Ruth Chepkemoi Chesimet & another v Kirui Arap Chepwony [2018] KEELC 3432 (KLR)
The bottom line
#The Environment and Land Court in Kericho dismissed a widow's partnership claim over two plots, ruling it was already settled by a prior consent order.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The claim is res judicata because a consent order in Kericho HC Misc Application No. 117 of 2005 (J.R), adopted on 20th June 2016 and never set aside, already determines how the two suit properties are to be shared between the same parties.
The court perused the file in the prior judicial review application and confirmed the consent dated 31st March 2016 was adopted as an order of the court on 20th June 2016 and has not been set aside. The consent provided for tenancy in common of L.R 8839/50 and sole proprietary rights of the applicant over L.R 631/35/IV, directly covering the matter now raised.
Existence of a partnership
No partnership existed between the deceased and the Respondent; their relationship amounted to no more than 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Applying Section 3(1) of the repealed Partnership Act Cap 29, the court found no evidence of persons carrying on business in common with a view of profit. Section 4 rules state that part ownership or sharing of returns does not of itself create a partnership. The oral agreement alleged was not proved by material terms through conduct and dealings, per J K Kinoti v G J Kibanga.
Assets and liabilities of the alleged partnership
The question became moot following the finding that no partnership existed.
Having found no partnership between the Respondent and the deceased, there was no partnership whose assets and liabilities could be taken into account, valued or distributed. The court expressly noted this finding disposed of the suit, but nevertheless went on to determine the remaining issues before dismissing the suit with costs.
Legal principles established
#- Res judicata is anchored on Section 7 of the Civil Procedure Act and bars a suit whose matter was directly and substantially in issue in a former suit between the same parties, litigating under the same title, heard and finally decided by a competent court.
- Joint ownership of property does not of itself create a partnership; an oral partnership must be proved through material terms evidenced by conduct and dealings between the parties.
- A partnership is the relation subsisting between persons carrying on business in common with a view of profit.
Court orders
#- 1.The applicants' suit is dismissed with costs to the Respondent
- Jurisdiction invoked
- Order 37 Rules 1 and 10 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act; 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 Kirui Arap Chepwony [2018] KEELC 3432 (KLR)", Case Analysis (2018). Originating Summons (Kericho Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3432/eng@2018-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.