Kibutiri v Kibutiri [1983] KECA 22 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a High Court ruling that used the wrong legal procedure to dissolve a partnership and divide land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the originating summons procedure was appropriate for determining the partnership dispute raised
- 2.Whether the land could properly be declared partnership property and partitioned on an originating summons
- 3.What is the scope of the jurisdiction of the court on an originating summons taken out by a partner under order XXXVI rule 4
- 4.What orders as to costs should be made in the High Court and on appeal
Key legal issues
#Scope of originating summons procedure under order XXXVI rule 4
The procedure is limited to simple matters; a partner's summons is confined to dissolution, accounts and winding up of the partnership.
Relying on Re Giles (2) as approved in Kulsumbhai v Abdulhussein, and on Bhari v Khan, the court reaffirmed that the scope of inquiry on an originating summons and its ability to deal with contested cases is very limited. The summons here occupied seven hearing days over three years with many witnesses and exhibits, showing the dispute could not be resolved on the summons.
Excess of jurisdiction in partitioning land
The High Court judge acted in excess of jurisdiction by declaring the land partnership property, dissolving the partnership and partitioning the land, houses and coffee factory.
The land was never partnership property - it was common ground it belonged to the parties as tenants in common since 1967. The summons contained no prayer for partition and dissolution was not a relief claimed; the judge embarked on the partition entirely on his own initiative.
Conduct of advocates and trial judge in choosing procedure
Both advocates and the trial judge were jointly responsible for the irregular proceedings; the summons should have been struck out and parties referred to an ordinary suit.
The court observed that the limited scope of originating summons procedure had been defined a century earlier in Re Giles (2); the plaintiff's advocate should not have used the procedure, the defendant's advocate should have objected, and the trial judge should have struck out the summons.
Legal principles established
#- The originating summons procedure is for simple matters and is not meant to determine matters involving serious and complex questions of law and fact; where such questions arise, the judge should dismiss the summons and direct the parties to an ordinary suit.
- A partner's originating summons under order XXXVI rule 4 of the Civil Procedure Rules is limited to dissolution, taking of accounts and winding up of the partnership; a court cannot partition property on such a summons, especially where a prayer for partition was never made.
Court orders
#- 1.Appeal allowed
- 2.Purported 'judgment' and 'decree' of the High Court set aside
- 3.Each party to bear their own costs of the proceedings in the High Court
- 4.No order for costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. Held that originating summons procedure is for simple matters, not complex disputes; the judge below exceeded his jurisdiction under order XXXVI rule 4 by dissolving the partnership and partitioning land not owned by the firm; allowed the appeal and set aside the purported judgment and decree; each party to bear own costs in both courts.
The jurisdiction of a court on an originating summons taken out by a partner under order XXXVI rule 4 is specifically limited to the following purposesa) having the partnership dissolved; b) taking the accounts of and winding up such partnership.p. 2
Concurred with Law JA and his proposed orders, and criticised the use of originating summons in contested cases, blaming both advocates and the trial judge for the wasted proceedings.
The advocate for the plaintiff in this case should not have proceeded by way of originating summons. The advocate for the defendant should have objected. And the trial judge should have struck out the summons and ordered the plaintiff to proceed by ordinary suit.p. 3
Wrote separately to review the facts on the partnership and the land, concluding it was common ground that the Kiambu land never became partnership property and therefore could not be the subject of determination on an originating summons; agreed the appeal should be allowed and with the order on costs.
Accordingly it was not, and could not have been, the subject of determination of questions by the court on an originating summons which as Law JA has said, is of limited scope as to the questions which may be determined thereon.p. 4
- On appeal from
- High Court
- null
- Jurisdiction invoked
- Appeal to the Court of Appeal from the High Court (first appeal); proceedings below instituted under order XXXVI rule 4 of the Civil Procedure Rules (cap 21 Sub Leg)
Relief refused
#Costs of the appeal for the appellant
The appellant instituted the inappropriate proceedings necessitating the appeal, though the respondent's late indication of non-opposition also wasted costs; court made no order for costs.
Costs
Each party to bear their own costs both in this court and in the High Court; no order for costs in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The procedure by way of originating summons is intended to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, not to enable the court to determine matters which involve a serious question.
The appeal is accordingly allowed, and the purported "judgment" and "decree" set aside.
To summarize, I would allow this appeal, and leave the parties to bear their own costs both in this court and in the High Court.
When it becomes obvious that the issues raise complex and contentious questions of fact and law, a judge should dismiss the summons and leave the parties to pursue their claims by ordinary suit.
I would like to give one piece of advice to ingenious lawyers. Short cuts are fine, as long as you are absolutely sure they won’t land you in the ditch.
Issues in the judgment
#The text contains a corrupted/duplicated passage in the holding on the scope of inquiry on an originating summons: 'the scope of inquiry which is made and dealt with on an originating summons is' - the sentence is incomplete in the judgment text.
The judgment text contains a garbled/incomplete portion of the questions posed in the originating summons between questions 2 and 3.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibutiri v Kibutiri [1983] KECA 22 (KLR)", Case Analysis (1983). Civil Appeal No 30 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/22/eng@1983-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.