Mathew A. Ajuoga & 3 others v Bedrock Holdinngs Limited [2013] KECA 229 (KLR)
The bottom line
#Kenya's Court of Appeal held church officials liable for a company's debt because their own letters and conduct portrayed them as partners of the borrower.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal under Section 72 of the Civil Procedure Act
The Court is confined to matters of law and may not re-evaluate findings of fact made by the two courts below; the duty of a second appellate court is to consider whether the first appellate court properly carried out its function of reappraising the evidence.
Section 72 of the Civil Procedure Act restricts second appeals to grounds where the decision is contrary to law, fails to determine a material issue of law, or involves substantial procedural error. The Court cited Ugandan and Kenyan authority to confirm that re-evaluation of evidence is the preserve of the first appellate court.
Partnership by estoppel / holding out under Section 18 of the Partnership Act
Even though no express partnership existed between the Church and Soteni, the appellants' conduct and letter of 6th May 2005 represented to the respondent that they were in partnership with Soteni, making them liable as partners by estoppel for credit given on the faith of that representation.
The first appellant's letter 'Appreciation and Commitment' acknowledged the services, accepted the debt, undertook payment by installments if Soteni failed, and stated 'when contracting your firm, we were in partnership with SOTENI KENYA.' The respondent relied on that representation in extending credit. The Court approved the trial judge's findings that the relationship was not for profit but capable of founding estoppel-based liability.
Whether a party who consumed services under a contract to which it was not a signatory can escape liability by invoking the contract's terms
The appellants could not hide behind the contract between the respondent and Soteni because they consumed the services and undertook to pay for them.
Although the contract (DEX1) made Soteni responsible for payments, the services were rendered to and consumed by the appellants. The first appellant admitted in evidence that the services were rendered to the church and accepted to pay by installments if Soteni failed. That undertaking created liability notwithstanding the contract's allocation of payment obligations to Soteni.
Legal principles established
#- On a second appeal the Court of Appeal considers only issues of law, not findings of fact made by the two courts below.
- A person who represents himself or knowingly suffers himself to be represented as a partner is liable as a partner by estoppel to anyone giving credit on the faith of that representation.
- A partnership may be express or implied, and may be proved by the conduct of the parties and their mode of dealing with each other and with third parties.
Court orders
#- 1.The appeal is dismissed
- 2.The appellants to pay costs to the respondent
- 3.The respondent is awarded costs of the courts below
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu HCCA No. 115 of 2007
- Jurisdiction invoked
- Section 72 of the Civil Procedure Act (Cap 21) - appeal from every decree passed in appeal by the High Court on grounds of law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Manyasi v Judicial Service Commission & another (Civil Appeal 309 of 2012) [2017] KECA 442 (KLR)[2017] KECA 442 (KLR)14 Jul 2017
- Dhanji Vaghji & Company Limited v Occidental Insurance Company Limited [2015] KECA 307 (KLR)[2015] KECA 307 (KLR)23 Oct 2015followed
Cite this brief
#Cite this brief
Caselaw, "Mathew A. Ajuoga & 3 others v Bedrock Holdinngs Limited [2013] KECA 229 (KLR)", Case Analysis (2013). Civil Appeal No. 158 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/229/eng@2013-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.