[Ruling] Company Law-winding up cause-company going into receivership- injunction to restrain the respondent from dealing in any manner with the property and the premises of the Company till the determination of this cause-whether the applicant established a ­prima facie case-Companies Act section 403

Enock Owiti Okanja v Billy Onyango & another

High Court, at Nairobi December 14, 1987

Butler-Sloss J

Civil Case No 3642 of 1987

Burial dispute – person entitled to bury a deceased person – two parties claming right to bury on account of being married to the deceased under customary law – determination of who was the lawful husband of the deceased – matters the court will consider in such determination.

Customary law – Luo Customary law - marriage – essentials of a Luo customary marriage - two parties claiming right to bury deceased person on account of being married to her – plaintiff co-habiting with deceased without paying pride price – deceased living with the first defendant after estrangement with the plaintiff – whether deceased the lawful wife of the first defendant.

The plaintiff filed a suit against the defendants seeking an order permitting him to bury the remains of one Christine who he claimed was his wife.

The first defendant however asserted that the deceased was his wife at the time of her death and he counterclaimed against the plaintiff asking to be allowed to bury the remains of the deceased.

The second defendant was the officer in charge of the mortuary in which the deceased’s body was preserved but he took no part in the proceedings.

Held:

1. On the evidence, the plaintiff had not paid any dowry or bride price for his alleged marriage to the deceased.

2. At the time of the marriage between the first defendant and the deceased, the deceased was not married to the plaintiff or anybody else and was capable of contracting a marriage with the defendant.

3. The marriage of the deceased to the first defendant complied with Luo custom in the matter of consent, payment of agreement money and payment of bride price.

4. The Court had considered not only the question of bride price but also the fact that the plaintiff and the deceased had been on bad terms for many years so that the deceased left him for the first defendant, who then became the de facto husband, and later the de jure husband of the deceased.

Judgment for the First Defendant.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Mr Ger for the Plaintiff

Mr Ombogo for the for the First Defendant

Second Defendant absent, unrepresented.

Julius Mworia v Elius Kanampiu Kiambati

High Court, at Nairobi July 8, 1987

Butler-Sloss J

Civil Case No 42 of 1981

Partnership – presumption of partnership - circumstances in which such presumption may arise - plaintiff inserting son’s name in defendant’s business loan application form – whether partnership arises with the defendant .

The 1st plaintiff sued the defendant for an order of accounts claiming that sometime in 1974 the 2nd plaintiff, who was the 1st plaintiff’s son, obtained a loan jointly with the defendant from a bank to commence a partnership in dry cleaning business.

The plaintiff sought an order for accounts and dissolution of the partnership.

The defendant denied the plaintiff’s claim. He admitted receiving the loan in question but denied that the loan was made jointly to the second plaintiff and himself. He further denied the loan was for the purposes of a joint business to be run with the 2nd plaintiff and himself.

The defendant further alleged that if the name of the second plaintiff appeared in documents relating to the bank loan, it was because the first plaintiff who was an employee of the bank had fraudulently inserted the name of the second plaintiff in the loan documents.

Held:

In the light of evidence and in particular the evidence of the supposed partner himself, the second plaintiff, it is impossible to hold that there was a partnership between the second plaintiff and the defendant.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Mr Mwirichia for the Defendant.