Consolidated Marine Contractors Ltd V Samhere T/a Samhere Construction Company  EKLR
|Civil Case 378 of 1988||19 Dec 1990|
Erastus Mwaniki Githinji
High Court at Mombasa
Consolidated Marine Contractors Ltd v Samhere t/a Samhere Construction Company
Consolidated Marine Contractors Ltd v Samhere t/a Samhere Construction Company  eKLR
Consolidated Marine Contractors Ltd v Samhere
t/a Samhere Construction Company
High Court, at Mombasa December 19, 1990
Civil Case No 378 of 1988
Agency – non-disclosure – whether a person who enters a contract without disclosing existence of principal is personally liable – extent to which an agent may be liable.
The plaintiff in this case applied to have the defendant’s defence struck off. The defendant was sued in his individual capacity but was shown in the plaint to be trading as “Samhar Construction Company”. The defendant averred that the plaintiff had sued the wrong party as he had dealt with a limited liability company and not with the defendant individually. The said limited liability company had been subcontracted by another company which had been employed by yet another company.
The plaintiff produced a contract between it and the defendant. The defendant admitted to having signed the contract in the space provided for “Semhar Construction Company”. The plaintiff contended that it had always known the defendant in his individual capacity and that the contract had in fact addressed to the defendant as an individual.
1. Where a person makes contracts in his own name without disclosing the name or existence of the principal, such a person is personally liable on the contract though he may in fact be acting on behalf of a principal.
2. A defendant who did not disclose the name or existence of the principal when making a contract would continue to be liable even after the plaintiff has discovered the agency.
3. A defendant who did not disclose the name or existence of the principal when making a contract will be discharged of liability where the plaintiff unequivocally elects to look to the principal.
No cases referred to.
Hailsham, Lord et al (Eds) (1973-87) Halsbury’s Laws of England London:
Butterworths 4th Edn Vol I para 853
Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13(1)