Odongo Mark Okeyo v Steve Omondi Owino

High Court, at Nairobi June 24, 2003

Kuloba J

Civil Case No 637 of 2000 (OS)

Partnership –dissolution of partnership – application for dissolution and taking of accounts – two partners establishing a law firm – one partner leaving law firm and applying for dissolution and taking of accounts – whether proper to dissolve partnership – plaintiff failing to show his contribution to the partnership or to produce articles of partnership–– whether an order for accounts would be just in such circumstances.

The parties had formed a partnership under which they ran a law firm. In due course, however, the plaintiff left the firm and later brought this suit asking for the dissolution of the partnership and for the taking of accounts.

Held:

1. On the evidence, the Court was satisfied that the partnership existed only in name and the plaintiff was no longer in it. No useful purpose was being served by the continued existence of the partnership and the

Court would dissolve it.

2. The plaintiff had failed to establish any input by him in the firm, either by way of capital or exertion of his efforts to create income. There were no articles of partnership and no arrangements as to assets, liabilities, sharing and so forth.

3. In those circumstances, it would not be just to order the taking of accounts.

Partnership dissolved, other reliefs dismissed.

Cases

No cases referred to.

Statutes

No statutes referred.

David Njoroge Kimani & another v James Mukuha Njau

High Court of Kenya at Nairobi April 3, 2003

Kuloba J

Civil Appeal No 131 of 1996

Land Law – co-ownership of land – joint tenancy – alienato rei praefurtur juir accrescendi – right of survivorship – effect of alienation by one tenant – instances where severance of joint tenancy occurs – tenancy in common – instance, where severance occurs – fiduciary relationship between coowners.

This was an appeal against the judgment of the principal magistrate where the magistrate granted orders evicting the appellants from a parcel of land subject matter of the suit. At trial it was found as a fact that two brothers and a sister jointly owned a piece of land. One of the brothers was entitled to one third in the share of that land registered under one title. He sold his share to the respondent in this appeal leaving the brother’s and the sister’s shares for them. The surviving brother (upon his death) and sister refused to recognise this sale on the ground that their brother sold his portion to the respondent without their consent. The appellants continued using the piece of land which their late brother had sold to the respondent prompting this case.

Held:

1. During the continuance of a joint ownership a co-owner held nothing separately from his fellows but there is a general rule alienato rei praefertur jur accrescendi meaning that alienation of property is favoured by law rather than accumulation.

2. The right of survivorship between joint tenants is defeated by a disposition of his share by one of the joint tenants during the life of the other.

3. The effect of such alienation, whether by sale or mortgage or assignment is to convent the joint tenancy into a tenancy in common because the alienee and the remaining tenant or tenants hold by virtue of their different titles and not under one common title which is essential to the existence of a joint tenancy.

4. A severance of a joint tenancy or ownership occurs upon assignment, settlement, charge or sale of one’s interest, and also upon a measure taken to prevent unjust enrichment.

5. A determination of a tenancy in common may be by petition, sale or acquisition by one tenant or co-owners of shares vested in his co-tenants or co-owners.

6. As between co-owners, there is no fiduciary relationship hence one coowner can dispose of his interest and he is not liable to account to his co-owners provided he does nothing prejudicial to the other co-owner’s interests or provided he is not in breach of legitimate covenants.

Appeal disallowed.

Cases

Cedar Holdings Ltd v Green & another [1979] 3 All ER 117; [1981] Ch

129; [1979] 3 WLR 31

Statutes

No statutes referred.

Advocates

Mr Ongegu for the Applicant.

Miss Mwaniki for the Respondent.

Lomingo Ole Kinyi v Nairobi City Council

High Court, at Nairobi April 3, 2003

Kuloba J

Civil Case No 3151 of 1997

Damages – general and special damages–– destruction of private property–– wrongful demolition of kiosk by local authority–– special damages granted where they have been specifically proved - quantum of general damages.

The plaintiff sued the Nairobi City Council claiming general and special damages for the demolition of his grocery kiosk business which he stated was a business licensed by the defendant. A witness for the defendant testified that the kiosk had been demolished because it stood on a plot of land which did not belong to the plaintiff. It was also stated that the defendant had given notice of the demolition, a fact which the plaintiff denied. The defendant, however, did not produce a copy of any such notice to the court.

Held:

1. The court was satisfied that the plaintiff had a kiosk where he had operated a business since 1976, that he held trading licenses issued to him for that purpose over the years by the defendant and that the kiosk was demolished by the defendant.

2. If indeed the plaintiff’s kiosk was located on a wrong plot of land, the defendant must have known of its construction and should have turned away the plaintiff or declined to issue him with licenses over the years.

There was no justification for the demolition.

3. The special damages said to have been suffered by the plaintiff were not proved probably because his records were destroyed in the demolition. In the absence of records of what was in the kiosk, earnings and expenditure, it would not be proper for the court to make a guess on the amount of special damages.

4. With regard to general damages, the Court viewed seriously the offhand manner in which the defendant destroyed the plaintiff’s property. Considering the circumstances of the case, a fair and reasonable compensation to the plaintiff in general damages would be an award of Kshs. 400,000.

Judgment for the Plaitiff

Cases

No cases referred to.

Statutes

No statutes referred.

Consolata Kihara & 241 Others v Director Kenya, Trypanosomiasis Research Institute

High Court of Kenya at Nairobi April 3, 2003

Kuloba J

Miscellaneous Application No 594 of 2002

Employment law - contract of employment - termination of employment - whether employment contract can be enforced by specific performance - whether remedy of certiorari can issue against employer - employee’s remedy to be damages for breach of contract.

Contract – contract of employment – whether can be specifically enforced – master terminating contract – whether order of certiorari can issue – effect of implications of wrongful dismissal.

The applicants sought orders of certiorari to quash the decision of the director of the Kenya Trypanosomiasis Research Institute compulsorily retiring or retrenching them on terms specified in their decision, and prohibition to prohibit the director from implementing that decision. Their application was based on the grounds that the decision contravened the principles of natural justice in that no representations had been sought from them; notice given to them was unseasonably short; the decision was discriminatory.

Held:

1. It is an elementary principle of Kenyan Law that in the ordinary situation of employer and employee cases or cases which are sometimes referred to as cases of master and servant, if an employer or master wrongfully dismisses an employee or servant, the employment is effectively terminated albeit in breach of contract.

2. In normal situations of ordinary occurrence, there cannot be specific performance of a contract of service and an employer can terminate the contract with his employee at any time and for any reason or for none.

3. If the employer terminates the employee’s contract in a manner not warranted by the contract he must pay damages for breach of contract.

4. The law is well settled that if where there is an ordinary contractual relationship of master and servant, the master terminates the contract the servant cannot obtain an order of certiorari.

5. In an ordinary case of master and servant it does not at all depend on whether the employer has heard the employee in his defence. It depends on whether the facts emerging at trial prove breach of contract.

Cases

1. Vine v National Dock Labour Board [1957] AC 488; [1956] 3 All ER 939; [1957] 2 WLR 106

2. Vidyodaya University of Ceylon v Silva [1964] 3 All ER 865

3. Francis v Municipal Council of Kuala Lumpur [1962] 1 WLR 1411; [1962] 3 All ER 633

4. Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66; [1963] 2 WLR 935

Statutes

1. Service Commission Act (cap 185)

2. Public Service Code of Regulations (cap 185 Sub Leg)

Advocates

Mr Akhaabi & Mr Khamati for the Applicants.

Mr Munene for the Respondent.