Ruth Chepkemoi Chesimet & another v Kipkurui Arap Chepwony [2018] KEELC 2845 (KLR)
The bottom line
#The Environment and Land Court in Kericho dismissed widows' partnership claim over two properties, ruling that jointly owning land does not automatically make you business partners.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The claim is res judicata because the sharing of the two suit properties was conclusively settled by a consent order adopted in Kericho HC Misc Application No 117 of 2005 (J.R) between the same parties, which remains un-set-aside.
The court perused the earlier file and confirmed that the consent order of 31st March 2016, filed on 17th May 2016, was adopted as an order of the court on 20th June 2016 and had not been set aside. That consent allocated tenancy in common of L.R No. 8839/50 to the exparte applicant and interested parties and sole proprietary rights over L.R. No. 631/35/IV to the applicant. Section 7 of the Civil Procedure Act bars retrying matters directly and substantially in issue in a former suit between the same parties, litigating under the same title, before a competent court and finally decided.
Existence of a partnership
No partnership existed between the deceased and the Respondent; the relationship was merely one of friends who jointly owned property, and joint ownership does not of itself create a partnership.
Applying Section 3(1) of the repealed Partnership Act, Cap 29, partnership requires persons carrying on a business in common with a view of profit. Section 4 provides that joint tenancy, tenancy in common or part ownership does not of itself create a partnership, nor does sharing of gross returns. Both parties admitted joint acquisition of L.R No. 8839/50, but the affidavit evidence did not show a business carried on in common. An oral partnership, being possible, had to be proved by material terms evidenced by conduct and dealings, which the Applicants failed to do.
Assets and liabilities of the alleged partnership
The question of the partnership's assets and liabilities became moot once no partnership was found to exist.
Having found that no partnership subsisted between the Respondent and the deceased, the third issue, concerning the identification and distribution of partnership assets and liabilities, fell away as dependent on the existence of the partnership itself. The court noted that although the res judicata finding alone was sufficient to dispose of the suit, it nevertheless determined the remaining issues, concluding that the Applicants had failed to prove their case.
Legal principles established
#- Co-ownership of property, whether as joint tenants or tenants in common, does not of itself create a partnership
- An oral partnership agreement must be proved by the party asserting it, through the material terms, the parties' conduct and their mode of dealing with each other and with others
Court orders
#- 1.The applicants' suit is dismissed
- 2.Costs of the suit awarded to the Respondent
- Jurisdiction invoked
- Order 37 Rules 1 and 10 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act, CAP 21; Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth Chepkemoi Chesimet & another v Kipkurui Arap Chepwony [2018] KEELC 2845 (KLR)", Case Analysis (2018). Originating Summons (filed 28th February 2017), Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2845/eng@2018-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.