|Civil Case 1965 of 1979
|Karanja & 18 others v Kanyuira & another
|30 Jul 1982
|High Court at Nairobi (Milimani Law Courts)
|Joseph Raymond Otieno Masime
|Karanja & 18 others v Kanyuira & another  eKLR
|Mr Kamau for Plaintiffs
|Mr Kamau for Plaintiffs
Karanja v Kanyuira
High Court, at Nairobi
July 30, 1982
Civil Case No 1965 of 1979
Partnership - membership of - statutory limit of - provisions of the Partnership Act - business objective - twenty one persons – preliminary objection - whether membership exceeding statutory limit – whether association legal - whether suit maintainable - Partnership Act, Cap 29.
Nineteen individuals, eighteen of whom were described as businessmen and one of whom was the personal legal representative of a deceased person, brought a suit in which they alleged that they, together with the two defendants, had in 1953 agreed to form an association with the objective of acquiring and developing properties and carrying on business in Nairobi. It was further stated that these members had contributed some original capital towards meeting this objective.
The defendants raised both in the pleadings and by way of a preliminary objection the point that the alleged association, being one composed of the twenty one persons in total, was illegal for exceeding the limit on membership imposed by the Partnership Act. In response, the plaintiffs alleged that the claim was derived not from the association but from the individuals themselves.
Preliminary objection allowed and suit struck out.
Mr Kamau for Plaintiffs
|Preliminary objection allowed and suit struck out.
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1965 OF 1979
KARANJA AND 18 OTHERS ..................................PLAINTIFF
KANYUIRA AND ANOTHER...............................DEFENDANT
This is a suit filed by nineteen individuals eighteen of whom are described as businessmen and one as the personal legal representative of a deceased person and a body described as a firm against two other individuals. The plaint alleges that the first nineteen plaintiffs and the two defendants being twenty one persons in all on April 8, 1953, agreed to form an association then known as Nyagatugu and Kirimiga; that the objective of the association were to acquire and develop properties and carry on businesses in Nairobi; that subsequently the association acquired some seven plots and that the original capital contributed by the members being Kshs 27,550 was to be and was used to acquire plot No 209/2705 Kariokor and other plots. There are other averments in the plaint but I do not need to set them out for the purposes of this ruling.
When the case came up for hearing, learned counsel for the plaintiffs gave an outline of his case. The learned counsel for the defendants then took as a preliminary objection a point that he has raised in his pleadings: he said that as there were nineteen plaintiffs and two defendants who allegedly formed the alleged association, the said association was illegal as its members exceeded the statutory limit of twenty persons under the Partnership Act. In support of this contention, he cited the case of FortHall Bakery Supply Co v Frederick Muigai Wangoe  EA 118.
In that case it was held that as the association therein was not registered as a company under the Companies Act or formed in pursuance of some other Act or letters patent, it could not be recognized as having any legal existence; there was therefore no party to maintain the action in the suit and consequently the action was ordered to be struck out with no order as to costs.
In response to this objection, Mr Kamau sought to distinguish the present case by alleging that the claim herein is not derived from the association but from the individuals themselves. I have perused the pleadings carefully and with respect I fail to see the distinction sought to be drawn.
In the result, I hold that the preliminary objection succeeds. The suit is hereby struck out with no order as to costs.
Dated and delivered at Nairobi this 30th day of July , 1982.