gathigi Gathuka
4. Evanson Kangaca mwaniki Karimia
5. Kaboi Ngotho
6. Ndauwa Wambu
7. Gitura Turugi
8. Njeri Mwaura
9. Nyokabi Mwaura
10. Stephen Marigi Gathigi
According to the affidavit of the Applicant most of the partners are now deceased leaving Gathigi Gathuka, Gitura Turugi, Njeri Mwaura, Nyokabi Mwaura and the deponent Stephen Marigi Gathigi, applicant.
This application is brought under Order 39 rule 1, 2 and 3 Civil Procedure Rules, Section 28 Partnership Act. Section 3A of Civil Procedure Act Cap 21 seeking orders to restrain the Defendants who are not registered as members of the partnership from conducting any business, calling meetings, operating accounts and generally taking over or doing any such related acts purporting to be partners of Kihoto Munyaka Building Company on the ground that they are not partners of the said business firm.
The Respondent accuse the Plaintiff of not being a partner and state that they represent interests of their respective families where original partners have since died and therefore they are entitled to participate in the business.
The provisions invoked provide that where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in execution of a decree that may be passed against the Defendant in the suit, the court may grant temporary injunction to restrain such act.
In the present case there is no evidence shown to satisfy the provisions stated above. However, there is serious dispute between the parties.
I therefore do not grant orders sought. The parties should proceed to arrange for the hearing of the full dispute.
The application is dismissed with costs in the cause.
DATED this 22nd day of October 2008.
JOYCE N. KHAMINWA
JUDGE