Eric John Ewen Law, Alan Robin Winston Hancox, Chunilal Bhagwandas Madan
Ismail Adam Suleman & Gulam Rasul Mardat v Nawaz Transport Company
Ismail Adam Suleman & another v Nawaz Transport Company  eKLR
Ismail Adam Suleman & Gulam Rasul Mardat v Nawaz Transport Company
Court of Appeal, at Mombasa
April 6, 1983
Madan, Law JJA & Hancox Ag JA
Civil Appeal No 38 of 1982
Civil Practice and Procedure - service - proper and valid service - definition of - notice of capacity in which a person is being served - object of - effect of - setting aside service - factors to be considered - service under order XXIX rule 9 and rule 3 of the Civil Procedure Rules - meaning of person within order XXIX rule 9 - service upon business entity where proprietor is deceased - how such service effected - service in suits against deceased persons.
Precedents - binding and persuasive precedents - application of - foreign authorities - absence of current authorities. Parties - parties to suits - sole proprietorship - suit against sole proprietorship for which proprietor died and administrators were appointed - administrators continuing with business of proprietor - suit arising out of debt incurred by proprietor during his lifetime - suit filed against proprietorship in its business name - whether suit improper for being a suit against a deceased person - whether service of summons on administrators proper - Civil Procedure Rules order XXIX rule 9.
The appellant filed a suit against the respondent, which was described in the plaint as a registered business, in respect of services rendered to the proprietor, who had since died. The summons were served upon two persons along with a notice stating that they were served in their capacity as partners or persons having control or management of the respondent entity. The two persons were administrators of the estate of the deceased, the original proprietor of the business entity. The administrators entered appearance under protest and made an application to set aside the summons and the subsequent decree on the ground that they were not partners in the firm and not liable and therefore could not be served. It was further deponed that the suit was improper as it had been filed against a dead person. The High Court allowed their application and against that decision, the appellant appealed.
1. The Civil Procedue Rules in order XXIX rule 9 enable a person to be sued in his assumed name. It makes it possible to sue persons who conceal their names in the name of which they carry on business. The object of this rule is to promote commerce, as it would not be possible for persons to know the real names of the owners of the business. If it were to be held that a decree obtained or a suit instituted against an assumed name is void, it would lead to manifest hardship, encourage fraud and sap the credit on which the commercial dealings largely rest. If the administrators’ contention was allowed in this case, it would open a wide door for fraud and injustice.
2. Order XXIX rule 9 of the Kenyan Civil Procedure Rules is taken verbatim from order XXX rule 10 of the Indian Civil Procedure Code. The English rule is similar also except the word “person” has been substituted with “individual”. Indian and English decisions can therefore be applied where there are similar facts. In this case the firm did not cease to exist, the two administrators continued to carry on business. It would be wrong in principle to allow them to claim protection from legal process against the firm by pretending that the firm ceased to exist.
3. As a matter of public policy, the service of process, in this case effected in accordance with the Civil Procedure Rules order XXIX rule 3(1) on a person having, at the time of service, the control or management of the firm, was good and valid service.
4. In legal terms, a person does not only mean a human being but a body corporate whereas the definition of an individual is a single human being. Therefore, a person can mean a group of individuals carrying on business, in this case two persons carrying on business in the name in which a deceased proprietor formerly did.
5. A suit can be brought against a firm of which the deceased was a sole proprietor which is afterwards continued by his successors.
6. (Obiter Madan JA) “I do not consider myself bound by the English and Indian decisions, good law though they may be. As far as I can ascertain there is no local decision on this point, I feel free to make my own decision.”
7. (Obiter Law JA) “I consider that the question to be decided in this appeal is res integra in that it is governed by no Kenyan decision having effect as precedent and must therefore be decided on principle.”
8. (Obiter Hancox JA) The parties have a responsibility to provide legible documents to the court. Documents that are too faint and illegible will not be included in the court records. Any delay or adjournment caused by the parties’ failure to provide legible documents might result in an order for costs against the party responsible.
9. (Obiter Law JA) “To my mind the reprehensible course of conduct by the administrators [in perpetrating the misconception that the previous sole proprietor was still alive while they carried on the business] is very close to coming within the doctrine of ‘holding out’ to which statutory expression is given in section 18 of the Partnership Act (cap 29).”
1. M’Iver v Burns (1895) 64 LJ Ch 681
2. Rampratab v Gavrishankar  Bombay Law Reports 109
3. Hari Bhandhu Pal v Messrs. Hari Mohan Mohimchandra Kaihashchandra & Hiralal Saha  AIR (Calcutta) 931
4. Hafiz Abdul Razzaq v Rauf Ahamed  AIR 245
5. Jamunaram Poddar Firm v Jamunaram Bhakat  AIR 31 (Calcutta) 138
6. Davey v Shawcroft  1 All ER 827
7. Indian Red Lead Factories Co and Purshottamdas Narsingdas  AIR (Calcutta) 32
8. Dawson (Bradford) Ltd v Dove  1 All ER 554
1. Shorter Oxford English Dictionary, Oxford: Oxford University Press
2. Burke, J. (1977) Jowitt’s Dictionary of English Law, London: Sweet & Maxwell
3. Jacob, IH. et al, (Eds) (1973) The Supreme Court Practice, London: Sweet & Maxwell, p 1217
1. Civil Procedure Rules (cap 21 Sub Leg) order XXIX rules 3, 4, 6, 7(1), 9
2. Rules of the Supreme Court (UK) order 48A rules 1-10, 11; order 81 rule 9 (formerly order XLVIIA rule 11)
3. Code of Civil Procedure (India) order XXX rules 6, 10
4. Registration of Business Names Act (cap 499) section 9
5. Registration of Business Names Rules (1975) (cap 499 Sub Leg) rule 6
6. Interpretation and General Provisions Act (cap 2) section 3(4)
7. Partnership Act (cap 29) section 18
8. Interpretation Act 1889 (UK) section 19
AT Anjarwalla & NM Doshi for Appellant
IT Inamdar for Respondents